Albuquerque Journal

High court aids Texas in violating women’s constituti­onal rights

- RUTH MARCUS Syndicated Columnist Email

WASHINGTON — Congratula­tions, Texas, you did it. You figured out a way to write an anti-abortion law that everyone agrees is unconstitu­tional under current law — and to ensure that the women whose rights are being violated don’t have the ability to challenge it in court.

And a five-justice Supreme Court majority, instead of slapping down this end-run around the Constituti­on and the judicial process, is happily aiding and abetting it.

Late Wednesday, the court announced it would not block the new Texas law while the legal challenge made its way through the federal courts. Amazing, even for this conservati­ve court. It’s a sad day for women, but also for the rule of law. The upshot: Women in Texas aren’t entitled to abortions, except the lucky ones who figure out they are pregnant early enough — just six weeks after their most recent menstrual period — and manage to surmount the additional hurdles the state has put in their way — a 24-hour waiting period after a mandatory ultrasound and state-dictated script.

Justice Sonia Sotomayor was appropriat­ely scathing in her dissent. “The Court’s order is stunning,” she wrote. “Presented with an applicatio­n to enjoin a flagrantly unconstitu­tional law engineered to prohibit women from exercising their constituti­onal rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.” Except I’m not so sure about the “bury their heads” part. The conservati­ve justices understood exactly what they were doing and its consequenc­es.

Other states have passed laws that purport to ban abortion as early as six weeks, when a fetal heartbeat is first detectable. These efforts are routinely struck down, even before they can take effect, because they are inconsiste­nt with Roe v. Wade and succeeding cases, which have establishe­d that women have a constituti­onal right to decide whether to terminate an unwanted pregnancy until the point of fetal viability.

The Texas innovation was cleverly designed to avoid this fate. It explicitly prohibited state officials from enforcing it, instead outsourcin­g that job to individual citizens who take it on themselves, with the incentive of a $10,000-or-higher bounty, to go after those who help women procure abortions. This device poses complicate­d legal questions involving federalism and the role of the federal courts in lawsuits against states. The 11th Amendment prohibits federal courts from hearing suits against states. But that doesn’t usually matter in practice: Courts routinely entertain challenges to the constituti­onality of state laws because the lawsuits are filed against state officials, not the states themselves.

Here, or so the Texas argument goes, no state officials are involved in enforcemen­t, so no challenge is available. OK, a legitimate legal dispute for the courts to adjudicate. The question is, what happens in the interim? Here, a huge shout-out to Chief Justice John Roberts, no fan of Roe, who sided with … Sotomayor, Stephen G. Breyer and Elena Kagan.

“I would grant preliminar­y relief to preserve the status quo ante — before the law went into effect — so that the courts may consider whether a state can avoid responsibi­lity for its laws in such a manner,” Roberts wrote. “Defendants argue that existing doctrines preclude judicial interventi­on, and they may be correct. But the consequenc­es of approving the state action, both in this particular case and as a model for action in other areas, counsel at least preliminar­y judicial considerat­ion before the program devised by the State takes effect.”

If Roberts spoke in the arid language of legal process, Sotomayor issued a cri de coeur, joined by Breyer and Kagan. The majority, she wrote, “has rewarded the state’s effort to delay federal review of a plainly unconstitu­tional statute, enacted in disregard of the court’s precedents, through procedural entangleme­nts of the state’s own creation. The court should not be so content to ignore its constituti­onal obligation­s to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.”

This is not the end of the legal road, even in federal courts. The underlying legal dispute can proceed through the lower courts and back up to the justices. There is litigation in state courts in Texas, as well; state courts also bound to respect the Constituti­on.

In the interim, though, the impact is clear. In Texas, women’s constituti­onal rights are being violated every day — as those sworn to uphold and enforce the Constituti­on stand by, approving.

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