Texas Abortion Fortune Hunter’s Bill and an Impotent SCOTUS

Signing of the Texas Heartbeat Act, May 19, 2021. Photo by Texas House of Representatives via Wikimedia Commonshttps://house.texas.gov/members/member-page/newsletters/55/2021-Capitol-Ledger-06.01.2021.pdf, Public domain, via Wikimedia Commons

Listen, I don’t generally debate abortion, ok? The issue is too fraught, my own thoughts on the subject too fluid, and there are no winners in that fight. I leave it alone. But this decision on the Texas abortion ban¹ deserves some scrutiny.

First, the law: The statute challenged in Whole Woman’s Health v. Austin Reeve Jackson, Judge outlaws abortion once there is a detectable heartbeat², which occurs at roughly 6 weeks of gestation. There are no exceptions for products of incest or rape. But the law prescribes no government-imposed penalty to violators; there is no fine or jail time attached. Instead, the law allows for any private citizen — any private citizen, whether or not they have a stake in the pregnancy, whether or not they even know the woman — to file a lawsuit against anyone they believe to have performed or “aided and abetted” an abortion.

The law excludes the actual pregnant person from the category of persons who can be sued. But the doctor can be, as well as anyone who pays for the procedure. The list of who may be sued is left open, but potentially could include those providing transport, those acting as clinic escorts, and others.

Who can sue? Anyone except a government official in his official capacity, or anyone who impregnated the female via rape, sexual assault, or incest (it is silent on whether the woman’s allegation is sufficient or if an actual conviction is required, but one can probably guess.) The plaintiff in a lawsuit under this bill does not have to have any relationship to the fetus or the mother.

A person who wins a lawsuit brought under the statute can collect from the defendant $10,000 or more, plus attorney’s fees and costs. A defendant who manages to win can collect nothing, so the chance of having to pay attorney’s fees is not going to be a deterrent to the abuse of this statute.

This is the gist of the Texas abortion ban that is not really a ban but really is a ban. The petitioners, Whole Woman’s Health and others, are abortion providers; the named respondent is a Texas District judge, as a stand-in for all judges who might be tasked with overseeing a lawsuit under the new statute. Also included among the respondents is Mark Lee Dickson, a private citizen who had previously indicated his intention to file suit under the law, various heads of state health agencies and medical boards, and the attorney general, Ken Paxton. The applicants argue that an injunction is necessary and proper under the three part test: 1) applicants are likely to prevail on the merits; 2) failure to enjoin the law would cause irreparable harm; and 3) the injunction would not harm the public interest. The arguments for each are straightforward: They believe they are likely to prevail because longstanding precedent (Roe and Casey) holds that laws prohibiting abortion prior to viability are unconstitutional. Failure to enjoin the law from taking effect will result in those seeking abortions losing the ability to receive one and may subject providers and others to lawsuits with hefty monetary consequences; and the injunction preserves the status quo and thus no harm to the public.

The Court issued no ruling prior to the law taking effect on September 1. The Order was issued the next day letting the law stand as pro-choice advocates feared. The decision was 5-4, with Chief Justice Roberts joining the liberals in dissent.

The majority opinion was unsigned, and none of the Justices in the majority wrote separate concurrences. The Court emphasized that its ruling should not be read as decisive on the merits, acknowledging the existence of “serious questions of constitutionality.” However, the Court states that it lacks the power to enjoin laws, only those who enforce them. The Court claims it is impotent to act because no Texas state official has the ability to enforce the law. Dickson, the private citizen respondent, signed an affidavit that he has “no present intention” of filing a lawsuit under the law. As to the judges, the Court says it is unclear whether they have the power to enjoin a judge from presiding over a lawsuit.

And that’s all the Court had to say about that. The bombshell Order took up less than a page and half, providing very little analysis or reasoning, much less than one would expect in what amounts to the upending of 50 years of settled law.

