The Supreme Court Grapples with Constitutional Liberties and Authority (and also considers abortion)

| December 1, 2021

There is no issue of Supreme Court jurisprudence that invokes more passion than the question of a State’s ability to limit or prohibit abortion.  Political argument and media coverage have made the issue a contest between only two alternatives: are you Pro-Life or Pro-Choice?  From this has come the unfortunate misunderstanding in the mind of the American public that justices on the United States Supreme Court are either one or the other, and will always vote based on that established position.

But such was clearly not the case as the Court has faced two highly publicized cases: Whole Woman’s Health v. Jackson (concerning the Texas law known as S.B. (Senate Bill) 8), and Dobbs v. Jackson Women’s Health Organizations (concerning the Mississippi ban on abortion after 15 weeks of pregnancy).  The first it decided with lightning speed (considering the pace at which cases before the Court commonly move) and the other was argued on December 1, 2021 and is awaiting decision.  In both, there was relatively little argument about “a woman’s right to choose” or “the protection of the unborn” as the issue is commonly framed.  Texas S.B. 8 is the most controversial, unconventional, and notorious bill limiting abortion ever enacted.  And yet, as the legal arguments before the Court stretched for over three hours, the words “Roe v. Wade” were not mentioned once by any of the justices or any of the lawyers.

Because although the subject of both statutes was abortion, the core arguments turned on the jurisdiction of the Federal courts, matters of procedure and process, and the importance of the constitutional doctrine of stare decisis.  The arguments and opinions cited cases from the early 1800s, when the Supreme Court was first defining judicial authority; and the key case the Whole Woman’s Heath decision turned out not to be Roe v. Wade, but rather an obscure case decided in 1908 about rates charged by railroads, the case of Ex Parte Young.


Texas S.B. 8 effectively bans abortion after the detection of a heartbeat, which can be as early as the sixth week of pregnancy; and it requires the physician to check to see if there is a heartbeat before performing an abortion.  As such, it is a direct challenge to the standing judicial law, declaring that a woman has a constitutional right to an abortion during the first trimester, as part of her right to individual liberty.

But the novel aspect of the statute is that the law will be enforced “exclusively through … private civil actions.”  Performing the abortion will not be a crime or be prosecuted by the State.  Rather, any person (not an officer or employee of Texas government) can bring suit against any person or entity that “knowingly engages in any conduct that aids or abets the performance or inducement of an abortion” in violation of the law, “regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter.”

The law essentially creates a bounty system, and requires a court to award at least $10,000 in damages to the person bringing the action, plus attorney fees. There is no limit to the number of persons who can individually bring such a suit, and each one can bring it in his or her home county, even if the abortion provider does not operate there.  Finally, a decision in one case has no preclusive effect.  In other words, 100 people can bring 100 suits in all counties of Texas, all concerning the same abortion, each seeking $10,000 against a doctor who performed the abortion and the nurse who assisted.  If (for purposes of illustration) the doctor and nurse win the first suit by proving to the satisfaction of a jury that there was no heartbeat,  they then must still must defend the other 99 cases, where the same question could be decided 99 different times with different results.

The purpose of the law is to frighten any clinic, any doctor, any nurse, any receptionist, any administrator from participating in an abortion practice because any one (and all) of them can be sued thousands of times by persons all over the state.  In legal terminology, this is called “chilling” the exercise of the right.

The law is written this way to avoid judicial review in Federal Court.  The Fourteenth Amendment to the United States Constitution (which is the basis used by the judicial decisions that created and maintain abortion rights) restricts what state governments can do.  Texas S.B. 8 is written so that the state government is not acting to restrict or criminalize abortion.  Rather it has delegated to private individuals the right to bring civil suits, and determined that damages will not be less than $10,000 per person/per incident.  In the words of Chief Justice Roberts: “The State defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place.”


A key question before the Supreme Court was that it was being asked by Whole Woman’s Health (an abortion provider) to enjoin the law before any suit had been brought under it.  Normally, a Federal court must wait for a case to actually be brought (in this case, to wait for someone to actually sue a doctor, nurse, or clinic under the statute) before it determines if a law is constitutional.    The problem is that no case may ever be brought because no one will risk being sued thousands of times, and thus the law accomplishes its purpose without ever being tested in court.

