Rights, Remedies, and Texas’s S.B. 8

Abstract

It is not every day that a state enacts a law that is designed to prevent people from exercising a constitutional right. The Texas statute known as S.B. 8 is such a law. It prohibited pre-viability abortions at a time when that prohibition was unquestionably inconsistent with the SupremeCourt’s decisions. S.B. 8 then accompanied the prohibition with procedural rules that served no discernible purpose except to make it very difficult for anyone to challenge the law. The question that a law like that raises—or ought to raise—is whether our system of constitutional remedies has the resources to prevent a state from doing what Texas did. InWholeWoman’s Health v. Jackson, the case in which the Supreme Court upheld S.B. 8, the Court did not ask that question. As a result, the Court gave the wrong answers to the questions it did ask. The answers it gave may also suggest that the Court is prepared to limit federal courts’ power to enforce the Constitution in ways that go beyond the specific circumstances of S.B. 8. Those limits, if the Court were to follow through on the suggestions in Whole Woman’s Health, would be inconsistent with established principles that are central both to enforcing constitutional rights and to the supremacy of federal law.