Texas’s new abortion law has been cunningly crafted to shield it from being struck down as unconstitutional. It’s a method other states could now mimic – and America’s highest court seems prepared to let them get away with it
Readers from abroad may be puzzled by the latest major legal development in the United States: the state of Texas has functionally banned abortions.
The new law, which came into effect in Texas last week, prohibits abortions when a doctor can detect a fetal heartbeat, usually around the sixth week of pregnancy:
Bill relating to abortion, including abortions after detection of an unborn child’s heartbeat; authorizing a private civil right of action
Passed on 19 May 2021; effective on 1 September 2021
Sec. 171.204. PROHIBITED ABORTION OF UNBORN CHILD WITH DETECTABLE FETAL HEARTBEAT; EFFECT. (a) Except as provided by Section 171.205, a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child as required by Section 171.203 or failed to perform a test to detect a fetal heartbeat.
The problem is that the so-called “heartbeat bill” seems blatantly unconstitutional under US law. In 1973, the US Supreme Court first recognised a right to choose abortion before the onset of “viability” – when the chances of a baby surviving childbirth are above 50 per cent – in Roe v. Wade. In the decades since, Roe has been challenged, questioned and weakened, but never overruled.
And yet Texas’s law clearly contravenes the right to choose. Viability usually occurs around 24 weeks, months after Texas’s prohibition kicks in. While the Supreme Court recognises a sweeping right to choose, Texas has effectively banned at least 85 per cent of procedures in the state. Other bills of this kind have been struck down or blocked by the federal courts. Last week, abortion providers brought an emergency action to block enforcement of the law while litigation continued, but the Supreme Court delayed for days and then allowed the law to come into effect. Now, abortion is functionally banned in one of America’s largest states.
How could this be allowed? Well, there’s a legal answer and a political one. The legal answer, offered by the Supreme Court in its recent decision, involves a doctrine called “sovereign immunity”.
Under US law, the Eleventh Amendment insulates state governments from most lawsuits. At the time of America’s founding, much of the constitution was designed to reassure states that the federal government would be relatively toothless – and that there would be no new monarch to step into the shoes of the one that they had just rejected. In 1908, in a decision called Ex parte Young, the Supreme Court carved out an exception to this rule for lawsuits against the officials charged with enforcing laws believed to be unconstitutional.
Anti-abortion leaders in Texas used sovereign immunity to devise what they hoped would be a bulletproof abortion ban. Plenty of states have banned abortion after the sixth week of pregnancy, most of them criminalising later procedures and subjecting doctors to fines and prison time.
Texas, however, rejected criminal penalties, and opted for a different way of enforcing the law:
Sec. 171.208. CIVIL LIABILITY FOR VIOLATION OR AIDING OR ABETTING VIOLATION.
(a) Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who:
(1) performs or induces an abortion in violation of this subchapter;
(2) knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter;
(3) intends to engage in the conduct described by Subdivision (1) or (2).
Put simply, the legislation means that the state now allows lawsuits to be brought against both abortion providers and people who “aid or abet” those seeking an abortion. If successful, the claimant will receive at least $10,000:
b) If a claimant prevails in an action brought under this section, the court shall award:
(1) injunctive relief sufficient to prevent the defendant from violating this subchapter or engaging in acts that aid or abet violations of this subchapter;
(2) statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced in violation of this subchapter, and for each abortion performed or induced in violation of this subchapter that the defendant aided or abetted; and
(3) costs and attorney’s fees.
In other words, literally anyone could bring such a suit: there is no need to have any connection to the people involved in the abortion. But there is one very important exception: neither state nor local officials could enforce the law.
When abortion providers challenged the constitutionality of the new law, the state was ready. Quite simply, Texas argued, sovereign immunity blocked the suit. The only way around the doctrine was to find a state officer charged with enforcement. And Texas prohibited state officials from doing just that. Texas’s law might be unconstitutional – but no one could go to federal court to prove it.
The law sets a strange and dangerous precedent. Texas changed the rules on who could sue, where they could do it, and whether they could receive attorneys’ fees if they won:
Sec. 171.210. CIVIL LIABILITY: VENUE.
(a) Notwithstanding any other law, including Section 15.002, Civil Practice and Remedies Code, a civil action brought under Section 171.208 shall be brought in:
(1) the county in which all or a substantial part of the events or omissions giving rise to the claim occurred;
(2) the county of residence for any one of the natural person defendants at the time the cause of action accrued;
(3) the county of the principal office in this state of any one of the defendants that is not a natural person; or
(4) the county of residence for the claimant if the claimant is a natural person residing in this state. (b) If a civil action is brought under Section 171.208 in any one of the venues described by Subsection (a), the action may not be transferred to a different venue without the written consent of all parties.
The law sweeps quite broadly: there is no need for the person who’s bringing the suit to be a Texas resident, and there are no geographic restrictions at all on who can be sued. In theory, someone in the UK who donates to an abortion fund in Texas could be sued for at least $10,000 and forced to pay that much and more if they ever cross state lines. The law applies not only to people who actually help those seeking abortions but also to those who intend to do so.
