Originally published in Vox on March 20, 2023.
Until very recently, nearly everyone accepted some basic ideas about the American legal system. If a state passes a law, and that law is challenged in court, we should act as if that law is still in effect while the case works its way through the court system.
That changes only if a judge issues a “preliminary injunction” blocking the law while the lawsuit plays out or a “permanent injunction” to strike the law down. In that case, we all act as if the law is not in effect.
But in recent years, an aggressive wing of the anti-abortion movement has been working to challenge this broadly held idea of legality — a push that has attracted little notice, but is further complicating the debate over abortion access. Jonathan Mitchell — the architect behind Texas’s notorious SB 8 law that bans abortions after about six weeks of pregnancy, who is currently suing three women for allegedly helping a friend end a pregnancy — has been advancing the idea that abortion providers could still be held liable for pregnancies they help terminate under restrictive state laws, even if the law is blocked by the courts when the abortion occurs.
Prior to Dobbs v. Jackson, abortion rights lawyers beat back a host of abortion restrictions by arguing they were unconstitutional, violating the protections afforded by the Supreme Court’s 1973 decision. The end of Roe v. Wade has stripped Americans of a fundamental backstop to attacks on abortion access, meaning legal challenges to both state and federal abortion laws are being fought now in new waters.
The recent controversy surrounding Walgreens’ announcement to 21 Republican state attorneys general that it would not dispense medication abortion to their residents has centered primarily on four states that have abortion restrictions that are either blocked in court or pending in the legislature. A law the Montana legislature passed in 2021 barring telemedicine for abortion, for example, is currently enjoined. Walgreens consumers, Democratic politicians, and most journalists have said that as a result in those four states, at least for now, it’s legal for Walgreens to dispense the pills.
But this new push to hold providers liable for breaking laws that are enjoined by courts is making decisions from health care providers, including pharmacy chains, more complicated. Legal experts interviewed by Vox agreed it’s simply unclear right now how courts would rule on whether you can be successfully prosecuted for breaking a law under injunction, and the Supreme Court has disagreed on the question in the past.
The uncertain legal landscape notwithstanding, abortion rights advocates want companies to resist threats from Republicans and anti-abortion activists. “Through misinformation and intimidation, anti-abortion advocates are working to create an atmosphere of fear and confusion that goes against decades of scientific evidence with the goal of pushing abortion care further out of reach for many people, especially those from marginalized groups,” Elizabeth Nash, a state policy expert at the Guttmacher Institute, told Vox.
But for years, abortion rights groups have correctly argued that the public has underestimated the warnings and intentions of the anti-abortion movement. So to ask companies and individuals now to presume anti-abortion lawyers are bluffing about their novel, and even ridiculous, legal threats, or to assume conservative judges would not side with those lawyers as they have often in the past, requires a stretch of the imagination.
How the anti-abortion movement wants to weaken the protection of a court injunction
In 2018, anti-abortion lawyer Jonathan Mitchell penned a law review article arguing that if a court issues an injunction, it should be understood that those laws are still in effect, and anyone who violates those laws is not shielded from future prosecution.
“If a court were to dissolve the injunction, the executive would be free to enforce the statute again — both against those who will violate it in the future and against those who have violated it in the past,” Mitchell wrote.
That context has been largely missing from coverage of the abortion-pill wars. In the days following news about Walgreens, advocates for reproductive rights strongly suggested the pharmacy was needlessly capitulating to Republican political pressure. “California will not stand by as corporations cave to extremists and cut off critical access to reproductive care and freedom,” California Gov. Gavin Newsom had said. Writing for CNN, legal historian Mary Ziegler said Walgreens’ announcement shows “the mere threat of legal consequences counts for more with some in corporate America than the very real lives of the women.”
But the growing legal debate over injunctions adds more layers to Walgreens’s apparent corporate cowardice.
Mitchell’s argument about injunctions was mostly ignored until 2021, when Texas passed SB 8, a bill that allows private citizens to enforce the state’s six-week abortion ban through civil litigation and receive a cash bounty if they’re successful. The SB 8 law also includes a provision that says an individual cannot cite as a defense any court decision that was later overruled on appeal or by a subsequent court. Drexel law professor David Cohen called this SB 8’s “sword of Damocles” provision — hanging over the heads of abortion providers even in the event a court provides relief from an anti-abortion law.
Rachel Rebouché, a law professor at Temple University, said while it seems “common sense” that someone would not be retroactively liable for actions they took while a law was enjoined — as it would present due process concerns — the law is not “crystal clear, and the anti-abortion movement is really seizing on that.”
In 1982, in a US Supreme Court case, the justices disagreed over the liability protection afforded by injunctions. Two justices, Thurgood Marshall and William Brennan, argued an injunction offers “permanent protection from penalties for violations of the statute that occurred during the period the injunction was in effect.” But Justice John Paul Stevens, in his concurring opinion, questioned whether federal courts could really offer that. In 2004, law professor Vikram David Amar described the implications of Justice Stevens’ position as “quite scary.”
There are some hints that the current Supreme Court would not be receptive to radically changing the status quo on injunctions. In 2020, the Court decided a voting rights case where it vacated an injunction making it easier to vote in South Carolina, but also held that voters who cast their ballots while the injunction was in place would still have those votes counted. And in his concurring Dobbs v. Jackson opinion, Brett Kavanaugh wrote that he did not believe a state could “retroactively impose liability or punishment for an abortion that occurred before today’s decision.” Still, these are not firm assurances. “I have no doubt [Kavanaugh] would happily change his position in a fully briefed case on this issue if it suited him,” Cohen, of Drexel’s law school, said.
One reason the issue has remained unsettled for so long, University of Virginia law professor Doug Laycock told Vox, is that prosecutors typically just move on if a court vacates an injunction. “They say, ‘we won our point in court, we can enforce the law going forward, and that’s what we really care about.’”
The problem now, Laycock explains, is that feelings on abortion are so intense that prosecutors might indeed go after people following the overturn of an injunction, even though in the past they haven’t considered doing so. “We’re seeing doctors who will not rely on the exceptions in these new anti-abortion statutes because they think the pro-life prosecutors are crazy, and who knows what they might charge,” he said. “I think the same thing is going on with respect to pharmacies.”
Cohen, of Drexel, wrote in 2021 about how SB 8 puts lawyers who represent Texas abortion providers in a difficult position. “If you won an injunction, would you advise your clients to start performing abortions with the risk of substantial liability hanging over their head if the injunction is reversed any time in the next six years? That would be a hard enough question without the explicit language in SB 8. But with the clause highlighted here, it would likely be very risky.”
Caught in the middle of this legal and political tug-of-war are providers, who are left to play chicken with aggressive anti-abortion lawyers looking to test the limits of what we think of as “legal.”
Rebouché, of Temple’s law school, noted that when Mitchell first published his 2018 law review article, “people thought it was a little crazy.” But then SB 8 happened, and the Supreme Court let it stand. “This is just another example of the anti-abortion movement throwing everything at the wall and seeing what sticks.”