Almost exactly two months after the Texas Supreme Court enacted a novel abortion ban that makes abortion virtually impossible in the state, the law is back in the lap of the judges. Today, however, the judges will not deal directly with the constitutionality of the ban, which prohibits abortions after cardiac activity in the fetus can be demonstrated – often before women know they are pregnant. Instead, they will grapple with the unique structure of the law, which raises some sensitive questions about the power of federal courts over states.
What Texas did was not remarkable because in which phase it prohibited abortion. Many other states Have already passed laws that restrict or ban abortions after six weeks. The innovation of Texas law was how it prohibited abortion: Individuals who successfully sue a person for assisting a woman with a prohibited abortion are eligible for a reward of $ 10,000, placing responsibility for enforcing the law in the hands of vigilantes – and most importantly, taking it out of the hands of state officials like prosecutors .
It is currently unclear whether the Conservative judges have changed their minds on the Texan law since September. After all, the court recently elected again keep the law in effect during the litigation – although the case was put on record in a flash, suggesting the judges may want to reach a decision soon. However, there are indications that the law’s unusual enforcement mechanism could become doomed: while a majority of Supreme Court justices may be willing to reconsider the constitutional right to abortion, it could act as a bridge to empower states to legislate like saying goodbye to Texas too far even for the Conservatives of the court.
“It may have dawned on the judges that nothing is stopping a state like Massachusetts from passing a similar law on another subject, such as the right to bear arms or freedom of expression on campus,” said Maria Ziegler, Law Professor at Florida State University. And, she added, there are cleaner ways to get Roe v. Wade, overturning or restricting the 1973 decision that established a constitutional right to abortion – including a case of simpler Mississippi law that will be heard in court in December.
At its core, Texan law is a solution to a dilemma that anti-abortion opponents have struggled with for years. Increasingly, republican-controlled state legislators are becoming were ready to pass laws – like a six-week abortion ban – openly violating the Roe. But with the exception of the Texas ban, None of these laws are actually in forcebecause federal courts let them pause while legal challenges were played.
Texas innovation was to make it extremely difficult for the courts to interfere. Typically, abortion providers sue a state official in charge of enforcing a specific abortion law. But by making individuals accountable for enforcement, the game changed – abortion providers have no one to sue, and there is no obvious way for the federal courts to intervene.
It was like Chief Justice John Roberts noted in his dissenting opinion from the court’s September decision to bring Texan law into effect, an “unprecedented” approach apparently aimed at getting the federal courts out of the loop. And it has been successful, at least for the time being, as the law is in place in Texas and therefore, abortions are currently being performed practically impossible to get in the state.
But now, before considering a separate lawsuit by President Biden’s administration, judges have given each other an opportunity to untangle some of the knots of Texas law – specifically what role the federal courts must play. You are looking at two different questions: Whether the federal government can even bring a lawsuit in federal court to prevent enforcement, and whether states like Texas can try to create a final run for federal courts when constitutional rights are at stake.
According to Ziegler, the structure of Texas law could be a deal-breaker even for judges facing stricter abortion laws, as the law allows a state to functionally override a Supreme Court precedent. This approach could go well beyond abortion and used with other constitutional rights. “Texas used to seem clear about this dish, and it doesn’t now,” she said. “That doesn’t mean the state will definitely lose, but the law is now in real danger.”
In a broader sense, too, this case adds a new level of complication at a time that was already very busy and well known to the judges. In a few days they will hear oral arguments in the first major gun law case in court in over a decade. And then at the beginning of December You will be weighing another abortion restriction – a Mississippi law that bans abortions after 15 weeks of gestation, which could give them the opportunity to get Roe v. Overturning calf. So the back and forth over Texas law could be an undesirable distraction for the conservative judges who didn’t need another chance to rethink whether abortion is constitutional.
But it’s not a closed deal either. After all, Texan law is still in place, signaling that five of the court’s conservative judges are still not concerned about the availability of abortions in one of the largest states in the country, despite Roe v. Wade is still in the books. And with that in mind, whatever happens next, anti-abortion advocates in the state have already won a great victory. With the restriction in place, the Supreme Court allowed the state to effectively ban abortions, forcing women to flood neighboring states in order to receive the trial.
And the willingness of conservative judges to allow this to happen could signal that abortion advocates will win a much greater victory – even if Texan law does not ultimately survive.