The Resurrection of State Nullification—and the Degradation of Constitutional Rights: SB8 and the Blueprint for State Copycat Laws
In Whole Woman’s Health v. Jackson, the Supreme Court resurrected the zombie doctrine of nullification—and called into question the ability of our constitutional structure to effectively enforce the supremacy of federal rights. The case centered on Texas’s Senate Bill 8 (SB8), which prohibits abortion at approximately six weeks of pregnancy. Texas enacted SB8 in straightforward violation of Roe v. Wade’s central holding that the Constitution prohibits abortion bans before viability, generally around twenty-four weeks. Yet on December 10, 2021, over six months before the Court issued an opinion in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade, the Court largely upheld SB8’s scheme to avoid pre-enforcement judicial review, providing Texas with a path forward to continue to undermine what was then a federal constitutional right.
This Essay finds that in at least one respect, SB8 is not unprecedented: it is far from the first state attempt to nullify federal law in U.S. history. This Essay begins by describing state efforts to nullify federal rights from the Founding through the present day. It finds that over centuries, states have invoked nullification to voice their opposition to federal law, at times to significant practical effect. But in each significant nullification crisis before Whole Woman’s Health v. Jackson, our constitutional structure checked state attempts to actually nullify federal law.
This Essay is the first to demonstrate how Whole Woman’s Health v. Jackson broke from that constitutional tradition. The Court’s decision not only permitted Texas to largely insulate its nullification of a federal right from pre-enforcement review, but went a step further in providing states with a blueprint to ensure that any copycat laws are entirely unreviewable by federal courts before taking effect. By its logic, the Court’s decision in Whole Woman’s Health v. Jackson imperils the range of federal rights Americans hold dear, as the states in our divided nation move forward armed with a toolkit to nullify federal rights.