This week, the Supreme Court will take up issues related to Texas’s new abortion law — Senate Bill 8.  There are several key things to know about this case.

First, this case has been expedited.  The Supreme Court turned down the request for a stay and granted review on the  “merits” on October 22.  The  Supreme Court ordered the parties to file the written arguments on the merits by October 27.  The Supreme Court will be hearing argument on November 1, just ten days after granting review.  By contrast, the “normal” schedule set forth in the rules (which is typically condensed somewhat for cases in which review is granted between October and January) establishes a minimum of 115 days between the grant of review and argument.  This expedited hearing, probably represents a compromise between the Justices that wanted to reinstate the trial court’s stay of the law and those that wanted to take this case in the ordinary course of Supreme Court review.

Second, the Supreme Court permitted the parties to bypass the Court of Appeals.  While the Fifth Circuit Court of Appeals (covering Louisiana, Mississippi, and Texas) has issued rulings on the stay entered by the trial court, it has not yet ruled on the merits of the case.  The Rules of the Supreme Court permit parties to ask to bypass the appellate court (a petition for certiorari before judgment), but the Supreme Court rarely grants that request.  Again, this decision probably represents a compromise between those that wanted to grant the stay (which would have been in effect until the Fifth Circuit decided the case) and those that wanted things to proceed in the ordinary course of review.   It may also reflect the view that the Supreme Court has of the Fifth Circuit.  There are several circuits known for their tendencies in litigation.  There are three or four perceived to be ultra liberal with the Supreme Court needing to frequently correct them.  The Fifth Circuit has the same reputation for being ultra conservative and has been frequently reversed on abortion cases.  Given this reputation, the Supreme Court may have decided that there was no need to see what the Fifth Circuit would write.

Third, while the review is “on the merits” of the “questions presented,” the questions presented are procedural.  The Supreme Court declined to grant the request of Texas to consider the constitutionality of Senate Bill 8 or to reconsider Roe and Casey.  The Supreme Court will be considering whether to modify Casey when it hears the challenge to the Mississippi abortion law in December.  On the substance, the Texas law is more restrictive than the Mississippi law.  In other words, while both ban abortion prior to viability, the Texas law bans abortion earlier in the pregnancy (almost at the very beginning) than Mississippi does.   If the Supreme Court rejects the Mississippi law, that would spell doom for the Texas law, but it is possible to establish a rule in the Mississippi case that would allow that law to stand but would not allow the Texas law to stand.  But the validity of the restrictions in the Texas law will be decided later.

What is also not being decided is the validity of the enforcement procedure in Senate Bill 8.  That procedure delegates enforcement to private individuals who otherwise have no connection to the person having the abortion.  This mechanism is an evolution of existing legal procedure.  Having private individuals enforce the law is not new, but, for the most part, it is currently limited to two types of situations.

First, it is not unusual to create a law that gives rights to certain individuals or groups like laws prohibiting discrimination or giving workers the right to join a union or be paid the “prevailing wage” for their work on a public works project.  These statutes normally give the person protected by the law the right to sue if the law is violated.  But such actions fall within the normal course of legal practice.  In most circumstances, a person who is harmed by another has the right to bring a case seeking compensation for that harm.

Second, there is an old procedure known as qui tam.  Laws authorizing qui tam actions allow a private individual with knowledge of misconduct (typically fraud) to bring a case.  However, these statutes do not authorize such private individuals to file on their own behalf.  Instead, they are bringing the case on behalf of the government.  Any person bringing such a case must give notice to the appropriate government official who has the duty to enforce that law, and the government can then take over the case from the private individual.  Because the private individual is acting on behalf of the government, they do not have to be personally harmed by the misconduct.

Senate Bill 8 takes the concept of private enforcement on behalf of the government from qui tam but eliminates the role of the government after the case is brought.  The underlying hope in this concept is that, by not having any government official involved in the enforcement of the law, there is no government actor that can be sued to challenge the validity of the law in a  “pre-enforcement” action.  In other words, courts would be unable to prevent the law from taking effect.  The first time that the validity of the law could be challenged would be when some person was sued for violating the law.

