New suit challenges whether the Supreme Court wields a "Writ of Erasure"

|The Volokh Conspiracy |

The City of Austin, Texas appropriated funds to assist women who are seeking abortions. Article 1192 of the Texas Penal Code, however, makes it a crime to "furnish[] the means for procuring an abortion knowing the purpose intended." Don Zimmerman, a Texas taxpayer filed suit, and argued that Austin is violating this state law. (Texas has very broad taxpayer standing rules).

Zimmerman's petition faces a formidable obstacle: Roe v. Wade (1973). This landmark abortion decision considered the constitutionality of "Arts. 1191-1194 and 1196" of the Texas Penal Code. By a 7-2 vote, the Court declared unconstitutional Article 1196, which only permitted abortions "for the purpose of saving the life of the mother." Moreover, Part XIII of Roe concluded that all of the statutes in the section, including Article 1192, must be "struck down."

Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas abortion statutes, as a unit, must fall. The exception of Art. 1196 cannot be struck down separately, for then the State would be left with a statute proscribing all abortion procedures no matter how medically urgent the case.

How can Zimmerman rely on Article 1192, if the Supreme Court struck the statute down in Roe? He contends that the Court could not, and therefore did not, strike it down. His complaint explains:

Neither Roe v. Wade nor any subsequent decision of the Supreme Court "struck down" or formally revoked article 1191, article 1192, or any other Texas statute that criminalizes abortion. The federal courts do not wield a writ of erasure over the statutes that they declare unconstitutional, and these statutes continue to exist as laws until they are repealed by the legislature that enacted them. A Supreme Court ruling that declares a statute unconstitutional means only that the statute may not be enforced in a manner that contradicts the Supreme Court's interpretation of the Constitution. See Pidgeon v. Turner, 538 S.W.3d 73, 88 n.21 (Tex. 2017) ("[N]either the Supreme Court in Obergefell nor the Fifth Circuit in De Leon 'struck down' any Texas law. When a court declares a law unconstitutional, the law remains in place unless and until the body that enacted it repeals it, even though the government may no longer constitutionally enforce it. Thus, the Texas and Houston DOMAs remain in place as they were before Obergefell and De Leon, which is why Pidgeon is able to bring this claim.");

Zimmerman cites the Texas Supreme Court's decision in Pidgeon v. Turner. (I blogged about it here and here.) This case recognized that Obergefell v. Hodges and De Leon v. Perry (the follow-up decision from the 5th Circuit) did not "strike down" Texas's Defense of Marriage Act. De Leon only held that Texas officials could no longer deny marriage licenses to same-sex marriages. Other elements of the law would remain in effect until a court enjoined them. As a practical matter, officials who enforced the statute in a manner inconsistent with Obergefell would likely be sued, and would be on the hook for attorney's fees. (Howard Wasserman and I discussed this type of litigation in The Process After Marriage Equality.)

Today, Texas could not enforce Article 1192, to the extent that it conflicts with Roe and Casey. But Texas can enforce this law to the extent it does not conflict with Roe and Casey. Zimmerman's suit seeks exactly that relief:

22. The courts must therefore enforce article 1192 and section 7.02 of the Texas Penal Code unless their enforcement against the defendants in this particular case would violate the Supreme Court's abortion edicts by imposing an "undue burden" on women seeking abortions. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

23. An injunction that bars the mayor and the city from providing taxpayer money to abortion-assistance organizations will not impose an "undue burden" on any woman who wants to abort her pregnancy. It has long been established that women seeking to abort their pregnancies have no constitutional right to taxpayer assistance, and that the withholding of taxpayer subsidies does not constitute an "undue burden." See Harris v. McRae, 448 U.S. 297 (1980)

Zimmerman is represented by Jonathan Mitchell. The former Texas Solicitor General authored The Writ of Erasure Fallacy, and argued Pidgeon. (He was also my professor at GMU.) Mitchell maintains that courts cannot actually strike down statutes. They can only enjoin the enforcement of the statute in particular cases between specific parties.

