Part of a NY Times editorial today that explains better:
For nearly half a century, the anti-abortion movement had to settle for partial victories, constantly chipping away at women’s right to an abortion, but never achieving the ultimate goal of overturning Roe itself. Now, with a hard-right supermajority on the bench for this purpose, that goal is within reach — even as a solid and consistent majority of the American public continues to believe abortion should be legal in all or most cases.
The Texas law, known as SB 8, is the most brazenly anti-abortion law in the country. It bans abortions after six weeks of pregnancy, before many women even know they are pregnant. By itself, this violates a woman’s constitutional right to get an abortion, which the court has protected at least until the fetus is viable outside the womb, at around 22 to 24 weeks of pregnancy. That is why courts have struck down similar six-week bans in other states.
Texas lawmakers knew this, and they crafted their law specifically to avoid that fate. Instead of making it enforceable the usual way, through government officials, they authorized private citizens — in Texas or anywhere else — to sue anyone who is involved in performing an abortion or who “aids or abets” one: not only a woman’s doctor, but her family, her friends, potentially even the taxi driver who takes her to the clinic. There is no exception for cases of rape or incest, and the plaintiff doesn’t need to have any connection to the woman in order to bring the suit. If it succeeds, he or she is entitled to $10,000 plus legal fees. It’s a dream for bounty hunters and a nightmare for everyone else.
More to the point, it is a straightforward ploy by Texas lawmakers to escape judicial review, because courts are empowered to block officials from enforcing an unconstitutional law, but not the law itself. If there is no official to block, the logic goes, then judges’ hands are tied.
Even Chief Justice John Roberts, who was until recently among the most conservative justices on the court, wasn’t buying it. “The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime,” the chief justice wrote in dissent.
Justice Sonia Sotomayor elaborated. “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,” she wrote. Justices Stephen Breyer and Elena Kagan joined both dissents and also wrote their own. They all made essentially the same point: No state should be able to evade the Constitution by enacting a cleverly designed law.
It didn’t matter. There are now five justices — a majority of the court — to the right of Chief Justice Roberts, and they were content to let Texas get away with it. In two brief paragraphs of bloodless legal technicalities, the majority claimed that, because the case presents “complex and novel antecedent procedural questions,” the court had no choice but to allow the law to remain in place while legal challenges to it play out. In other words, the conservatives are winking at lawmakers in Texas and across the country. Play all the games you want, they are saying, and we’ll look the other way.