The Chief wrote a dissent joined by Justices Breyer and Kagan. Roberts acknowledges that Texas’s end run around existing precedent “is not only unusual, but unprecedented.” He would have granted at least a temporary stay to maintain the status quo while the parties fully develop and litigate their positions, because he recognizes the consequences of not doing so, consequences not only to those affected by the statute but from the future use by other state legislatures of similar private enforcement of controversial laws — consequences which the majority seems not to consider at all. Stated Roberts:

We are at this point asked to resolve these novel questions—at least preliminarily—in the first instance, in the course of two days… We are also asked to do so without ordinary merits briefing and without oral argument. These questions are particularly difficult…

I would accordingly preclude enforcement of S.B. 8 by the respondents to afford the District Court and the Court of Appeals the opportunity to consider the propriety of judicial action and preliminary relief pending consideration of the plaintiffs’ claims.

Justice Breyer wrote separately, joined by Sotomayor and Kagan. Breyer cites Planned Parenthood of Central Missouri v. Danforth from 1976, in which the Court struck down a provision of a Missouri law which required spousal permission before obtaining an abortion. The Court then held that state legislatures cannot delegate to private citizens authority that they themselves do not possess. Wrote the Court in Danforth:

Clearly, since the State cannot regulate or proscribe abortion during the first stage, when the physician and his patient make that decision, the State cannot delegate authority to any particular person, even the spouse, to prevent abortion during that same period.

Under the Texas law, the third party cannot give or withhold permission, but the ability to deter or punish through a civil suit arguably amounts to the same effect.

Breyer considers risk of “irreparable harm” that may result from failure to grant the injunction, noting that some clinics have already ceased to provide services and others indicate they will have to do the same rather than risk the financial burden of the lawsuits they would surely face, meaning denial of abortion care to women all over the state.

Breyer also pointed out that the Court has granted pre-enforcement injunctions in the recent past in a case in which the enforcement was by private citizen rather than by the state. In 2014 the Court decided Susan B. Anthony List v. Driehaus, a case out of Ohio. In that case, the appellant organization wished to erect a billboard proclaiming that the respondent, then a member of Congress, had voted for “taxpayer funded abortions” because he voted in favor of the Affordable Care Act. Driehaus threatened to sue, and the billboard company refused to erect the sign. He then filed a complaint with the state Elections Commission, claiming that SBA List violated campaign laws by making false statements about his voting record. SBA List countered by filing a federal lawsuit asserting that the campaign law violated their right to free speech. The case was dismissed in the lower court because Driehaus lost the election and moved away, but SBA List appealed, claiming they were still at risk of harm from the unconstitutional campaign law, because the statute allowed “any person” to file a complaint.

The Court in SBA List ruled in their favor, 9-0, finding that there was a substantial threat of future enforcement of the law the organization claimed violated their freedom of speech:

The credibility of that threat is bolstered by the fact that authority to file a complaint with the Commission is not limited to a prosecutor or an agency. Instead, the false statement statute allows “any person” with knowledge of the purported violation to file a complaint. Because the universe of potential complainants is not restricted to state officials who are constrained by explicit guidelines or ethical obligations, there is a real risk of complaints from, for example, political opponents.

The majority here does not concern itself with the likelihood of future enforcement of Texas’s new law, relying on the respondents’ claims of no imminent actions to support the Court’s refusal to act. To imply that the mere threat of a lawsuit will not impede the availability of abortion in Texas is to imply that providers can and should properly ignore the letter of the law, which no officer of the Court can seriously suggest.

One difference between this case and SBA List is that once a complaint was filed under the campaign law in question, the Elections Commission became its arbiter and enforcer. If the commission found the complaint credible under “clear and convincing” standards, the complaint would be referred to a local prosecutor for possible criminal charges. No criminal liability flows from the Texas statute; however, the SBA List Court also opined that “the threat of Commission proceedings” was a substantial one, suggesting it may have been justiciable even without the threat of criminal prosecution.

SBA List is also distinguishable in that the petitioners sought to enjoin government officials — the Elections Commission — rather than private individuals. But the case still provides support for an injunction based on the threat of future action.

