Almost exactly two months after the Supreme Court allowed a novel abortion ban to go into effect in Texas, making it functionally impossible to obtain abortions in the state, the law is back in the justices’ laps. Today, though, the justices won’t directly consider the constitutionality of the ban, which prohibits abortions after fetal cardiac activity can be detected — often before women know they’re pregnant. Instead, they’ll be grappling with the law’s unique structure, which raises some thorny questions about the federal courts’ power over the states.
What Texas did wasn’t noteworthy because of at what stage it banned abortion. Plenty of other states have already passed laws restricting abortion after six weeks, or banning it outright. The Texas law’s innovation was how it banned abortion: Private citizens who successfully sue an individual for helping a woman get a prohibited abortion are eligible for a $10,000 reward, putting responsibility for enforcing the law in the hands of vigilante plaintiffs — and, crucially, taking it out of the hands of state officials, like prosecutors.
It’s not clear at this point whether the conservative justices have changed their minds about the Texas law since September. After all, the court recently chose once again to leave the law in place while the legal battle plays out — although it did add the case to its docket at lightning speed, suggesting the justices are looking to make a decision soon. There are signs, though, that the law’s unusual enforcement mechanism may be its undoing: While a majority of justices on the Supreme Court may be willing to reconsider the constitutional right to abortion, giving states the power to pass laws like Texas’s might be a bridge too far even for the court’s conservatives.
“It may have dawned on the justices that there’s nothing stopping a state like Massachusetts from passing a similar law on a different issue, like the right to bear arms or free speech on college campuses,” said Mary Ziegler, a law professor at Florida State University. And, she added, there are cleaner ways to overturn or limit Roe v. Wade, the 1973 decision that established a constitutional right to abortion — including a case involving a more straightforward Mississippi law that will be heard by the court in December.
At its core, the Texas law is a solution to a dilemma that anti-abortion advocates have struggled with for years. Increasingly, Republican-controlled state legislatures have been willing to pass laws — like a six-week ban on abortion — that openly violate Roe. But with the exception of the Texas ban, none of those laws are actually in effect, because federal courts put them on pause while legal challenges played out.
Texas’s innovation was to make it exceptionally difficult for the courts to get involved. Normally, abortion providers sue a state official in charge of enforcing a given abortion law. But by making individuals responsible for enforcement, Texas changed the game — leaving abortion providers with no one to sue, and no obvious way for the federal courts to intervene.
It was, as Chief Justice John Roberts noted in his dissent from the court’s September decision to let the Texas law go into effect, an “unprecedented” approach that was apparently designed to cut the federal courts out of the loop. And it was successful, at least provisionally, since the law is in effect in Texas and, as a result, abortion is currently virtually impossible to obtain in the state.
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But now, faced with reviewing a separate lawsuit from President Biden’s administration, the justices have given themselves an opportunity to untangle some of the knottiness of the Texas law — specifically, what role the federal courts have to play. They’re looking at two different questions: whether the federal government can even bring a lawsuit in federal court to stop the law from being enforced, and whether states, such as Texas, can try to create an end-run around the federal courts when constitutional rights are at stake.
According to Ziegler, the structure of the Texas law could be a deal-breaker even to justices open to stricter abortion laws, since the law allows a state to functionally override a Supreme Court precedent. That approach could extend far beyond abortion and be used with other constitutional rights. “Before, Texas looked to be in the clear with this court, and that isn’t the case now,” she said. “That doesn’t mean the state will definitely lose, but the law is in real jeopardy now.”
More broadly, too, this case adds a new layer of complication at a moment that was already very busy and high-profile for the justices. In a few days, they’ll hear oral arguments in the court’s first big gun rights case in over a decade. And then, in early December, they’ll weigh another abortion restriction — a Mississippi law that bans abortion after 15 weeks of pregnancy, which could give them the opportunity to overturn Roe v. Wade. So the back-and-forth over the Texas law might be an unwelcome distraction for the conservative justices, who didn’t need another chance to reconsider whether abortion is constitutional.
But it’s also not a done deal. After all, the Texas law is still in effect, which signals that five of the court’s conservative justices are still unconcerned about abortion’s availability in one of the country’s biggest states, even while Roe v. Wade is still on the books. And in that sense, whatever happens next, anti-abortion advocates in the state have already scored a big victory. By allowing the restriction to go into effect, the Supreme Court permitted the state to effectively ban abortion, forcing women to flood neighboring states to obtain the procedure.
And the conservative justices’ willingness to let that happen could signal that anti-abortion advocates are about to win a much bigger victory — even if the Texas law doesn’t ultimately survive.