The Washington PostDemocracy Dies in Darkness

Opinion The Texas case is not just about abortion. All sorts of rights are at stake.

Pro-choice activists rally outside the Supreme Court building on Nov. 1. (AP Photo/Jacquelyn Martin)
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The Supreme Court heard arguments Monday in what is being called an abortion case. In fact, its implications are far broader: The justices will determine whether states can infringe constitutional rights while courts watch impotently.

The hearing involved Texas’s S.B. 8 abortion law, which the state legislature drafted specifically to avoid judicial review before it took effect. The law bars abortions after fetal heart activity is present, which is about six weeks. Many women do not know they are pregnant at that stage. Under normal circumstances, abortion providers would sue the state officials responsible for enforcing such a ban, and federal courts would immediately strike down such a blatant violation of Roe v. Wade. But Texas’s law charges no state entity with enforcing it. Instead, the law empowers private citizens to sue anyone involved in performing a restricted abortion. Those successfully sued would have to pay “at least” $10,000, not to mention attorneys’ fees, to the vigilantes to whom the state has farmed out enforcing its abortion ban.

The point is to provide abortion providers no obvious person to sue to stop the law before it chills abortion access across Texas. If state officers are not responsible for enforcing it, courts have no specific party to instruct to stand down. Once someone performs an abortion and is sued for it, that defendant can raise a constitutional challenge as their case is adjudicated. In fact, lawsuits have already been filed against a Texas abortion doctor who defied the law. But sorting that out could take a long time. It is no replacement for the timely review such a law would get if state officials were those enforcing it. Texas women’s abortion rights are being infringed every day the law remains in force.

On Monday, abortion providers and the federal government argued that Texas’s brazen end run around judicial review cannot be legal. If the justices fail to condemn the state’s scheme, Justice Elena Kagan argued, “we would live in a very different world from the world we live in today. Essentially, we would be inviting states, all 50 of them, with respect to their own preferred constitutional rights, to try to nullify the law this court has laid down,” Justice Kagan said. “There is nothing the Supreme Court can do about it. Guns, same-sex marriage, religious rights, whatever you don’t like.”

If California, say, declared that any private person could sue for $1 million any person carrying a handgun in the state, people should be able to ask a court to intervene before someone risks a massive penalty for defying the state’s scheme. Many on the court appeared troubled. Justice Brett M. Kavanaugh said the state was exploiting a “loophole.” Justice Amy Coney Barrett lamented that abortion providers could not get adequate judicial review. The court must close this loophole.