The Washington PostDemocracy Dies in Darkness

Opinion The nation needed a strong defense of constitutional rights. The Supreme Court did this instead.

Members of the media gather outside the U.S. Supreme Court in Washington on Dec. 10. (Sarah Silbiger/Reuters)
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Texas’s six-week abortion ban is an insult to the Supreme Court, designed to eliminate abortion rights that the court has upheld for decades and to curtail the judiciary’s ability to stop the state from committing this brazen legal maneuver. It threatens not only Americans who might ever need an abortion, but all manner of constitutional rights. The nation needed the court to condemn definitively Texas’s ploy. A narrow majority has instead responded with a weak shrug.

The court ruled Friday that Texas health-care providers could continue their legal challenge to the state’s abortion ban in federal district court — but narrowed their case in ways that raised questions about whether federal courts would be able to halt the law. The statute empowers private citizens to enforce Texas’s ban, offering them bounties of at least $10,000 if they successfully sue anyone involved in an abortion. Texas designed this system so that abortion providers could not sue any state entity to enjoin the law’s enforcement before it phased in. The goal was to force providers to wait until some private person sued them to argue that the law is unconstitutional. Providers who did not want to risk being sued — in practice, nearly all of them — would simply stop providing post-six-week abortions.

In August, the court refused to block the law before it phased in, without even a hearing on Texas’s bounty system. Then, on Friday, the court said abortion providers could sue only a narrow group of state health and licensing officials in their effort to stop the law. But these officials are not the law’s primary enforcers — private parties are — so an eventual court ruling blocking these state officers from enforcing the statute might not help much.

The providers had hoped to sue state court clerks, so they could enjoin these officers from accepting lawsuits brought under the statute against Texas clinics — and therefore shut down the bounty system. But five conservative justices denied the providers’ request, making it unclear if the district court will be able to issue an injunction blocking private parties from suing abortion providers — that is, the core of the law. Moreover, Texas could amend its law to remove any enforcement authorities from the state officials the court said the providers could sue, which could shut down the providers’ lawsuit without blocking private parties’ ability to haul providers into court.

The majority assured the providers that they can argue that the law is unconstitutional after a private plaintiff sues them for aiding in a prohibited abortion. This plays right into Texas’s ploy; the point is to intimidate providers from performing abortions in the first place — or to force them to shut down before they have a chance to make this argument.

It is not just Texas citizens’ abortion rights at stake. If Texas’s bounty system enables states to violate people’s constitutional rights without direct and efficient recourse to the courts, any number of constitutional guarantees would be in danger. California could ban all guns and empower private parties to enforce the law. Vermont could ban religious services as long as legal vigilantes were the ones punishing those who disobeyed. The court needed to send a definitive message that the constitutional order cannot be played in this way. Its timid ruling instead left the legal situation dangerously unclear.

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