Supreme Court Punts on Constitutionally Dubious Texas Abortion Law
Plus: Millennial myth busting, McFlurry madness, and more...
Supreme Court declines to block Texas abortion ban. In a 5–4 decision, the U.S. Supreme Court has declined to block enforcement of an extreme new abortion restriction in Texas. Notably, it did not rule on the law's constitutionality. If it had, we would likely not be seeing this ban take effect.
"This order is not based on any conclusion about the constitutionality of Texas's law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts," notes the majority opinion.
"The law's reach is so broad that it clearly violates the Court's abortion precedents," as Reason's Jacob Sullum noted yesterday. "In Roe v. Wade, it held that the Constitution protects a right to abortion, and it has repeatedly affirmed that basic conclusion since 1973. A case that the Court will hear next term, involving a Mississippi law that bans abortions after 15 weeks (vs. about six weeks under S.B. 8), will give the justices an opportunity to overturn or (more likely) scale back Roe and its progeny. But in the meantime, S.B. 8 is plainly inconsistent with what the Court has said about constitutional limits on abortion regulations."
The law—which took effect September 1—bans abortion around six weeks of pregnancy and deputizes any private citizen in the country who thinks an abortion has taken place in violation of this rule to sue abortion providers or anyone who has facilitated the procedure. If they're right, they get at least $10,000 per illegal abortion.
Whether the Texas law is constitutional is a question still winding its way through the federal court system. The matter is currently before the 5th Circuit Court of Appeals. But abortion providers and the American Civil Liberties Union were hoping the Supreme Court would intervene to block the law from taking effect as this plays out.
The reason the Court declined to temporarily block the law is complicated—and suspect, some say.
What the Justices Said
Supreme Court Justices Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas voted not to block the law. Justices Roberts, Breyer, Kagan, and Sonia Sotomayor dissented.
"The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue," noted the majority opinion. "But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention."
In other words, the court won't yet intervene because it's not the state tasked with enforcing the law but private citizens in civil court suits.
"We stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants' lawsuit," the majority opinion concludes.
This is echoed by Chief Justice John Roberts in a dissent joined by Justices Stephen Breyer and Elena Kagan. "Although the Court denies the applicants' request for emergency relief today, the Court's order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue," writes Roberts.
Still, he isn't buying the majority's logic. Texas' legislature "has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime," he points out.
To Roberts, that doesn't fly:
I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner. Defendants argue that existing doctrines preclude judicial intervention, and they may be correct. But the consequences of approving the state action, both in this particular case and as a model for action in other areas, counsel at least preliminary judicial consideration before the program devised by the State takes effect.
Breyer concurs. "I recognize that Texas's law delegates the State's power to prevent abortions not to one person (such as a district attorney) or to a few persons (such as a group of government officials or private citizens) but to any person. But I do not see why that fact should make a critical legal difference," he writes in a dissent joined by Sotomayor and Kagan. "That delegation still threatens to invade a constitutional right, and the coming into effect of that delegation still threatens imminent harm."
Sotomayor is more forceful in her dissent (which was joined by Breyer and Kagan):
The Court's order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State's enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State's own invention.
Effect Beyond Texas
The Court saying that it can't stay a likely unconstitutional law if it's to be enforced by private actors and civil lawsuits could pave the way for all sorts of nutty new legislation.
"The immediate direct impact of Texas' law and SCOTUS' punt will be abortion rights, of course, but more broadly there will be an unstoppable temptation to draft nutty bounty laws in many states on many topics, right and left, which is going to be very bad for the court system," tweeted lawyer Ken "Popehat" White.
"This Texas ruling is disturbing for reasons that don't even relate to reproductive choice," commented Cato Institute senior fellow Julian Sanchez. "SCOTUS is effectively saying 'if you build a Rube Goldberg enforcement mechanism for the express purpose of evading review of a facially unconstitutional law… very clever, that'll work!'"
I am morbidly curious to see how many state legislatures now adopt a "deputize private litigants" strategy to insulate laws that would be immediately blocked by the courts if directly enforced.
— Julian Sanchez (@normative) September 2, 2021
This is just what the folks behind the Texas law wanted, suggests University of Texas law professor Stephen I. Vladeck. "The whole *point* of #SB8 was to create exactly the procedural doubt on which the majority expressly relies to allow it to go into effect," Vladeck tweeted, adding that the Roberts dissent "explains why that shouldn't suffice."
Effects in Texas
Abortion clinics are already having to turn away women seeking abortions.
Bhavik Kumar of Planned Parenthood in Houston told The Texas Tribune he normally performs two or three dozen abortions per day. On Wednesday, "Kumar saw only six patients. He had to deny abortions to half of them," the Tribune reports.
"Since mid-August, all 11 of the Planned Parenthood health centers in Texas that provide abortion services have stopped scheduling visits after Sept. 1 for abortions past six weeks of pregnancy," notes NBC News.
The new law could also create risks for women who miscarry and doctors who treat them.
I don't think most of you fully comprehend the horrors of what is about to happen in Texas to countless women. Nearly every woman I know who wanted to get pregnant in their 30s had miscarriages. Many at 12+ weeks. Heartbreaking. For 12+ week miscarriages Drs have to do D+E.
— Dr. Sarah Parcak (@indyfromspace) September 1, 2021
What Happens Next?
"What happens now? Couple different tracks. First, this case is still pending before the 5th Cir., with unfinished business at the district court," notes attorney Gabriel Malor on Twitter. "Second, any time now we should be seeing the first round of state court litigation with private citizen suits seeking to enforce SB8."
And, of course, we might have some of these questions resolved sooner by Dobbs v. Jackson Women's Health Org., which has been accepted, but not yet been set for argument at SCOTUS.
— Gabriel Malor (@gabrielmalor) September 2, 2021
FREE MINDS
Millennial myth busting:
More evidence that millennials are fine and that viral declensionist charts are usually wrong. You can wish things were better, but they're not worse. https://t.co/56mFKwE1ar
— Scott Winship (@swinshi) September 2, 2021
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McFlurry madness:
https://twitter.com/mims/status/1433141876132139012
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