Saturday, October 30, 2021
Like a bad dream (or a toxic ex-partner), abortion has made yet another unwelcome visit to the United States Supreme Court, thanks to the State of Texas.
Texas is up to its old tricks again in its never-ending quest to find some way – any way – to disregard Roe v. Wade and Planned Parenthood v. Casey, and eviscerate abortion access in the Lone Star State. By way of background, in 2013, Texas passed a law requiring abortion providers to have hospital admitting privileges and claimed that the law’s purpose was to protect women’s health. But the stated purpose was as meritless as it was disingenuous: complications from abortions are quite rare and less frequent than, for example, complications resulting from tonsillectomies and tooth extractions – neither of which were subject to such a requirement. The law was challenged and, in Whole Women’s Health v. Hellerstedt, the Court, by a vote of 5-4, rightfully invalidated the law and implicitly recognized that its purpose was, in the words of former Governor Rick Perry, “to make abortion, at any stage, a thing of the past.”
Sadly, Texas didn’t learn its lesson.
The legislature recently passed – and Governor Gregory Abbott signed – a “fetal heartbeat” law (“SB 2”) that prohibits abortions after six weeks. But there’s more: ostensibly aware that the law unquestionably violates Roe and Planned Parenthood, which held that women have the right to terminate a pregancy before viability (approximately twenty-four weeks), Texas designed a ridiculous scheme to evade review by the federal courts. Specifically, SB 2 authorizes private citizens, not state officials, to enforce the law by giving all citizens the right to sue abortion providers who perform abortions after six weeks. And to incentivize such lawsuits, Texas is offering private citizens at least $10,000 if they succeed in a lawsuit against an abortion provider. Put simply, SB 2 creates private bounty hunters.
Not surprisingly, SB 2’s constitutionality was immediately challenged. Initially, the Court refused to grant injunctive relief, holding that, although the law raised serious constitutional questions, it also raised “novel antecedent procedural questions," such as whether the Court had the power to issue an injunction against “state judges asked to decide a lawsuit under Texas’s law,” and whether an injunction was proper given that the named defendants lacked the power to enforce the law. As a result, the law is now in effect and abortions in Texas are, as a practical matter, a thing of the past.
So here we are again.
Like in Hellerstedt, where Texas unsuccessfully argued that a hospital admitting privileges requirement was necessary to protect women’s health – a justification the Court rightfully rejected – it now argues that it can effectively eliminate the right to abortion by adopting a private enforcement scheme that uses citizens as proverbial human shields to evade federal review and preclude injunctive relief . As in Hellerstedt, the Court should invalidate this ridiculous law, which thumbs its nose at the Court, its abortion precedent, and judicial review. The law unquestionably violates Roe and Planned Parenthood, and is an unconstitutional assault on the viability threshold. The Court should recognize the obvious.
If the Court fails to do so, it will severely, if not irreparably, undermine its institutional legitimacy. Indeed, at a time when forty percent of the public has confidence in the Court, doing the right thing – regardless of ideology – is critical.
To be sure, the public’s opinion of the Court results, at least in part, from the perception that some decisions reflect the Court’s current ideological composition. When the justices’ votes conveniently and consistently align with their policy preferences – and constitutional meaning changes based on whether a majority of the justices is liberal or conservative – the perception is that politics, not law, and party affiliation, not principle, motivate the Court’s decisions. Of course, although the justices continually emphasize that their decisions are never motivated by policy preferences, the fact remains that perception matters more than reality. Indeed, it is reality. Any decision that denies Whole Woman’s Health the ability to seek relief in federal court would re-enforce this perception. It would suggest that constitutional meaning can – and does – change simply because the political and ideological predilections of the justices change. It would suggest that constitutional rights can be tossed in the proverbial garbage simply because there are more conservatives on the Court in 2021 than there were in 1973 or 1992. That is the point – and the problem.
Yet, this is precisely what the public may believe if the Court refuses to grant Petitioners relief and, instead, focuses on the “novel antecedent procedural questions," such as those mentioned above. Doing so will likely be viewed for what it is: conservative justices hiding behind Texas’s legislative shenanigans to all but outlaw abortion in Texas and, concomitantly, give states carte blanche to eviscerate any constitutional right simply by enacting a private enforcement scheme. If the Court countenances such nonsense, constitutional rights will be worth the equivalent of Monopoly money.
The Court should grant Petitioners relief. Regardless of whether one is pro-life or pro-choice, what matters is recognizing this charade for what it is: a sophomoric and transparent attempt to disregard Roe and eliminate abortion.
Ultimately, the mess that is abortion jurisprudence reflects three problems with the Court's decisions in this and other areas.
- Living Constitutionalism. The Court is in this mess primarily because Roe v. Wade was a constitutionally indefensible decision. Decided less than a decade after Griswold v. Connecticut, an equally indefensible decision, the Court created a right to privacy (and abortion) out of thin air, as no reasonable interpretation of the Fourteenth Amendment’s Due Process Clause could support recognizing these rights. The backlash among states that Roe and, later, Planned Parenthood engendered, and that has thrust the abortion right into uncertainty for decades, reflects the flawed reasoning in these decisions.
- An ambiguous legal standard. In Planned Parenthood, the Court reaffirmed the central holding in Roe but created a new standard by which to assess the validity of abortion restrictions. Specifically, the Court held that laws regulating abortion cannot place an “undue burden” on a woman’s right to terminate a pregnancy. But what exactly constitutes an “undue burden"? No one knows. Adopting this vague standard created uncertainty and unpredictability regarding the right to abortion and only guaranteed that states like Texas would continually attempt to limit, if not eliminate, abortion access.
- Incrementalism. The Court, particularly under Chief Justice John Roberts, has adopted an incremental approach to deciding cases, in which the Court only decides the narrow legal issue before it, thus eschewing broad rulings or the adoption of categorical legal rules. This approach has many benefits. Sometimes, however, clear – and categorical – rules are necessary to bring clarity to the law, guide lower courts, and bring stability to the law.
The Court’s abortion jurisprudence suffers from all three flaws. As such, it should not be surprising that the right to abortion has for decades led to countless legal challenges and continued uncertainty.
Hopefully, the Court will recognize – and rectify – the problem. Its institutional legitimacy depends on it.
 579 U.S. 582 (2016).
 See id.
 Press Release, Governor Rick Perry, Tex., Governor Perry Announces Initiative to Protect Life (Dec. 11, 2012), http://perma.cc/CWN2-KLDD.
 See Brief of Professors Adam Lamparello, Charles E. MacLean, and Brian Owsley in Support of Petitioner, available at: Microsoft Word - Amicus Brief In Support of Petitioners (supremecourt.gov).
 See Whole Woman’s Health v. Jackson, 594 U.S. (2021), available at: 21A24 Whole Woman's Health v. Jackson (09/01/2021) (supremecourt.gov).
 Se Jeffrey M. Jones, Approval of U.S. Supreme Court Down to 40%, a New Low (September 23, 2021), available at: Approval of U.S. Supreme Court Down to 40%, a New Low (gallup.com)