Supreme Court Hears DOJ Challenge to Texas Abortion Ban, Considers Revival of a Jim-Crow-Era Tactic to Circumvent Constitutional Rights

“Texas’s assertion that federal courts are powerless to halt its ongoing constitutional violations is both wrong and dangerous.”

—Justice Department brief in United States v. Texas

After the decision on Whole Woman’s Health v. Hellerstedt Texas abortion case outside the Supreme Court, Washington, D.C., in June 2016. (Adam Fagen / Flickr)

The U.S. Supreme Court heard oral arguments Monday morning in two cases challenging the Texas abortion ban. In a brief defending the law, Texas attorney general Ken Paxton made the preposterous argument that the U.S. government does not have the power to sue Texas to stop the state’s blatantly unconstitutional abortion ban from going into effect and causing irreparable harm to women in the state. 

He also argued abortion providers do not have the right to challenge the law’s constitutionality until after they violate it—for which the law imposes ruinous financial penalties. 

The law on its face does not allow enforcement against the women whose constitutional rights are violated, also barring them from challenging the law. 

By enacting S.B. 8, Texas Republicans have revived a tactic from the playbook of 1950s segregationists, who attempted to circumvent Black Americans’ constitutional rights by passing racially discriminatory laws with private enforcement mechanisms—just like in the Texas abortion ban at issue in Monday’s case. A past Supreme Court shut down this tactic in a series of cases at the time. 

But will the current Court do so again? Will they shut down this attempt to use abortion as a Trojan horse to finally defeat the constitutional rights of Americans today? 

If five of the six Republican anti-abortion Supreme Court justices agree with Paxton’s shocking argument, Americans will lose the right to challenge unconstitutional laws—not only in the area of abortion but in other areas, including the right to vote, to speak freely, to marry, to worship and to bear arms. States will be able to violate people’s constitutional rights with impunity.

“Though this is in one sense about abortion, it is really about much more,” the dean of Berkeley Law School Erwin Chemerinksy told Ms. “It’s about: Can the state adopt a law that blatantly violates the Constitution and then immunize itself from federal court review? That’s what this case is really about. Ultimately, it’s about whether states have to follow the Constitution. It’s about the very structure of American government.” 

The Parties’ Arguments

The Supreme Court on Monday heard oral arguments in two cases—United States v. Texas and Whole Woman’s Health v. Jackson—both challenging the Texas law S.B. 8, which bans most abortions after six weeks of pregnancy. Texas legislators designed the law to evade federal court review by creating procedural obstacles to challenging the law. 

An anti-abortion majority of the Supreme Court justices used these procedural hurdles to justify allowing the law to go into effect on September 1 and again on October 22, despite decades-old precedents establishing a constitutional right to abortion. Since then, abortion access in the state has drastically decreased.

In U.S. v. Texas, the Justice Department argued the Texas law directly conflicts with the Supreme Court’s interpretation of the 14th Amendment in the cases of Roe v. Wade and Casey v. Planned Parenthood, which prohibit states from banning abortion before fetal viability—around 24 weeks. They argue the law also violates the U.S. Constitution’s Supremacy Clause, which establishes federal law as the “supreme law of the land”—barring state laws in conflict with the U.S. Constitution.

“Article Six of the Constitution says that the Constitution is the supreme law of the land, binding on all states,” Chemerinksy told Ms. “If Texas can adopt this law, and not be challenged in federal court, we’ve shredded the Constitution.”

“If Texas can adopt this law, and not be challenged in federal court, we’ve shredded the Constitution.”

Texas lawmakers wrote S.B. 8 to get around the 14th Amendment, which applies only to state action, by barring state officials from enforcing the law and deputizing private individuals to act as bounty hunters for the state. 

The law allows any private individual to sue health care providers who perform a prohibited abortion or someone who “aids and abets” another person to obtain one. The law rewards successful plaintiffs “at least $10,000” plus attorney fees and bars defendants who win cases from getting legal fees. 

Texas argued the Justice Department can’t sue the state to stop the law because the state has no power to enforce the law—only private parties can do that by suing—and so Texas is the wrong defendant.

In its brief to the Court, the Justice Department argued S.B. 8 was designed to nullify the Supreme Court’s precedents and to “shield that nullification from judicial review.” 

The Women’s March in D.C. on Oct. 2. (Courtesy of the Women’s March / Kisha Bari)

“The state designed S.B. 8 to ensure that the threat of enforcement suits will deter covered abortions, such that enforcement suits and the opportunity to raise a constitutional defense will be rare,” argued the Justice Department. 

“So far, it has worked. The threat of a flood of S.B. 8 suits has effectively eliminated abortion in Texas at a point before many women even realize they are pregnant, denying a constitutional right the Court has recognized for half a century,” said the Justice Department. “Yet Texas insists that the Court must tolerate the State’s brazen attack on the supremacy of federal law because S.B. 8’s unprecedented structure leaves the federal Judiciary powerless to intervene.”

In a brief filed with the Court, five leading constitutional law scholars, including Chemerinksy, argued that Texas cannot so easily obscure state action and avoid a judicial review of a blatantly unconstitutional law. 

“The State makes its courts available to private parties to implement a state policy of preventing the exercise of constitutional rights, while restricting those courts from exercising their obligation to respect the Constitution in their judgments. In short, Texas has provided the apparatus that chills the exercise of constitutional rights.”

