That didn’t take long. On October 8, the 5th Circuit temporarily stayed U.S. District Judge Robert Pitman’s October 6 injunction against enforcing the new Texas anti-abortion law, that basically eliminates abortion after the sixth week of pregnancy and deputizes private citizens to ferret out, sue and potentially collect at least $10,000 from anyone who somehow facilitates an abortion. The U.S. Supreme Court famously refused to stay the law last month.
Pitman wrote a 113-page opinion. The 5th Circuit said nope. The government is supposed to respond this week. I hope you didn’t break out the good champagne.
The Justice Department had sued Texas, claiming — pretty much unarguably — that the new six-week abortion law violates the Constitution as it has been interpreted by the Supreme Court. Justice also argued that whatever the pretense, if state government uses private citizens to enforce a law, they become agents of the state — as are the state’s courts, which also play a part in enforcing the law.
Basically, Pitman bought those arguments — and the Supreme Court dissenters’ arguments about the outrageousness of Texas’ legal ploy. He quoted Justice Sonia Sotomayor’s statement that the Texas law “is a breathtaking act of defiance—of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas.”
One assumes that throwing in one’s lot with the dissent is not a good tactic for ultimately winning approval by the majority, but it seems to be what was called for in the moment — and the chances of swaying the Supremes’ majority have always looked slim.
Let’s see: We have a law that on its face and in its clear intent is unconstitutional, at least in the way the Court has interpreted the Constitution for nearly half a century. The law is blatantly designed to prevent courts from ruling on its constitutionality. So we have blatant defiance of the Constitution and the Court, shielded by a transparent legislative scam. And the current Court majority has said, let’s let the law take effect and talk about the merits later. Pitman has called bullshit. Appropriate. Admirable. But unlikely to prevail in the long haul.
If there is a long haul. By the time the Court winds up its fall session, which began on October 4, the Texas anti-abortion law may not even be an issue. Not that Pitman’s District Court or even a favorable ruling by a more-fully-informed 5th Circuit will make the law irrelevant. But a Supreme Court decision that the Constitution doesn’t really create a right to an abortion before the fetus is viable certainly would.
Passage of that law made me think of a time, many years ago, when I and a college friend who lived in Mexico City started a Greyhound bus trip from New York to Mexico by visiting some of his family members in El Paso. As we traveled through West Texas — after leaving Amarillo, where we’d ducked into a tavern during a brief stop and found a jukebox that offered “Will Your Lawyer Plead Your Case With God” — we rolled through the small towns of Hereford and Bovina. We were impressed by the names, and after we arrived, we mentioned them to one of my friend’s El Paso cousins.
He had unhappy memories of those towns. When he was a kid, he and his mother had lived there. His mother had taught school. When she got home after work, she liked to have a beer. Neighbors went through their trash, found the beer bottles, and raised a stink about one of their teachers — one of their female teachers, anyway — consuming alcohol, albeit in the privacy of her home. (After that, he and his mother periodically drove out into the desert, where she buried her empties.)
I can’t help thinking that some of those nosy neighbors, if any are still alive, probably loved it when the Texas legislature passed and Gov. Greg Abbott conspicuously signed the Texas law. If you approve of moralistic vigilantism, what’s not to like?
At least, if you don’t value Supreme Court precedent or the doctrine of stare decisis. It has, of course, been 48 years since the Supreme Court’s Roe decision declared a constitutional right to abortion and 29 since the Court’s Casey decision reaffirmed Roe. Establishing the viability of the fetus, or six months, as the point before which a state can’t constitutionally place an “undue burden” on a woman’s right to choose.
But the Supreme Court isn’t what it used to be, and a lot of people have been waiting — some eagerly, others apprehensively — for this other shoe to drop. It seems to be dropping now.
Not that most Americans or even most Texans — however blue state residents may stereotype them — would welcome a constitutional about-face. In fact, there aren’t enough such Texans to keep Abbott’s approval rating from tanking. A recent University of Texas poll makes clear that even though Abbott has polished his anti-abortion credentials, his approval rating in the nation’s second-most-populous state has dropped below 50 percent — hardly a ringing endorsement of his policies or competence.
Signing the abortion law is not, of course, the only thing he has done or failed to do. He hasn’t exactly turned back the pandemic — while he has led the charge against mask mandates, his state is currently leading the nation in new cases per day and ranks second in average deaths per day (way behind Florida but way ahead of everyone else). And Abbott refused to send extra state money to Houston after hurricane Harvey dumped 50 inches of rain on the city in 2017.