This is why the case that the justices and the lawyers debated for three hours was not Roe v. Wade, but Ex Parte Young.  That case had established a precedent that a Federal Court, to protect Federal constitutional rights, could preemptively enjoin State officials from the enforcement of an unconstitutional law.  The key points here are that the Court could act preemptively (meaning before someone sought to enforce the law) to enjoin State officials.  But under S.B. 8, were there any State officials to enjoin if the law suits were brought by private citizens?


The Supreme Court’s decision produced four separate opinions, but general agreement.  Eight justices agreed that the Texas statute could not insulate it from pre-emptive judicial review and could not hide the purpose of law behind it’s private bounty system of enforcement.

Five justices decided that the proper action was to follow established procedure, return the case to the lower court to let the matter play out in due course.  Chief Justice Roberts, in his concurring opinion explained:

Texas says that the law also blocks any pre-enforcement judicial review in federal court. On that latter contention, Texas is wrong. As eight Members of the Court agree …  petitioners may bring a pre-enforcement suit challenging the Texas law in federal court under Ex parte Young   … Given the ongoing chilling effect of the state law, the District Court should resolve this litigation and enter appropriate relief without delay.

In other words, follow the established procedures, and trust the lower courts to strike down S.B. 8, and deal with the issue from there.

Three justices (Breyer, Sotomayor, and Kagan) wanted to go further and declare S.B. 8 unconstitutional and unenforceable now, “to put an end to this madness” in the words of their dissenting opinion.  Only Justice Thomas would have allowed the law to stand for now, and his opinion made clear that he expected the Texas state courts to deal with it.

The arguments and opinions set the stage for the following case that came from Mississippi.


The Mississippi statute prohibits abortion after 15 weeks of pregnancy, and includes substantial exceptions for a woman’s life and health.   As such, it would prohibit only about 4% of abortions now being performed, and leave 96% to be still legal – and presumably more as women seeking abortion understood that they must proceed within that time limit.  So, in terms of a woman’s access to abortion and the number of abortions performed, it would seem to matter hardly at all.

So why is the case garnering national attention?  Why are there more than 140 amicus briefs filed with the Supreme Court?  Why will this maybe be the most important abortion decision (and maybe the most important decision generally) in decades?

There are two seminal abortion decisions: Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).  They determined that (i) a woman has an individual constitutional right concerning the continuation or termination of pregnancy that before viability (24 weeks) and (ii) that any restrictions on abortions in the first trimester of pregnancy are invalid if they were for  “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

Since 1973, “viability” has been the bright line of demarcation of the Court’s abortion jurisprudence. The Mississippi statute was enacted specifically to present the question: is the Court willing to move from “viability” to another line – from 24 weeks to 15? As Chief Justice Roberts asked during the oral arguments: … if you think that the issue is one of choice, that women should have a choice to terminate their pregnancy, that supposes that there is a point at which they’ve had the fair choice, opportunity to choice, and why would 15 weeks be an inappropriate line? … I’d like to focus on the 15-week ban because that’s not a dramatic departure from viability. It is the standard that the vast majority of other countries have.”


The arguments before the Court on December 1 saw the Justices break into three distinct groups.

They are those who contend that abortion is a medical procedure that impacts two irreconcilable interests: the right of the woman to liberty in the choice to continue her pregnancy and the right of the unborn to life.  Any line that is to be drawn (15 weeks, 24 weeks …..) is arbitrary, and so the decision should be left to the democratic and state institutions.  Justice Thomas has long expressed this view.  It was articulated during arguments by Justice Kavanaugh:

You make a very forceful argument and identify critically important interests that are at stake in this issue … and the reason this issue is hard, is that you can’t accommodate both interests. You have to pick. That’s the fundamental problem. .. Why should this Court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this? And there will be different answers in Mississippi and New York, different answers in Alabama than California, because they’re two different interests at stake and the people in those states might value those interests somewhat differently. Why is that not the right answer?

Justices Breyer, Sotomayor, and Kagan see this issue as national not local, and as one that has already been decided as a matter of constitutional law.  The prior decisions are binding on the Court through a doctrine called stare decisis..  In their view, the Court cannot just overturn a prior decision “if you get the critical fifth vote”, and especially a decision has been reaffirmed repeatedly for almost 50 years and is now imbedded into American society.  Justice Kagan took this position during the arguments:

Justice Breyer started with stare decisis, an important principle in any case, and, here …  especially so, to prevent people from thinking that this Court is a political institution that will go back and forth depending on what part of the public yells loudest and preventing people from thinking that the Court will go back and forth depending on changes to the Court’s membership.. … Some people think those decisions made the right balance and some people thought they made the wrong balance, but, in the end, we are in the same exact place as we were then, except that we’re not because there’s been 50 years of water under the bridge, 50 years of decisions saying that this is part of our law, that this is part of the fabric of women’s existence in this country.

