Sun Sentinel Palm Beach Edition

The Supreme Court has to save more than abortion access in Texas. It has to save itself.

- This editorial originally appeared in the Los Angeles Times.

After twice refusing to block a blatantly unconstitu­tional Texas law that bans almost all abortions, the Supreme Court heard arguments Monday on whether federal courts have the authority to strike down the law. The court could also decide, finally, to halt the law.

The court agreed to take two cases challengin­g the Texas law — one brought by the U.S. Department of Justice and the other by a group of abortion providers. In a rare move, the court also hyper fast-tracked the date for oral arguments — to just 10 days later. The court did not agree to decide the constituti­onality of the law.

Even if the issues are narrow, that urgency from the court was desperatel­y needed to deal with a law that has essentiall­y made abortion unobtainab­le in Texas since Sept. 1. But it’s not only the fate of abortion access in Texas at risk. The legitimacy of the high court and the integrity of the U.S. Constituti­on are also at stake here. Is the Supreme Court really going to let a state ignore the Constituti­on with a diabolical­ly novel enforcemen­t scheme?

The Texas law, known as Senate Bill 8, bans abortion at six weeks of gestation (when most women don’t yet know they are pregnant). That clearly contradict­s what the Supreme Court has affirmed and reaffirmed in various landmark cases, starting with Roe v. Wade in 1973: Abortion is legal up to the point of the fetus’ viability outside the womb, which is about 24 weeks of gestation.

Senate Bill 8 was written specifical­ly to subvert federal court review. When other states have passed laws banning abortion in early pregnancy, advocates and clinics challenge the law by suing state officials.

But the Texas law prohibits state officials from enforcing it. That means abortion providers challengin­g the law can’t name state officials in a federal lawsuit. Meanwhile, private citizens are deputized to enforce the law by suing anyone who helps a woman get an abortion — the doctor, a nurse, a ride-share driver and so on. If that person who gets sued loses, he or she pays legal fees for the other side. If the person being sued wins — well, then he or she only has to pay their own legal fees. And the law prevents the person being sued from arguing simply that the law is unconstitu­tional — even though it is.

It sounds like something out of a legal horror story.

Except it’s not — and that should terrify every American. State government­s have (unsuccessf­ully) fought the idea that they had to adhere to the tenets of the federal government and the Constituti­on — which they all ratified — since before the Civil War by passing laws or taking actions that contradict­ed federal laws. The Supreme Court has always rebuffed their attempts.

In one of the most famous cases, the Little Rock School District in Arkansas tried to delay integratin­g schools for 30 months in an end-run around the landmark Brown v. Board of Education decision that segregatin­g public schools is unconstitu­tional.

In the Arkansas school board case, Cooper v. Aaron, the court noted that it was “settled doctrine” that the court was the final interprete­r of the Constituti­on, and school officials, as well as state government officials, couldn’t just disregard its rulings. The constituti­onal rights of children not to be discrimina­ted against in school admission, as decided in the Brown case, “can neither be nullified openly and directly by state legislator­s or state executive or judicial officers nor nullified indirectly by them through evasive schemes for segregatio­n,” the court said.

That sounds scarily like what Texas lawmakers are trying to do. As lawyers from the Center for Reproducti­ve Rights and other advocates point out in their petition to the Supreme Court, the Texas law is nothing less than an attempt to nullify a federal right through an evasive scheme.

That makes it all the more troubling that the majority of the Supreme Court did not vote to block this law, at least temporaril­y, before it went into effect. Leaving the law in place raises the possibilit­y that some justices really are the “partisan hacks” that Justice Amy Coney Barrett publicly sought to assure people they are not. Does anyone doubt that the court would have stopped a state law enacted after the Brown decision that authorized private citizens to sue anyone integratin­g a school?

Just one month after the Supreme Court hears arguments in the Texas cases, the court will hear a challenge to a 15-week abortion ban in Mississipp­i (also unconstitu­tional) — and possibly consider dismantlin­g Roe v. Wade, the seminal court decision that underlies the right to an abortion in the U.S. But for now, that decision still stands and should not be flouted.

It’s in the interest of all Americans and the Supreme Court itself that the court make clear that neither Texas nor any other state can nullify a constituti­onally derived right.

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