I know this is another way of stating that it’s a day ending in “y,” but at this very moment most of the political internet and a large percentage of the American political class has been swept away by a tsunami of misinformation and bad takes about a hot-button legal, cultural, and political issue. And today it’s about the most hot-button issue of all—abortion.
Here’s the shortest possible description of what happened. Last night, in a 5-4 unsigned opinion the Supreme Court refused to block a highly unusual Texas law that bans abortions when there is a “detectable fetal heartbeat.” But that short description doesn’t even begin to describe what happened yesterday. The highly unusual law has led to a highly unusual legal result, and that means that a host of people are just deeply, deeply confused.
So let’s clear up the confusion, one question at a time.
You said the Texas law was “highly unusual.” What’s strange about it? The Texas law isn’t unusual because it bans abortions after a heartbeat is detected. A number of pro-life legislatures have passed “heartbeat bills.” But the Texas law contains an extraordinary enforcement mechanism. It does not permit state officials to enforce the law. Instead, it grants private citizens (and only private citizens) the ability to sue a person who performs an abortion and anyone who “aids or abets” a person who performs an abortion for $10,000 (plus attorneys’ fees) for each abortion they perform.
This distinction is of absolutely vital importance to understand what happened last night at the Supreme Court.
Why would Texas pass such an unusual law? The short answer is quite simple: to achieve exactly the result they achieved last night. Texas wanted to make it more difficult for abortion providers to sue to block pro-life laws. Normally, when a legislature passes a pro-life law, it’s easy for abortion providers to file suit and block the law in court. They simply sue the state officials charged with enforcing the law, secure an injunction against enforcement, and continue on with their abortion practice.
But since the Texas law is enforced by private lawsuit, the abortion providers faced a challenge. Who could they sue to block enforcement? They couldn’t sue millions of Texas citizens individually. So they chose to sue a state court judge and a single Texas citizen to try to get an order blocking them from enforcing the law in the hopes that they could secure a court order that would apply to everyone.
So how did the Supreme Court respond? A short way of describing the ruling is by saying that the plaintiffs sued the wrong defendants. The private citizen filed an affidavit saying he wasn’t going to enforce the law, and the court said, “Nor is it clear, whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law.”
What does any of this have to do with the constitutionality of Roe v. Wade? On the merits, nothing at all. The court was very clear about this. Its short opinion concluded with this statement:
In reaching this [decision], we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.
Put in plain English, this means that the court delayed deciding the main issue in the case (whether Texas can ban abortions when a fetal heartbeat is detected). It did not decide the issue. It did not (no matter what you might read elsewhere) overrule Roe, either explicitly or implicitly.
How can abortion providers challenge the law? They can wait to be sued, then offer a constitutional defense to the lawsuit. Or, they can immediately set up a test case. They can ask a citizen to sue them immediately so that they can seek a court ruling in state court as soon as possible—or they may attempt to sue in federal court to block the state court lawsuit. I’d be surprised if a test case wasn’t filed very soon, in front of a favorable (for abortion providers) Texas court.
David, you’re pro-life. Are you celebrating this outcome? I want to see Roe reversed and states act to protect unborn life, but I confess that I have very serious reservations about the Texas legislation. The reason why is simple—it represents a clever way to engineer temporary deprivations of constitutional rights.
Imagine a different scenario. Let’s imagine that a state or city bans the sale of, say, all semiautomatic rifles or handguns. But instead of enforcing the ban directly, it states that citizens can sue any person or corporation who sells a gun and any person or corporation who aids or abets the sale of a gun. Such a provision would be blatantly unconstitutional, but it may take time to resolve the issue—time that could cost a person the ability to defend themselves from deadly violence.
Judicial review is a vital aspect of constitutional governance. Texas certainly can’t evade effective judicial review, but it has delayed it. And don’t think for a moment that other legislators won’t take notice. It’s hard to disagree with my friend Ken White’s conclusion below:
And here’s Cato’s Walter Olson:
Is there any aspect of this case that the media might be missing? Yes, litigation tactics. While I’m reluctant to Monday-morning quarterback litigators, I’m surprised that, as Ed Whelan points out in National Review, Gov. Abbott signed the law on May 19. “Plaintiff abortion providers waited nearly two months—until July 13—to file their complaint, and it wasn’t until nearly a full month later, on August 7, that they filed a motion for a preliminary injunction.”
The plaintiffs’ delays meant that this case had to get to the Supreme Court fast if it was going to rule on the Texas legislation before it went into effect. As I said on the Advisory Opinions podcast Sarah and I recorded earlier today, there are rocket dockets and then there are warp speed dockets. And this case careened into the court at Warp Nine.
(In her dissent, Justice Kagan excoriated the majority for deciding this case on the so-called “shadow docket”—those cases decided, often on an emergency basis, without the usual briefing and argument—but the alternative to the shadow docket is unclear when plaintiffs seek to get in front of the Supreme Court in a mere 25 days.)
Perhaps abortion rights advocates are so used to blocking heartbeat bills that they failed to properly respond to the quirks of the Texas law. In hindsight, they may have improved their chances if they teed up a test case with defendants who stated an intention to sue an abortion doctor. At the very least, they should have been ready to go with the test case the moment the law went into effect.
What’s your bottom-line legal takeaway? Quite honestly, in the long battle over abortion rights, this case is a sideshow. The main event is already being briefed at the Supreme Court. In Dobbs v. Jackson Women’s Health, the court will decide a challenge to Mississippi’s ban on abortions after 15 weeks. Moreover, Mississippi has thrown down the gauntlet. It’s directly asking the court to overrule Roe and Casey and end the notion that the Constitution protects a right to an abortion.
I’ve made my position on Dobbs perfectly clear. The Constitution plainly does not protect a right to an abortion. For both constitutional and institutional/structural reasons, the court should overrule Roe. That is one potential outcome of the case, but it is hardly the only potential outcome. The court could uphold Mississippi’s ban and fashion a new rule of abortion jurisprudence. It could strike down the ban (though I think it’s unlikely a majority-originalist/conservative court would take the case merely to uphold existing law).
If Dobbs is the main show, then does this sideshow tell us anything concrete about how the court will ultimately rule? Nope. The majority expressly declined to address the constitutionality of the Texas statute. Any prediction based on this short Texas opinion is roughly the equivalent of trying to discern the future by reading chicken entrails. (Though that didn’t stop me from trying to do just that in the Advisory Opinions podcast!)
I think Roe might be overruled (and I’m increasingly hopeful that it will be overruled), but nothing about this opinion provides any empirically clear signal that Roe is on the rocks.
What should we be watching for these next few weeks? We know abortion rights advocates will mount a renewed legal challenge, and the final outcome will await Dobbs. In the medium term, I’m more interested in the political fallout. Texas is still red, but it’s trending purple, and one wonders if the Texas heartbeat bill will energize the growing Texas left.
As Ryan Burge points out, citizens who strongly support abortion rights are often more politically active than their pro-life counterparts:
Moreover, while abortion attitudes are notoriously difficult to poll, there is strong evidence that even most Evangelicals don’t support outright bans. But abortion polling is less interesting than actual voting, and the South and parts of the Midwest have been reliably electing strongly pro-life legislators for years.
Who will be energized the most, if the public perceives that Roe is truly in peril? The answer is vital, because if Roe does fall, then voters, not judges will at long last decide if our nation protects unborn life.
One last thing …
If 1,600 words isn’t enough, I strongly urge you to listen to our Advisory Opinions analysis of the case. Sarah was her usual brilliant self, and we dove deep into the legal weeds, in all the best ways. You can listen to the podcast here.
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