Last week, the Supreme Court issued its fractured ruling in Whole Women’s Health v. Jackson, the so-called “pre-enforcement challenge” to SB-8. The Texas law outlaws most abortions at 6 weeks’ gestation, contravening Roe v. Wade and Planned Parenthood v. Casey, which together set the threshold for government regulation of abortion at approximately 24 weeks.
But the majority opinion in the Texas case says nothing about the fate of the constitutional right to abortion. Because Whole Women’s Health is only superficially about abortion. What it’s really about is the reconstruction of established law. And Justice Neil Gorsuch’s majority opinion in the case has vast implications for American law and thus, necessarily, for constitutional justice.
The concerns in Whole Women’s Health boil down to two legal concepts:
- The Court’s longstanding allowance for pre-enforcement review;
- And the Court’s consideration of a law’s “chilling” effects on constitutional rights as part of that determination.
In his opinion, Gorsuch took swipes at both.
Pre-enforcement review concerns the question of when an objectionable law can be challenged in court.
Imagine that Congress passes a law enabling ranchers to allow private cattle to graze on public lands.
Now imagine that Congress simultaneously establishes a statutory formula for determining how many cattle per acre can graze without significant environmental effects.
And now suppose that an environmental organization upset over the law files a lawsuit seeking to strike it down before it goes into effect.
Sometimes, courts will dismiss such a lawsuit as premature, telling the plaintiffs to come back after the law has actually been enforced, so that a better record can be formed as to the actual effects of the new law. Other times, courts will allow the suit to move forward pre-enforcement, on the rationale that the very existence of the law presents a significant enough harm to warrant immediate judicial intervention.
And if the law in question comes from a state legislature, the Court in 1908 established (in Ex parte Young) that federal courts can, under certain circumstances, consider pre-enforcement lawsuits against state officials.
One reason that a law might be susceptible to pre-enforcement review is that its very existence has a chilling effect on established constitutional rights, most noticeably when it comes to the First Amendment.
For example, in Dombrowki v. Pfister (1965) the Court unanimously stopped the enforcement of Louisiana’s “Subversive Activities and Communist Control Law and Communist Propaganda Control Law”—which required members of a “subversive organization” to register with the state or be prosecuted for a felony. A civil rights group sued for an injunction prohibiting the governor and law enforcement personnel from enforcing the statute, arguing that the statute chilled free speech as part of “a plan to employ arrests, seizures, and threats of prosecution . . . to harass appellants and discourage them and their supporters from asserting and attempting to vindicate the constitutional rights of Negro citizens of Louisiana.”
Writing for the Court, Justice William Brennan first explained that state officials can normally be given the benefit of the doubt: “It is generally to be assumed that state courts and prosecutors will observe constitutional limitations as expounded by this Court, and that the mere possibility of erroneous initial application of constitutional standards” is usually insufficient to either strike down or halt the enforcement of a law on its face.
But that’s not always the case. “Because of the sensitive nature of constitutionally protected expression,” he continued, “we have not required that all of those subject to overbroad regulations risk prosecution to test their rights. For free expression—of transcendent value to all society, and not merely to those exercising their rights—might be the loser.”
Consequently, because the mere existence of the law chilled the exercise of free speech, the Court restrained Louisiana from enforcing it.
Over the past summer, the Supreme Court twice refused to extend similar injunctive relief to prevent enforcement of SB-8 as it impacts pregnant Texans whose access to abortion prior to 24 weeks is otherwise constitutionally protected.
Unlike the Louisiana law, SB-8 was allowed to go into full force and effect despite its abrogation of a constitutional right. (In a separate opinion, which Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan joined, Chief Justice John Roberts established that the Texas law “is contrary to this Court’s decisions in Roe and Casey,” and thus had “the effect of denying the exercise of what we have held is a right protected under the Federal Constitution.”)
So here you have a law which the Court recognizes is contra a current constitutional right, being allowed to go into effect first and be challenged second. The effect of which, if carried forward in a coherent way, will be to unwind the precedent of pre-enforcement review for constitutional matters. Even if it creates a “chilling effect.” Which Texas SB-8 clearly does. As Justice Sotomayor explained in dissent: “The chilling effect has been near total, depriving pregnant women in Texas of virtually all opportunity to seek abortion care within their home State after their sixth week of pregnancy.”
Roberts likewise emphasized that parts of SB-8 “effectively chill the provision of abortions in Texas,” and that “[t]he clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings.” To those who might draw a dividing line between, say, First Amendment rights and the right to abortion, Roberts had this answer: “The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.”
That the new majority does not sign on to the concept that the Supreme Court’s role is to protect established constitutional rights from government infringement, whatever the right may be, is a very big deal.
Justice Sotomayor specifically took Gorsuch to task for tossing aside the Court’s “long history of taking up pre-enforcement review when the chilling of constitutional rights is at stake,” exclaiming that “[t]he Court thus betrays not only the citizens of Texas, but also our constitutional system of government.”
Gorsuch shot back, suggesting that it’s the likes of Roberts and Sotomayor who are “radical” in this regard. “That rhetoric bears no relation to reality,” he wrote. According to Gorsuch, the law is not so amenable to plaintiffs—“those seeking to challenge the constitutionality of state laws are not always able to pick and choose the timing and preferred forum for their arguments.” And in any event pre-enforcement review “was not prominent until the mid- 20th century.” Instead, “many federal constitutional rights are as a practical matter asserted typically as defenses to state-law claims, not in federal pre- enforcement cases like this one.”
As for “the ‘chilling effect’ associated with a potentially unconstitutional law being ‘on the books,’” Gorsuch quipped, that concern “is insufficient to ‘justify federal intervention’ in a pre-enforcement suit.”
In other words: If people want to challenge violations of their constitutional rights, they can do so in defense of a criminal prosecution or civil enforcement action and try to prove that the law is problematic once they have some skin in the game. For its part, pre-enforcement review may be as good as dead. Citizens who think a law is being constructed to specifically get around a constitutional protection will have to take their chances with the justice system, suffer any harm that comes with their rights being violated in the interim, and hope for the best.
It’s important to note that none of this is about abortion. It’s about how activist legislators are now empowered by the Court to dare citizens to try and subvert constitutionally-protected rights and, as far as this Court is concerned, get away with it.
Already, California Governor Gavin Newsom has taken the bait, calling for gun legislation modeled on the Texas abortion law to “let Californians sue those who put ghost guns and assault weapons on our streets.”
If the new SCOTUS majority is serious about its newly-minted tolerance of deliberate constitutional rights violations pending litigation, then gun-rights activists may be in for a tough time. And after that, maybe it’ll be free speech or freedom of religion that gets legislatively preempted by rogue state actors. Or some other right.
Though it’s always possible that this Court’s controlling majority will decide that pre-enforcement review is vital for some rights, but not for others. They do seem to be picking and choosing quite a bit these days.