This week the United States supreme court decided, on a five to four vote, not to issue injunctions preventing the enforcement of an anti-abortion law in Texas. Its reasoning, which you can read here (together with the four dissents), is interesting in legal terms but fundamentally irrelevant to the key issue behind the law.
The Texas statute, which bans abortions in all cases where a fetal heartbeat can be detected (after roughly the first six weeks of pregnancy), blatantly contradicts the law as set down in the precedent cases of Roe v Wade (1972) and Planned Parenthood v Casey (1992). This is not disputed: if the law reaches the supreme court for a judgement on its merits, the judges will have to either strike down its key provisions or overrule those precedents.
But this week’s ruling did neither of those things. The majority justices merely affirmed that the applicants for injunctions “have not carried their burden” in relation to the “complex and novel antecedent procedural questions” that the case raises. The law will therefore remain in place until its operation produces another challenge to its constitutionality.
The “complex questions” arose from the way the law was crafted. It does not require, or even permit, employees of the state of Texas to do anything to enforce the ban; instead, it gives private citizens a right to sue abortion providers and their accomplices for damages of at least $10,000 per abortion. As Justice Sonia Sotomayor put it in dissent, “In effect, the Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.”
In the normal case of a patently unconstitutional criminal statute, the court would issue an injunction against the state’s officers to prevent enforcement of it. But that remedy is not available here; no lawsuits have yet been filed under the law, and courts cannot issue rulings against laws in the abstract. (Ilya Somin explains the point at some length here.)
The dissenting justices are not impressed. Although they all issue separate opinions, they concur in their arguments: that a legislative procedure that has been designed deliberately to circumvent the constitution should not be permitted to have that effect. They include the three usual suspects of the court’s liberal wing, Justices Breyer, Kagan and Sotomayor, but also chief justice John Roberts, who is clearly less concerned with the assault on women’s rights than with the challenge to the court’s authority.
Fundamentally, however, this is just a procedural skirmish. One way or another, this law or one like it will reach the court for a review of the substantive question: do the guarantees in the fourteenth amendment apply to all persons, as the text appears to say, or is an exception to be carved out for women, or at least pregnant women?
The last time the court heard a major abortion case, last year in June Medical Services v Russo, four justices (Alito, Gorsuch, Kavanaugh and Thomas) dissented from a ruling to strike down a Louisiana anti-abortion law. But only Clarence Thomas (who also dissented in Casey) argued explicitly for overruling Roe. The others confined themselves to more narrow procedural grounds.
Since then, those four have become a majority with the addition of Amy Barrett, who replaced the late Ruth Ginsburg on the court last year. There is no doubt that all of them disagree with the court’s pro-choice precedents: it would be fair to say that that is in large part why they were appointed. But actually voting to overturn decisions that have stood for up to fifty years is a different matter. Alito, Barrett and Thomas are almost certainly up for it; Gorsuch and Kavanaugh may not be.
Ever since Roe, anti-choice legislators (who by now have almost total control of the Republican Party) have been playing a double game, keeping the abortion question alive in the confidence that the supreme court would protect them from any real-world consequences of their plans. As long as Roe stood as good law, abortions would remain available and the silent pro-choice majority of voters would not be roused to action.
Texas threatens to unravel that strategy. But it is too late to change course now; the legislators have to go where the fundamentalists are driving them. The question is whether their carefully-crafted supreme court majority will follow through, and in doing so hand a political gold mine to their opponents.
The World is Not Enough 
‘But that remedy is not available here; no lawsuits have yet been filed under the law, and courts cannot issue rulings against laws in the abstract. (Ilya Somin explains the point at some length here.)’
You don’t mention, and I think it’s important to mention, that Ilya Somin explains how the pattern set up by past Supreme Court decisions means that courts cannot issue rulings against laws in the abstract, and further explains the Supreme Court didn’t _have to_ take that approach, but could have taken a different approach (and, indeed, it is Ilya Somin’s opinion that it _should_ have taken a different approach, although it is also his opinion that there is little change of its making such a change now).
To me it seems worth adding that some countries (although not Australia, as far as I know) _have_ taken a different approach and specifically allow for courts (in some circumstances) to rule on laws in the abstract.
LikeLike
It is clearly a novel, and clever (or should I say dastardly) approach to legislating re: abortion. The cleverness is that in effect it does not ban abortion it merely gives others rights to claim civil compensation(?) if someone wishes to exercise that right.
Hopefully the SC willl see through that trickery in the actual case!
But this trend to use civil law to get around the protections imposed by law on criminal prosecutions (or in this case constitutional protections) is a very bad thing. It has led to the ridiculous situation where States can impose penalties on behaviour (without having to meet its burden of proof) by simply renaming fines as civil penalties.
