Supreme Court’s abortion ruling reveals majority’s radicalism
Do not let yourself be bamboozled. Do not take any comfort in the Supreme Court’s Friday ruling on the Texas abortion law, and the fact that the court allowed some challenges to the state’s abortion ban to proceed.
The decision in Whole Woman’s Health v. Jackson is no victory for the women of Texas. It represents the latest and perhaps most alarming indication yet of just how radical this new conservative majority is. And as the four dissenters — including Chief Justice John G. Roberts Jr. — warned, it presents a threat to the rule of law and the Constitution, not just in Texas but also nationwide.
To the extent that the court has now allowed lawsuits challenging the state’s prohibition on abortion after six weeks, the available remedies promise to be inadequate or illusory. The same risks of being pummeled with lawsuit after lawsuit that have led the state’s abortion clinics to stop providing abortion services after six weeks will continue to prevent them from providing abortions after six weeks.
“Make no mistake, while the court allowed our legal challenge to proceed against some state licensing officials, an injunction against those officials will not block Texas’s bounty-hunting scheme,” Marc Hearron of the Center for Reproductive Rights, which represented the abortion clinics in the case, said of the ruling.
Meanwhile, for more than three months now, women in Texas have been denied the ability to exercise what remains, at least for the moment, of their constitutional right. It is hard, even if the district judge overseeing the case again finds a way to enjoin the law, to see the ultra-conservative U.S. Court of Appeals for the 5th Circuit permitting that to stand.
“The Court should have put an end to this madness months ago, before S. B. 8 first went into effect,” Justice Sonia Sotomayor wrote in a dissent joined by her two liberal colleagues. “It failed to do so then, and it fails again today.”
But that is not the worst part. The worst part isn’t what the conservative majority is allowing Texas to do to the constitutional rights of women, although that is terrible. The worst part — truly, the most shocking part — is what the majority is doing to its own authority, and the authority of all federal courts presented with claims that state laws violate constitutional rights.
Because Texas schemed, and has now almost entirely succeeded, in doing an end-run around the Supreme Court and its constitutional pronouncements. Under normal circumstances, a state law can be challenged in federal court, even before it takes effect, on the grounds that it violates a constitutionally protected right.
The Constitution limits lawsuits against states themselves, but the court, unwilling to allow blatant violations of constitutional rights to go unaddressed, has for more than a century allowed such lawsuits to proceed against state officials. The authors of the Texas law — “some geniuses,” as Justice Elena Kagan noted acerbically at oral argument — maneuvered to avoid such challenges by outsourcing enforcement of the law to private parties, leaving, or so they thought, no state officials left to sue. The conservative majority almost entirely agreed.
The Nov. 1 oral argument did not foreshadow this extreme outcome. It sounded then as if at least a few of the conservatives, in particular Justices Brett M. Kavanaugh and Amy Coney Barrett, understood the threat to the court’s own authority, and would rally, if not to protect abortion rights, at least to defend the court’s integrity. As the Justice Department argued in its brief challenging the Texas law, “If Texas is right, no decision of this Court is safe.” (The court, with Sotomayor dissenting, dismissed the Justice Department’s separate challenge to the case without issuing a decision.)
Kavanaugh expressed wellfounded anxiety that if the Texas abortion dodge was allowed, others, perhaps less palatable to conservatives, would be sure to follow — blue states outsourcing enforcement of laws limiting gun possession or infringing on religious freedom. Barrett worried about whether suing to block the law in state court would be effective. But when the final ruling was issued, those qualms were nowhere to be heard.
Perhaps the best way to comprehend the danger posed by this decision is to heed the words of the chief justice. Roberts quoted ominously from an 1809 ruling: “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” And Roberts, in his own words, added, “The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.”
The chief justice is a stalwart conservative. He is no supporter of abortion rights. He is not a man given to hyperbole. When he warns that his colleagues are allowing the Constitution to be turned into a “solemn mockery,” we should not only listen, we should tremble for the future.