Really confused by this Supreme Court decision:


Quote from the article. "It said the abortion providers didn't properly address "complex and novel antecedent procedural questions" in their case."

So my question is... 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 questions"?

I mean... is this something specific to abortion law, or to any law whatsoever?

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    A more realistic example, replace "abortion" with "possession of firearms". Commented Sep 3, 2021 at 16:24
  • Ameet: Welcome. this is a good question. I disagree with Keith's critique of your example, slavery is the perfect example, and firearms bring additional complications into answers. Commented Sep 3, 2021 at 22:15
  • "For example, what if a state wanted to bring back slavery. Would the Supreme Court again ignore the issue because of "procedural questions"?" You would have to present a specific scenario. What law are you hypothesizing, and what sort of attempt to overturn it? Commented Sep 4, 2021 at 3:30

3 Answers 3



The case was dismissed on procedural reasons.

Like this.

Well, perhaps not so pedantic but there are things that have to happen before the Supreme Court can get involved and they haven’t. For example, the Supreme Court only has original jurisdiction in a limited classes of case; if this isn’t one of those (and it isn’t) it has to be heard in a court that does and then get appealed up the chain. When they have, the court will make a decision on the merits.

  • Right, so my point is... if a state brings about a slavery law... and the objections to the law are not procedurally adequate, the Supreme Court will ignore the objections and let the law stand? Commented Sep 3, 2021 at 10:32
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    The SC will not even bother looking at a case if "things that have to happen" have not happened, will it?
    – Greendrake
    Commented Sep 3, 2021 at 13:54
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    @AmeetSharma Yes, the law will stand. Until someone challenges it properly, which shouldn't take long in the case of your slavery-revival example. It seems certain to me that that law would get overturned before the case ever made it to SCOTUS.
    – Ryan_L
    Commented Sep 3, 2021 at 16:23
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    FWIW, the case itself was not dismissed. An appeal of a denial of preliminary injunction in courts below SCOTUS was at issue and that was denied without prejudice to subsequent attempts. Also, it was a procedurally proper appeal of the preliminary injunction motion which is an appealable order. It wasn't that the preliminary injunction request wasn't ripe for SCOTUS to consider an appeal of this ruling from lower courts, it was that it found that the preliminary injunction request was properly denied for failure to prove entitlement to it in a procedurally proper manner in the trial court.
    – ohwilleke
    Commented Sep 3, 2021 at 21:35
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    @AmeetSharma the part you seem to be misunderstanding is that this isn't a final ruling on the law -- far from it.
    – phoog
    Commented Sep 4, 2021 at 4:01

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 questions"?

I mean... is this something specific to abortion law, or to any law whatsoever?

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 creation.

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.

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    Reading over the text of the law, it seems there is more than one of these "traps" in it. I think there is going to be some interesting arguments when (if?) it does make it to review.
    – ColleenV
    Commented Sep 3, 2021 at 20:18
  • For me, this is too much information given the question. The language SCOTUS uses in opinions is directed at Judges and other Lawers, not the average person.\ Commented Sep 3, 2021 at 22:11

Part of the reason you may be confused is that the headlines frequently use hyperbole in describing what happened. For example: "SCOTUS upholds new Texas abortion law" is an inflammatory way of reporting this. The NPR article later states it more accurately: saying "The U.S. Supreme Court late Wednesday night refused to block a Texas law ...", but even NPR is expressing a non-neutral viewpoint in the article. For example, the supreme court didn't invalidate Roe v Wade.

No, it does not open a door for states to pass any law whatsoever. The U.S. constitution does, however, say that states have much broader legislative power than the U.S. Congress. So SCOTUS is careful about intruding on a state legislature's authority.

The supreme court's historic language regarding this is confusing to many people. The way the SCOTUS uses the phrase "police powers" is very confusing, as the police powers are not the same as law-enforcement powers! The phrase refers to lawmaking that states can do and that congress cannot do. Of course, limited exceptions apply.

No, it doesn't mean that state law could reinstate slavery. Slavery is a violation of the U.S. Constitution, and the SCOTUS would almost certainly strike down any attempt to bypass that quickly. That is an excellent example to illustrate the difference.

Finally, your final question, "Is this something specific to abortion law, or to any law whatsoever?", depends on what your point of view is. From the point of view of the supreme court, it's not specifically about abortion. For details of the legal reasoning, see the other answers to this question, but I think it is fair to say SCOTUS has followed similar logic many times in the past for cases unrelated to abortion.

  • This answer in inaccurate in multiple respects. It is mostly about joinder and the standard for issuing preliminary injunctions, not jurisdiction and not the merits. It doesn't engage with either the source materials or any legal authority or the analysis implicated by the question.
    – ohwilleke
    Commented Sep 3, 2021 at 21:32
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    Almost nothing you have said in the entire answer is relevant to what SCOTUS did or why. Read the opinions. They aren't terribly long and are only moderately technical. supremecourt.gov/opinions/20pdf/21a24_8759.pdf
    – ohwilleke
    Commented Sep 3, 2021 at 21:36
  • @ohwilleke, read the question. The OP is not asking about legal reasoning, he's asking if the same logic might justify slavery. Commented Sep 3, 2021 at 21:38
  • The OP begins: "Really confused by this Supreme Court decision". The logic is procedural not substantive, yet your discussion is about whether this law is valid on the merits.
    – ohwilleke
    Commented Sep 3, 2021 at 21:39
  • Let us continue this discussion in chat. Commented Sep 3, 2021 at 21:51

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