Indeed, the statutes the Supreme Court declared unconstitutional in Roe are still in the books–literally. Justice Blackmun did not manage to erase the statutes, which still reside in the South Texas College of Law Library. In theory, if Roe and Casey were overruled, the old Texas statutes would go immediately into force. There would be no need for the legislature to take any action. Indeed, recently Massachusetts repealed its criminal prohibition on abortion, in anticipation of Roe being overruled. This decision reaffirms the fact that courts cannot actually "strike down" laws.

The concept of the "writ of erasure" is jarring to most attorneys, and especially law professors. From the earliest days of law school, we are taught that courts strike down laws, as part of a general homage to judicial supremacy. One can support the concept judicial review (the power to declare an unconstitutional statute unenforceable), yet reject the notion that courts can simply strike down, or erase statutes. Invariably, criticisms of the "writ of erasure" turn to the massive resistance to Brown v. Board of Education. I encourage you to read my article, The Irrepressible Myth of Cooper v. Aaron, which identifies many of the myths surrounding judicial supremacy in the wake of Brown.

NEXT: Kagan and Gorsuch Clash Over Judicial Deference to the Administrative State

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  1. The logic here seems impeccable; The application of the Texas statute the suit demands doesn’t contradict Roe, so Roe can not bar its enforcement.

  2. Your reliance on Bivens in the longer article seems misplaced. It follows Cooper and is predicated on Cooper. In any event, the account of precedent and stare decisis is too sketchy to carry the load you place on it. In other words, if the decision binding only as to parties, how is it that non-parties who ignore the decision are fairly punished for doing so?

  3. So is this simply a matter or words and the Supreme Court should have used “enjoined” (or whatever the legal term is) instead of “struck down?”

    BTW, I agree with the fallacy of writ of erasure position: https://www.supremecourt.gov/opinions/URLs_Cited/OT2017/16-476/16-476-3.pdf

    1. Well, if the law would reasonably apply in other situations that do not cause constitutional conflict, why is it bad law there?

      I thought this was the normal interpretation anyway. State constitutional amendments, for example, that conflict with federal laws still exist, just aren’t enforcible.

  4. Josh, I understand that you want to plug your article, but this case has very little to do with the writ of erasure lol. It’s basically just a question of severability—does Roe invalidate ALL of Arts. 1191-1194 and 1196, or just the unconstitutional parts? (One might also frame this as an as-applied/facial challenge; the concepts are interrelated.)

    Hellerstedt suggests the former. The majority wrote “[a] severability clause is not grounds for a court to devise a judicial remedy that entails quintessentially legislative work”–and invalidated Texas’s entire statute.

  5. I think it unlikely that Justice Blackmun really believed the Court had the power to redact the statutes, so when he wrote “struck down” he meant declared unenforceable. The validity and effect of that declaration is certainly disputable, as noted in the dissent from Justice Rehnquist. It also isn’t clear whether a judgment for Zimmerman would constitute enforcement of Article 1192. But I think all the focus on erasure is a distraction.

  6. Forgive me if this is painfully obvious, but can’t the TX legislature, taking notice of what’s happening in Austin legislature (which, to my understanding, is only a few scant miles away) simply pass a new statute prohibiting the cities from appropriating tax money for abortions?

    Under the current test, that law would not be an undue burden. I expect it would comport with the TX Constitution (which doesn’t have strong home-rule). It would be a slam dunk.

    Maybe the question is, if there is a clean and uncomplicated way of accomplishing a policy goal, why are bother with more complicated methods?

    1. For one thing, the Texas Legislature only meets every two years and isn’t due to meet for a while.

  7. The Texas legislature certainly could pass such a bill, but they have not done so. Mr. Zimmerman took it upon himself to try to use the old pre-Roe law to accomplish the same thing. He isn’t acting as an agent of the Texas legislature.

  8. Under current Supreme Court doctrine, a state my not criminalize abortion. But it can refuse to fund it and prohibit its localities from funding it.

    The Texas criminal statute here, by its terms, does not prohibit localities from funding abortions. I understand it could be construed as implementing a policy against abortions.

