The court flubbed its first opportunity when it allowed Texas’s patently unconstitutional ban on abortions after six weeks to go into effect. The genius, such as it is, of the Texas law is that it outsources enforcement to private parties — and therefore forestalls abortion providers’ ability to go to court to block it.
Rejecting a plea by Texas abortion providers to block the law, five conservative justices acknowledged the “serious questions regarding the constitutionality” of the law but allowed the manipulative scheme to take effect for the time being, saying the abortion providers’ lawsuit “presents complex and novel antecedent procedural questions” that prevented the court from intervening.
The upshot was the court looked like a bunch of weak — or maybe willing — dupes of clever lawyers determined not just to violate women’s constitutional rights but to do so in a way that had federal courts milling about like hapless bystanders.
The Biden Justice Department then filed its own separate suit. It asserted that the Texas law interfered with the federal government’s responsibilities in Texas (for example, making abortion available to prisoners or refugees) but, more importantly, said it was acting to vindicate the constitutional rights of women in Texas.
The key legal difference between the two lawsuits involves the 11th Amendment, which shields states from being sued in federal court. But that limitation doesn’t apply to suits by the United States itself.
The Justice Department’s lawsuit was an aggressive move. It’s not every day the U.S. government barges into court to assert that it is there not because any federal law is being violated but because its citizens’ constitutional rights are being harmed.
Then again, it’s not every day that a state enacts a law it effectively concedes is unconstitutional and further maneuvers to prevent any challenge to its constitutionality.
The district court judge who heard the federal government’s case agreed with the government’s challenge and ordered that the law be enjoined. “The American legal system cannot abide a situation where constitutional rights are only as good as the states allow,” wrote Judge Robert Pitman.
But the U.S. Court of Appeals for the 5th Circuit lifted that order and allowed the Texas law to resume. The appeals court’s four-sentence order was a particularly sloppy bit of legal reasoning — it said it was acting “for the reasons stated” by the appeals court when it refused to stop the law from taking effect in the case brought by abortion providers. That made no sense: The “reasons stated“ in the other case involved the 11th Amendment limitations that don’t apply to the federal government.
In a filing with the court Monday, acting solicitor general Brian H. Fletcher asked the court to block the Texas law and invited it to leapfrog the appeals court and decide the case itself.
The court would be wise to step in. The Texas law threatens to make a mockery of the federal judiciary. As the Justice Department filing noted, other states are considering copycat abortion laws — and there’s no reason to think that abortion will be the only area of state legislative mischief. The Justice Department posed the prospect of states that ban private gun ownership but delegate enforcement to private bounty hunters, a la Texas.
Perhaps the conservative justices misjudged how much outcry their earlier decision would generate. Perhaps they truly felt constrained by the technical legal questions — even if those weren’t enough to stop Chief Justice John G. Roberts Jr. from saying that the law should be halted while those issues were sorted out.
Now they have another chance. By “they,” I mean Brett M. Kavanaugh and Amy Coney Barrett, the two justices most likely to switch positions. The best outcome would be if they took the plunge together, creating a 6-to-3 vote to block the Texas law. This would not be a flip-flop — the legal issues are different — but would help lower the volume of criticism enveloping the court. Maybe the federal government doesn’t have the power it claims here, but issuing a stay wouldn’t bind the court to any particular outcome. It would simply be putting the law on hold while the case proceeds.
In deciding such issues, the court weighs several questions:
- Are those seeking the order likely to succeed on the merits? Answer: Yes. The six-week ban is clearly unconstitutional, and the Texas scheme, as the Justice Department argues, “amounts to an assertion that the federal courts are powerless to halt the State’s ongoing nullification of federal law.”
- Will there be “irreparable harm” if the law continues in effect? Answer: No doubt. Look at the thousands of Texas women whose rights are being violated day by day.
- Will the other side be seriously injured if the law is put on hold? Answer: Hardly. Texas disclaims any involvement in enforcing the law, so how can the state also claim to be harmed?
- What’s the “balance of equities”? Answer: Strongly in favor of a stay.
If there aren’t at least five votes for that here, this court is even more radical than I fear.