SCOTUS hears oral arguments over SB 8 — abortion rights hinge on unelected judges’ interpretation of constitutional technicalities


On November 1, the Supreme Court heard oral arguments in two lawsuits challenging Texas’s extreme anti-abortion “heartbeat bill” SB 8, which went into effect September 1. SB 8 makes abortions illegal in Texas past the point of fetal “cardiac activity,” or around six weeks. Most people don’t even know they’re pregnant at six weeks, making SB 8 virtually a total abortion ban. 

SB 8 is already having a profound impact on the lives of working class people seeking abortions in Texas. Prior to the passage of SB 8, approximately 85-90% of people who obtained abortions in Texas were at least six weeks into their pregnancy. In the first month of the ban, Texas abortion providers reported a 50% drop in the number of abortions performed compared to last September. Since the law went into effect two months ago, many abortion providers across Texas have shuttered, forcing those seeking abortions to travel many hours out of state or resort to less-safe underground procedures. The small number of facilities in nearby states are straining capacity, evidenced by long wait times for appointments. 

Despite the catastrophic impacts of SB 8, the Supreme Court has decided to intervene not because SB 8 is a gross violation of women’s basic rights and autonomy. Rather, both cases the court has agreed to hear narrowly concern SB 8’s enforcement mechanism and whether the federal government or abortion providers can bring suits against the ban in federal court.

Fundamental rights hinging on constitutional technicalities

While SB 8 plainly undercuts Roe v Wade which legalized abortions up to viability, or about 24 weeks, the Texas law was carefully engineered to evade challenges in federal court by exploiting a loophole within the United States’ archaic and convoluted legal system.

In 1908, the Supreme Court established that individuals have a right to sue and stop government officials from enforcing unconstitutional laws—but they can only bring suits against government officials directly involved in the enforcement of the unconstitutional law. 

SB 8 utilizes a new enforcement mechanism—the law deputizes private citizens to enforce it. Under SB 8, “any person, other than an officer or employee of state or local government,” can bring a civil suit against anyone believed to have “aided or abetted” an unlawful abortion. They also get a bounty of at least $10,000 per unlawful abortion. If they lose or the case is thrown out in court, the suing party doesn’t face any penalty. The party being sued, on the other hand, is responsible for their own legal fees even if the suit is thrown out. 

By passing on the enforcement of the law from the state’s hands to private citizens, the right-wing extremists behind SB 8 are trying to cut off all avenues to challenge the blatantly unconstitutional law in federal court.

For nearly three hours, the Supreme Court heard arguments from lawyers on both sides of the case. The two suing parties are a broad coalition of Texas abortion providers and the U.S. Justice Department. The defending party is the state of Texas. 

In itself an inherently arch-reactionary institution, the Supreme Court now leans particularly hard to the right after Trump appointed three justices. The court now composes six hard-right reactionaries and three centrists (too generously called “liberals”). Five of the justices voted against stopping SB 8 from taking effect in September while its legality was argued in court. However, comments made by several of the ultra-conservative justices indicated it’s possible some may consider ruling against Texas in this case. 

Amy Coney Barrett expressed discomfort with a federal court being barred from hearing the challenge and questioned whether constitutional grievances could be sufficiently “aired” in state courts. Chief Justice John Roberts also pushed back on Texas’ arguments at points. Brett Kavanaugh worried that other states could copy the enforcement mechanism of SB 8 law to restrict other rights, like Second Amendment or Free Speech rights.

Our rights can’t be left to the Supreme Court

As women around the country and especially in Texas anxiously await the Supreme Court’s ruling, for most of these justices, the real impacts of SB 8 on the people of Texas are not of the remotest concern. The wildly complex and convoluted nature of the U.S. legal system lends false legitimacy to the Supreme Court, making it appear as if the court is caught up in important deliberations based on timeless principles of justice. In reality, the Supreme Court—unelected, unaccountable, and untethered to the realities of life for working-class people in this country—is an entirely illegitimate institution. 

While the fight to overturn SB 8 plays out in the courts, Congress has a direct avenue to end the tug-of-war over abortion rights once and for all by legalizing abortion. In September, the U.S. House of Representatives passed the Women’s Health Protection Act which would legalize abortion in a statute equally binding everywhere in the country. All that is needed now is for the Senate to pass it, and the president to sign it. The Democrats control the House, the Senate, and the White House. If they wanted to respond to the urgent crisis for women in Texas and across the country and push this through, they could. 

The reality is that the Democratic Party will only take the action they feel they have to take. It will take a mass, broad-based, and militant movement demanding abortion as an unassailable right to force the Democrats to stand up in the face of right-wing opposition and make the Women’s Health Protection Act a reality.

We need a movement for abortion rights now, and the fight can’t stop there. We need a government that actually represents the interests of the people of this country. We need a legal system based on the values and needs of the majority. We need a healthcare system that exists to provide for the health of the people. We can do away with the institutions that don’t serve us and build new ones that do.