Will the DOJ manage to protect our constitutional rights now that the Supreme Court refuses to?

In May, Texas Gov. Greg Abbott signed into law the Texas Fetal Heartbeat Act, which seeks to overrule Roe v. Wade by prohibiting abortion after six weeks of pregnancy. The law became effective on Sept. 1. In July, a group of healthcare service providers — Whole Woman’s Health and others — challenged the law before a federal court in Texas, suing those who would enforce it, that is, judges, clerks, and a private individual, Mr. Dickson. The defendants managed to stop the litigation, and the plaintiffs filed an emergency application to the U.S. Supreme Court seeking to continue their litigation in trial court to have the Texas law declared unconstitutional. On Sept. 1, at 11:58 p.m. Eastern time, in a one-paragraph, unsigned order, the Supreme Court denied the application through an astute gambit.

Chief Justice Roberts and Justices Breyer, Sotomayor, and Kagan filed separate dissenting opinions. In her dissent, Justice Sotomayor described the Court’s order as “stunning,” one in which the justices in the majority “have opted to bury their heads in the sand.” Justice Sotomayor viewed the court’s failure to act as a dangerous approval of “a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny.”

To me, though, the court’s order does more than that. It shows that the court will not protect our constitutional system when five of its members prefer to advance their own political agenda, allowing a flagrantly unconstitutional law to stand.

Typically, the individuals would sue the state officials who are responsible to enforce the law, to enjoin the enforcement and prevent or stop the violation of their constitutional rights. But here, Texas has excluded public enforcement and created a bounty system to encourage private enforcement. Under the law, only private individuals can sue — and they will be rewarded for doing so if they win by getting attorney’s fees and no less than $10,000 in statutory damages for each abortion that the defendant performs, induces, aides or abets in violation of the law. Thus, it seems, someone challenging the Texas law as unconstitutional must sue a private individual who has sued or threatened to sue a doctor, healthcare provider, or anyone else who has violated the law. Hence, for such a suit to happen, someone must be willing to violate the Texas law and face the risk of innumerable lawsuits filed by all those individuals in Texas (and outside Texas) ready to sue to get their reward, a quite appealing opportunity for plaintiffs’ class action firms.

Given the costs of such actions, the chances that doctors, healthcare provides, or anyone else would violate the law to have an opportunity to litigate its validity are very slim — and so too are the chances that the Texas law will be reviewed by a judge for its unconstitutionality.

But has the Texas legislature truly succeeded in isolating the law from judicial review?

The Supreme Court’s order tricks us to conclude they have, and other authoritative commentators have expressed a similar position, but I’m not so sure.

The Texas law and its scheme did not — and could not — per se prevent the Supreme Court from reviewing the constitutional validity of the law. The court’s order says that the court could not decide the case because the applicants lacked standing; that is, they didn’t have an injury concrete enough for the court to have power to hear the case.

Without knowing the details of the legal standards that made the court so conclude, this seems absurd. We’re talking about those healthcare service providers that will lose substantial part of their business once the law comes into effect. They chose to file a class action against judges and clerks who will enforce the law — apparently a bad choice, because the constitutional doctrine of sovereign immunity would appear to bar the lawsuit. But they also sued Mr. Mark Lee Dickson, a private individual who had indicated that he would sue those who violate the Texas law and that he was aware of many others who planned to do the same. A defendant’s class actions against Dickson and similarly situated individuals, it seems, would have been the wiser course of conduct.

In any event, five conservative justices on the court still found that the lawsuit against Mr. Dickson could not proceed because the applicants can’t prove that the injury that he threatens to inflict is “certainly impending.”

Based on the declared intentions of Mr. Dickson to enforce the statute, available to the court, it’s clear that the court is asking the applicants to prove that they have violated the Texas law, that Mr. Dickson has sued them, for them to be able to challenge the constitutionality of the law. 

Essentially, the court is telling the applicants that they have to suffer irreparable harm before they can ask the court to prevent that harm.

Where does the “certainly impending” standard come from? The Court adopted it in Clapper v. Amnesty International USA, a politically charged case that upended the law of standing to avoid a decision on the merits of the parties’ claims. But then, only a year later, in Susan B. Anthony List v. Driehaus, the Court decided to adopt the more lenient “substantial risk” standard, which allowed that case to proceed. This time, again to avoid a merits consideration, the court resurrects the more demanding test.

So, no, the court’s failure to act wasn’t required by the law, it was a choice, and that choice is its gambit, one that sacrifices our constitutional rights for its own political agenda.

Texas is not the only State to pass an abortion law seeking to overturn Roe v. Wade. This fall, in Dobbs v. Jackson Women’s Health Organization, the Supreme Court should examine the constitutional validity of a Mississippi law banning abortions after the 15th week and answer the question of whether all pre-viability bans on elective abortions violate the Constitution. Unfortunately, the court’s order in Whole Woman’s Health strongly suggests that the court will answer that question in the negative. But beyond the future of abortion rights, I worry for the stability of our constitutional system challenged by the Supreme Court’s gambits, revealing that the court is ready to abdicate its constitutional obligations for its political agenda.

On Thursday, Sept. 9, the Department of Justice sued the State of Texas before a Texas federal court, seeking a declaration that the law is unconstitutional, and an injunction against the State of Texas prohibiting the state from enforcing the law. Refusing to stand still in front of the Supreme Court’s inaction and looking for vulnerability in the Texas legislative scheme, the DOJ’s complaint points out that, in fact, the state has not succeeded in insulating itself from liability for the enforcement of the law. Indeed, by deputizing private parties to act as state actors, the state has essentially made them its own agents. Thus, beyond a superficial analysis, it is clear that the state is still the defendant to which the injury the federal government thoroughly describes in the complaint must be traced, and of course it is: Without the Texas law, there would be no violation of the fundamental constitutional rights to abortion, and the unconstitutional limits that the Texas law imposes to the federal government’s actions.

No standing doctrine would — or should — be able to prevent the federal government from vindicating these rights, avoid the consequent irreparable injuries to the individuals and the federal government, and protect the stability of our constitutional system. 

The DOJ’s action sends a strong signal to the Supreme Court: the Texas law violates fundamental constitutional rights and the federal government will not stand still as the court refuses to act to protect those rights, or worse, might be considering nullifying such rights, setting our clock back 50 years or more, to before Aaron v. Cooper, when the States believed that they could — at will — ignore the judgments of the court and destroy the rights acquired under those judgments, making a “solemn mockery” of our Constitution.

Simona Grossi is the Professor of Law & Theodore Bruinsma Fellow at Loyola Law School Los Angeles, where she teaches federal courts, Constitutional law, and civil procedure. Grossi is also the author of the “US Supreme Court and the Common Law Approach” (Cambridge University Press, 2015)