Thursday, September 02, 2021

The Cloud Cast by SCOTUS Conservatives Over Roe Distinguishes the Texas Law From Most Procedurally Similar Ones

 by Michael C. Dorf

Dissenting from last night's 5-4 order rejecting the plaintiffs' request for an emergency injunction of the Texas "heartbeat law," Chief Justice Roberts spoke for himself and his three more liberal colleagues when he wrote that they

would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws [by relying exclusively on private enforcement]. Defendants argue that existing doctrines preclude judicial intervention, and they may be correct. Both the consequences of approving the state action, both in this particular case and as a model for action in other areas, counsel at least preliminary judicial consideration before the program devised by the State takes effect.

(Emphasis added).

It is not difficult to imagine how the heartbeat law's enforcement provisions--relying exclusively on private enforcement by granting power to "any person" to bring lawsuits imposing crippling liability on abortion providers--could be used in the "other areas" to which the Chief Justice refers, and not just in red states. For example, contrary to McDonald v. Chicago, New York could ban possession of all handguns and grant any person the right to sue someone found to possess a handgun for $10,000 per day the handgun is possessed, while forbidding public enforcement. Massachusetts could ban hate speech defined in a way that violates RAV v. St. Paul and use the same enforcement mechanism. Etc.

But here's the thing. Such hypotheticals do not represent the end point of a slippery slope to which the upholding of the heartbeat law could lead. The heartbeat law is actually worse than most such efforts to circumvent anticipatory litigation in federal court. The cloud of uncertainty over abortion rights created by the very Justices in the majority in last night's ruling makes defying the heartbeat law a much riskier proposition than defying the laws in my hypothetical examples.

Speaking, in response to their dissenting colleagues' objections, the majority Justices say they 

do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, 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.

That's technically true and more or less what I predicted the Court would say when I talked to reporters yesterday (e.g., here) about the puzzling delay in ruling. But the majority's response is inadequate because it fails to take account of the chilling effect of the heartbeat law.

In principle, abortion providers can continue to perform abortions in Texas. Then, when they or anyone who "aids or abets" the allegedly post-heartbeat abortions is sued, they can raise the constitutional right to abortion as a defense. But the very fact that the defense could fail if the Supreme Court overrules Roe v. Wade in the pending Mississippi case will lead prudent abortion providers simply to stop performing abortions. Thus, there might never arise an opportunity to bring "procedurally proper challenges to the Texas law," even by way of defense in a state court action.

Contrast the situation with respect to my hypothetical examples. Competent lawyers for a gun owner in New York or a white supremacist in Massachusetts would tell their clients to go ahead and violate the laws. They would know that if their clients are sued, they will have airtight defenses under McDonald and RAV, respectively.

However, competent lawyers in Texas cannot give the same advice to their clients with respect to the heartbeat law. Why not? Because various Justices comprising a majority of the Supreme Court have indicated--in dissenting and concurring opinions and in their pre-judicial statements--that they stand prepared to overrule Roe, Casey, Whole Woman's Health I, and abortion rights more broadly.

Put differently, the very uncertainty over the abortion right's future cast by the actions of the Justices in the majority in last night's order shows why their reassurance about other mechanisms for bringing challenges rings hollow. They are right that the Court's order in the heartbeat law case, standing alone, does not limit "other procedurally proper challenges to the Texas law."

But the Texas law itself, coupled with the chilling effect cast by their very own signals about the shakiness of abortion rights, very much do limit the availability of such challenges.