News and Notes: A New Texas Law
By George Kane
Rejecting with a narrow 5 – 4 ruling an application for an injunction to prevent a new Texas law from going into effect while it is being tried, the Supreme Court stunned the nation more severely than it had for decades. News reports declared that Roe v. Wade had been overturned, and that a Texas law that would end abortions in the state had withstood a last-minute challenge. That law was certain to be copied by many other states. While the ruling probably foreshadows the ultimate intent of the court’s conservative majority, the panic that has gripped supporters of reproductive rights is still premature.
At issue in the case Whole Woman’s Health v. Jackson is Texas Senate Bill 8 (SB8), a new law outlawing abortion after a fetal heartbeat can be detected. This usually occurs around the 6th week of pregnancy. This provision violates Roe v. Wade, which held that the state’s interest in protecting life did not justify outlawing abortion until the fetus became viable, which the Court equated with the 3rd trimester. To prevent legal maneuvers to stop the state from enforcing the law, SB8 “outsourced” enforcement to any person other than government officials to bring a civil lawsuit against anyone who provides an abortion in violation of the Act, “aids or abets” such an abortion, or intends to do these things. These civil suits may be brought against anyone from the surgeon to a cab driver to a friend who gave the woman advice, with a bounty of at least $10,000 plus legal fees.
The suit against the new law was filed in mid-July in the U.S. District Court for the Western District of Texas. That court scheduled an August 30 hearing on a request for a preliminary injunction to prevent enforcement the law on its September 1, 2021 effectivity date. However, on August 27 the 5th Circuit Court of Appeals issued an order pausing all proceedings in the district court, including canceling the district court’s preliminary injunction hearing. On August 30, the plaintiffs filed an emergency application with the US Supreme Court for an injunction to stay the implementation of the law.
Without holding any hearings in the matter, the Supreme Court denied the application in a one paragraph, unsigned decision. The court merely said that the filing addressed the wrong issues.
To prevail in an application for a stay or an injunction, an applicant must carry the burden of making a “strong showing” that it is “likely to succeed on the merits,” that it will be “irreparably injured absent a stay,” that the balance of the equities favors it, and that a stay is consistent with the public interest.
Where did Whole Woman’s Health’s legal team go wrong? That SB8 outlawing abortion after six weeks violates five decades of legal precedent would seem to demonstrate that they were “likely to succeed on the merits.” There cannot be any doubt that the births of unwanted children to women who may be unable to provide proper care and home for them would be in many cases an irreparable injury. That should also meet the “balance of equities” and “public interest” standards. What did they miss?
The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.
To me, this is astonishing. The majority of the court is saying that they cannot strike down laws even though they violate the constitution. They can only stop the government from enforcing them!
SB8 is carefully tailored to address this. Texas can pass unconstitutional laws, but the state cannot enforce them. SB8 is written so that no government official is responsible for enforcing it, because the state is leaving enforcement to private citizens in civil courts. The court decided that it cannot stay the enforcement of the law because all the named defendants but one were prohibited by the law itself to enforce it, and that the one defendant who was not a government official had signed an affidavit declaring “that he has no present intention to enforce the law.”
In denying the requested injunction, the court noted that “we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”
It seems, however, to be the end of this particular case. The 5th Circuit Court of Appeals has stopped the trial in the District Court, and the Supreme Court has closed its door. Roe v. Wade still stands, however, and abortion rights remain the law of the land. Lower courts are unlikely to have the audacity to overturn Roe, however. That will only happen when an actual challenge to the Roe decision reaches the Supreme Court. That could happen during the Supreme Court term beginning in October, in the case Dobbs v. Jackson Women’s Health Organization. The case concerns a Mississippi law that bans abortions after 15 weeks.
Republican-controlled legislatures in at least seven states are expected to implement laws that mirror Texas SB8. Meanwhile, Nancy Pelosi has promised to bring to a vote in the House a bill to make the right to an abortion a federal law. There is no hope at present, though, that 60 votes can be found in the Senate to override a filibuster of this bill. But this bill may return after the 2022 elections, when 20 Republican Senate seats are up for election.