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.