“Insulating state laws from meaningful judicial review flouts the bedrock principle that there must be some mechanism for challenging unconstitutional state action in order to ensure the supremacy of federal law and the rule of law in general,” argued Chemerinsky and his colleagues.

The Texas’ attorney general Ken Paxton responds by arguing that the only way for the Court to hear a challenge to the law would be for abortion providers to violate the law, get sued in state court and then present their constitutional arguments as defenses. 

“I think it is so essential the federal courts be able to declare unconstitutional state laws and enjoin state laws, that somebody should never have to violate a law in order to challenge it,” said Chemerinsky.

Forcing abortion clinics to violate the law in order to challenge it would subject them to potentially bankrupting liability as well as huge legal fees to defend themselves, which the Texas law explicitly makes unrecoverable even if they win. This potential liability is exacerbated by bizarre and punitive provisions of the law such as allowing repeat lawsuits by different parties for the same abortion, even if the defendant has won previous suits, and retroactive liability if a defendant acts in compliance with a court ruling that is later overturned.

“By exposing abortion providers to crippling liability, thwarting pre-enforcement review, and creating an incentive for countless private parties to sue providers repeatedly under skewed procedures favoring plaintiffs, the law aims to chill the provision of constitutionally protected abortion care,” argued the Justice Department.

S.B. 8, and Paxton’s interpretation of the law, creates a catch 22: abortion providers cannot challenge the law until they break the law, but if they break the law, they are subject to devastating liability, even if they win in court. Furthermore, under the state’s argument, pregnant women seeking abortion, who are exempt from being sued under the law, would have no way to challenge the law and vindicate their constitutional rights.

“If Texas is right, no decision of this court is safe,” said the Justice Department in their brief. “States need not comply with, or even challenge, precedents with which they disagree. They may simply outlaw the exercise of whatever constitutional rights they disfavor; disclaim enforcement by state officials; and delegate the state’s enforcement authority to members of the general public by empowering and incentivizing them to bring a multitude of harassing actions threatening ruinous liability—or, at a minimum, prohibitive litigation costs.”

In essence, Texas is arguing that the Justice Department does not have standing to sue Texas because the state lacks power to enforce the law—they delegated it to private parties. They argued that no one can bring a pre-enforcement constitutional challenge to the law, but they must wait until after the law is enforced, which would require someone to violate the law and then a private individual to sue them. Only then could the defendant who is sued assert a constitutional challenge to the law. The argument ignores the fact that state action pervades the entire field: the state made the law, state courts enforce the law and the state authorizes bounty hunters to act on its behalf to enforce the law. 

Texas is arguing the Justice Department does not have standing to sue Texas because the state lacks power to enforce the law—they delegated it to private parties.

The Justice Department argued S.B. 8 is also preempted by federal law, which charges federal agencies with facilitating, funding and reimbursing, and that it violates the federal government’s intergovernmental immunity because the state authorizes private citizens to sue the federal government.

A Court decision upholding the Texas strategy could even undermine Congressional authority to pass laws against discrimination because states could simply “overturn” them by passing a law that allows discrimination and is enforced by members of the public.

“Texas’s assertion that federal courts are powerless to halt its ongoing constitutional violations is both wrong and dangerous,” argued the Justice Department.

In the second case challenging S.B. 8 before the Court Monday—Whole Women’s Health v. Jackson—abortion providers sued state judges and court clerks in Texas to stop lawsuits authorized by S.B. 8. On behalf of providers, the Center for Reproductive Rights (CRR) argued, “The Court has long recognized that pre-enforcement challenges may be necessary to ensure effective vindication of a constitutional right, because threatened enforcement alone will often chill the exercise of that right.”

In support of its position, the CRR cited the 1953 case of Terry v. Adams, where the Supreme Court struck down a Texas white primaries law that attempted to use private enforcement tactics to preserve unconstitutional discrimination against Black people. Upholding the private enforcement tactic, they warn, could undermine a range of constitutional rights, including the right to speak freely, to bear arms, to vote, to worship and to marry.

“If the Court does not allow these suits, the implications are far greater than abortion,” Chemerinsky told Ms. “A state could adopt a law creating civil liability for performing a same-sex wedding, or for owning a gun, or for criticizing the governor.”

Despite these dire threats to the rule of law, the Supreme Court has allowed anti-abortion advocates to redeploy this failed Jim-Crow-era tactic to violate women’s constitutional right to abortion. As a result, the number of legal abortions in Texas plunged from 5,377 in August to 2,164 in September, and experts anticipate it will continue to drop if the ban remains in place.

At Monday’s hearing, the Justice Department and CRR asked the Supreme Court to overturn the Fifth Circuit’s ruling to vacate a Texas federal court’s preliminary injunction against enforcement of S.B. 8 pending a full hearing on the merits. 

To preserve the U.S. Constitution and our federal system of government, the Court must not only find that the federal government and providers have standing to challenge S.B. 8—they must block the law now before more Texans suffer severe and irreparable harm to their constitutional rights. 

“Ultimately, this is about can a state blatantly violate the constitution and not be subject to suit in federal court,” said Chemerinsky. “My hope is that even the conservative justices who are most hostile to abortion rights recognize that we can’t give states that kind of power to disregard the Constitution.”

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Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman professor of American Studies and the chair of the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at or follow her on Twitter @CarrieNBaker.