Supreme Court case is about more than abortion

The Supreme Court heard arguments Monday in what is being called an abortion case. In fact, its implications are far broader: The justices will determine whether states can infringe constitutional rights while courts watch impotently.

The hearing involved Texas’ S.B. 8 abortion law, which the state Legislature drafted specifically to avoid judicial review before it took effect. The law bars abortions after fetal heart activity is present, which is about six weeks. Many women do not know they are pregnant at that stage. Under normal circumstances, abortion providers would sue the state officials responsible for enforcing such a ban, and federal courts would immediately strike down such a blatant violation of Roe v. Wade. But Texas's law charges no state entity with enforcing it. Instead the law empowers private citizens to sue anyone involved in performing a restricted abortion. Those successfully sued would have to pay “at least” $10,000, not to mention attorneys' fees, to the vigilantes to whom the state has farmed out enforcing its abortion ban.

The point is to provide abortion providers no obvious person to sue to stop the law. If state officers are not responsible for enforcing it, courts have no specific party to instruct to stand down. Once someone performs an abortion and is sued for it, that defendant can raise a constitutional challenge as their case is adjudicated. In fact, lawsuits have already been filed against a Texas abortion doctor who defied the law. But sorting that out could take a long time. Texas women’s abortion rights are being infringed every day the law remains in force.

On Monday, abortion providers and the federal government argued that Texas's brazen end run around judicial review cannot be legal. If the justices fail to condemn the state's scheme, Justice Elena Kagan argued, “Essentially, we would be inviting states ... to try to nullify the law this court has laid down. ... There is nothing the Supreme Court can do about it. Guns, same-sex marriage, religious rights, whatever you don't like.”

Many on the court appeared troubled. Justice Brett M. Kavanaugh said the state was exploiting a “loophole.” Justice Amy Coney Barrett lamented that abortion providers could not get adequate judicial review. The court must close this loophole.

The court will decide whether states can infringe constitutional rights.