On Monday morning, the Supreme Court heard oral arguments in two cases dealing with Texas’ law banning abortions after six weeks of pregnancy. Texas’ abortion law, the most restrictive in the country, was designed to evade meaningful judicial review. If the court allows that to happen, it will be effectively impossible for federal courts to stop laws like these before they go into effect, and make it harder to halt such laws once they do. The Supreme Court will soon tell us if Texas, and, by extension, any other state, can get away with this dangerous legal hat trick.
The question boils down to this: Can abortion providers in Texas sue state officials? Can the Department of Justice sue to block Texas’ restrictive abortion law?
These cases do not directly address whether or not the law is constitutional. Instead, they touch on a critical legal question: Who can sue and be sued to stop the enforcement of a law like this, which outsources enforcement to private individuals? In this case, the question boils down to this: Can abortion providers in Texas sue state officials? Can the Department of Justice sue to block Texas’ restrictive abortion law?
If the Supreme Court answers “no” to both questions, which seems unlikely after Monday’s oral arguments, the court will have effectively ceded much of its authority to block unconstitutional laws. The Supreme Court’s view can perhaps be summed up by a comment, dripping with both derision and sarcasm, by Justice Elena Kagan who said that “after, oh these many years, some geniuses came up with a way to evade the commands … that states are not to nullify federal constitutional rights.”
“Some geniuses,” a phrase destined to go viral in nerdy law Twitter, refers to the architects of Texas’ law.
Predicting how Supreme Court justices will rule after oral arguments is a notoriously risky endeavor, but based on the questions the justices raised during the three hours of arguments, there seem to be five, or more likely six, votes to allow the suit by abortion providers against Texas state officials, and specifically court clerks, to go forward. At that point, the Justice Department has much less need to be able to move forward on its suit against the state of Texas, which is good, because it was less than clear that there are five votes in favor of the department’s position.
Many people are understandably more focused on whether the court will strike down its 1973 decision in Roe v. Wade, in which the court concluded that there is a constitutionally protected right for a woman to obtain an abortion. But in the case of the Texas law, we must first determine when, whether and how the federal government or private individuals can go to court to ask a judge to stop that law from being enforced.
Let’s remember why this is an issue. Normally the government passes a law that government officials enforce. So if you want to sue to stop that law from being enforced, you sue the government officials, and the court determines whether that law should be in effect while the case is being litigated.
This is perhaps the legal equivalent of a doctor looking at an apparently complex ankle injury and just saying, “This is a tough one. Walk on it for a while longer while we all sort this out.”
Not so for Texas’ cleverly (some might say deviously) designed law. It was written to prohibit a federal court from reviewing the law by deputizing private individuals, not state officials, to enforce that law. Under Texas’ law, any individual can sue someone who “aids or abets” a woman trying to obtain an abortion. So who can sue and be sued to stop the enforcement of a law Texas claims it doesn’t enforce? When first faced with this procedural question in September, the Supreme Court basically threw up its hands, concluded that this was a hard question and let the law go into effect, meaning the plan to evade federal review worked just as Texas intended it to work.
When abortion providers pointed out Texas’ law violates Roe and the court’s 1992 decision in Planned Parenthood v. Casey, the Supreme Court called the procedural questions raised by Texas’ enforcement mechanism “complex and novel” and called into question whether Texas’ abortion providers had even sued the right people. This is perhaps the legal equivalent of a doctor looking at an apparently complex ankle injury and just saying, “This is a tough one. Walk on it for a while longer while we all sort this out.” But your ankle needs treatment, not doctors who just throw up their arms because it’s hard to sort out how to tackle the injury.
The Supreme Court letting an abortion law that clearly contravenes both Roe and Casey go into effect has severely restricted the ability of women in Texas to exercise their constitutionally protected right to an abortion.
Would the court allow any other right to be trampled on the way it has already allowed the right to abortion to be all but eviscerated by Texas? Take the First Amendment. Imagine Congress passed a law making it illegal to make disparaging remarks about a member of Congress and if you make such remarks, then you can be sued by any other American. The court would almost certainly find a way through the “complex and novel” procedural questions and halt enforcement of the law. What’s the difference? The majority of the court cares about speech rights and is, apparently, cavalier, at best, when it comes to abortion rights.
The question raised Monday by the suit brought by abortion providers is whether Texas can design a law that prohibits federal court review by giving enforcement power to private individuals instead of the state. The question raised by the suit brought by the Justice Department against Texas is whether the federal government can sue the state to stop its law from being enforced when Texas has said it is not the one enforcing the law. Who does Texas say can sue to stop its restrictive abortion law before it goes into effect? No one. Instead, Texas says, we must wait for someone to violate the law, be sued, and then raise the law’s unconstitutionality as a defense. But, even if that person were successful, that still would not provide meaningful relief to thousands of women in Texas because even if that defense is successful in a state court action, that will likely be a narrow victory for abortion rights advocates, as the law would be halted only with respect to that person or the parties to that suit. Also Texas has made it very, very costly to violate the law, so there simply may not be many people who are willing and able to violate it. If the court sides with Texas, we can expect other states throughout the country to implement identical restrictive abortion laws . This means women would be unable to exercise their constitutionally protected right to an abortion, and would be forced instead to wait for someone to violate the law, be sued based on that violation, use the law’s illegality as a defense, and hopefully be successful in that defense. And again, that defense would not provide sufficient relief to all women, but instead would provide a narrow remedy. We will soon know if states can design laws to bar federal judicial review of laws that blatantly trample on constitutional rights. All of this brings us somewhat full circle to one of the issues we started with: the constitutional right to obtain an abortion. The court will hear arguments in a separate case, dealing with Mississippi’s abortion law, on Dec.1. That law is a full frontal attack on Roe and Casey. Mississippi currently bans most abortions after 15 weeks of pregnancy, but under Roe and Casey, abortions cannot be banned until closer to 24 weeks of pregnancy. While the court declined to determine the constitutionality of Texas’ law, after the justices weigh in on the constitutionality of Mississippi’s law, we will know whether we are living in a pre-Roe country, when women lived at the mercy of their state elected officials who determined if they could legally obtain an abortion. But before the court makes its decision in the Mississippi case, it is likely to rule on the procedural questions it heard Monday dealing with Texas’ law. This means we will soon know if states can design laws to bar federal judicial review of laws that blatantly trample on constitutional rights. The court should not forfeit its role of protecting constitutional rights. One of the roles of federal judges is to block laws that would otherwise steal our constitutional rights. They should not cede that role simply because Texas created a complicated procedure to squash abortion rights.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
