“S.B. 8, the Texas abortion ban that took effect at the beginning of this month, was designed to frustrate pre-enforcement challenges by relying on private lawsuits to deter the conduct it forbids. A recent ruling by the U.S. Court of Appeals for the 5th Circuit shows how effective that strategy is. Because S.B. 8 explicitly bars Texas officials from enforcing its restrictions, the 5th Circuit said on Friday, they cannot be sued to block its implementation—a decision that illustrates the “complex and novel antecedent procedural questions” that the Supreme Court mentioned when it declined to intervene in this case.
The implication is that people who object to the law, which is plainly inconsistent with Supreme Court precedents, cannot challenge its constitutionality until someone is sued for performing or facilitating a newly prohibited abortion. But meanwhile, the law has already had its intended effect, since the threat of litigation has led Texas clinics to stop serving the vast majority of women seeking abortions.”