The Washington PostDemocracy Dies in Darkness

Opinion The best way to fight the Texas abortion law

Pro-choice protesters march outside the Texas State Capitol in Austin, on Sept. 1. (Sergio Flores/For The Washington Post)

The Supreme Court’s decision last week to allow Texas’s ban on most abortions to take effect raised many questions about legal procedure and the future of abortion in the United States. The most pressing is how to limit the damage that Texas’s plainly unconstitutional law will do to women’s constitutional rights. Many ideas involving the use of Justice Department powers or the raising of private funds are surfacing. But the overriding goal must be for the courts to strike down the Texas law, officially and for good. Unfortunately, it’s hard to see how that can happen without a Texas abortion provider allowing itself to be hauled into court.

The Texas legislature intentionally crafted its ban on all abortions after about six weeks of gestation to avoid judicial review: It gives abortion advocates no obvious party to sue in order to stop it. Typically, advocates would ask courts to enjoin state officers from enforcing the statute while its constitutionality was reviewed; but Texas tapped private citizens, not state officials, to enforce the law. The statute essentially creates a form of vigilante justice in which anyone can bring a case against abortion providers suspected of violating the ban. A narrow court majority found that there was no case for them to adjudicate until a specific entity tried to use the law to harm another specific entity — that is, until some private party brought a case against a suspected abortion provider. In fear of this vigilante justice (in which the abortion providers but not the vigilantes are liable to pay legal costs), clinics stopped terminating pregnancies, chilling abortion access across the state.

Chief Justice John G. Roberts Jr. argued that Texas’s procedural trickery itself should have become an issue for a full hearing and briefing, warning of immediate copycat efforts in other states, which could target abortion or, theoretically, any other constitutional right. Unfortunately, the majority did not heed the chief justice’s warnings.

The result: Texas women’s constitutional rights are being abrogated every day. In the short term, women seeking abortions, particularly poor women, need help traveling out of state to end their pregnancies. In the medium term, the Justice Department has filed a complaint against the law, charging that it illegally interferes with federal interests. Some legal experts, such as constitutional scholar Laurence H. Tribe in a Post op-ed, argue that the Justice Department could also criminally charge anyone who used the Texas law to go after an abortion provider, under a federal statute that bars people from, “under color of law,” willfully depriving individuals “of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” A threat of such action might discourage many people from trying to wield the law.

But it might not lead to the clinics’ reopening across the state. That seems unlikely until some clinic opens itself to a test case that forces courts to consider whether the state’s six-week restriction is constitutional — which it clearly is not under Roe v. Wade and all subsequent precedent.