Supreme Court to Pregnant Texans: "Tough Shit."
On September 1st, the Supreme Court allowed SB8, the Texas anti-abortion law, to remain in place, and the Court did it again yesterday. This is disgusting, but hardly surprising, news. Only the most cockeyed optimist was hoping for relief from that contemptible gang of constitutional scofflaws, aka, the highest court in the land. The case is now on a fast track, to be argued next month with just one issue: whether the federal government has the right to challenge the state law. Only if the Court answers that question, “Yes,” can the case go back to the lower court to rule on the constitutionality of SB8 and decide whether Roe v. Wade is toast. As for now, if you’re a pregnant Texan and don’t want to be, the Supreme Court is just fine with Texas controlling your body.
Remember, SB8 was drafted with the express goal of evading federal review. In essence it says, hey, we’re the state of Texas, and in order to stop pregnant people from getting abortions (which the State of Texas can’t legally do) we’re siccing everyday Texans–butcher, bakers, forced baby-makers–on abortion providers, to do our dirty work for us. Their goal is really scary–to set a legal precedent allowing states to pass laws letting private citizens do what state actors can’t do: violate the Constitution. What if the State of Texas passed a law banning the practice of Islam and letting private citizens sue anyone who sets foot in a mosque? For $10,000 in damages. Who knows where this is going?
All I can say is that, as a general principle, federal courts do not like to be told that they don’t have power to rule on Constitutional questions. I was an appellate lawyer for 35 years, and, call me a cockeyed optimist, but I think the Court is going to allow this case to go forward and let the lower court at least rule on the constitutionality of SB8. As for the outcome of that case once it gets back to the Supreme Court, I’m not so optimistic.