The Texas Supreme Court on Friday, Mar. 11, effectively extinguished a lawsuit challenging the state’s antiabortion law, all but ensuring that Texas’s extreme restrictions will remain on the books for the foreseeable future. But do not imagine that Texas’s success, the result of the U.S. Supreme Court’s permissive attitude toward the state’s aggressive legal maneuvers, will affect only pregnant people within its borders — or that the consequences will be limited to abortion rights. The high court’s complacency might open the way for states that seek to restrict constitutional rights of many kinds.
Texas law bars abortion when fetal cardiac activity is detectable, usually around a pregnancy’s sixth week, which is before many women even know they are pregnant. This contradicts Roe v. Wade and other Supreme Court dicta. But rather than tap state authorities to enforce the ban, Texas lawmakers empowered private citizens to bring civil suits against anyone abetting a restricted abortion. This means that abortion rights groups had no discrete entity to sue to prevent the law’s enforcement. Meanwhile, Texas abortion providers would have to shut down in fear of ruinous lawsuits.
Rather than block this end-run around the Constitution, the U.S. Supreme Court threw up its hands. The Texas Supreme Court’s action — declaring that, indeed, no state authority had any power to enforce the law, and therefore no state entity could be sued to stop it — ended the last hope of substantive judicial review anytime soon. Unsurprisingly, lawmakers in at least 12 other states have proposed similar abortion bans.
Perhaps the U.S. Supreme Court justices anticipate that the Texas abortion controversy will soon be moot; they are set to rule by this summer on a major abortion case that could scrap Roe, and with it any argument that Texas’s ban violates the Constitution. Yet by condoning Texas’s approach in the meantime, they have opened up a legal Pandora’s box that could do extreme damage to the constitutional order.
A Missouri lawmaker has proposed empowering private citizens to sue anyone — even beyond the state’s borders — assisting a Missourian in getting an out-of-state abortion. The notion that a state could regulate out-of-state activity is absurd. But so is Texas’s abortion vigilante enforcement program, and the Supreme Court failed to stop it. In fact, states could use a Texas-style system to restrict practically any constitutionally protected activity. California lawmakers are already moving to restrict firearms by empowering private citizens to go after gun-shop owners. State officials across the country are rushing to create vigilante systems to crack down on anti-vaxxers and speech in schools. If the court treated such cases with the same nonchalance as it did Texas’s abortion ban, those restrictions could remain on the books for long periods of time.
The court should act to close the legal loophole Texas exploited and make clear that it will not tolerate any state seeking to export its abortion policies beyond its borders. Meanwhile, those states that hope to preserve legal abortion must consider how to protect their own abortion providers from punishments that other states might try to impose on them.
The Washington Post
