Thursday, March 11, 2021

The "Revival" Alternative to Test Legislation Like the New Arkansas Abortion Ban

 by Michael C. Dorf

A new law passed by the Arkansas legislature and signed by Governor Hutchinson banning nearly all abortions clearly violates governing Supreme Court precedent. Indeed, that is its point. Hutchinson and other pro-life politicians in Arkansas expect that lower courts will enjoin the law's enforcement but that they will then have the opportunity to seek review in the US Supreme Court, which, they hope, will use the case as the opportunity to fully overturn Roe v. Wade, rather than merely scale back that precedent's scope, as in other SCOTUS abortion cases over the last three-plus decades.

Is it legitimate for a legislature to pass and a governor to sign legislation that they know to be unconstitutional under existing precedents? That is not exactly a new question. I addressed it in a 2006 column, when South Dakota did more or less what Arkansas is doing now. As I observed then, if there is a reasonable prospect that the Court would change the precedent, then enacting legislation with the goal of teeing up a test case seems fair. I expressed doubts about the likelihood of the Court sustaining the near-total South Dakota ban in 2006--because Justice Kennedy would have provided a fifth vote to retain at least the core of Roe--but things may be different today. Chief Justice Roberts voted with the liberals last Term to invalidate a Louisiana measure identical to one from Texas that the Court had recently invalidated, but he did not commit to sustaining Roe against a frontal assault, and even if he had, following Justice Ginsburg's death and Justice Barrett's appointment, there may well be five votes to discard Roe completely, even if the Chief would not choose to do so.

I do not wish to use today's column to discuss whether the Court should retain a constitutional right to abortion, although I believe it should. Rather, I want to question a premise of my 2006 column and of the legislatures that enact new legislation to test existing precedent. Why do that? Why not simply try to enforce old laws that were unconstitutional under the old regime but could be valid under a new one?

One answer might be that it is unconstitutional to "revive" a statute that was previously held unconstitutional, at least if a substantial period has elapsed since that happened. Bill Treanor and Gene Sperling so argued in a 1993 article in the Columbia Law Review. Their argument leaned on a broader notion of desuetude advanced most famously by Guido Calabresi. It goes more or less like this: old statutes remain in force until amended or repealed; so long as those statutes are enforced, we can attribute democratic legitimacy to them; after all, if the statutes were unpopular, their enforcement would generate pressure for amendment or repeal; but if a statute is not enforced, either because of a policy choice not to enforce (Calabresi's favorite example involves non-enforcement of contraception bans) or because the statute was declared unconstitutional (the concern of Treanor and Sperling), then there will not be nearly enough political pressure to overcome legislative inertia; and thus, the fact that such statutes remain on the books is not evidence that they continue to enjoy popular support or assent.

There is much to be said for the desuetude theory, but it does not appear to be the law. To be sure, as a judge, Calabresi tried to make it the law in a concurrence in a 1996 right-to-die case, but he persuaded neither of the other judges on the Second Circuit panel of his view, and the Supreme Court ultimately reversed the appeals court's decision in any event. Meanwhile, so far as I'm aware, no court has adopted the view of Treanor and Sperling that old statutes cannot be "revived" when the precedent making them unconstitutional is overruled.

That does not mean that a state attorney general could simply start prosecuting people under statutes that were the subject of lawsuits resulting in permanent injunctive relief. At the very least, the state would need to go back to the court that enjoined the old law's enforcement and seek a lifting of the injunction. Such a motion would surely be denied; after all, the Supreme Court abortion cases have not yet been and might not be overruled; but the state could then appeal the failure to modify the injunction and go up the ladder to the Supreme Court in the same way that it could with a new law.

To be sure, going back to a court that issued an earlier injunction--perhaps decades earlier--might add some procedural complexity to a case. The legal standard for modifying or lifting a permanent injunction is not the same as the standard for not enjoining in the first place. I don't think that would ultimately make a difference, given that the fundamental question is one of law--whether to overrule Roe and subsequent cases--as to which the Supreme Court would owe no deference to any lower courts. But if a state AG does not want to start things off by seeking to lift an old injunction, there may be another alternative that involves no new legislation. There may be old laws on the books that are clearly unconstitutional under Roe and subsequent abortion precedents but that were never formally enjoined. Perhaps the state authorities simply recognized that one or more such old laws were rendered unenforceable under Roe and so didn't try to enforce them. By announcing the current intention to enforce such an old law, the state AG would likely precipitate a lawsuit by doctors and clinics.

