Can the Texas Law Stand Without Overturning Roe?

I don't think so

I haven’t done a deep dive on the Texas anti-abortion law, because I expect a host of challenges to Roe v. Wade to come, so the unique peculiarities of this law in particular didn’t strike me as worth investigating. But the more I think about it, the more I think those peculiarities matter more than the underlying abortion question itself.

If I understand correctly, the law bans abortions after the point at which a heartbeat can be detected (which the law’s framers argue is generally at six weeks, though some are quibbling that what can be detected at six weeks isn’t precisely a heartbeat, but that debate is not material to this discussion). But the enforcement mechanism for the ban is that anyone in Texas can sue anyone suspected of performing prohibited abortions or aiding and abetting anyone who performs them. (The woman seeking an abortion cannot be sued.) In effect, the entire population of Texas is deputized to enforce the ban.

This is not entirely novel, but it is novel to vest enforcement solely in the citizenry. The idea behind this novel enforcement mechanism was to make it difficult to strike down the law until someone actually sues someone else for having performed or aided and abetted in the performance of an abortion. Normally, government officials would be responsible for enforcement, so they could be sued, but since they aren’t in this case, they can’t be. But in the absence of an enforcement action by another individual, there’s no one else to sue either. Meanwhile, abortion providers in Texas are in a legal limbo that, under normal circumstances, they wouldn’t be in, because the law would have been struck down by lower courts (based on clear Supreme Court precedent), and that’s where things would stand until such time as the Supreme Court chose to hear the case and decide to overturn or further limit the scope of Roe.

So does that mean that this novel enforcement mechanism has enabled the state of Texas to do an end-run around Roe, effectively overturning it without ever forcing the Justices to say that’s what they’ve done? I don’t think so.

If it were, then by letting the law stand the Supreme Court wouldn’t just have done an end-run around Roe — they’d have done an end-run around the entire constitution. If Roe isn’t overturned, after all, then the right to abortion still remains a fact in American jurisprudence. In that context, if the Texas law is constitutional, then any state can deputize the population to enforce a law that infringes on a fundamental constitutional right—including enumerated rights—without violating the constitution. California could pass a law allowing any state resident to sue someone who flew a Confederate flag, or who owned a gun, or who preached that marriage is a sacrament between men and women, or whatever, and the protections of the first and second amendments would be unavailing. Which is obviously absurd. I think all the end-run has done is make it so that until the Court actually hears the case, abortion is effectively illegal in Texas, whereas under normal circumstances abortion would have remained legal until the case is heard.

So shouldn’t the stay have been granted? I think clearly that it should have been—and if a blue state wanted to troll the Court, they’d pass something like the anti-Confederate flag law just to make it clear to the Court just what a Pandora’s Box they’ve opened. But the Court is going to have to address the underlying constitutionality of abortion directly; they won’t be able to sidestep it by blessing the Texas law and formally not touching Roe. At least, that’s how it seems to me—I welcome correction by those who are better-versed in the law than I am.

Meanwhile, I don’t think we can tell that much about how the Court is going to rule on that underlying constitutional question from the fact that it voted 5-4 not to grant a stay in this case. There are clearly three votes to overturn Roe outright: Thomas, Alito and Gorsuch. There are also clearly three votes to keep Roe intact: Breyer, Sotomayor and Kagan. But the other three votes—Roberts, Kavanaugh and Barrett—are still genuine unknowns. Roberts might well have voted to grant a stay because he saw that endorsing this kind of legal flim-flam set a dangerous precedent, and yet still would be willing to overturn Roe when that came to question. As well, Kavanaugh, and possibly even Barrett, might have (erroneously, in my view) been nervous about granting a stay because of what precedent that might set about standing, yet also be nervous about outright overturning Roe as opposed to further narrowing its scope.

That having been said, I think the way to bet is that Roe will be overturned outright, because I think there won’t be a plausible way to narrow its scope when a law like Texas’s properly comes before the Court. If they can narrow Roe without affirming or overturning it, I am confident at least two of them, and maybe all three, will choose that right. But I don’t think they’ll be able to resolve every case that way. And if they are forced to choose between affirming some core right to an abortion, or overturning it, I think all three will vote to overturn.

Precisely because of that, I think it’s a real shame that the Court didn’t approve the stay. If they are genuinely unsure of whether they have a majority to overturn Roe, then they should have granted the stay because of serious concerns about constitutionality. But if they are sure they have a majority to overturn, then they should also have granted the stay so as not to encourage similar mischief on other constitutional issues, and gone on to address the underlying question of abortion promptly.

Once again, I welcome correction by anyone with specific legal expertise in this area.