The Texas Abortion Law Reaches the Supreme Court
[Edward Mechmann is an attorney and Director of Public Policy for the Archdiocese of New York. The following is reprinted with permission from his public policy blog “Stepping Out of the Boat” (October, 25, 2021).]
The Texas heartbeat law continues to generate controversy, legal battles, and a lot of confusion. Last week, the Supreme Court agreed to take up two separate cases about the law. That’s an important development, but anything that happens in these cases is going to have only a limited impact on legalized abortion.
So to keep this all in context, it’s worth an explanation of these Texas cases. A Reader Advisory Warning: the legal issues here are complicated and difficult to understand, even for lawyers. I’ll try my best to make them understandable to normal people.
What’s the Texas Law All About?
I’ve explained the Texas law (called “Senate Bill 8”, or “SB 8”) elsewhere, but here’s a short summary. It bans any abortion if a fetal heartbeat has been detected. An ultrasound can typically detect a fetal heartbeat at approximately six weeks of pregnancy, so that’s a very significant limitation—an estimated 85 or 90% of abortions take place after that time.
SB 8 doesn’t apply to the mother herself, but it would penalize anyone who performs or induces a prohibited abortion, and also anyone who “knowingly” “aids or abets” the performance or inducement of a prohibited abortion, and even anyone who “intends” to perform or aid a prohibited abortion.
It is usually up to government agencies, like local district attorneys, health departments, or medical boards, to have the authority to enforce abortion laws. Instead, SB 8 empowers any person to file a private lawsuit against anyone who violates the law or “intends” to do so. This means that potential defendants can’t possibly know if or when they may be the subject of a lawsuit, and where it will come from.
The goal of the law, of course, was to essentially ban abortion in the State of Texas. And since the law clearly violates the legal standards for abortion laws from Roe v. Wade and Planned Parenthood v. Casey, it was designed as a vehicle to attack those decisions.
What are These Two Cases All About?
As mentioned above, there are two cases that got to the Supreme Court and will be treated together. The first was filed by an abortion clinic (Whole Woman’s Health v. Jackson). The second was filed by the U.S. Justice Department (United States v. Texas). Both cases seek to have a court declare the law unconstitutional.
But the crucial issue in both cases is actually procedural—whether the plaintiffs can properly sue the defendants and whether a court can issue an order preventing anyone from enforcing the statute.
Let’s take a step back for a second and explain a bit of legal procedure. In general, to bring a lawsuit you have to file in a court with jurisdiction over the subject and the defendant, state a valid legal claim that you were personally injured by that defendant, and ask for relief that the court can give. These basic requirements have fancy legal names like “standing”, “jurisdiction”, and “justiciability”. But they are all required under the fundamental right to due process of the law.
The point is that a court is not a general problem solver or a debate club. Courts can’t make general statements about the validity of laws. A court can only act when the injured parties and the person who allegedly caused the injury are sitting before it, and it has the legal authority to grant some kind of remedy. Unless these conditions are satisfied, a court can’t even consider the merits of the case.
These legal principles create a series of problems for the abortion clinic case. Since the government of Texas can’t enforce the law, there’s no reason to have them in court, and there’s nothing the court can order them to do or refrain from doing. In a sense, the government of Texas is just an innocent bystander. And since any private party can enforce the law, there’s no way to bring every possible defendant into the court. A judge can’t issue an order to everyone in the world who may or may not decide to enforce the law.
The Justice Department case also has problems. It’s hard to see how SB 8 harms the federal government, which obviously can’t get an abortion. They also have the same problem as the abortion clinic when it comes to finding a proper defendant and remedy. The State of Texas can’t enforce the law so no court order can have any effect on them. The Justice Department tried to sue “private parties who would bring suit under SB 8”, but that’s absurd—you can’t sue an unidentified person based on mere speculation that they may act in the future.
So What’s Going on in the Supreme Court?
The abortion clinic case went up to the Supreme Court already, seeking an order putting the law on hold pending further litigation in the lower courts. The Supreme Court denied the request, stating that the procedural issues were so complex that the case needed to be litigated further in the lower courts. The Justice Department convinced a lower court judge to declare the law unconstitutional and put it on hold. But the state appealed and the intermediate appellate court let the law go into effect pending further litigation.
Both the abortion clinic and the Justice Department then asked the Supreme Court to act, and last week, the Court agreed to take up both cases. This caused a great deal of excitement on both sides of the abortion issue.
But the Court defined the issues that it will consider in a very narrow way. In the Justice Department case, the court will consider whether the federal government has the right to sue in federal court to block the law’s enforcement. And in the case brought by the abortion clinic, the court will assess whether it is legitimate for the law to delegate enforcement to private individuals.
The Court set an accelerated schedule, with oral argument on November 1. It also let the law continue to be in effect pending its decision.
It’s not completely clear, but the way the Court defined the issues suggests that they will not directly decide whether SB 8 violates the alleged constitutional right to an abortion. That decision is going to be made in the other blockbuster abortion case on the Court’s calendar, Dobbs v. Jackson Women’s Health Organization, which will be argued in December and decided in the spring.
Even a purely procedural decision in these Texas cases will be very significant.
I have major reservations about the Texas law. I’m afraid that this law will be seen by the Supreme Court as being disrespectful to the rule of law. Courts don’t like it when people try to sidestep or circumvent their authority. That could have a negative effect on how the Court will rule in the Dobbs case. There’s also the danger that this kind of law will be turned against us. Imagine if a statute were to give anyone in the country the ability to sue the Church over our refusal to recognize same-sex “marriages” or gender ideology, or to refer women for abortions. I could easily see the New York State Legislature passing such a law.
I’m also concerned about a court granting the federal government wide latitude to bring lawsuits to invalidate state statutes. Our constitutional system is based on principles of federalism, balance of powers, and checks and balances. The federal government was originally designed to have only limited authority. That authority has vastly expanded over the last century. But there has to be some limit or there’s no point to having state and local governments any more.
One thing is very clear. Abortion continues to corrupt our law and politics. Nothing good can come of such an evil. It is well past time for our nation to wake up and see abortion for the monstrosity it is, and grant full legal protection for all human beings, including those in the womb of their mothers.