Wednesday, September 1, 2021

Law and Policy: Some Legal Aspects of Texas's New Abortion Law

Today, the new Texas anti-abortion law went into effect. The law bans all abortions after the sixth week of pregnancy (at time at which women might not yet know they are pregnant), without exception for cases of rape or incest. The law creates liability on the part of anyone involved in any way with facilitating the abortion, except the woman herself. This conceivably could include an Uber driver, who transports the woman to the clinic, regardless of whether or not the driver has any knowledge of the woman's purpose for going to the clinic. The law is not criminally or civilly enforceable by state officials; but any private person, within or outside the jurisdiction of Texas, can bring suit against clinic staff, transporters and others who deemed to be involved in the abortion (but, again, not the woman seeking the abortion) for up to $10,000 in damages. 

Here are a few interesting legal/constitutional aspects of the new Texas anti-abortion statute:

1. Apparently, the Texas legislature believed that the courts, under existing precedent, would be less likely to overturn its statute, if it could be enforced only through private, civil actions. I have no idea whether or not that is true. But it is undeniable that the courts, both state and federal, including the US Supreme Court, refused to grant a preliminary injunction against the law's taking effect, as they always had done before in earlier cases of state abortion laws that appeared to clearly violated Roe v. Wade. 

2. The Supreme Court appears to be playing bald politics with far less inhibition than it used to show when deciding whether or not to enjoin statutes and regulations. Compare the Court's unprecedented decision in this case not to grant a preliminary injunction against a statute in direct opposition to Supreme Court precedent, and therefore likely to fail on the merits, with its 2016 equally unprecedented decision to stay (i.e., enjoin) an environmental regulation that had not yet been through an initial round of judicial review on the merits, without any finding that that the statue was unlikely to survive review. Between the two cases, the Court is muddying its own jurisprudence on when preliminary injunctions are warranted. Perhaps the Court no longer cares whether or not it is seen to be following certain procedures and rules with consistency, while it becomes a more plainly partisan actor. Less menacingly, perhaps the Court is simply engaged in a piecemeal reconfiguration of its own rules for issuing preliminary injunctions without being clear about some coherent end that has yet to be made clear. Worst case, the Court's muddying of the waters on rules for granting preliminary injunctions may be a signal that it already considers Roe v. Wade to be obsolete. I don't refer to that as "worst case" because I support a woman's right to choose (though I do support a woman's right to choose) but it would indicate a judicial abdication of the Rule of Law, under which Supreme Court precedents remain the law of the land until formally overruled. 

3. While it might appear, at first blush, that the new Texas anti-abortion law might fall afoul of standing requirements, which could prevent the private enforcement the statute envisions, Texas has far more lax standing rules than the federal constitution imposes on federal courts. While Texas courts do generally require plaintiffs to demonstrate particularized injury from the actions of defendants, which would conceivably derail many of not all private enforcement actions, the Texas legislature has the power to grant standing via legislation that obviates the need for showing injury-in-fact. See Texas Highway Comm'n v. Texas Ass'n of Steel Importers, 372 S.W.2d 525, 530-31 (Tex. 1963) ("the Legislature may grant a right to a citizen.., to bring an action ... without proof of particular or pecuniary damage peculiar to the person bringing the suit").

4. On the merits, the Texas anti-abortion law might be overruled, at least in part, because of the vast net of liability it creates, including for transporters of women to clinics where abortions are performed, regardless of whether or not the transporter has any reason to know a woman's condition or why she might be going to the clinic. This must raise due process concerns under the federal constitution. 

5. The statute might yet be overturned on the merits, after some doctor or other party is private sued for an abortion provided after the sixth week of pregnancy. But the uncertainty created in the meantime is highly problematic and substantially raises the costs for women, their doctors, clinic staff, and even Uber drivers about the exercise of what remains, as of Sept. 1, 2021, a right protected under the federal constitution and Supreme Court precedent that is directly at odds with the Texas statute. 

6. The Supreme Court has on its current docket a challenge to a new Mississippi statute that would prohibit abortions after 15 weeks, which, like Texas's six week limit, directly conflicts with Roe v. Wade. If the Court rules against Mississippi in that case, the Texas law will be swept away with it. But if the Court upholds the Mississippi case, that does not mean the Texas law automatically will stand. The Court could decide that a 15-week limit is fine, but a 6-week limit is not. The reality, however, is that the term-based limitations are only sidebars to the main issue with which the Court will be presented. The State of Mississippi will ask the Court to overrule Roe v. Wade. According to the Court's own prudential rules, it should avoid overruling existing precedent, if it is possible to rule in such a way that avoids that outcome. If the Court wants to sustain the term-limits as set out in Roe, it would, of course, invalidate the Mississippi statute. But even if the Court decides that the Mississippi statute is constitutional, it need not overturn Roe. The Court would merely have to amend Roe's term-limits in accordance with its decision to uphold Mississippi's restrictions. So, if the Court does use the Mississippi case as an opportunity to outright overrule Roe, it would be another example of an extra-judicial assertion of political power by the Court (though that certainly would not be unprecedented). 

Perhaps there are additional constitutional and legal issues I've neglected. I'd be happy to learn of any in the comments, with the caveat that commentators (as always) must refrain from ad hominem attacks, purely emotional utterances, and patent misinformation. For example, an argument such as, "Legalized abortion violates natural law," is legitimate argument (though perhaps not directly responsive to anything in this post). By contrast, the statement, "You're going to hell for supporting a "woman's right to choose," is not a legitimate argument, but a conclusory statement of belief as well as an ad hominem attack. Of course, blog commentators have every right to their own beliefs, but no right to require anyone else to publicize them.

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