This delay in challenges to the enforcement of the law would, in turn, create a Catch-22 for abortion providers.  Normally, abortion providers prefer pre-enforcement actions.  If a pre-enforcement action results in a favorable ruling, the proposed restriction never applies and the abortion provider never has to comply with an invalid law.  If the ruling is unfavorable, the abortion provider can make the required adjustments and avoid violating any valid law.  But by postponing the action until after the abortion provider has violated the law, the abortion provider has to decide between potentially complying with an invalid law (and not performing abortions that they should legally be able to perform) or violating a potentially valid law (and facing the legal consequences for violating the law).  Needless to say, the incentive is to comply with the law which is why such laws are referred to as having a “chilling effect” on the exercise of constitutional rights.

And that digression into how Senate Bill 8 was intended to alter traditional procedures bring us to the current cases.  The abortion providers have named the state court judges who would hear such claims (and the clerks of those courts) as the defendants on the theory that those judges are state actors who could be enjoined from hearing any case brought under Senate Bill 8.  The federal government has brought action against Texas a whole on the theory that the federal government has the power to act to prevent a state from violating the constitutional rights of people within the borders of that state.  And that brings us to the issues for this week’s cases.  First, does the federal government have the power to bring actions to challenge unconstitutional state laws?  Second, if the state government does not actually have any power to enforce that state law, is the state still a proper defendant in a pre-enforcement challenge?  Third, if the only role of the state government in the enforcement of that law is in hearing cases brought by private individuals, is the state court system a proper defendant in a pre-enforcement challenge to the law?  If the answer to these questions (or at least some of them) is yes, then the pre-enforcement challenge can still proceed.  If the answer is no, then it is unclear how a pre-enforcement action could proceed.

But this case is not only about abortion rights.  It’s about whether Texas has come up with a way to circumvent the Constitution.  Gun rights groups are concerned that, if Texas can use this type of technique to restrict abortion rights, some other state will use it to restrict gun rights.  On the issue of gun rights, this technique works both ways.  In my state, anti-gun control groups have passed a law forbidding state law enforcement agencies from assisting federal agencies seeking to enforce “unconstitutional” federal laws which is enforced by law suits filed by private individuals (who do not need to be the person whose “rights” were violated by the federal investigation).

Assuming that this technique blocks pre-enforcement challenges, the only limit on the ability of states to pass unconstitutional laws would be the willingness of somebody to violate the law.  It is clear that, for some laws and some issues, there will be people willing to be a test case, but that willingness may depend on the level of the penalty.  To use a current example, there are people willing to discriminate based on sexual orientation, relying on a Free Exercise defense, in states in which such discrimination is illegal when they are facing a $5,000.00 or $10,000.00 fine, but how willing would that business be to stick by its “no flowers for same-sex weddings” policy if the fine was $1,000,000.00 per wedding.   Simply put, when the risk is having slightly smaller profits, it is easy being the “brave soul” standing up for your rights.  But when the risk is bankruptcy and going out of business, it takes a different level of bravery to continue fighting for your beliefs.

Given the dangers to both sides of the enforcement model in Senate Bill 8, it seems that the easy solution for the “conservative” justices (however many that is) will be to join with the three liberals to allow the challenges to Senate Bill 8 to proceed and to reinstate the stay.  It allows the conservatives to prove that they are not partisan hacks by giving a “win” to progressives even if the case is actually something that should not be a left-right split as the dispute is not about the substance of the legislation but an enforcement technique that is just as useful for future progressive efforts as it is for the current conservative effort.  And such a “win” for progressives would give the conservatives some cover to author a split decision in the Mississippi case that waters down Roe further while nominally not overruling Roe.  Whether the expedited argument also hints at an expedited opinion (i.e. before the end of the year) remains to be seen.