“Suppose This Were a Normal Law”—S.B. 8 Oral Arguments in the Pre-Post-Roe World

By Alice Broussard

Alice Broussard is a member of the class of 2023 at Albany Law School. She previously worked in publishing and education, and she graduated cum laude with a bachelor’s degree in English from Rice University.

At Albany Law, Alice is a member of the Albany Law Review and will serve as Executive Managing Editor of Vol. 86. She has been a Sponsler Fellow in Civil Procedure and is currently a Teaching Assistant in Lawyering. She interned with Judge Lawrence E. Kahn in the Northern District of New York during the summer of 2021 and is currently an intern at Empire Justice Center.

In May 2021, the Supreme Court agreed to consider a Mississippi law seeking to ban abortions after fifteen weeks. The state’s initial briefs, filed while Justice Ruth Bader Ginsburg was still alive, claimed nonsensically that “the questions presented in this petition do not require the court to overturn Roe or Casey.” In July, with Justice Amy Coney Barrett installed as part of the Court’s new 6–3 conservative majority, Mississippi filed a new brief: “Roe and Casey are egregiously wrong.” The case was argued in December, and a decision is expected this year.

 

But Texas, with the Court’s help, beat Mississippi to the punch. On September 1, 2021, a Texas law known as S.B. 8 went into effect. The law bans abortions after just six weeks or, ostensibly, when a fetal heartbeat is detected by ultrasound. Unlike previous heartbeat bills, S.B. 8 was written to evade judicial review by delegating enforcement to private citizens. This paper examines the S.B. 8 oral arguments in Whole Woman’s Health v. Jackson and United States v. Texas through the lens of judicial advocacy and, from the vantage of December 2021, briefly looks ahead to the consequences of the Court’s decisions.

_____________________

To read the paper, open HERE.