The upshot: Women in Texas aren’t entitled to abortions, except the lucky ones who figure out they are pregnant early enough (just six weeks after their last menstrual period) and manage to surmount the additional hurdles that the state has put in their way (a 24-hour waiting period after a mandatory ultrasound and state-dictated script).
Justice Sonia Sotomayor was appropriately scathing in her dissent. “The Court’s order is stunning,” she wrote. “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.” Except I’m not so sure about the “bury their heads” part. The conservative justices understood exactly what they were doing, and its consequences.
Other states have passed laws that purport to ban abortion as early as six weeks, when a fetal heartbeat is first detectable. These efforts are routinely struck down, even before they can take effect, because they are inconsistent with Roe v. Wade and succeeding cases, which have established that women have a constitutional right to decide whether to terminate an unwanted pregnancy until the point of fetal viability.
The Texas innovation was cleverly designed to avoid this fate. It explicitly prohibited state officials from enforcing it, instead outsourcing that job to individual citizens who take it on themselves, with the incentive of a $10,000-or-higher bounty, to go after those who help women procure abortions.
This device poses complicated legal questions involving federalism and the role of the federal courts in lawsuits against states. The 11th Amendment prohibits federal courts from hearing suits against states. But that limitation doesn’t usually matter in practice: Courts routinely entertain challenges to the constitutionality of state laws because the lawsuits are filed against state officials, not the states themselves.
Here, or so the Texas argument goes, no state officials are involved in enforcement, so no challenge is available. Those challenging the Texas law sued any number of officials, from judges to court clerks to members of the state medical board, who, they said, would inevitably be caught up in any private effort to apply the law.
Okay, a legitimate legal dispute for the courts to adjudicate. The question is what happens in the interim. Here, a huge shout-out to Chief Justice John G. Roberts Jr., no fan of Roe, who sided with the three remaining liberal justices (Sotomayor, Stephen G. Breyer and Elena Kagan.)
“I 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 in such a manner,” Roberts wrote. “Defendants argue that existing doctrines preclude judicial intervention, and they may be correct. But 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.”
If Roberts spoke in the arid language of legal process, Sotomayor issued a cri de coeur, joined by Breyer and Kagan. The majority, she wrote, “has rewarded the state’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the court’s precedents, through procedural entanglements of the state’s own creation. The court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.”
This is not the end of the legal road, even in the federal courts. The underlying legal dispute can proceed through the lower courts and back up to the justices. There is litigation in state courts in Texas as well, state courts that are also bound to respect the Constitution.
In the interim, though, the impact is clear. In Texas, women’s constitutional rights are being violated every day — as those sworn to uphold and enforce the Constitution stand by, approving.