The Resurrection of State Nullification - And the Degradation of Constitutional Rights: SB8 and the Blueprint for State Copycat Laws

Abstract

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 preenforcement 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.