A court battle over the strict Texas abortion law is testing legal questions that could have far-reaching effects on other constitutional rights.
The novel enforcement mechanism of the Texas statute, known as S.B. 8, is intended to frustrate legal challenges like the one the Biden administration filed against the state last month.
Texas's defense revolves around procedural issues instead of whether the law's ban on abortions after six weeks is constitutional.
The Justice Department, meanwhile, argues that the state law is plainly unconstitutional and that Texas officials should not be absolved of responsibility just because it’s structured in a unique way.
Whereas state authorities typically enforce abortion restrictions, S.B. 8 empowers private citizens to sue medical personnel who perform banned abortions or anyone who might help facilitate one. Successful civil suits under the law could be awarded $10,000, a provision that reproductive rights advocates have likened to a system of bounties.
The increased legal liability has forced many abortion clinics to shut down after the law went into effect on Sept. 1.
The system of private enforcement also creates legal hurdles for those trying to challenge the law’s constitutionality. In most cases involving constitutional challenges to state laws, a judge would address an injunction toward the state authorities tasked with enforcing them.
But Texas officials effectively have no role in overseeing compliance with the six-week abortion ban, and the state attorney general’s office argues that they therefore cannot be subject to a lawsuit over whether the law is constitutional.
After a federal district judge blocked the law last week, the Texas attorney general’s office argued to an appeals court that the injunction is improper because the federal government does not have the authority to bring the suit.
“The United States has obtained an injunction prohibiting the adjudication of suits in state court under a law to which it will never be subject, against a State which can never enforce the law, based on real-world disputes which do not affect it, through a cause of action Congress has never authorized,” Texas lawyers said in a filing. “This Court’s immediate intervention is necessary to vindicate Texas’s sovereign interest in preventing a single federal district court from superintending every Texas court.”
Critics say the law’s reliance on private enforcement is a deliberate attempt to insulate it from legal challenges. Experts say that a ban on abortions after six weeks that was enforced by state officials would be quickly rejected by courts as illegal under the Supreme Court’s landmark 1973 decision in Roe v. Wade.
In December, the Supreme Court will hear oral arguments over a restrictive Mississippi abortion law that is seeking to overturn Roe. The court’s decision to take up the case worried reproductive rights advocates that the new 6-3 conservative majority is aiming to upset the longstanding precedent.
Michael Dorf, a constitutional law professor at Cornell University who signed on to a brief this week backing the Justice Department in the case, said he believes the system is plainly improper under the law, but argues that states are taking their cues from a Supreme Court that has fostered uncertainty around the existing status quo for abortion rights.
“I would hasten to point out that this only works in areas where the constitutional law is uncertain,” Dorf said. “So if the Supreme Court had not indicated that it's thinking about overruling the right to abortion, it would not be a big deal that Texas did this because a clinic's lawyers would tell the clinic, 'Just perform the abortions, and if you're sued in Texas court, you'll just have the lawsuit struck down.’”
“The Supreme Court is complicit in what Texas is doing here by having destabilized the law of abortion,” he added.
How the higher courts deal with U.S. District Judge Robert Pitman's ruling will decide whether Texas and other states can effectively ban abortions through regulatory schemes that exploit legal loopholes.
Pitman, who was appointed by former President ObamaBarack Hussein ObamaProgressives say go big and make life hard for GOP Biden giving stiff-arm to press interviews Jill Biden campaigns for McAuliffe in Virginia MORE, issued a 113-page decision on Oct. 6 blasting Texas officials for “pursuing an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right.”
“From the moment S.B. 8 went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution,” the judge wrote. “That other courts may find a way to avoid this conclusion is theirs to decide; this Court will not sanction one more day of this offensive deprivation of such an important right.”
The Department of Justice sued the state last month, asking for an emergency injunction against the law. The administration argued that the ban was unconstitutional and employed an enforcement scheme that, if it were to stand, would provide a roadmap for states to trample on abortion access and other constitutional rights.
"The act is clearly unconstitutional under longstanding Supreme Court precedent," Attorney General Merrick GarlandMerrick GarlandBiden's Supreme Court reform study panel notes 'considerable' risks to court expansion Supreme Court signals willingness to reinstate marathon bomber death sentence Pavlich: DOJ's outrageous assault on parents MORE said at a press conference last month.
"This kind of scheme to nullify the Constitution of the United States is one that all Americans, whatever their politics or party, should fear," Garland added.
Texas quickly appealed Pitman’s decision, setting the ground for a legal fight that will likely reach the Supreme Court.
Some clinics that closed after the law went into effect had reopened and begun offering abortion services following Pitman’s ruling. But the 5th Circuit this week issued a temporary stay of Pitman’s ruling until it decides whether an injunction is appropriate while the legal process plays out.
It’s unclear how the case will play out but there have already been some ominous signs for reproductive rights activists.
The 5th Circuit is known to be among the most conservative appellate benches in the country and particularly hostile to abortion rights. In 2018, the court upheld a restrictive Louisiana abortion law, despite it being nearly identical to a Texas law that the Supreme Court had struck down in 2016. The Supreme Court reversed the circuit’s decision last year.
The Supreme Court allowed the Texas law to go into effect last month in a 5-4 ruling, pitting a conservative majority against Chief Justice John Roberts and the court’s three liberal justices.
Critics also say that allowing states to deputize private citizens to enforce bans that would otherwise be unconstitutional could create chaos throughout the country, opening the door for legislators to wield that power against other rights enshrined in the Constitution.
“The state can't just give to private individuals what it can't do itself,” said Nancy Northup, the president and CEO of the Center for Reproductive Rights, which is representing Texas abortion providers in the case that reached the Supreme Court last month.
“And if the courts were to uphold this type of deceptive scheme, this could be used against any kind of constitutional guarantee. A state could say, ‘We're going to ban criticism of the president of the United States but we're not going to enforce that, we're going to give it to private vigilantes to enforce.’”
Northup said that the prolonged uncertainty about S.B. 8 that is forcing clinics to shutter their doors will have a lasting impact even if the law is eventually struck down.
“You can't keep these clinics closed or close to closed for all those years while you're waiting for vindication” and expect them to be able to reopen easily, Northup said.
“What providers know is their patients can't wait for this to go through years of court proceedings and they know that caring for their patients can't wait,” Northup said.