The Anti-abortion Movement Will Win Even If It Loses

For anti-abortion activists, Texas’s recent law, Senate Bill 8, must have seemed like magic—a way to stop abortion immediately, without the grind of constitutional litigation and its attendant legal fees. The law prohibits abortion when fetal cardiac activity can be detected, usually around the sixth week of pregnancy, but outsources enforcement to private citizens, who can collect at least $10,000 each time someone performs or “aids or abets” an abortion. Texas claims that this exotic structure insulated it from suit, and at first, the Supreme Court seemed to agree, letting the law go into effect without saying a word and then writing a pro forma order explaining that its hands were tied. For abortion foes, it must have all seemed too good to be true.

The Court doesn’t seem sold on S.B. 8 anymore. Yesterday morning, the Court heard oral arguments in two challenges” what is still a constitutional right by outsourcing enforcement to private citizens.