The Supreme Court Could Not 'Block' Texas' Fetal Heartbeat Law | Opinion

On Wednesday, the U.S. Supreme Court declined to intervene in a challenge to S.B. 8, Texas' new abortion law. This unique statute empowers private citizens to sue those who perform or facilitate abortions. President Biden ripped the 5-4 decision, charging that the conservative justices followed "procedural complexities" "rather than use its supreme authority to ensure justice."

Biden is wrong. The Court has no sweeping, majestic power to "ensure justice." Indeed, it is a myth that courts can "strike down" laws at all. Rather, judges have a very limited power: to enjoin specific government officials from enforcing laws against specific litigants. The judiciary cannot simply erase statutes from the book. And when the government plays no role at all in enforcing a statute—as with S.B. 8—courts cannot "block" that law from going into effect.

In future cases, the courts can assess the constitutionality of S.B. 8. For now, the Supreme Court was right to reject the premature challenge.

In recent years, abortion laws in Texas have all met a similar fate. At each session, the conservative legislature imposes a suite of new restrictions on abortion. But before the law even goes into effect, Planned Parenthood and other abortion providers sue the Texas attorney general. Federal judges in Austin agree, and prevent the attorney general from enforcing the law. And as the litigation drags on for years, all the way up to the Supreme Court, the law remains a dead letter.

But this session, Texas tried something new. S.B. 8 allows private citizens to sue those who perform abortions. The government itself is expressly barred from enforcing the law.

With a clever flip, S.B. 8 spiked Planned Parenthood's playbook. It is now impossible to sue the attorney general, because the attorney general cannot enforce the law. The law can only be enforced by millions of Texans. And there is no way to know in advance who would sue which abortion providers. So Planned Parenthood tried a different strategy: It sued Judge Jackson of Tyler, Texas, who might one day hear a case involving S.B. 8.

This suit never made any sense. Judges do not enforce laws. They can only adjudicate specific disputes between plaintiffs and defendants. If a Texan actually sued Planned Parenthood for performing a seven-week abortion, the judge would have to dismiss that suit. After all, S.B. 8 expressly stipulates that citizens' suits must comply with Roe v. Wade. And you don't sue a judge to stop him from hearing a case in the first place. You let him decide and then appeal, if need be.

Despite these problems, a federal judge in Austin still ruled that Planned Parenthood could sue Judge Jackson. The Austin court was poised to block Judge Jackson from even accepting a case emanating from S.B. 8. But the U.S. Court of Appeals for the Fifth Circuit promptly put that federal court's proceedings on hold. Planned Parenthood then filed an emergency appeal to the Supreme Court.

This appeal was doomed from the start. Because Planned Parenthood only sued one judge, the Supreme Court could only have issued an order against that single jurist. No other judge in Texas was a named party to the case. An order against Judge Jackson would have been meaningless for Planned Parenthood, as all other judges in the state would have been able to accept suits based on S.B. 8. The abortion rights group was stuck.

Late Wednesday evening, the Supreme Court split 5-4. The majority opinion was joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. The conservative quintet recognized that Planned Parenthood likely could not prevail. The justices explained that "federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves." In short, the justices cannot erase S.B. 8 from the statute books. They can only prevent a specific person—in this case, Judge Jackson—from hearing a case involving S.B. 8 against Planned Parenthood and other groups. That's it. Even then, the Supreme Court recognized that the suit against Judge Jackson was on shaky ground, as "it is unclear whether" he "can or will seek to enforce the Texas law against" the abortion clinics.

The Supreme Court could not, as President Biden suggested, exercise "supreme authority to ensure justice could be fairly sought." No such power exists. In this case, the Court could only enter an order against one state judge—and that judge had no role in actually enforcing the law. The justices were absolutely correct for declining to intervene.

Indeed, this case should have been unanimous. Alas, it was not. Chief Justice John Roberts and the Court's three progressives each wrote separate dissents. Chief Justice Roberts would have "grant[ed] preliminary relief to preserve the status quo ante." But a remedy to preserve the status quo ante would be impossible in this case, which only concerned Judge Jackson. Roberts wrote that he would "preclude enforcement of S.B. 8 by" Judge Jackson. But, again, Judge Jackson cannot actually enforce the law in the first place. The chief justice, usually a stickler for procedure, was willing to invent new procedural rules to stop what he saw as an "unprecedented" law.

Justice Sonia Sotomayor made similar mistakes in her own dissent. She said the "Court should have stayed implementation of" S.B. 8. But courts cannot block laws. Courts can only prevent specific parties from enforcing the law against specific litigants. None of the dissenters had any clue how to actually stop S.B. 8—not even Justice Elena Kagan, a brilliant former civil procedure professor. She had bupkus. Indeed, Chief Justice Roberts acknowledged that Texas "may be correct."

Why, then, did the dissenters offer a remedy that simply could not be granted? This quartet endorsed President Biden's mythical account of the Supreme Court. At least three of the four dissenters deeply felt that this law was substantively unjust, so there must be a way to stop it. But not every alleged wrong has a remedy in federal court. In time, actual Texans will file suit against abortion clinics, and those who fund the organizations. And the courts can then decide, at that time, if those suits are consistent with Roe v. Wade and its progeny.

But for now, the Supreme Court was right to stay on the sidelines.

Josh Blackman is a constitutional law professor at the South Texas College of Law Houston and the co-author of An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know.

The views expressed in this article are the writer's own.