Texas abortion ban invites era of constitutional chaos
After weeks of waiting, the Supreme Court this morning finally allowed abortion providers ‘challenge to Texas’ functional abortion ban, SB 8, to go ahead. But the victory for abortion providers isn’t the overwhelming victory that seemed likely when the court heard oral argument on SB 8 in November – and even if legal abortions resume in Texas, any reprieve likely won’t last long. , due to another major abortion. Case, Dobbs v. Jackson Women’s Health Organization, it could destroy abortion rights when the court delivers a decision next year. More immediately, the court ruling today almost invites other states to emulate Texas’ approach, creating the possibility of greater constitutional chaos, and not just on the issue of abortion.
Although SB 8 took effect this fall, it is already in some ways a relic of an earlier era of the country’s abortion wars, a time when conservative states worried about significant losses. of the Supreme Court. For this reason, the law is astute, delegating enforcement to any private citizen who wishes to bring a civil action, as opposed to the state outright criminalizing the process. Texas is no stranger to large losses in abortion cases and has clearly learned the lesson. In 2016, the state faced defeat in Whole woman’s health c. Hellerstedt and had to pay millions of dollars in attorney fees to the Center for Reproductive Rights pro-abortion. Conservative lawmakers did not want to repeat this experiment, but also wanted to follow the other Red States which had introduced sweeping abortion bans after six weeks. SB 8 was the result: a law that could nullify abortion rights while shielding the state from prosecution.
Texas lawmakers believed they had found a loophole in the rules governing constitutional challenges to state laws. There are limits to when states can be sued in federal court, but at the turn of the 20th century, in a case called Ex parte Young, the court ruled that people can sue state officials in federal court for enforcing unconstitutional laws. Texas claimed it had found a way around that rule: if no state official enforced SB 8, there would be no way to test it in federal court. Yes, there could be state cases, but these would not stop all prosecutions against abortion providers and assistants and accomplices – doctors would have to raise a constitutional defense every time they are sued, rather than settle the matter once and for all. In the meantime, suppliers are expected to put out constant fires. Many would refuse to perform abortions after six weeks.
After letting SB 8 come into effect, the Supreme Court appeared to change its mind. Judges put two challenges – one filed by abortion providers, the other by Biden’s Justice Department – on a fast track, meaning cases would be heard and decided much sooner than that otherwise would have been the case. Then, today, the court appeared to give the vendors a victory – the judges voted 8 to 1 that the lawsuit against some state licensing officials could proceed in federal court. The court focused on specific license officials who are responsible for enforcing other laws that regulate abortion in Texas. These officials, the court found, could apply SB 8, and vendors could take them to federal court. At the same time, the court dismissed the separate appeal from the Justice Department. The United States had challenged Texas law because the state had prevented anyone from doing so. Because the court authorized the prosecution of the vendors, it was not necessary to resolve the thorny issues involved in the Justice Department’s lawsuit.
So far, all has been going well for abortion providers. But look a little closer, and today’s ruling appears to be less of a victory for abortion rights – or, for that matter, for those concerned about the state’s efforts to overturn. other constitutional rights. First, the court did not allow vendors to prosecute anyone other than state licensing officials, including the attorney general or state clerks who record cases. Taking legal action against off-table clerks will make it difficult to block every SB 8 suit to go ahead. Suppliers will be in and out of court and will have to rely on the affairs of state. A clean solution that ends SB 8 once and for all might not be possible.
With its ruling, the court gave states seeking to overturn other constitutional rights a roadmap: write a law like SB 8 with a few tweaks, and the court majority can approve it. The only question will be whether Democrats as well as Republicans accept the court’s veiled invitation to play constitutional hardball.
For the women of Texas, nothing will change immediately: SB 8 will remain in effect in the short term. Even if a victory is down the line, lower courts are likely to find that Texas law violates abortion rights because Roe vs. Wade is, after all, still the dominant precedent – abortion providers in the state may be reluctant to resume services. The drafters of SB 8 have thought of everything: The law contains a provision stating that doctors can be prosecuted for abortions performed after a lower court blocks application of the law if the Supreme Court later rules it. there is no constitutional right to an abortion.
The court’s conservative qualified majority seems ready to say that there is no right to abortion in Texas, or anywhere else. When the Court heard the pleadings in Dobbs last week all the court’s conservatives seemed to think that the case law on the right to abortion is fatally flawed. Chief Justice John Roberts sought some sort of middle ground, arguing that states could pass abortion laws before viability, the point at which survival is possible outside the womb. None of his Conservative colleagues seemed particularly interested in joining him. Most of the court seemed to think there was no constitutional right to abortion and seemed ready to say so.
Today’s decision is not a victory for abortion providers but for constitutional chaos. This will encourage states, whether conservative or progressive, to see how far they can circumvent the judicial interpretation of constitutional rights. The ruling will lead some to believe that abortion rights will be restored in Texas as the court considers declaring that these rights never existed in the first place.
During the Dobbs argument, the Court clearly gave the impression of being indifferent to the political consequences of its actions. This conservative majority seems ready to transform the Constitution and its interpretation in a radical way, perhaps unpopular, to hell with the consequences.
Today’s decision has only reinforced that impression. Allowing states to refine the SB 8 model will encourage constitutional anarchy. The same may be true for the inversion Roe deer, but the conservatives at the court do not seem to care.