Supreme Court sides with Texas over the Constitution in new abortion law

In a 5-4 vote, the U.S. Supreme Court this week refused to enjoin an unconstitutional law from Texas restricting abortion access at six weeks of pregnancy — an undisputed violation of settled law under the Constitution since Roe v. Wade.

The decision is troubling for women and girls in Texas who might not even know they are pregnant at six weeks; the law makes no exception for victims of rape or incest. Worse, it deputizes private vigilantes to police alleged violations of the law, dangling a $10,000 bounty as an incentive — an unprecedented measure that virtually guarantees harassment against women and those who assist them in securing a constitutionally guaranteed medical procedure called abortion.

But for the separation of powers and the legitimacy of the U.S. Constitution itself, perhaps the worst aspect of the majority’s ruling in Whole Woman’s Health v. Austin Reeve Jackson, Judge, is that it discards any fig leaf of apoliticism that remained for this conservatively packed court, rendering the rule of law itself in deep peril in America.

Let’s be clear about one thing: Nobody is pretending that the Constitution does not protect women from government interference around the decision of whether to carry a fetus to term at the six-week mark.

Moreover, the Supreme Court’s job — as established by the court itself in 1803 in Marbury v. Madison — is to determine whether laws and executive actions are unconstitutional. It has no enforcement or legislative power. The question of whether Roe will remain the leading construction of the Constitution is already pending before the court in another case, Dobbs v. Jackson Women’s Health Organization, involving a Mississippi abortion law. Unless and until the court tinkers with Roe in Dobbs, it’s still the controlling law of the land. So far in American history, nobody gets to pick and choose whether to respect the Constitution as interpreted under Supreme Court case law, including the Supreme Court itself. Ironically, Justice Amy Coney Barret, who sided with the majority in the Whole Woman’s Heath order, testified at her Senate confirmation hearing that “[a] judge must apply the law as it is written, not as she wishes it were.” The majority appears to be in flippant violation of that foundational premise.

To be sure, the unsigned majority opinion — which came to the court on Justice Alito’s watch, as he has jurisdiction over emergency appeals from the U.S. Court of Appeals for the Fifth Circuit — tries to justify what amounts to a ruling that Roe is effectively dead in Texas (regardless of what happens in Dobbs). The short opinion points to the Texas legislature’s cynical outmaneuvering of the basics of judicial review as somehow forcing the court’s hand in letting the law move forward. 

Normally, the majority implies, it’s the executive branch — e.g., police officers, bureaucrats and prosecutors — that enforces laws. So, if a law like the one in Texas is unconstitutional, the state’s executive branch is usually the body that is sued to halt that enforcement. But here, it’s private citizens who are mostly unnamed (so far) who have the enforcement power. Whether that handoff of enforcement power is legal is unclear. But for now, the majority reasons, how can the court enjoin an anonymous John Doe from policing abortion in Texas?

It goes on to concede that it might be able to forbid state courts from entertaining suits brought by private people to enforce the unconstitutional abortion ban. But the 11th Amendment protects states from certain kinds of suits, and it’s unclear (according to the majority) whether the court has jurisdiction over state judges. And so on.

Chief Justice Roberts has a clear and measured response in his dissenting opinion: If the procedural posture is so unresolved, the better course is to revert to the status quo before the law went into effect while the threshold issues are worked out. 

After all, the majority admits that injunctive relief requires a “strong showing” that an applicant is “likely to succeed on the merits,” that she’s “irreparably injured absent a stay,” and that “a stay is consistent with the public interest.” Sadly, it does not really pretend to apply this standard here. The clear precedent of Roe is about as “strong” a showing of controlling law as one possibly gets. By contrast, the procedural machinations manufactured by Texas are far from legally “strong.” These are novel questions that, if resolved in Texas’s favor, could mean a slew of vigilante outsourcing laws across the country.

The “irreparable injury” to women, their medical status, their families and their futures is unfathomable. That the court majority entirely glides over this issue is stunning and telling. The five justices seem just fine with Texas women’s traumatic fate in the interim. 

As for the “public interest” prong — of course, there’s a huge debate in this country over whether abortion should be safe and legal. To some, it boils down to the same debate people are having over masks and vaccines: Should the government be able to force people to take actions they don’t want to take? The big difference is that, for abortion, the answer is clear: No. There is a right to get medical care called abortion at six weeks gestation. The same cannot be said for mask mandates or vaccines at this point.

What the majority has done here, in effect, is tell the states that its precedent is optional. That if they come up with a clever way to violate the Constitution, the court’s hands are probably tied. This ruling thus creates a bipartisan problem moving forward. Imagine that next month, a state bans all firearms and allows private citizens to enforce the ban. The Second Amendment could then become largely meaningless, as people take to the streets to duke out state law versus the Constitution. As of today, five of the nine justices would seem to be just fine with that, too. 

Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books “How to Read the Constitution — and Why” and “What You Need to Know About Voting — and Why.” Follow her on Twitter and Instagram @kimwehle.