So why don't states with pro-life administrations simply attempt to revive old laws barring abortion? I suspect the answer is mostly politics. Legislators with strongly pro-life constituents want to demonstrate that they are doing something on abortion, rather than leave the matter to state executive officials. Where that is true, my concession in my 2006 column to the legitimacy of enacting currently invalid laws as a means of teeing up test litigation may have been too generous. These other means show that the new legislation could be mostly political theater.

Finally, I should expressly articulate a premise of all of the foregoing: We sometimes talk about courts in the United States "invalidating" legislation, as though the effect of a ruling that a law is unconstitutional is to wipe it away. That's how it works in some legal systems but not here. Even if a court, even the Supreme Court, finds a law facially unconstitutional, the law remains in the statute books unless formally repealed through the regular legislative process. The ruling means that the law cannot constitutionally be given effect, but U.S. courts do not erase laws. One could argue that a system in which courts do so would be better, but it would be very difficult to implement in the U.S., given the ostensible preference for as-applied over facial litigation. And even if those difficulties could be overcome, I see no realistic possibility that the Supreme Court as currently constituted would want to move to an erasure system.

5 comments:

  1. I think the desuetude concern is there & it makes sense to pass new laws to address the situation as a policy. Of course, this sort of thing is often done for political/messaging reasons too. I think that is okay if overdone.

    One thing that comes to mind here -- it's somewhat germane I think -- is the Equal Rights Amendment. Congress passed a separate enabling measure twice, the last running out thirty years ago. There is a move (the House did it last term) to extend it.

    Some think that is invalid, at least unless a supermajority matching that of proposing an amendment is used. A vote in 2021 is a way to have a timely national finding that the ERA is still appropriate. The Supreme Court in Coleman v. Miller seems to have left that to the political discretion of Congress itself.

    As to passing a law currently found to be unconstitutional but with some reasonable chance of the law changing, I do think that is valid on principle. The application here is not something I'm a fan of, but on principle, I think it is okay. A notable example would be a penal law. The Supreme Court in part nose counts to get a sense if something is proper. Certain law professors have suggested a resolution would be one way for a state to make a statement that a procedure currently found unconstitutional is appropriate. And, if enough states do that, maybe it is time for a change.

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  2. ETA: 35 states ratified the ERA before the second ratification deadline lapsed.

    Three "ratified" it since then & it is argued extending the deadline could allow those three to count. Others argue certain states rescinded their ratification votes, though allowing that sort of thing was rejected in the past. The issue is being litigated.

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  3. I find it interesting that the first amendment, with "Congress shall pass no law" is not read to require erasure. That particular phrase seems unique in that it doesn't limit the government, but instead specifically restricts Congress. As such, at least for facial challenges, it is Congress's lack of authority to even pass the law in the first place that is violated. I don't understand how that particular phrase doesn't require erasure.

    Then again, as a practical matter, enjoining rather than erasure is probably more straightforward for enforcement, and helps avoid courts legislating what the erased law looks like.

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  4. @Joe: Your claims about the possibility of reviving the ERA are incorrect. In 1982, when dismissing NOW v. Idaho, the Court declared controversies over extending the deadline moot on the grounds the ERA had not received the required number of ratifications (38), so "the Amendment has failed of adoption no matter what the resolution of the legal issues presented here." If revival were an option, the Court would not have stated such.

    @Greg: My understanding is, though the Court has not embraced erasure, it has not rejected it either.

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  5. In 1982, when dismissing NOW v. Idaho, the Court declared controversies over extending the deadline moot on the grounds the ERA had not received the required number of ratifications (38), so "the Amendment has failed of adoption no matter what the resolution of the legal issues presented here."

    It "failed" before the first extension too.

    The ratification of the U.S. Constitution "failed" in Rhode Island and North Carolina the first time around too. Then, they tried again, and did ratify the Constitution.

    The matter was moot since Congress did not extend the deadline so with or without counting the recissions, it would not be ratified. The Supreme Court did not say Congress lacked the power to extend the deadline again in 1983 or something.

    The quoted portion is, to be exact, not from the Supreme Court order. It is from a memoranda referenced. The actual opinion:

    Upon consideration of the memorandum for the Administrator of General Services suggesting mootness, filed July 9, 1982, and the responses thereto, the judgment of the United States District Court for the District of Idaho is vacated and the cases are remanded to that court with instructions to dismiss the complaints as moot. United States v. Munsingwear, Inc., 340 U.S. 36 (1950).

    If my claims -- raised by the three states and others -- are "incorrect," that alone won't do it.

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    The 14th Amendment goes one better -- it says states shall not make or enforce any law etc. I'm not sure how far that takes you.

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