Justice Sotomayor’s dissent calls the Court’s actions “stunning”, accusing the majority of “burying their heads in the sand” and ignoring a “flagrantly unconstitutional law.” Joined by Breyer and Kagan but not Roberts, she denounces the Order as “rewarding tactics designed to avoid judicial review”, calling it a “breathtaking act of defiance — of the Constitution, of this Court’s precedents, and of the rights of women…”

Her dissent is admittedly heavier on passion than on case law or legal analysis (and the Court’s Order is light on both), but she provides some bluntness about the reality of what the law does:

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 a footnote, she points out the immediate fallout of the Court’s failure to act:

The Court’s inaction has had immediate impact. Two hours before the Act took effect, one applicant reported that its waiting rooms were “ ‘filled with patients” ’ urgently seeking care while “ ‘protesters [we]re outside, shining lights on the parking [lot].’ ”

Sotomayor stated that the District Court issued a “thorough, well-reasoned opinion” in favor of Whole Woman’s Health that would have justified the Court’s granting of an injunction, rather than rewarding Texas for its creative end run around judicial review.

Finally, Justice Kagan weighs in with her own separate dissent, also joined by Breyer and Sotomayor. She decries the use of “the shadow docket,” and calls the Court’s consideration of the case “cursory” and “hasty”. She criticizes the lack of explanation set forth by the majority in its Order as to how it came to the conclusion that “a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail.”

As I discussed in Wednesday Writs, I’m somewhat of a Supreme Court apologist. However, I find this particular decision hard to justify objectively. It’s difficult to assume good faith when the Court declines to stop the effectuation of a law that is inarguably unconstitutional based on precedent — unless, of course, that’s because the Court has future intentions to overturn that precedent and decide that it is not.

The caselaw cited by Justice Breyer is persuasive and lays bare the weakness of the majority’s half-hearted attempt to explain itself. The Court engages in the absurd legal fiction that the state bears no responsibility if individuals are harmed by the intended effects of this law. They may have put fellow citizens between themselves and the woman who is now unable to obtain an abortion, but the state is still the reason she can’t.

The fact that the patient may not be sued is a worthless concession. Assuming she is even able to obtain an abortion, she is then subject to having her very private medical decision become fodder for a lawsuit in a public courtroom. There are no provisions for privacy or anonymity in the statute. Conceivably she may be called as a witness and forced to go on record about her experience.

There are many who find nothing concerning about the above, considering it just another consequence she has earned through her choices. There are undoubtedly some who are disappointed that the person who aborted or attempted to abort is not the one being sued. Those folks should take heart in knowing that the law, for as long as it stands, will reduce the availability of safe abortion options and deter some (but surely not all) from seeking to end their pregnancies.

The Court will consider the more substantive issues of abortion this fall when it hears Dobbs v. Jackson Women’s Health Organization, a case out of Mississippi. The Court will decide whether states may ban all elective abortions prior to viability; Mississippi’s current cut-off is 15 weeks. If the Court answers affirmatively, it will have overturned Roe and Casey.

In the meantime, we can expect other states to take a page out of the Texas playbook and draft similar privately enforced laws. Liberals, having decided two can play at this game, suggest they will try to enact a few of their own. Personally, I think the Texas scheme is untenable in our system, but unfortunately the Court was unwilling to take that stance.

There are no winners in the abortion debate, but the Court seems to have forfeited.

1. Don’t tell me it isn’t a ban. In addition to most women not knowing they are pregnant at that point, even if they did, it isn’t like you can just call and get a next-day appointment. Ob-Gyns typically won’t do an ultrasound until 8 weeks or more. And many abortion providers won’t do the procedure that early, as the embryo (it is not yet a fetus at this stage) is so small it can be missed by the equipment. The statute may not outright “ban” abortion, but it makes it all but impossible to get one.
2. Or “vibration of cells” which will potentially become a heart, as some are describing this stage of development.