Still, Abbott and his allies have doubled down on their anti-abortion shtick:
Those busy little Texas legislators have been hard at it. Now, they’ve passed a law that makes it a felony for anyone to “provide” a pill that will cause an abortion after more than seven weeks, for any physician to prescribe such pills without extensive requirements to examine the patient and document the case, or to provide abortion pills through courier service or the mail. This law may be largely unenforceable, but it may scare some people off. And politically, it’s probably the thought that counts.
Of course, this isn’t just a Texas thing. In a case that will be argued on December 1, the state of Mississippi is defending a law that bans abortion after 15 weeks — months short of the Casey standard for viability, albeit much later than Texas law allows. In its brief to the court, Mississippi doesn’t only defend the law, it asks the court to do away with Roe. This is an invitation. The court can decide the case without even mentioning it. But if the court is looking for an opening, there it is.
And hey, it’s not just red states in North America. As Chairman Mao once said, the East is Red, too. As a matter of fact, China has just announced it will limit access to “non-medical” abortions. The Chinese government wants to jack the birthrate. It’s hard to believe that’s what motivates state governments in Texas and Mississippi (Do you really think they want to encourage poor people to keep reproducing?), but it all seems to lead in the same direction.
In a dissent — joined by Justices Kagan and Sotomayor — to the court’s refusal to stay or vacate the Texas law, Justice Stephen Breyer noted that under Roe and Casey, “a woman has a federal constitutional right to obtain an abortion during that first stage [of pregnancy.] And [under a 1976 ruling, a] ‘State cannot delegate . . . a veto power [over the right to obtain an abortion] which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.’ Indeed, we have made clear that ‘since the State cannot regulate or proscribe abortion during the first stage . . . the State cannot delegate authority to any particular person . . . to prevent abortion during that same period.’ The applicants persuasively argue that Texas’s law does precisely that.”
Well, it wasn’t persuasive enough for the current Court majority. And if the case on its merits gets appealed all the way back up to the Supremes, one assumes the majority still won’t be persuaded.
Anybody who’s surprised hasn’t been paying attention. Trump campaigned in 2016 as an anti-abortion candidate — as did his primary opponent Ted Cruz — and promised that when he was President, he’d appoint anti-abortion judges to the Supreme Court. As a law professor at Notre Dame, one of his picks, Amy Coney Barrett, signed onto an anti-abortion ad. This court-packing was not exactly a stealth campaign.
The Court majority now reflects a hard-core conservative minority of the American population — and may continue to do so for many of our lifetimes. The Court was never designed as a majoritarian institution. Still, it seems increasingly out of step with its country. Not surprisingly, the court’s approval rating has nose-dived.
Remember, the SCOTUS decision that really has governed abortion law since 1992 isn’t really Roe but Casey. Sandra Day O’Connor wrote the opinion. She and two colleagues signed it. Two other colleagues joined it. Four colleagues opposed it. Three of those, including former Chief Justice William Rehnquist and current Justice Clarence Thomas (yes, he really has been around that long), said they would have overturned Roe.
The justices who basically reaffirmed Roe saw a balance between a woman’s right to abortion and the state’s interest in the potential life of the fetus. The two crossed over when the fetus reached viability. Could the current court accept that basic framework but move that tipping point back to the first detection of a fetal heartbeat? Why not?
The Court could thereby pretend to respect precedent while merely tweaking outdated standards. (And the right could still use Roe as a talking point. It would merely be a symbol, but then what isn’t? Or who: A new book “Jane Roe,” just out, makes it clear that the real story behind the epic case was messy and nuanced, and that the protagonist, Norma McCorvey, wound up in the anti-abortion camp. The play Roe, premiered at the Oregon Shakespeare Festival five years ago, covered a lot of the same basic ground. None of this really has anything to do with the current battles. As the play and book make clear, McCorvey the symbol was really all anyone cared about. Which was an augury of things to come: This has never been a particularly nuanced discussion.
Of course, whatever happens to the Texas law, abortions won’t stop. They never have. Abortions didn’t start with Roe. In the bad old days, some women went to states in which abortion was legal, some to other states or countries to give birth, some to dangerous back-alley practitioners, some to legitimate M. D.s – who risked arrest and charged-fees that represented to the women months of work at the minimum wage. Safe abortion wasn’t for poor people then and it wouldn’t be for poor people now.
Whatever the Court lets Texas and Mississippi do, a state has never needed Roe to make abortions legal. Washington permitted abortion three years before Roe — by a vote of the people. Washington will permit abortion if Roe and Casey are scrapped. So will other states on this coast, and a bunch of states on the other coast. But people looking for abortions in the South or most of the Midwest will be out of luck.
