Demonstrators hold up placards during a Planned Parenthood rally. Reuters
Noah Feldman, Tribune News Service
When a state adopts a flatly unconstitutional anti-abortion law, as Texas did last week, it ordinarily never takes effect. Activists immediately ask a federal court to order state officials not to enforce it, and the court does. What’s unusual — and scary — is that this time, Texas is trying to get around this hurdle through legal trickery. Its efforts are likely to fail, but seeing how and why requires going through a bit of detail.
Start with Texas’ goal. The law just enacted makes abortion unlawful after a fetal heartbeat can be detected. Because that can happen as early as six weeks of pregnancy, the law effectively outlaws abortion — a direct violation of the constitutional right to choose established in Roe v. Wade. The Supreme Court has agreed to consider a case out of Mississippi in which it might overturn part of Roe. But until that happens, Roe is the law, and the Texas statute is certainly unconstitutional.
Texas knows its law violates the Constitution. And it knows the federal courts would ordinarily block it from taking effect. So the legislature devised a trick. Instead of seeking a criminal ban, enforced by the state’s prosecutors, it made abortion a civil violation for which physicians, clinics and anyone else abetting abortion could be sued for monetary damages. Then, the Texas law authorised any private citizen, even someone with no connection to the abortion in question, to bring the civil lawsuit and keep the damages.
If this sounds absurd, that’s because it is. And the law has other constitutional problems, too. It goes so far in imposing liability that it arguably impinges on free speech and free association rights.
It’s a core principle of the rule of law that citizens need to be able to vindicate their rights in court. As the Supreme Court famously noted in Marbury v. Madison, where there is a right, there must be a remedy. If the Texas trick were to work, it would undermine the rule of law itself by rendering basic rights temporarily unprotectable.
The loophole that Texas is exploiting has to do with the legal procedure that federal courts use when they block state officials from enforcing a law. The 11th Amendment limits an individual’s ability to sue a state. So instead, the individual sues state officials personally. The courts have long held that, so long as the officials named as defendants have a connection to the law in question, the suit can go forward.
Texas is poised to claim that, because its abortion law is enforced by private citizens, not state officials, the courts can’t entertain an immediate claim to block the law from going into effect. Texas is going to say the courts have to wait for a private citizen to sue an abortion provider — and only then rule on the law’s constitutionality. Of course, the law would then be struck down. But in the meantime, the threat of a lawsuit might convince abortion providers to shut down.
Beyond the way it undermines the rule of law, there are serious further limitations to the legal logic of the Texas approach.
Even though the Texas law isn’t enforceable by state prosecutors, it would have to be applied by the state’s courts. And state judges are also state actors. It follows that federal courts should be able to order state courts not to apply the unconstitutional law — even before someone brings a lawsuit. This reasoning is supported by a landmark civil rights case, Shelley v. Kraemer, in which the Supreme Court held that state courts could not enforce a racially restrictive covenant that prohibited property in a housing development from being sold to Black people. The justices said that state courts counted as state actors because they would be enforcing the law.
True, the tradition is to sue state prosecutors, not judges, to block enforcement. But that’s because the Texas subterfuge hasn’t really been tried before.
Imagine if the Texas law granted civil damages against anyone who ran a racially integrated lunch counter, in gross violation of the 14th Amendment guarantee of equal protection of the laws. The federal courts would surely be able to bar the state courts from applying the unconstitutional law. The anti-abortion law is no different.
What’s more, Texas’ approach is based on a 2001 decision by the US Court of Appeals for the 5th Circuit, which disallowed a suit against state officials to block a Louisiana law that allowed women to sue their abortion providers years after their abortions. But the Texas law goes much further — because it empowers anyone to sue abortion providers. The effect is that the state of Texas is outsourcing law enforcement to private parties. In so doing, it effectively is creating deputies who would be state actors in all but name. Although it would take some creative lawyering, it could in theory be possible to sue the class of all potential plaintiffs to block them from enforcing the law, using a pro-life activist group as a representative defendant, just as it would otherwise be possible to sue state prosecutors.
A federal judge is deciding whether to block the nation’s most restrictive abortion law, which has banned most abortions in Texas since early on September and sent women racing hundreds of miles to get care outside the state.
A US appeals court on Friday temporarily reinstated Texas's near-total ban on abortion, two days after another court suspended the ban, dealing a setback to abortion rights advocates and the Biden administration.
A small twin-engine passenger plane crashed in Texas in the United States on Sunday, killing 10 people, officials said.
Israel claimed that it killed an Islamic Jihad commander in a daytime attack in Gaza City on Friday, targeting a high-rise building. The Islamic Jihad commander who was killed in the attack on the Palestine Tower was Taysir al-Jabari. It said that it was a targeted attack. It also bombed five houses, saying the targets were Islamic
Could it be that cinema-goers are the biggest risk to the future of cinema? No, I haven’t lost my marbles. Allow me to explain. It was on the hottest day of the year that I took in Sergio Leone’s classic spaghetti western Once Upon a Time in the West. Seeing old movies in the medium they were made for is a joy. The prospect
With so much attention fixed on soaring prices for gasoline and groceries, one can almost overlook the fact that we’re also enduring an affordable housing crisis. The question is, why? Spanning the pandemic era from February 2020 through May 2022, home prices soared 43.5%. Over the past 12 months, home prices are
The number of new coronavirus cases in the last 24 hours shows the decline in cases because people pay attention to the government’s COVID-19 instructions which is appreciable. The Ministry of Health and Prevention (MoHAP) announced 994 new coronavirus cases, bringing the total number of recorded cases in the