Advocates of a woman’s right to choose an abortion are alarmed over the implications of a 5-4 U.S. Supreme Court decision not to block a new Texas abortion law that would stringently restrict access to the procedure.
The ruling predictably has rekindled the demand to enlarge the Supreme Court to produce rulings favorable to liberal causes, but such reflexive reactions are misguided — not just in general but also in this case specifically. As the majority opinion expressly said in this case, “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.”
To be sure, a minority of the justices would have granted a temporary injunction against the law to preserve the status quo. But that position, while politically popular in the highly charged abortion debate, ignored the legal point made by the majority: There had been no action under the new law at the time, so there could be no cause of action in the courts.
U.S. Attorney General Merrick Garland implicitly acknowledged as much in his statement Monday that the Justice Department was still exploring “all options” to challenge the new Texas law. The Justice Department followed through Thursday by filing a lawsuit against Texas.
There is no question that the law will get a legal challenge as soon as it is invoked. And it seems likely that it will be struck down on constitutional grounds because of its uncommon enforcement mechanism.
The law allows anyone to bring a civil suit in Texas courts against an abortion provider for violating the law, and encourages such suits by promising a $10,000 reward if the suit is successful. Such action borders on vigilantism and is very likely unconstitutional in the view of major legal scholars. The law allows anyone involved in aiding or abetting a now-illegal abortion to be sued, even the person driving the woman to the clinic. The plaintiff need not have any personal involvement in the action, contravening the standard legal rule that only people suffering a loss have standing to sue for damages.
If a woman is denied an abortion under the new Texas law, she can sue in federal courts for denial of her rights, and that’s where the primary legal question will arise.
Abortion-rights advocates often express a concern that the current conservative majority of the high court will overturn Roe v. Wade, which gave women the constitutional right to an abortion. In 1992, the Supreme Court’s decision in Planned Parenthood v. Casey affirmed the essential holding of Roe’s so-called “viability rule,” and that key legal issue will be at stake in a challenge to the Texas law.
Under Roe, states could not regulate abortions during the first trimester of pregnancy, or 13 weeks. Casey held that states may not regulate abortions before the point where the fetus has a high medical probability of surviving until birth. The court called this turning point “viability,” and it is loosely defined as the point at which the fetus has a strong heartbeat.
That leaves an uncertain window for legal abortions partially dependent on the development of the individual fetus. Medical science has established that the fetal heartbeat can be identified as early as 6 weeks into a pregnancy and is well-established by the 10th week.
Since Casey, a number of states have sought to give a legal definition to viability. The South Carolina law passed this year defines viability as 8 weeks. That law is suspended pending a decision by the 4th Circuit Court of Appeals and, like the Texas law that could take force as early as 6 weeks, might come before the Supreme Court.
The Supreme Court is going to have to return to the question of viability, and it likely will do so soon. But it hasn’t yet, and contrary to popular opinion on both sides of the issue, its decision in the Texas case doesn’t tell us where it will come down on that question.