In many of those places, they’re largely out of luck right now.
Despite all the current rhetoric, the end game isn’t really doing away with Roe. It’s granting “personhood,” replete with Constitutional rights, to fetuses. If a fetus is a person, then abortion is — as opponents have always argued — simply murder. End of story. End of legal abortion anywhere in the United States.
If you already believe in fetal personhood, then of course, preventing abortion is a moral issue. A Pew study found that most people who opposed abortion felt it was a moral issue. Nearly half of the people who supported the right to abortion didn’t feel it was a moral issue at all. “There is a strong connection between views on whether abortion should be legal and views on the morality of having an abortion,” Pew reported. “Most opponents of legal abortion (80%) say having an abortion is morally wrong. Most supporters of legal abortion, on the other hand, say abortion is morally acceptable (18%) or that it is not a moral issue (42%). “
But whether or not it’s a moral issue, it’s clearly a political one. Does the right need abortion in much the same way that many Middle Eastern despots have needed Israel? What other issue could mobilize the religious right so effectively?
Some argue that Republican strategists looking for a way to mobilize evangelical Christians to vote for their candidates hit on abortion as the way to go; they pumped up abortion as an issue to lure evangelical voters to the polls — just in time to help elect Ronald Reagan. They’ve kept the votes coming ever since.
White evangelicals helped elect Trump. And now it seems that Trump helped recruit people to the evangelical fold. Pew recently found “solid evidence that White Americans who viewed Trump favorably and did not identify as evangelicals in 2016 were much more likely than white Trump skeptics to begin identifying as born-again or evangelical Protestants by 2020.”
Is the Supreme Court’s current ideological slant a first in recent history? This particular slant certainly is. But the New Deal and Warren courts had an ideological slant of their own — which, of course, antagonized the right but led many on the left to believe that American jurisprudence was on a one-way ride. There used to be right wing billboards that said, “Impeach Earl Warren. Save our republic.”
After frustrating FDR’s early New Deal legislation, the court began rubber-stamping it. For decades — with notable exceptions, perhaps most egregiously the court’s approval of sending Japanese-Americans to internment camps during World War II — it was pretty reliably liberal. Some of us who grew up during those decades assumed ideas like the absolute separation of church and state were done deals. We were wrong.
Ditto those who thought Roe was set in stone.
As the Supreme Court’s decision (or non-decision) shows, the Court may be able to have its cake and eat it too: let Roe seep out into the dirt without ever over-ruling the precedent — which might also preserve Roe as a right-wing rallying point.
Over-ruling Roe or nibbling it into insignificance would, as many people have observed, show the current Court’s contempt for precedent, for the legal principle of stare decisis. But how sacred should that be? Should the 1954 Brown court that decided separate public education was inherently unequal have deferred to the court’s 1896 ruling in Plessy v. Ferguson that separate but equal was OK? If you think Roe and Casey were good law and long overdue, you probably think the court should respect them as it now respects Brown. If you don’t, you probably think the court should scrap it as the court has long-since scrapped Plessy.
Other states are already contemplating their own versions of the Texas scam, Pitman says, quoting a Los Angeles Times report that “[f]rom the Deep South to the Upper Midwest, legislators in many conservative states have started to explore how similar laws could be put in place in the months ahead.” If Texas succeeds, who knows where it will all end? He suggests that, for example, a blue state might decide that despite the Supreme Court’s 2008 Heller decision, it can decide that the Second Amendment doesn’t really give individuals the right to own guns. He doesn’t make the point — but might have — that if the Court ultimately lets the Texas scam stand, it will be voting for its own partial irrelevance: Who cares that the Court defines the Constitution if a state can ignore that definition without judicial review?
Can the Court review a legal scam crafted to prevent its review? The Court majority didn’t say no, but it didn’t say yes, either. For the time being, it has said, it’s complicated — and the plaintiffs haven’t convinced us they can persuade us the answer should be yes. The majority cited “complex and novel . . . procedural questions on which [plaintiffs] 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.” In other words, Texas may have rendered us irrelevant, and we’re not sure we can do anything about it.
Chief Justice John Marshall famously said in 1803, “It is emphatically the province and duty of the Judicial Department to say what the law is.” Is it? Is it arguably sometimes the province, if not the duty, of any state legislature that wants to shield itself from judicial review? If the Supremes agree with Marshall, they’ll find a way to make his adage stick, even if they find a particular state legislature’s usurpation of that duty politically attractive. Judge Pitman has found a way. We’ll see if they do.