LikeLike
Thanks Chris – yes, agreed. The burden of proof won’t be so much of an issue here; you’re unlikely to get a case where you can prove on the balance of probabilities that someone had an abortion but not beyond reasonable doubt. But there are definitely other areas where it’s a problem.
On the other hand, although the act describes the remedies as “civil actions”, it is in form a criminal statute: it purports to actually ban abortions, but it then puts enforcement of that ban out of the hands of the state’s agents. That’s quite different from an ordinary civil statute.
LikeLiked by 1 person
Some of the nastiest ideas in politics come from right-wingers copying left-wing techniques and turning them to right-wing ends. A mass worker-based party that bans opposition and sets up secret police and prison camps when it comes to power? Hitler 1933 sees Lenin 1917 and raises him one. Run a deeply corrupt sexual predator for president and then laugh off the opposition’s concerns by mocking them as uptight? Worked fine for Bill Clinton, so the Republicans try the same trick dialled up to 11 with you know who. Abbie Hoffmann and Rudi Dutschke reveal that judges and other authority figures are easy to take the piss out of? Hello, Milo Yiannopoulos and the January 6 rioters.
And now the Texas GOP has copied a trick used by left-wingers in jurisdictions like Canada, where people like white, male lawyer Richard Warman https://en.wikipedia.org/wiki/Richard_Warman have done very well by bringing civil lawsuits against “hate speech” that targets groups that Richard Warman does not belong to. The lower, civil standard of proof without the normal civil-trial need to show you yourself have suffered any loss that demands financial compensation. Nice work if you can get it.
The Supreme Court did hold in BMW v Gore two decades ago that “civil” damages require special procedural justification (though not up to the criminal standard) but only if the “punitive” or “exemplary” component represents the vast majority (say, 90%) of the total. Under the Texas law, the “civil” damages would be 100% punitive. The person dobbing in the abortion recipient has not suffered any special harm or loss, except perhaps in unusual cases like the father or grandparents of the unborn child. Of course if the child survives the abortion and is born alive, like Gianna Jessen, she could sue her mother for attempted murder in a number of jurisdictions: but survivors are rare.
The long-term solution would be to rule or legislate that only damages to concrete individual loss can be “civil” and decided by balance of probabilities. Anything intended to be punitive, or to compensate unquantifiable “pain and suffering” or “humiliation”, should need to be proven on a criminal standard and should require an identifiable victim or would-be victim. Where the victim can’t testify because they are dead (homicide cases) or because the harm, although concrete, is statistical (dangerous driving, industrial pollution) the Attorney-General would have standing instead. But private prosecutions by “strangers” with no personal stake in the matter are highly undesirable. Texas doesn’t even allow open standing to sue for killing of born, or of wanted unborn, children (you can report your neighbour to the police if you suspect child abuse, but you can’t sue him to win yourself damages – that would be downright odd), so why introduce this rule for unwanted unborn children, who are the quadrant least valued by society’s adults? Seems to be culture wars rather than jurisprudential consistency.
LikeLike
‘As long as _Roe_ stood as good law, abortions would remain available and the silent pro-choice majority of voters would not be roused to action.’
‘The question is whether their carefully-crafted supreme court majority will follow through, and in doing so hand a political gold mine to their opponents.’
‘Gold mine’? There can be little doubt that if abortions become (in practice) largely or wholly unavailable, there will be a political backlash; but how much of one? Nobody can be sure about that. I _hope_ the villains cannot weather the storm they’re raising; but I yet fear they may.
LikeLiked by 1 person
Oh yes, they certainly might weather it. Never underestimate the Democrats’ ability to screw up a golden opportunity.
LikeLiked by 1 person
Breaking: it seems that Texas Governor Greg Abbott may be acting contrary to the deeply-held principles of House Abbott – no, not “The man [sic] who passes the sentence should swing the sword”: the other one – “private individuals should not snitch on fellow citizens to the police, even if the latter are doing things that could arguably threaten the lives of children”:
Steve Zemek, ‘Tony Abbott lashes “dobber” after copping mask fine: Tony Abbott has been fined $500 for breaking a Covid-19 rule, with the former PM blasting whoever dobbed him into police.’ (September 11, 2021)
https://www.news.com.au/national/nsw-act/news/tony-abbott-lashes-dobber-after-copping-mask-fine/news-story/9be7ae013801afcfde37511025a73f16
Didn’t Sainted Hayek leave some wisdom for his disciples about laying down general rules and then adhering to them consistently/
LikeLiked by 2 people
Indeed!
LikeLiked by 1 person