Remember SB8? That’s the Texas law that forbids abortions after roughly six weeks of pregnancy (when fetal electrical activity the law misleadingly describes as a heartbeat can be detected) but places enforcement almost entirely in the hands of private self-appointed anti-abortion bounty hunters empowered by the state to sue anyone who assists a person seeking an abortion. SB8’s peculiar design was intended to circumvent the venerable principle—going back at least as far as the 1908 Supreme Court decision in Ex Parte Young—allowing people threatened with harm by an unconstitutional state law to sue state officials in federal court for an injunction against the law’s enforcement.
By taking enforcement out of the hands of state officials, SB8 aimed to deprive potential plaintiffs (such as doctors who perform abortions) of anybody to sue in federal court. Instead, they would be able to challenge the law only by performing or assisting abortions and risking ruinous liability should the state courts uphold the law when they sought to raise their constitutional objections as a defense. That fear was quite reasonable when SB8 went into effect in 2021, as it appeared quite possible that the Supreme Court would overrule Roe v. Wade—as it in fact later did in June 2022 in Dobbs v. Jackson Women’s Health Org.
The effort by Texas to prevent federal court challenges to SB8 was only partly successful. Six months before Dobbs was handed down, the Supreme Court allowed a federal court lawsuit challenging SB8 to be brought against at least a few Texas state licensing officials who, according to the lead opinion of Justice Neil Gorsuch in Whole Woman’s Health v. Jackson, played a sufficiently substantial role in enforcing the law to serve as defendants.
In the wake of Dobbs, one might think that SB8 would no longer be salient. After all, Texas and other red-state officials can now directly enforce abortion prohibitions without fear that a federal court will issue injunctions. The elimination of the federal constitutional right to abortion renders the bounty-hunter mechanism for avoiding federal court jurisdiction unnecessary.
However, litigation over the scope and validity of SB8 is ongoing in the Texas courts. Meanwhile, the malign procedural spirit of SB8 has spread. After all, its federal court circumvention mechanism was never only about abortion. As Justice Sonia Sotomayor wrote in a separate opinion concurring in part and dissenting in part in Whole Woman’s Health, in 2021 state legislatures around the country were already enacting other laws with SB8-style provisions to target a wide range of topics. One of those laws reached the Supreme Court last week.
Missouri’s Second Amendment Preservation Act
Months before the Supreme Court ruling in Whole Woman’s Health, Missouri enacted the Second Amendment Preservation Act (SAPA). In language strikingly reminiscent of South Carolina’s stance in the nullification crisis of the early 1830s, the viewpoint of the states that attempted to secede during the Civil War, and the Southern Manifesto that defiantly asserted the constitutionality of Jim Crow in the 1950s, SAPA purports to nullify various federal statutes claimed to conflict with a tendentiously extreme version of the Second Amendment. SAPA forbids state and local officers from enforcing any of those federal laws.
Following the SB8 playbook, SAPA does not expressly provide a role for state officials in ensuring that other state and local officials avoid enforcing federal firearms laws. Instead, it allows anyone “injured” by the enforcement of one of the disfavored federal laws to sue the offending party—whether a local, state, or federal officer—for “a civil penalty of fifty thousand dollars per occurrence.” Liability attaches to anyone who provides “material support” for enforcement of such federal laws, a term defined to “include voluntarily giving or allowing others to make use of lodging; communications equipment or services, including social media accounts; facilities; weapons; personnel; transportation; clothing; or other physical assets.”
The United States government, acting to protect the supremacy of federal law enshrined in the Constitution’s Article VI and vindicated at Appomattox, sued Missouri. A federal district judge enjoined the enforcement of SAPA. The state appealed and sought a stay of the district court’s judgment pending appeal, which the U.S. Court of Appeals for the Eighth Circuit denied. Missouri then sought immediate relief from the U.S. Supreme Court, which it rejected last week in an unsigned order in a case captioned Missouri v. United States.
Inviting or Ending Additional SB8-Style Shenanigans?
The bad news is that one Justice—Clarence Thomas, who dissented without opinion—apparently thought that Missouri’s inability to nullify federal law presented so dire an emergency as to require intervention by the Supreme Court even before the completion of the appeal in the lower courts.
Meanwhile, two Justices—Gorsuch joined by Samuel Alito—made clear that they were denying Missouri’s application only on the understanding that the district court had provided very limited relief. Citing his own opinion for the Court in Whole Woman’s Health, Justice Gorsuch opined that the lower courts had the equitable power to block enforcement of SAPA by the state, its agents, and persons working in concert with them, but not by private actors. That understanding would apparently permit private lawsuits against local, state, and even federal officials to continue to nullify federal law.
But the bottom line in Missouri v. United States could be good news. Justice Gorsuch’s opinion in Whole Woman’s Health strongly suggested that the problem with SB8 was not that it sought to evade the Constitution, but that Texas had failed to fully eliminate any role for government officials in its enforcement. A more carefully drafted statute, he implied, could and would prevent federal court challenges.
Only four Justices in Whole Woman’s Health went further to object to the fundamental flaw in SB8. As Chief Justice John Roberts wrote for himself and three colleagues, “[t]he clear purpose and actual effect of S. B. 8 has been to nullify [the Supreme] Court’s rulings” and federal law in violation of essential precepts of American constitutionalism. He acknowledged that allowing federal court lawsuits to broadly invalidate the law would extend the Court’s equitable power somewhat beyond the exact framework of past cases. However, he added tellingly: “Any novelty in this remedy is a direct result of the novelty of Texas’s scheme.”
The good news is that there now appear to be six Justices who reject state efforts to circumvent and nullify federal law. I say “appear” because a Justice may dissent from an unsigned order without publicly recording a dissent. Nonetheless, there is reason to hope that Justices Brett Kavanaugh and Amy Coney Barrett—who fully joined Justice Gorsuch’s opinion in Whole Woman’s Health but did not join his statement in Missouri v. United States—have now come to recognize the danger that laws like SB8 and SAPA pose.
If so, perhaps the explanation can be found in the fact that SAPA reveals the true colors of state legislators who seek to evade federal judicial review. SB8 was substantively unconstitutional under the precedents in force when it was enacted and sought to defy federal judicial challenge, but at least it did not also assert a state’s power to nullify federal law in the way that SAPA does. In thus borrowing a tactic made infamous by enslavers and segregationists, the Missouri legislators who voted for SAPA may have awoken a majority of the Supreme Court to their duty to defend the supremacy of federal law against the would-be heirs to an ignoble insurrectionist tradition.