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October 17, 2021
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How abortion rights advocates got outmaneuvered by the Supreme Court

How abortion rights advocates got outmaneuvered by the Supreme Court

Just before midnight Wednesday, the U.S. Supreme Court made official its decision not to block a Texas law that effectively bans abortion in the state. The court’s brief order ushers in a new era in the war on abortions rights by approving a novel legal tactic that undermines women’s ability to secure their constitutional right to end a pregnancy before a fetus is viable.

As Sotomayor wrote in her powerful dissent, when the Supreme Court allowed the Texas law to go into effect, it told the state that its “gambit worked.”

Until now Roe v. Wade, the Supreme Court decision that recognizes that constitutional right, has ensured that states cannot ban abortions. Texas designed its law in a unique way to allow abortions to be banned without a court intervening, by authorizing any private citizen to sue doctors and clinics who perform abortions on women more than approximately six weeks after a woman’s last period. The Texas law also allows any private citizen to sue people who assist women in obtaining an abortion after that time period.

Of course, before six weeks, many women will not even realize they are pregnant. So the practical effect of the law, which subjects doctors, providers and others to the threat of thousands of dollars in damages, is to prohibit abortions in the state. (Clinics estimated the law would have prevented up to 90 percent of the abortions performed in the state until now.)

Typically, when a state bans certain conduct (like performing abortions), the state itself would enforce its law, meaning a state or local prosecutor would bring a case against those who violate it. Here, due to a deliberate procedural maneuver, the law bars public officials from bringing these suits.

This outsourcing of the law’s enforcement to the state’s citizenry via punitive lawsuits was a way to prevent courts from striking down the law before it went into effect, after which someone sued under the law would need to challenge it and see that case wend its way through the courts before there’s any chance of stopping it. That’s because when a plaintiff wants to prevent a state from enforcing a law, they typically sue the state official who would enforce the law and ask a court to prevent the state official from acting. But because state officials would not be the ones to bring lawsuits against abortion providers, the Texas law creates uncertainty about who it is plaintiffs should seek to bar from enforcement.

In the case that made its way to the Supreme Court, abortion providers had sued classes of state judges, state court clerks and state medical and nursing board officials, as well as some private individuals, to keep them from acting on the law. The plaintiffs argued that judges and clerks would docket the cases, that state licensing boards could discipline medical service providers for not complying with the law, and that some anti-abortion activists intended to bring suits.

In response, the various defendants argued they couldn’t be sued (i.e., pre-emptively blocked from implementing the law) for a variety of reasons: Judges and clerks argued they were entitled to judicial immunity; state officials argued they had no role in the law’s enforcement; and private individuals said they were not the right defendants.

It was those procedural puzzles over who could be sued — and those procedural puzzles alone — that the conservative majority of the Supreme Court pointed to in its curt order Wednesday night declining to enjoin the Texas law. The five-justice majority explained that the request for an injunction “presents complex and novel antecedent procedural questions,” such as about whether plaintiffs had sued the correct people, that prevented the court from enjoining the law while the law was being challenged.

But the four dissenting justices, John Roberts, Stephen Breyer, Elena Kagen and Sonia Sotomayor, indicated that that perspective essentially gave a stamp of approval to Texas’ playing legal games with constitutional rights. As Sotomayor wrote in her powerful dissent, when the Supreme Court allowed the Texas law to go into effect, it told the state that its “gambit worked.”

At the same time, the majority insisted that its order was “not based on any conclusion about the constitutionality of Texas’s law.” Indeed, the majority did not even cite Roe v. Wade or Planned Parenthood v. Casey, the 1992 decision that declined to overturn Roe. But by greenlighting a state measure that will have the effect of prohibiting abortions, and making clear that the high court would not stop such a measure while its constitutionality is being determined, the court communicated to states across the country how they can ban abortions and close clinics without worrying that courts will stop them.

Even if the court ultimately rules that the Texas law is unconstitutional, the court has allowed the state to pursue measures that drive providers out of the state and shutter clinics in the short term, and it’s unclear if they will ever reopen. States have gotten the message. There are already reports that Florida is considering a law similar to Texas’. So without having to utter the words “Roe is overturned” and face the backlash that might engender, the Supreme Court has allowed states to effectively ban abortion and close clinics.

In the opening of her dissent, Sotomayor could not have said it better: “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.”

Leah Litman

Leah Litman is an assistant professor of law at the University of Michigan Law School.

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