There is no exception for rape and incest in the legislation (although rapists themselves cannot sue their victims). The mother of a twelve-year-old sexual assault victim, for instance, could be sued if she brought her child to a clinic.
Texas has created an ingenious method for circumventing a constitutional right – one that other states could copy to gut everything – from freedom of speech to exercising one’s religion.
And yet last week the Supreme Court just let the law go into effect. A district court had blocked the law, but the Fifth Circuit Court of Appeals – a federal court with a level of jurisdiction over Texas – took the unusual step of freezing the proceedings (including fights about whether the state could enforce its law while the litigation was pending).
Abortion providers filed an emergency application at the Supreme Court. They argued that state judges hearing lawsuits and imposing judgments certainly should be treated as state officials enforcing the law.
The court – which has six conservative members, three of them nominated by Donald Trump – said nothing for almost two days and then issued a midnight order saying that Texas appeared to be right: abortion providers had not shown that they could sue anybody in challenging the law’s constitutionality. The justices were careful to say that they had reached no judgment on the constitutionality of the new law, but there was nothing the court could do: there was no one for abortion providers to sue.
Most court watchers in the US did not buy what the court was selling. The justices’ order had everything to do with abortion. And they are not trying too hard to hide that fact. After all, the court is scheduled to hear a major challenge to Roe this year.
That case, Dobbs v. Jackson Women’s Health Organization, addresses the constitutionality of a law banning abortion at fifteen weeks, the point at which the state claims that fetal pain is possible (most experts believe that the capacity to experience pain develops much later in pregnancy). Mississippi designed its law to be unconstitutional – fifteen weeks is well before viability, the point at which Roe allows for the prohibition of abortion. The state wants to force the court to reconsider and reverse Roe. Even if that fails, Mississippi wants the court to sign off on at least some pre-viability bans.
The Supreme Court did not need to hear such a direct challenge to Roe. There is no shortage of other options – such as laws outlawing specific procedures or particular reasons for having an abortion. But the court’s conservative majority chose this law for a reason. There is no way for the court to uphold this law – as many expect – without overturning all or part of Roe. And so when the justices claim to have an open mind about Texas’s law, it is hard to keep a straight face.
The same is true of the court’s supposed powerlessness. The justices had granted emergency relief in cases involving procedural difficulties before, such as awarding churches this emergency dispensation during Covid lockdowns. But somehow, those obstacles became easier to surmount when churches were suing to continue with in-person worship during the coronavirus pandemic.
Let’s say, hypothetically, that California unconstitutionally prohibited anyone from owning a handgun for self-defense (something that would infuriate this Court) and then allowed anyone to sue the handgun owner and receive $10,000. It is unimaginable that the law would be allowed to go into effect.
The Supreme Court may pretend that it’s not in the politics business, but that’s hard for the rest of us to believe. Supreme Court nominations have been politicised since the 1960s, with presidents pledging specific outcomes on the campaign trail.
Roe did not in itself bring about this polarisation: for years after the decision, there were still unanimous Senate confirmation votes, even for known conservatives.
But in recent years, presidents have stopped seeking consensus nominees and have instead used prospective court picks as a way to rally the base. Donald Trump relied particularly heavily on this technique to win over wavering conservatives. The former president struck many conservative Christians as a womanising supporter of abortion on demand. Trump lured in those who had instinctively distrusted him by promising to appoint justices who would deliver an end to Roe. It appears that, more than seven months since he left office, he may now be able to deliver.
The Supreme Court decision hasn’t put an end to fights about Texas’s bill. If an abortion doctor purposefully violates the law, a new constitutional challenge to the law’s application could get under way. There are already battles in state and federal court (at the time of writing, one judge blocked Texas Right to Life, the group behind the law, from bringing suits for a few weeks’ time).
In the long term, the Supreme Court may make Texas’s struggle an afterthought. Reversing Roe would be a watershed, but the Supreme Court alone cannot make the US abortion conflict any saner. Simply put, neither movement wants each state to set its own abortion policy, and too many political stakeholders benefit from preserving our present dysfunction.
Abortion has become a way for political parties to raise money and win over and turn out voters. Pro-choice forces will look to help women seeking abortions out of state, to litigate in state courts, and to change the composition of the Supreme Court to restore a right to choose. Those who are anti-abortion have never been interested in compromise, and are already lobbying the Supreme Court to treat a fetus or unborn child as a person under the Fourteenth Amendment and render all terminations unconstitutional.
When it comes to abortion, the Supreme Court has long had an exaggerated sense of its own importance – but the rest of us know better. Roe v. Wade might not be long for this world, but the US abortion wars are another thing entirely.
Mary Ziegler is a law professor at Florida State University and the author of Abortion and the Law in America: Roe v. Wade to the Present.