Courts are not legislatures. They are frequently mistaken by many, including many lawyers, as bodies vested with plenary power to examine social problems and devise novel solutions. But a court can only act if there is an identifiable defendant whose acts could cause an identifiable plaintiff harm contrary to law.
Most legislatures that have sought to limit legal abortion contrary to Roe v. Wade have run afoul of this because the laws they passed made the state the agent of enforcement. The state could thus be enjoined by a court from enforcing the law given its presumptive unconstitutionality. The Texas law, however, avoids this by placing the exclusive authority to enforce the law in the hands of private citizens who could sue abortion providers in civil actions. Therefore, there are no governmental defendants who have the power to harm.
The abortion providers in this case sued people and groups that might be involved in the enforcement process, such as trial judges and Mark Lee Dickson, director of Right to Life East Texas, who has called for people to sue abortion providers. But enjoining these defendants still would not remove their potential harm. The court therefore could not have granted any relief that could forestall the alleged harms to the abortion providers, as my colleague at the Ethics and Public Policy Center, Ed Whelan, has clearly demonstrated.
The court majority saw this issue clearly. It wrote: “Federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.” It was careful also to note that the court has not prejudged the final constitutionality of Texas’s law itself. That matter should only be decided when it is properly presented.
Chief Justice John G. Roberts Jr. and the court’s three liberal justices all penned dissents, but none effectively argue against this basic insight. Roberts’s dissent comes the closest when he notes that it is unclear whether Texas has the legal power to delegate enforcement of a uniform law wholly to private parties. That question might have been an interesting one for the court to hear, but there was no reason for the court to consider it, as the abortion providers’ request for relief failed on threshold grounds.
The three liberal justices each would rather have just skipped directly to the constitutional merits of the Texas law. That approach surely would have satisfied abortion rights advocates, but it would have done more harm than good. Any legal precedent invites future parties to expand it. If the court could issue a binding order without a proper defendant in this case, on what other matters could the court intervene in this way? Without a real matter of dispute between real parties whose acts affect one another, courts would constantly be issuing binding orders based on hypothetical constructs and arguments. That’s the province of legislatures, not courts.
The fact is that none of the four dissents explain how issuing an injunction against the named defendants would prevent the alleged harm to the abortion providers from occurring. The law as written allows any citizen to file a suit that would cause such a potential harm. Those potential litigants would not have been bound by any relief the court could have granted short of preemptively, without briefing or argumentation, finding the Texas law to be facially unconstitutional. That question was not properly before the court, and therefore no suitable relief could have been granted.
The Supreme Court will likely decide the constitutional fate of Roe v Wade sometime in the next year. The court’s refusal to do so preemptively in the Texas case, without full briefing and argumentation, should be praised regardless of one’s position on abortion law.