Understanding the Supreme Court’s Ruling in the Texas Abortion Case

| September 11, 2021


On September 1, 2021, the United States Supreme Court in Whole Woman’s Health v. Jackson, declined to issue an injunction against enforcement of a new Texas abortion law (S.B. 8).  Media reports were full of excited or anxious reports of this might foretell the overturning of Roe v. Wade.  Some in Congress are calling for national legislation to secure abortion rights.  But any reading of the Court’s opinions shows that  the decision was made on procedural grounds only, and did not reach (or even try to reach) the merits of the law.


The Texas statue has two novel features.  First, it 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.

The second 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 then requires a court to award at least $10,000 in damages to the person bringing the action plus attorney fees. You can read the full text of the Texas statute here.


Why was this enforcement scheme enacted?  Because the Fourteenth Amendment to the United States Constitution (which is the basis used by the judicial decisions that create 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.

Chief Justice Roberts wrote concerning this law:

The statutory scheme before the Court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime. The State defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place.


The case was before the Supreme Court on an application for injunctive relief: to issue an order that the law could not be enforced while it was being litigated.  The Supreme Court refused to do so, although Chief Justice Roberts, and Justices Breyer, Sotomayor and Kagan would have issued the injunction.

The basis for this decision was wholly procedural.  The Court’s brief explanation clarified that it can only enjoin persons, it cannot enjoin laws (“federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves”).  There was no action for the Supreme Court to take, until someone actually tried to bring suit under the law.  Federal courts do not decide cases in a vacuum, or rule on theoretical arguments.   It must wait for an actual “case or controversy.”

The Court repeatedly made clear that it had grave concerns with the Texas law, expressly stating:

“The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue.”

“In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”

“Although the Court denies the applicants’ request for emergency relief today, the Court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue.”

Meanwhile, a Texas state court has already issued a temporary restraining order against the law, that (as this article is being written and published) is awaiting a more extended hearing.


But all of this being said, respectfully, Texas S.B. 8 is an extremely bad idea, and deserves a quick constitutional burial.  Abortion is an issue that stirs passions like few others, but whether you are pro-life, pro-choice, or indifferent, we should all recognize that S.B. 8 does great violence to constitutional rights.

What it is does is to allow any person (and hundreds of persons) in the state to bring a law suit and collect $10,000 against a physician who has performed an abortion, and anyone who “aids or abets” the performance of such an abortion regardless of whether they knew the law was being violated  – which would include the nurse, the receptionist at the clinic, the person who drove the woman to the clinic, and maybe even the parent, husband or boyfriend who encouraged her.

The question of whether abortion is a protected constitutional right is vigorously debated with a major case before the Court in the coming term.  But consider what such a law would mean to those constitutional rights that are expressly enshrined in the Bill of Rights.

Today, state governments cannot interfere or restrict in anything done within churches – because the First Amendment protects both freedom of religion and freedom of speech.  A state government cannot declare any church doctrine illegal or punish any pastor for the context of the sermon.

But consider what would happen if a state decided to copy what is done in Texas S.B. 8 (Chief Justice Roberts warned that this bill could become “a model for action in other areas.”).  What would happen if a state legislature determined that although it could not restrict or punish speech from the church pulpit, instead it allowed a civil cause of action against any church or church official who (for example) “spoke in a derogatory or condemning way against any person based on race, other religion or creed, nationality or sexual orientation.”  Consider what would happen if there was a minimum of $10,000 damages against anyone who aided such speech – creating causes of action against ushers, musicians, and trustees of a church. The church would be forced to restrict its speech or close its doors.

If constitutional rights can be so easily circumvented, the Bill of Rights, with its protections of the right to bear arms, to assemble, to a free press and other rights sacred to American liberty would all but cease to exist in some states hostile to their exercise.  The United States would become a patchwork of states that could extinguish the exercise of those rights in any way the majority found offensive.

The issue of abortion stirs great passions.  But even the greatest zeal to protect the unborn should be exercised in a way that is both effective and intelligent. Texas S.B. 8 is neither.

Category: Law

About the Author ()

Read more articles by this author.
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.