    I’ve longed argued states ought to be able to restrict abortions. But I think we have to look at these things neutrally, using neutral principles. The Texas legislature can, any time it wants, pass a law prohibiting localities from using taxpayer funds to fund abortions. It hasn’t done so. I think we have to respect that fact. It is for the legislature to decide what policy should be in light of the current constitutional landscape, or to enact laws designed to challenge that landscape if it wants to do so.

    It is not for courts to do this in the absence of legislative action. I don’t think it is the business of courts to re-interpret a sledgehammer law into being a toothpick because a toothpick is constitutional where a sledgehammer isn’t.

    1. Moreover, principles of state decisis apply here. There may be good reasons why courts should be more parsimonious about the extent to which they invalidate laws than they have been in the past.

      But suddenly reviving laws previously declared, and long considered dead, wrecks havoc for all the reasons implicit in the stare decisis and ex post facto doctrines.

      I have long said Roe was an overreach. But courts are not here to enact their preferred policies.

      The constitution only guarantees an ordered liberty. But order matters. Restrictions on liberty must be ordered. One part of that order is that restrictions on liberty require a legislature’s considered judgment. Courts should give legislatures an opportunity to express their will. But they should not themselves interfere with that will, and they should conduct themselves in an orderly way. Declaring a law struck down, and then suddenly declaring it a basis for policy decades later after everyone has ignored it, would represent an example of a disorderly interference with the legislative sphere.

  9. “The law is not a light for you or any man to see by. The law is not an instrument of any kind…The law is a causeway to which, so long as he keeps to it, a citizen may walk safely.”

    Robert Bolt, A Man for All Seasons

    If the rough contending seas of the judiciary were permitted to make laws dissappear and reappear at will, so that a law declared to have no effect suddenly, by a change of opinion, gets reapplied to behavior occurring before the change, there will be no causeway, and the citizen will have no safety.

    Religious opponents of abortion may consider it the Devil’s work. But there is a reason, as Bolt’s More explained it, to give even the Devil benefit of law, for ones own safety’s sake.

    The courts have overextended due process to cover what are essentially political beliefs and policies. But in retrenching, they should be careful to leave the real Due Process, the fundamental idea that for there to be law there must be notice, undisturbed.

  10. This should all come as good news to states that seek to restrict the ownership of firearms and other weapons. The exact same principles and tactics should apply since the Court’s decisions in Heller and McDonald applied only to the parties and did not strike-down down any laws.

    If the Court’s decisions are to be treated so narrowly, then let the states start going after the liberties and rights that state politicians do not like. Let’s see how that turns out….

    1. That seems to be the ongoing case though, and didn’t need this to prompt is.

      Per Blackman, the Texas statute has always prohibited “ furnish[] the means for procuring an abortion knowing the purpose intended.”

      As applied to the State itself it’s certainly constitutional, even though a reasonable reading of Roe says it’s not as applied to individuals.

      But McDonald ruled that there was a constitutional right to possess and carry arms, and so any reading of any statute that prohibits or materially interferes with that right must be included.

      The broad reading of Roe (state paid abortion are mandatory) and McDonald (right to carry) would require that every legislature buy their citizens personal firearms.

      While that would be hilarious, it’s both a bad idea and one few would endorse (excepting trolls, for the lulz, of course).

  11. I’m not sure why Prof. Blackman is treating this concept (that a declaration of unconstitutionality does not make a statute disappear) as something new and/or disturbing to lawyers and law profs. The Supreme Court said 45 years ago (in Steffel v. Thompson, 415 U.S. 452, 469 (1974), quoting a Brennan concurrence/dissent in Perez v. Ledesma three years earlier) that a declaratory judgment that a statute is unconstitutional “cannot make [it] disappear.” David Shapiro wrote about the same idea in a seminal article in Northwestern Law Review forty years ago, which has been cited repeatedly in the literature.

  12. You can call it a fallacy and write law review articles to your heart’s content, but the Supreme Court has unilaterally appropriated legislative authority and declared itself immune to any challenge to that authority. Neither of the other branches seem particularly interested in challenging that authority.

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