The Supreme Court on Friday handed down a big decision in a case involving a challenge to Texas’ restrictive abortion law. But its decision does not directly address the constitutionality of restrictions on abortions. Instead, this decision is about who can sue and be sued to stop Texas’ law from being in effect.
The court allowed Texas’ law to stay in effect and failed to robustly reassert the importance of federal judges. In fact, the court has all but provided turn by turn directions for states that want to pass laws that evade federal judicial review.
This decision is about who can sue and be sued to stop Texas’ law from being in effect.
Texas’ law effectively bans abortions after six weeks of pregnancy. That means that in Texas, an 11-year-old who gets pregnant as a result of being raped will be forced to give birth unless a doctor can show the child’s life is at risk by doing so.
If Texas’ law sounds unconstitutional, that is because it is — at least for now. The Supreme Court is, of course, reviewing what states can and cannot constitutionally do in terms of restricting abortion in another case, a Mississippi abortion law that bans abortions after 15 weeks of pregnancy. The court looks poised to conclude that there is no constitutionally protected right to an abortion. This would allow states to ban abortions.
The architects of Texas’ law created an ingenious and yet diabolical law designed to evade judicial review. Essentially, those designing the law wanted to make it impossible for the law to be stopped before it goes into effect, and, once the law goes into effect, extremely difficult for those challenging the law to be able to get a state-wide injunction to stop that law from staying in place.
You might ask how a law that, again, is clearly unconstitutional under the current Supreme Court cases, can be allowed to go into effect at all. The reason is that if the law is not enforced by the state, but rather by private individuals, then (at least according to Texas) there is no one to sue to stop enforcement of the law before it goes into effect. Instead, according to Texas, if an abortion provider violates Texas’ law by performing an abortion on a woman after six weeks of pregnancy, that provider should wait to be sued by a private individual from any state in the country, not by the state of Texas, and then assert the unconstitutionality of the law as a defense.
If that private individual successfully convinces the court that the law is unconstitutional, then the law will likely only be halted with respect to parties of that suit, not with respect to the entire state. Hence, if members of the Texas government aren’t enforcing the law, and therefore cannot be sued to stop enforcement of the law, then the only way to stop enforcement of the law is an absurd game of legal whack-a-mole in which individuals must violate the law, wait to be sued, argue that the law is unconstitutional and hope a state court agrees and stops enforcement of the law at least with respect to that individual or group. This is not a true solution to an unconstitutional law that should not remain in effect as to anyone. And yet, after Friday’s decision, this is what may be left: whack-a-mole to protect our constitutional rights.
This is the most narrow of victories for abortion providers.
By outsourcing enforcement of the law, Texas has essentially argued that there is no one to sue to stop enforcement of the law before it goes into effect, and no good way to impose a state-wide injunction to stop the law from being enforced. The court appears to have at least partially agreed.
Let’s remember what typically happens when a state passes a law of questionable constitutionality. Someone sues members of the state to stop enforcement of that law before it ever goes into effect. And if, for some reason, the law does go into effect, people can sue members of the state to stop that enforcement. This allows people a true remedy, to halt the enforcement of a constitutionally dubious law. The Supreme Court fast-tracked oral arguments in this case, which asks who can sue and be sued to stop a law like Texas’ law. The court actually considered two challenges to the law, one by the federal government against the state of Texas (which it dismissed), and another by abortion providers against various state officials in Texas. The court correctly concluded that the abortion providers’ suit against people with disciplinary authority over medical licensees could go forward. Unfortunately, that is the only group that a majority of the court agreed could be sued to stop Texas’ law. The court dismissed from the suit state-court clerks, state judges and the state attorney general. Simply put, the court held that the abortion providers’ suit can only move forward against state medical licensing officials, but no one else. This is an extremely narrow victory for abortion providers. Again, it is far from clear that by being able to sue state medical licensing officials abortion providers will be able to get state-wide relief, as opposed to case-by-case relief. This is the most narrow of victories for abortion providers. Perhaps the straw that broke the camel’s back and allowed for this small success for opponents of Texas’ law was the realization that if it ruled that there was no one who could sue and be sued to stop enforcement of this state law, that would allow other states to pass unconstitutional laws and cut federal courts out of the process of halting those laws. Imagine that the hypothetical state of Blue passed a law that said no one can ever obtain a permit to own a gun in that state, and that private individuals, not the state of Blue, would enforce that law. In sum, in this much-watched decision about Texas’ abortion law the Supreme Court has handed abortion providers the smallest of lanes to continue to pursue its claims. The bottom line is that we never should have been here. The Supreme Court should have put a stop to Texas’ clearly unconstitutional abortion law before it ever went into effect in September. Just because Texas’ law is a procedural mess that is designed to cut federal courts out of the process, it doesn’t mean the court has to aid and abet that mission.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
