The courts have a new chance to block Texas’s abortion law. They must take it
Sadly, predictably and appallingly, on October 14, a three judge panel of the US court of appeals for the fifth circuit has allowed Texas’s “BountyHunter” anti-abortion law to go back into effect while the court considers the case on the merits. Every day that the fifth circuit panel’s unlawful order keeps the statute in operation brings irreversible injury to women in Texas. US Attorney General Merrick Garland has properly decided to seek emergency relief from the US supreme court.
The justice department is right to accuse the State of Texas of seeking to destroy not only abortion rights but also the foundation of our constitutional Republic. In a nation whose history is fraught with battles between states’ rights and national sovereignty, the case of United States v Texas raises issues basic to our national compact.
Texas set the current controversy in motion by passing SB8, an antiabortion law that legislators knew was unconstitutional. In doing so, they violated what Chief Justice Marshall explained two centuries ago was the bedrock of our young nation’s rule of law – that our constitution reigns supreme.
“Senate bill 8 (SB8) flouts that principle,” Monday’s DoJ brief in the fifth circuit reads. The law does that “by blatantly violating constitutional rights and severely constraining judicial review of its unconstitutional restrictions.” That “sets this case apart.”
Put bluntly, Texas has sought not only to virtually eliminate women’s rights under Roe v Wade, but also to reduce our Constitution’s supremacy to a relic. Those twin dangers are why the stakes are high in the suit by the United States to enjoin the Texas anti-abortion statute. And that’s why the October 14 Fifth Circuit order keeping the law in effect is so troubling.
This case stands on a very different footing from the one that a conservative 5-4 supreme court rejected on September 1 on procedural grounds. With the United States now suing, there is plenty of precedent for the federal government to come into court challenging a state law before it is enforced, and a state cannot hide behind sovereign immunity as a defense. The cases that the fifth circuit cited on Friday as reasons for refusing to block SB8 were entirely inapplicable because they have no relevance to a suit brought by the United States to force a recalcitrant state to obey the constitution.
Texas’s reason for not arguing SB8’s constitutionality is obvious. The supreme court has affirmed many times since Roe v Wadein 1973 that states cannot prohibit abortions before the fetus is viable and capable of surviving outside the womb. Viability occurs at about the 24th week of pregnancy.
Nonetheless, Texas’s law makes all abortions illegal, without exceptions for rape or incest, once fetal cardiac activity can be detected – usually around six weeks after a woman’s last menstrual period.
The fact that the law is enforced by vigilantes’ private civil suits rather than by government prosecutions only aggravates its unconstitutionality. It is a Texas law that opens Texas courts to these bounty-hunting lawsuits. Since 1948, it has been settled law that individuals may not use state courts to deprive others of constitutional rights.
On Wednesday, 6 October, in a 113page opinion, with some of the strongest language ever heard from a federal judge, US district court Judge Robert Pitman blocked Texas from enforcing this near-total ban on abortions. Judge Pitman’s opinion explained that Texas concocted a transparent “scheme” to “end run” the constitution. The court laid out the elaborate “machinations” Texas devised to avoid a court doing anything about a clearly unconstitutional law.
Judge Pitman also documented cases of women – sometimes minors – suffering “grievous wrong”, as they are forced to carry unwanted pregnancies or travel, if they can afford it, to another state to access their constitutional rights: “The court can only speculate as to the hardships” these women have “had to endure”.
Having temporarily reinstated SB 8, the Fifth Circuit noted that it will expedite review of the merits of Judge Pitman’s decision. That could affect the supreme court’s consideration of emergency relief to the United States. Whether now or later, this case will land on the court’s docket.
Even justices who disagree with Roe v Wade should recognize the dire implications of letting any state deliberately design a blatantly unconstitutional statute in such a way that no court can block its enforcement until it’s too late to prevent the statute from doing irreparable harm by deterring people from exercising their rights.
In the 1950s, states tried to disregard supreme court decisions interpreting the constitution when they engaged in a concerted effort to thwart desegregation orders. Then, too, the United States government interceded against the states. When the Arkansas governor Orval Faubus attempted to block desegregation, the supreme court, in Cooper v Aaron, unanimously and emphatically reaffirmed the supremacy of the constitution and federal law.
The court declared: “No state legis
lator or executive or judicial officer can war against the constitution without violating his undertaking to support it.” All nine justices joined in declaring: “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.”
That would be the result if Texas could destroy the constitutional rights of women before any court could enjoin its devious scheme. To ensure the constitution remains the supreme law of the land, and to protect all rights it guarantees, the fifth circuit and the supreme court must uphold Judge Pitman’s injunction.
Laurence H Tribe is the Carl M Loeb University Professor emeritus and a professor of constitutional law emeritus at Harvard Law School. Erwin Chemerinsky is the dean of the School of Law at the University of California, Berkeley. Jeffrey Abramson is Professor of Law and Government at the University of Texas, Austin. Dennis Aftergut is a former federal prosecutor