Politico

The Real Test to Abortion Rights Hasn’t Happened Yet


This week, five justices of the Supreme Court allowed a Texas law to go into effect that says private citizens can sue for $10,000 anyone who performs, aids or abets an abortion on a fetus that has a detectable heartbeat. Their decision didn’t overturn Roe — in fact, the legal question at stake wasn’t about the fundamental right to an abortion at all. Still, abortion rights advocates are up in arms for a reason — mostly because how the court acted today could be a signal as to how it will act in November, when the real challenge to federal abortion rights will come before the Supreme Court.

This week’s Supreme Court case was all about whether or not a federal court had the ability to “enjoin,” or block, the Texas law from going into effect until the merits of the law could be settled in court. The broad use of injunctions is a relatively recent but increasingly common legal practice, so we are accustomed to seeing courts block even potentially unconstitutional laws during the period after the law is passed and before it goes into effect. For example, in 2015, a federal judge enjoined President Barack Obama’s secretary of Homeland Security from implementing its Deferred Action for Parents of Americans program. In 2018, a different federal judge enjoined Trump’s secretary of Homeland Security from terminating the Deferred Action for Childhood Arrivals program.

Let’s consider this in the context of the Texas law. The Texas law does not criminalize abortion. It allows a private person to sue an abortion provider and recover civil damages. So when abortion providers sued to stop the law from going into effect, the question was always whom they were going to bring the lawsuit against. The Texas attorney general and governor — the people who normally get sued in state abortion restriction cases — weren’t parties to any of these future lawsuits, so they couldn’t be sued in this case. In the end, the abortion providers decided to sue a state judge, arguing that he was a state actor that could be enjoined from presiding over the civil cases and using the power of the state to enforce the $10,000 award.

Whether a federal court can enjoin a state judge from overseeing a state civil trial based on state law is a complicated legal question. States themselves are immune from suit under the 11th Amendment, but in 1908 the Supreme Court held that a plaintiff could get an injunction against an enforcing state officer when that person was violating the U.S. Constitution. The question for the Supreme Court was: Are state judges the enforcers of the Texas law?

This legal ambiguity was precisely the point, by the way. After decades of passing myriad state abortion restrictions only to have them enjoined by federal courts and never go into effect, the anti-abortion movement’s legal wing came up with this idea as a way to get around the problem. By their way of thinking, if there were no one to enjoin, then they could get past that first hurdle — further than any so-called heartbeat bill had ever made it. It was a hypothetical a law student might expect on their constitutional law final exam — and the Texas legislature was happy to go along because for years Republican politicians have been able to signal their anti-abortion bona fides by signing onto these types of bills without any real concern that the law would actually go into effect. They are now the dogs that caught the car, which I think explains why so few Republicans have been out in the media cheering on the result.

In the end, in an unsigned opinion, a majority of justices held that “federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves” and did not enjoin the state judge. But they also said that the decision was emphatically “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.”

The dissenters — John Roberts, Stephen Breyer, Sonia Sotomayor and Elena Kagan — all wrote their own opinions. Roberts wanted to prevent the law from going into effect until SCOTUS could have more time to decide “whether a state can avoid responsibility for its laws in such a manner.” Breyer would have been satisfied with enjoining the state judge because such a procedural bottle held “what is, in essence, very old and very important legal wine: The ability to ask the Judiciary to protect an individual from the invasion of a constitutional right — an invasion that threatens immediate and serious injury.” Sotomayor was less focused on the means, reasoning that SCOTUS should issue the injunction because the law was “flagrantly unconstitutional law,” while Kagan called it “patently unconstitutional.” For them, the obvious unconstitutionality of the law was more important than the question of who could enjoin whom.

So where does this leave abortion rights in Texas?

As of now, a doctor in Texas who performs an abortion on a fetus with a detectable heartbeat when the mother’s safety is not at risk can be sued. The practical chilling effect of that is obvious. But when someone tries to bring such a lawsuit, the abortion provider will be able to challenge the constitutionality of the statute itself. And then this law will finally be litigated on its merits — and under current law — struck down.

Roe v. Wade was the first case to recognize the constitutional right to an abortion. But the current standard for when and how states can restrict that constitutional right was decided in Casey v. Planned Parenthood, which stated that it was maintaining the “essence” of Roe while rejecting its entire framework back in 1992. In Casey, the Supreme Court struck down the part of a Pennsylvania law that required married women seeking abortions to notify their husbands but it upheld the parts that required parental notification for minors and a 24-hour waiting period for a woman seeking an abortion. In doing so, the court lowered the test for state restrictions from Roe’s very high one and created a new standard called the “undue burden” standard that would strike down a state law that had “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” There is no question that the Texas law is an undue burden under that definition.

Even though the Texas law is in serious legal jeopardy, reproductive rights advocates are right to be on alert. First, the Supreme Court’s majority could have said that the law was blatantly unconstitutional but that the plaintiffs simply hadn’t sued the correct party. Instead, the majority of justices just said they weren’t commenting on its constitutionality. Second, the standard in other parts of the legal world — like the one that applies to lawsuits that seek to change the rules before an election — places an emphasis on maintaining the status quo, and the majority could have followed Roberts’ dissent in this case to prevent the law from going into effect on those grounds alone. Third, those advocates know that the undue burden standard is very much in jeopardy — just not in this case.

The real challenge to Casey will come this fall, when the Supreme Court will hear arguments in a case called Dobbs v. Jackson Women’s Health Organization about the constitutionality of Mississippi’s ban on abortions after 15 weeks. Under the Casey standard, a ban on abortions at that stage is clearly an “obstacle in the path of a woman seeking an abortion of a nonviable fetus,” but court watchers all believe that there are now at least five votes to change how undue burden is defined, create a new standard altogether, or reject the constitutional right to an abortion and leave it up to states as to whether and how they want to restrict abortion access. As of today, 22 states have laws that would further restrict abortion access if Casey is overturned.

But those anti-abortion advocates that are cheering the result this week should be wary as well. Texas legislators may have found a creative way to prevent courts from reaching this law before it went into effect, but the law will likely get struck down soon enough. In the meantime, they have provided a blueprint for any other state that wants to infringe on constitutional rights. New York can pass a law allowing its citizens to sue anyone in the state who sells someone a firearm. California could create a damages award for $50,000 for anyone who sees someone praying on public land.

If history is any guide, abortion-rights advocates have reason to be nervous. In February 2015, the Supreme Court had an emergency application to prevent Alabama from issuing marriage certificates to same sex couples. Just like this week, the court denied the request even though — just like here — it was set to hear arguments in a different case on the very same issue just a couple months later. In June 2015, the Court recognized a constitutional right for same sex couples to marry in every state of the union.

A decision in Dobbs is expected in 2022.

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Lisa

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