On Nov. 1, the Supreme Court heard oral arguments in two cases involving the Texas law banning abortions, Senate Bill 8. The first was a challenge by abortion provider Whole Woman’s Health. The second was from the U.S. Department of Justice. Despite the intense media attention on these cases, neither argument was actually about abortion or the rights of pregnant people to access health care.

Instead, both hearings were about whether anybody has the right to sue to stop Texas from carrying on with its unconstitutional restriction on abortion rights. Whole Woman’s Health argued that abortion providers can challenge the law by suing the state because state officials will be in charge of administering lawsuits against providers. The Department of Justice argued that it can sue the state of Texas directly. In both cases, the plaintiffs argued that somebody must be able to sue to stop enforcement of this law, because the Constitution must apply in Texas.


What this meant is that instead of a fight about abortion, the hearing was a fight about legal procedure. It was the legal equivalent of watching a massive structure fire rip through a building, while firefighters argue over who is responsible for turning on the hose.

In court, Justices Elena Kagan, Sonia Sotomayor and Amy Coney Barrett tried to refocus arguments on SB 8’s dangerous and unprecedented scheme and its “chilling effect” on abortion providers.

Yes, one of the people raising these questions was Barrett. She was one of the five justices who allowed SB 8 to be implemented in the first place, back in September, when Whole Woman’s Health sought an injunction to stop the law from taking effect.

I come out of oral arguments believing much the same as I believed before: The Supreme Court will strike down SB 8 – eventually. The bounty-hunting scheme is simply too antithetical to constitutional order to be allowed to stand. But that is where the good news ends. I do not expect the Supreme Court to grant the DOJ’s request for an immediate injunction, meaning Texas will continue to be able to restrict abortion rights in this patently unconstitutional way while we wait for the ruling.

And the larger fight about whether states can restrict abortion rights, as set forth in Roe v. Wade, hasn’t yet been argued in court.

That day is coming, however: Dobbs v. Jackson’s Women’s Health arguments are set for Dec. 1. That case addresses a Mississippi law that bans abortions after 15 weeks, without the bounty-hunting foolishness of Texas’ SB 8 ban.

Nothing that happened at the SB 8 arguments suggests the conservatives are any less committed to taking away women’s rights than Trump promised they would be when he appointed them. They just want to take away those rights without Texas-style lawlessness.

SB 8 is a structure fire that the court will eventually douse, but the controlled burning down of women’s rights appears to be proceeding as planned.

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