Updated November 1, 2021 at 1:08 PM ET
Abortion rights are front and center at the U.S. Supreme Court on Monday, but not the way most people expected. The focus will not be on abortion rights, per se, but on the controversial Texas law designed to prevent court challenges.
At issue is whether a state can nullify a constitutional right — in this case the right to abortion — by delegating enforcement not to state officials, but to private citizens who are authorized to sue abortion providers and anyone else who aids or abets an abortion.
This is the second time that the novel Texas law has come before the court. In a midnight ruling two months ago, the court, by a 5-4 vote, allowed the law to go into effect, over the protests of the court's three liberals and its conservative chief justice, John Roberts. The chief justice called the law "unprecedented" because it outsourced enforcement to "the populace at large" in order to "insulate" the state from being held accountable for an apparently unconstitutional law.
The impact of the law
Indeed, those who wrote the law have boasted about how it is designed to avoid review in the federal courts. Jonathan Mitchell, the former Texas solicitor general who conceived of the design that "boxed out the judiciary" from stopping the law, asserts that states "have every prerogative to adopt interpretations of the Constitution that differ from the Supreme Court's."
Specifically, the Texas law, known as S.B. 8, bans abortions after 6 weeks, when many women don't yet know they are pregnant. It contains no exceptions for rape or incest, and it has only a limited and ill-defined exception for a "medical emergency." But most importantly, the law's enforcement mechanism is to allow anyone who aids and abets an abortion to be sued by any private citizen for a minimum of $10,000.
As a result, abortions in Texas have come to a virtual halt.
"The state's gambit has worked. The impact is catastrophic," says Amy Hagstrom Miller, the president and CEO of Whole Women's Health, which runs four clinics in Texas.
The legal arguments at stake
Now, the case is back before the Supreme Court, which has expedited briefing and arguments even more quickly than it expedited the case against then-President Richard Nixon at the height of the Watergate scandal in 1974.
And yet a majority of the court has let the Texas law remain in place even as it is being challenged as unconstitutional.
It is a tricky and complicated procedural case that starts with this problem: If the federal government is correct, and the state of Texas is wrongly nullifying a constitutional right, who would the court enjoin — what action would a federal court order prohibit? A federal judge did briefly order state court judges and clerks not to accept any of the lawsuits authorized by the state law, but Howard Wasserman, an expert on legal procedure, says that's "unheard of." It has "never been done before."
And that, he explains, is why the challenge brought by the clinics failed on the first try. But now, the federal government has intervened, contending that under the Constitution, it has the authority to go to court to enforce a constitutional right — a right to abortion that has been established and upheld for nearly half a century.
The government contends that it has an interest that supersedes state interests — namely, protecting the supremacy of the Constitution and preventing the state from nullifying the Supreme Court's constitutional rulings. In addition, the government maintains that it has legal standing to intervene because the Texas law interferes with federal employees, contractors and programs that under federal statutes are charged with facilitating and paying for abortions.
The outlook for the government
Wasserman, a law professor at Florida International University, believes the federal government has a good chance of prevailing.
"I think the court is going to say that the government can bring this suit and it may be informed by the fact that this law is so blatantly invalid under existing precedent," he said.
Therein lies the rub, says Harvard law professor Stephen Sachs, who doubts that the new conservative supermajority will continue to uphold the court's key abortion precedents, Roe v. Wade and Planned Parenthood v. Casey. "It's not at all clear that the Supreme Court would agree that those cases are rightly decided," he observes. "They might say they are so wrongly decided that they have to be overruled."
And that is why abortion providers in Texas have shut down their clinics. Because if Sachs is right, and Texas clinics continue to perform abortions that are later found to be unprotected by the Constitution, the clinics and their personnel could be liable for millions, even billions, of dollars.
There is, after all, a very different way to look at these cases, Sachs argues.
"For the folks who think that Roe was seriously wrongly decided, there's also the consideration that every abortion that doesn't occur is a life saved," he says. "And so it's less clear that they would agree that the only folks being harmed here are those who are prevented from obtaining abortions."
Other abortion challenges on the horizon
Indeed, this is clearly a flexion point for the court on abortion, and likely a moment of transition.
But as professor Mary Ziegler, author of Abortion and the Law in America, observes, this is not the scenario that even the court's most anti-Roe justices likely envisioned.
"I think the Texas case sort of landed in the justices' laps. It wasn't necessarily the case that the conservatives justices wanted to take to rethink Roe. It has a lot of weird aspects to it," she observes.
"It isn't focused in viability, which people had long viewed as a weakness of the original Roe/Casey framework," she adds, noting that it "makes more sense for [the justices] to clear the decks on S.B. 8 and then talk about abortion — in probably the way they had wanted all along — which was through the Dobbs case."
The Dobbs case, long-scheduled to be heard this term, tests Mississippi's law banning abortions after 15 weeks, and is set for oral argument on Dec. 1. It is a classic challenge to Roe v. Wade because a ban on abortions after 15 weeks directly contradicts the court's framework in Roe, namely that a woman has the right to terminate a pregnancy before the fetus is viable — able to survive outside the womb, usually 22 to 24 weeks.
In the meantime, what is the court to do with the Texas law?
How it handles the case could be a "very big deal" because it could have large implications for other rights that could be similarly circumvented, Ziegler says. "Can you do that with guns? Can you do that with religious liberty? Can you do that with freedom of speech? Can you do that with birth control?"
That possibility is why, for instance, a gun rights group — the Firearms Policy Coalition — filed a brief, essentially siding with abortion providers in the Texas case.
But Ziegler thinks it is more likely that there is a fifth vote to punt on the Texas case and to refocus on Dobbs, the Mississippi case. One option "that might be attractive to the court," she says, would be to use the Texas case "as political cover" for whatever it's going to do in the Mississippi case.
That would enable the justices to essentially say, "We're uncomfortable with S.B. 8, or we think that the Justice Department can bring this challenge." In other words, something "that lets them looks less partisan, given that they have been very anxious about appearing partisan."
That, however, would require one of the five justices who have twice voted not to block the Texas law, to relent, at least temporarily.
In the end, of course, nobody knows what the court is going to do. Figuring out what's going on behind the scenes in the marble palace is a bit like Kremlinology.
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