doesn't this open the door for states to pass any law whatsoever? For
example, what if a state wanted to bring back slavery. Would the
Supreme Court again ignore the issue because of "procedural
I mean... is this something specific to abortion law, or to any law
No. It isn't specific to abortion law but it is specific to laws structured like the Texas law that vests enforcement solely in members of the general public. But, it can be overcome and the U.S. Supreme Court implied that there were steps that could be taken to address its concerns. Those steps are burdensome, but not insurmountable.
This SCOTUS ruling was a ruling on what the status of the law should be pending a determination by the trial court on the merits later in the legal process, in the face of a request by abortion providers to suspend the enforcement of the law until the litigation was concluded.
A 5-4 decision of the U.S. Supreme Court held that the law should remain in effect until the merits are decided or another procedurally correct means to preventing the law from being enforced is taken in state or federal court.
The procedural issue is that usually when you bring a request in a lawsuit to suspend the enforcement of the law pending litigation, you have to deliver a copy of that request to the people who have the authority to enforce the law (like the state Governor, the state Attorney General and/or local prosecutors) so that they can be made aware of the order and participate in deciding whether their right to enforce the law will be limited or not. If everyone with the authority to enforce the law says that they have no present intention of doing so against the people bringing the lawsuit, that is also a reason for a court not to suspend enforcement of the law pending a determination on the merits.
In this case, every adult in the State of Texas is someone with the authority to enforce the law, and the only ordinary citizen who participated in the litigation of this issue in the trial court stated that this ordinary citizen didn't intend to enforce the lawsuit against the abortion providers in this case while the lawsuit was pending.
The problem is that the U.S. Supreme Court majority felt that some proper notice or process had to represent the interests of the millions of other adult Texans affected by an order suspending enforcement of the law, and determining that someone would enforce the law if it was not suspended.
The majority opinion is short and says:
The application for injunctive relief or, in the alternative, to
vacate stays of the district court proceedings presented to JUSTICE
ALITO and by him referred to the Court is denied. To prevail in an
application for a stay or an injunction, an applicant must carry the
burden of making a “strong showing” that it is “likely to succeed on
the merits,” that it will be “irreparably injured absent a stay,” that
the balance of the equities favors it, and that a stay is consistent
with the public interest. Nken v. Holder, 556 U. S. 418, 434 (2009);
Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 66 (2020)
(citing Winter v. Natural Resources Defense Council, Inc., 555 U. S.
7, 20 (2008)). The applicants now before us have raised serious
questions regarding the constitutionality of the Texas law at issue.
But their application also presents complex and novel antecedent
procedural questions on which they have not carried their burden. For
example, federal courts enjoy the power to enjoin individuals tasked
with enforcing laws, not the laws themselves. California v. Texas, 593
U. S. ___, ___ (2021) (slip op., at 8). And it is unclear whether the
named defendants in this lawsuit can or will seek to enforce the Texas
law against the applicants in a manner that might permit our
intervention. Clapper v. Amnesty Int’l USA, 568 U. S. 398, 409 (2013)
(“threatened injury must be certainly impending” (citation omitted)).
The State has represented that neither it nor its executive employees
possess the authority to enforce the Texas law either directly or
indirectly. Nor is it clear whether, under existing precedent, this
Court can issue an injunction against state judges asked to decide a
lawsuit under Texas’s law. See Ex parte Young, 209 U. S. 123, 163
(1908). Finally, the sole private-citizen respondent before us has
filed an affidavit stating that he has no present intention to enforce
the law. In light of such issues, we cannot say the applicants have
met their burden to prevail in an injunction or stay application. 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.
Four U.S. Supreme Court Justices (three liberals and the conservative Chief Justice) disagreed and argued that under this unique and unprecedented fact pattern where everyone in the state had the power to enforce the law, that the process used in the trial court by the abortion providers to make their request to suspend enforcement of the law was valid and sufficient. The primary one of two dissenting opinions stated:
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. I would grant preliminary relief to preserve the status quo
ante—before the law went into effect—so that the courts may consider
whether a state can avoid responsibility for its laws in such a
manner. Defendants argue that existing doctrines preclude judicial
intervention, and they may be correct. See California v. Texas, 593 U.
S. ___, ___ (2021) (slip op., at 8). But the consequences of approving
the state action, both in this particular case and as a model for
action in other areas, counsel at least preliminary judicial
consideration before the program devised by the State takes effect. We
are at this point asked to resolve these novel questions—at least
preliminarily—in the first instance, in the course of two days,
without the benefit of consideration by the District Court or Court of
Appeals. We are also asked to do so without ordinary merits briefing
and without oral argument. These questions are particularly difficult,
including for example whether the exception to sovereign immunity
recognized in Ex parte Young, 209 U. S. 123 (1908), should extend to
state court judges in circumstances such as these.
I would accordingly preclude enforcement of S.B. 8 by the respondents
to afford the District Court and the Court of Appeals the opportunity
to consider the propriety of judicial action and preliminary relief
pending consideration of the plaintiffs’ claims.
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.
But although the Court does not address the constitutionality of this
law, it can of course promptly do so when that question is properly
presented. At such time the question could be decided after full
briefing and oral argument, with consideration of whether interim
relief is appropriate should enforcement of the law be allowed below.
The second dissenting opinion joined only by the three liberal justices sums up and concludes as follows:
Today, the Court finally tells the Nation that it declined to act
because, in short, the State’s gambit worked. The structure of the
State’s scheme, the Court reasons, raises “complex and novel
antecedent procedural questions” that counsel against granting the
application, ante, at 1, just as the State intended. This is
untenable. It cannot be the case that a State can evade federal
judicial scrutiny by outsourcing the enforcement of unconstitutional
laws to its citizenry. Moreover, the District Court held this case
justiciable in a thorough and well-reasoned opinion after weeks of
briefing and consideration. 2021 WL 3821062, *8–*26 (WD Tex., Aug. 25,
2021). At a minimum, this Court should have stayed implementation of
the Act to allow the lower courts to evaluate these issues in the
normal course. Ante, at 2 (ROBERTS, C. J., dissenting). Instead, the
Court has rewarded the State’s effort to delay federal review of a
plainly unconstitutional statute, enacted in disregard of the Court’s
precedents, through procedural entanglements of the State’s own
The Court should not be so content to ignore its constitutional
obligations to protect not only the rights of women, but also the
sanctity of its precedents and of the rule of law.
But, they got outvoted, but conservative justices who were sympathetic to the Texas law on the merits, even though the ruling on the procedural issue has been significantly criticized as unsound as a general rule in cases like these that present the same procedural issues.
So, now, the abortion providers have to go back to the trial court and find a means of adequately protecting the rights of all the adults in Texas, such as giving notice by publication, or having a guardian ad litem appointed to protect their collective interest (a bit like a bankruptcy trustee, or a corporate bond trustee). If this is done, the enforcement of the law will probably be suspended at that point.
The U.S. Supreme Court majority specifically declined to rule on the probability of success on the merits requirement to suspend the enforcement of a law (which a lot of case law suggests that the abortion providers would win), because the procedural preconditions to get to that point in the case weren't met yet. But, the majority opinion pretty much left a bare bones roadmap regarding how to get there after a little bump in the road in this legal process, due to a novel structure of the Texas law.
Presumably, in future cases, parties seeking to suspend the enforcement of laws pending the outcome of litigation that are structured like the Texas law would have a template from this case about what steps to take to make that happen. It would be clearly more cumbersome and expensive and slow than the usual process of giving notice to a small number of state officials by email. But, it still wouldn't be insurmountable.