In their view, “viability” is the line that everyone understands, and if the Court says that 15 weeks is acceptable, then Mississippi (or another state) will pass a law next week saying 14 weeks, or 12 weeks, and the Court’s decisions will lose all connection to constitutional issues on which they were grounded.

Between these two positions are the Justices that question whether things have changed since Roe v. Wade was decided in 1973.  Has medical science moved the potential for viability back from 24 weeks?  Have “safe haven” laws allowing parents to terminate parental rights by relinquishing a child removed the burden of parenting from unwilling mothers?


The popular conception is that the United States Supreme Court is made up of nine justices, and that five votes will decide any question.  Based on this idea, each seat is now fought over, and each side believes that it can win in court what it loses in Congress, if it can obtain “the critical fifth vote.”  The Mississippi statute is the latest and most transparent manifestation of this idea.  The Mississippi legislature was outspoken in that it passed its legislation believing that because the justices on the Court had changed, its decisions would change as well.

But this view is fundamentally wrong.  The constitution is designed to create a balance among the three branches of government, giving and restricting the power of each.  The legislature is the most powerful of the three – and so it is divided into two houses, both of which must agree, as a check on that power.

Likewise the Supreme Court has final say on the interpretation of laws and on what laws or practices are constitutional.  And so, to temper that great authority, the constitution has built in two great restrictions on its power.  The first is that the Federal courts have only the jurisdiction that is granted to them by Congress.  The courts cannot just make pronouncements and impose its will – it must handle the individual cases that come before it, one by one, and only within the bounds of the process given it by statute.  The second limit on that authority is that the Supreme Court is bound by its prior decisions in the absence of exceptional circumstances and changes.  There are not nine separate justices, rather there is one court.

The two cases that have come before the Supreme Court test the limit of the Court’s power, and whether the Court will act within those constitutional restrictions.  Each case concerns abortion, and in each case there is a substantial part of the public and some on the Court that want to resolve matters with one stroke.

Texas S.B. 8 is a great threat to constitutional liberties.  Justice Kavanaugh stated the issue clearly during the argument:

This will easily become the model for suppression of other constitutional rights, with Second Amendment rights being the most likely targets. And it could be free speech rights. It could be free exercise of religion rights. It could be Second Amendment rights. If this position is accepted here … it can be easily replicated in other states that disfavor other constitutional rights.

Chief Justice Roberts wrote in his opinion that “Indeed, if the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.”

They are right.  But while some on the Court wanted to “to put an end to this madness,” the majority decided to do that not by an immediate preemptive decree, but rather to open the door for the lower courts to issue injunctions on the cases that come before it, with clear guidance as to how they should rule.

The Mississippi statute invites the Court to reconsider its ruling in Roe v. Wade, and it indeed may articulate a new standard by which abortion decisions are judged.  The specific question (and the only question) on which it took certiorari is “whether all pre-viability prohibitions on elective abortions are unconstitutional.”

But the arguments showed a Court aware of the restraints created by precedent and deeply committed to the maintenance of constitutional jurisprudence.  Justice Breyer returned to this again and again during the arguments:

And it is particularly important to show what we do in overturning a case is grounded in principle and not social pressure, not political pressure. Only “the most convincing justification can show that a later decision overruling,” if that’s what we do, “was anything but a surrender to political pressures or new members.” And that is an unjustified repudiation of principles on which the Court stakes its authority.  … To overrule under fire in the absence of the most compelling reason, to reexamine a watershed decision, would subvert the Court’s legitimacy beyond any serious question.

The nation waits on these cases to play out. As decisions come, many will see them as a “Pro-Life v. Pro-Choice” result – while they will be anything but.

Category: Law

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Email | Website | Thomas Schetelich is a founding principal in the law firm of Ferguson, Schetelich & Ballew in Baltimore, Maryland, and a member of the United States Supreme Court Bar. He heads both the firm’s corporate/ business law practice and its personal legal services department. He is an AV rated attorney awarded for highest standards of professional skill and ethical practice. Mr. Schetelich devotes much of his practice to assisting charitable and religious organizations, and is the President of The Christian Professional Network. He is a frequent speaker on Biblical and legal matters throughout the United States.