The Washington PostDemocracy Dies in Darkness

Opinion Texas’s abortion law is a nightmare for women — and a warning to the nation

Texas enacted the strictest antiabortion law in the U.S. on Sept. 1 by banning abortions after six weeks of pregnancy. (Video: Reuters)

Texas’s newly imposed antiabortion law combines the viciousness of flat-out abortion bans and the MAGA crowd’s penchant for bullying and harassment.

The law prohibits abortions six weeks after a woman’s last period, putting her well-being and life choices under the thumb of the state. Republicans intend to enforce the law by incentivizing people to make claims against anyone assisting a woman to obtain such an abortion by offering a $10,000 bounty. Without any state enforcement, the ability of plaintiffs to challenge the law is limited.

The Supreme Court sat on a petition for emergency relief, allowing the law to go into effect at 12:01 Wednesday morning. Later, on Wednesday night, the five staunch conservative justices finally denied the petition. Texas women now live in limbo, afraid to exercise their constitutional rights and yet unable to have their day in court, at least not yet.

The Post reports that the law “was specifically designed to turn away pre-enforcement challenges in federal courts.” Now that the Supreme Court has refused to act, “the most likely challenge will come after the law is used by a private citizen. Then the person sued could contest the constitutionality of the law, with the backing of abortion providers and abortion rights groups.”

Follow Jennifer Rubin's opinionsFollow

Chief Justice John G. Roberts Jr. and the court’s three liberals issued scathing dissents. Roberts argued, “The statutory scheme before the Court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.”

In a separate dissent, Justice Stephen G. Breyer noted the majority’s double standard. “We have permitted those whom a law threatens with constitutional harm to bring pre-enforcement challenges to the law where the harm is less serious and the threat of enforcement less certain than the harm (and the threat) here.” Breyer further observed, “The very bringing into effect of Texas’s law may well threaten the applicants with imminent and serious harm.”

Justice Sonia Sotomayor’s dissent shredded the court’s majority and the Texas lawmakers. As to the law that aimed to evade judicial scrutiny while rolling back decades of precedent, she wrote: “Taken together, the Act is a breathtaking act of defiance — of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas.” She concluded:

It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry. … Instead, the Court 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

With the refusal to offer relief, the Supreme Court effectively authorized a grotesque abrogation of long-standing precedent and put the lives and health of Texas women at risk. Worse, legal experts point out no one is fooled as the court’s majority hides behind technical jurisdictional doctrines, allowing it to bypass a ruling on the merits. The law is designed to intimidate women by creating an ominous civil right of action cannot be challenged because no one has yet sued. The reasoning is as circular as it is dismissive of the plight of women denied exercise of their constitutional rights.

Empowering antiabortion activists to do the work of turning in abortion providers is an invitation to spying and even blackmailing women. The fear now is that the Texas law will become a model for states such as Alabama and Mississippi. Right-wing Supreme Court justices can now sit back to let their ideological allies in red states delegate the job of stripping women of their rights to greedy busybodies. Even if no one files suit, the decision makes abortions too legally risky for medical providers to perform.

The White House on Wednesday issued a statement strong on empathy but lacking a solution to Texas women’s dilemma. “This extreme Texas law blatantly violates the constitutional right established under Roe v. Wade and upheld as precedent for nearly half a century,” President Biden declared. “My administration is deeply committed to the constitutional right established in Roe v. Wade nearly five decades ago and will protect and defend that right.” How he will do that, he did not say.

Concretizing Roe in federal statute is impossible so long as the filibuster remains, although this outrage might add fuel to the fire to torch the Senate procedure. The Justice Department might consider suits against private citizens attempting to cash in on the bounty for interfering with women’s constitutional rights. Medicaid could reimburse low-income women for the costs of suits based on their accessing medical care. However, even with such efforts, the legal uncertainty for abortion providers would remain, hence making it difficult for women to obtain medical treatment.

Norman Eisen, former special counsel for the House impeachment managers, recommends, “The President, DOJ and Congress must rack their brains to consider what if anything they can do by way of executive action, litigation and new laws respectively, but there are significant obstacles to all three. At a minimum, other states should consider measures such as laws prohibiting their citizens from participating in any way in the Texas bounty hunting scheme.”

The Texas abortion scheme has all the elements of today’s MAGA Republican Party: contempt for women’s right to control their lives; encouragement of their followers to harass those who reject their ideological directives; cowardly evasion of legal processes and gross hypocrisy. As to the latter, this is the same state in which Republican Gov. Greg Abbott prohibited school districts and other local entities from protecting adults and children with mask or vaccine mandates. In other words, a mask is too great an impingement on “freedom,” but a forced pregnancy and threat of harassment for exercising one’s constitutional rights are all the rage in the Lone Star state.

Voters in other states should be wary. Anti-choice ideologue Glenn Youngkin, the GOP nominee for governor in Virginia, has made clear his vehement opposition to Roe. Now, he refuses to comment on the Texas law. Translation: Texas will be his model on abortion just as Florida Gov. Rick DeSantis (R) earns his praise on covid-19 policy. In an interview with Politico, Democratic nominee and former governor Terry McAuliffe warned, “It will be a huge motivator for individuals to come out and vote.”

Democrats in 2022 must argue that Republicans would do to the entire country what they have done in Texas — hamper lifesaving mandates for vaccines and masks, harass and endanger women and, of course, suppress the vote to make it harder to throw them out of office. The voters cannot say they weren’t warned.