Supreme Court declines to block Texas abortion law while procedural issues are considered by lower courts

By Eric Revell, Countable News

What’s the story?

• The Supreme Court on Wednesday night declined to block Texas’s “heartbeat law” that seeks to ban abortions after a fetal heartbeat is detected, which is usually around six to eight weeks into pregnancy, while lower courts address some of the novel constitutional questions raised by the law.
• Texas’s law would empower individuals ― not the state government or law enforcement ― to bring a civil action against a person who performs an abortion without checking for a fetal heartbeat, or who aids or abets or reimburses the cost of an abortion. Through such civil actions, the courts could then block parties that performed abortions after a heartbeat was detected and award damages to the person who brought the action. Abortions would be prohibited after a heartbeat is detected except in cases where the pregnant woman’s life is endangered.
• In a 5-4 decision, five of the Supreme Court’s conservatives rejected the appeal for a preliminary injunction because the motion raised by plaintiffs at this stage seeks to enjoin the Texas law itself, rather than a person seeking to enforce the law. The lawsuit, known as Whole Woman’s Health v. Judge Austin Reeve Jackson, was filed by pre-emptively by an abortion clinic against a Texas judge who could, in theory, be presented with a civil action seeking enforcement of the heartbeat abortion ban ― although no such challenge has been brought to date.
• The unsigned majority opinion of Justice Clarence Thomas, Justice Samuel Alito, Justice Neil Gorsuch, Justice Brett Kavanaugh, and Justice Amy Coney Barrett found that the plaintiffs were unable to demonstrate that there was a party attempting to enforce the Texas law who could be blocked (e.g. enjoined) from doing so by the Court:

“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. 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. And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention. The State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly. Nor is it clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law. Finally, the sole private-citizen respondent before us has filed an affidavit stating that he has no present intention to enforce the law. In light of such issues, we cannot say the applicants have met their burden to prevail in an injunction or stay application.” 

• The unsigned per curiam decision by the five justices concluded that their decision on this procedural question has no bearing on the constitutionality of the Texas law or other legal challenges to it:

“In reaching this conclusion, 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.”

• Chief Justice John Roberts, the lone conservative justice to break ranks, wrote a dissenting opinion that was joined by the Court’s three liberal justices. He wrote:

“The statutory scheme before the Court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime…

We are at this point asked to resolve these novel questions—at least preliminarily—in the first instance, in the course of two days, without the benefit of consideration by the District Court or Court of Appeals. We are also asked to do so without ordinary merits briefing and without oral argument. These questions are particularly difficult, including for example whether the exception to sovereign immunity recognized in Ex parte Young, should extend to state court judges in circumstances such as these. I would accordingly preclude enforcement of S. B. 8 by the respondents to afford the District Court and the Court of Appeals the opportunity to consider the propriety of judicial action and preliminary relief pending consideration of the plaintiffs’ claims. Although the Court denies the applicants’ request for emergency relief today, the Court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue. But although the Court does not address the constitutionality of this law, it can of course promptly do so when that question is properly presented.”

• Justice Stephen Breyer, Justice Sonia Sotomayor, and Justice Elena Kagan each wrote dissenting opinions and joined each others’ dissents. Breyer and Kagan, like Roberts, did not argue that the Court should find the Texas law unconstitutional at this stage, although Sotomayor did in her dissenting opinion which read in part:  

“The Court’s order is stunning. 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. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention. Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent...

In effect, the Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures. The Legislature fashioned this scheme because federal constitutional challenges to state laws ordinarily are brought against state officers who are in charge of enforcing the law. By prohibiting state officers from enforcing the Act directly and relying instead on citizen bounty hunters, the Legislature sought to make it more complicated for federal courts to enjoin the Act on a statewide basis.”

What’s next?

• This case will now go back to the lower federal courts and state courts where further consideration is expected to occur. 
• It’s possible that a change in the procedural posture of the case, such as a person attempting to enforce the heartbeat abortion ban who can be enjoined by a court, could allow the judicial process to move forward more expediently, potentially at the Supreme Court.
• This case isn’t the only abortion-related legal issue the Supreme Court is expected to consider in the near future. This fall, the Supreme Court will hear arguments in a case involving Mississippi’s ban on elective abortions more than 15 weeks into pregnancy except in cases of medical emergencies and severe fetal abnormalities.

RELATED READING

• Texas Gov. Greg Abbott Signs ‘Heartbeat’ Abortion Ban Into Law - What Does It Do? (5/21/21)

(Photo Credit: Supreme Court: VoxLive via Flickr / Creative Commons)