“The dispute is over whether states may nullify federal constitutional rights by employing schemes like the one at hand,” she wrote. “The court indicates that they can, so long as they write their laws to more thoroughly disclaim all enforcement by state officials, including licensing officials.”
In his own partial dissent, Chief Justice Roberts wrote that the Texas law was a calculated attempt to undermine the authority of the Supreme Court. The law is “contrary to this court’s decisions” including Roe, he wrote, and “has had the effect of denying the exercise of what we have held is a right protected under the federal Constitution.”
“The clear purpose and actual effect of S.B. 8 has been to nullify this court’s rulings,” he wrote, adding that “it is the role of the Supreme Court in our constitutional system that is at stake.”
Supporters of abortion rights reacted to the ruling with dismay.
“It’s stunning that the Supreme Court has essentially said that federal courts cannot stop this bounty-hunter scheme enacted to blatantly deny Texans their constitutional right to abortion,” Ms. Northup said. “The court has abandoned its duty to ensure that states do not defy its decisions.”
Justice Gorsuch stressed that the court’s ruling was tentative and limited to procedural questions.
“In this preliminary posture,” he wrote, “the ultimate merits question — whether S.B. 8 is consistent with the federal Constitution — is not before the court. Nor is the wisdom of S.B. 8 as a matter of public policy.”
Justice Gorsuch wrote that there were other ways to challenge the law beyond suing state officials in federal court, including by raising the unconstitutionality of the law as a defense in a state-court lawsuit brought under S.B. 8. He also noted that a state court judge had ruled in favor of abortion providers on Thursday.
That judge found that several procedural aspects of the law violated the state Constitution, including ones allowing people who had suffered no injury to sue and setting a minimum recovery of $10,000.