October 2021 Edition
Did Texas Blow It?
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In this edition:
Looking at Texas’s heartbeat law
With further legal wrangling now occurring over Texas’s heartbeat law, a question arises: Did Texas blow the pro-life movement’s best chance to significantly revise or overturn Roe and Casey?
The basics of Texas’s heartbeat law are widely known by now, and I won’t rehearse them here. In Texas’s first round in court, its strategy seemed to pay off. When an abortion clinic asked the Supreme Court to stop the law’s enforcement, a majority of the Court rejected the request on strictly procedural grounds. The clinic failed before SCOTUS in precisely the way the architects of the Texas law intended: because there was nobody to sue. Texas state officials are expressly forbidden from implementing the law, with all enforcement falling to private citizens who bring civil suits. As no private citizens had yet brought a suit, nobody could be named as a defendant.
This outcome was seen as a victory by pro-lifers and a disastrous and alarming failure by pro-choicers. Both sides overreacted. The Court did not rule on the merits of the Texas law, it merely held that one particular way of pursuing a pre-enforcement challenge wasn’t procedurally correct. One could be pro-choice and agree with the Court on that technical point—just as one could be pro-life and disagree. Howard Wasserman, a pro-choice law professor, wrote:
The Court was right to deny emergency relief. The WWH [Whole Woman’s Health is the name of the clinic that sued] lawsuit was bad, given the law. No public official was a proper defendant--executive officials do not enforce the law, regulatory agencies disclaimed indirect enforcement, and you do not sue judges to stop adjudication. The individual defendant had not sued or indicate an intent to sue; the complaint alleged that he made public statements in support of the law and of people suing to stop abortion, but never that he intended to bring his own suits. So the Court could look at this law and this complaint and say the plaintiffs (the ones seeking relief) have not shown a likelihood of success on the merits because they have not found anyone suable at this time.
Just because this particular challenge failed didn’t really mean much, either way, about the long-term legal viability of the Texas law. Alternative routes to beat the law in the Courts remained—and remain—open (Wasserman himself co-authored a paper outlining some such strategies here).
After this judgement by the Court, the U.S. Justice Department brought a new suit against Texas, and asked that enforcement be enjoined while this suit was active in the courts. A Federal District Court judge granted this latter request. Just yesterday, however, the U.S. Court of Appeals for the Fifth Circuit issued a temporary administrative stay on the injunction. For now, then, the law can be enforced again— civil suits may be brought by private individuals.
There’s much more to come. The Fifth Circuit—or possibly even the Supreme Court…again—will now consider questions around the stay and/or the injunction. In addition to all the legal battles to come in this Justice Department suit, there are other available avenues to challenge the law, such as Braid v. Stilley. In this case, a Texas doctor who performed a post-heartbeat abortion was sued under the Texas law. The doctor countersued and his case is in federal court.
Taking a step back, we can ask about what kid of law the Texas law is. Typically, state-level pro-life laws fall into one of three categories:
Restrictions that could be reasonably be expected to be sustained (under Roe, Casey, and subsequent SCOTUS decisions)
Restrictions that are edge cases
Restrictions that clearly violate the standards laid out by Roe and Casey.
The point of the first kind of law is for the restrictions actually to be enforced, with some expected reduction in e.g. the number of abortions performed in that state. The point of the second kind is to force the courts to clarify exactly how far pro-lifers can push the law within the grey areas created by Roe and Casey. The point of the third kind is to put something before the Supreme Court that could result in a substantial revision of current abortion jurisprudence.
One novel thing about the Texas law is that it doesn’t neatly fall into any of these categories. Its substantive provisions do violate Roe and Casey, so it might be thought to be an example of the third kind of restriction. But its procedural approach seems like an attempt to create space for actual immediate enforcement, making it more like the first kind of restrictions than the third.
This hybrid approach’s legal prospects are dim. It’s a good bet that the law’s attempt to do a procedural end run around the substantive issues will eventually collapse in the courts, one way or another. The best case scenario for the Texas law is that abortion providers sued under the law are unable successfully to countersue in federal court, and are limited to a defensive posture. In that case, defendants may still win their cases, but only on a case-by-case basis and so can be subject to the expense, in time and money, of continuing to defend themselves in courts. This outcome is related to a point raised below, so I’ll defer discussion of it until then.
As an example of the first kind of restriction—that which aims directly at enforcement—the law is not as invulnerable as it hopes to be. As Wasserman also notes, however, it might not be not a good example of the third kind of restriction either, namely, one that is passed with main goal of getting in front of the Supreme Court:
Federal and state courts considering SB8 [the Texas law] must grapple with a host of procedural and jurisdictional issues tangential to the core constitutional question of the validity of fetal-heartbeat laws and the continued existence of a right to reproductive freedom. Courts will not decide the constitutional validity of SB8’s core ban on post-heartbeat abortions until lengthy litigation in federal and state courts resolves these side issues. Other states have moved faster to present the substantive question squarely to the Court and to urge it to overrule Roe and Casey.
The messiness of this situation was acknowledged by O. Carter Snead in The Washington Post. Snead admits that we have arrived at weird place with the debate over the Texas law. He suggests, however, that the responsibility for this lies not with Texas, but with the murky jurisprudential landscape created by Roe, Casey, and subsequent abortion law. For Snead, Texas is simply frustrated with this situation and is responding in an understandable way. There’s obviously a lot of truth to what Snead argues about the cloud of uncertainty that hangs over U.S. abortion law. However, that doesn’t absolve pro-lifers from responding in the strongest way possible to the situation they face.
If the Texas law does not present a clean challenge to Roe and Casey and if its direct-to-enforcement procedural strategy is not airtight, perhaps one other thing could be said in its favor. The argument would go like this:
The law has created salutary chaos for abortion providers. It has discouraged women from seeking abortions (at least in Texas itself) and it has created uncertainty about the legal future of abortion access. In this atmosphere, abortion providers may fear that they could face substantial costs of litigation, either now or in the future, even if they win their cases from a defensive position. All of those factors, put together, could keep some ceiling on the abortion industry for some time to come. After all, the New York Times reports that during the two short days that the injunction by the District Court was in place, most abortion providers did not reopen, as they are choosing to stay closed until a more definite judgment is reached, rather than opening and closing at every twist and turn of the case. Moreover, even if an injunction is reimposed, the Texas law can still generate these deflationary effects, as it allows civil suits to be brought retroactively against providers for post-heartbeat abortions performed during the time that any injunction was in place. Therefore, the law is worth it, whatever its ultimate fate.
That argument may resonate with pro-lifers. Anything that shutters clinics or discourages women from seeking abortions is good, no matter for how long. Whatever one thinks of this argument, however, it is reckoning without one thing: Dobbs v Jackson Women's Health. The Court will hear arguments in Dobbs on Dec. 1st. This case represents a clean challenge to Roe and Casey. Given the current makeup of the Court, Dobbs represents a unique opportunity to see Roe and Casey revised or overturned. It’s fair to say, I think, that this case is the culmination of everything the pro-life movement, as currently constituted, has worked for. Everything has been leading up to this. And so it would be tragically ironic if the timing of the legal drama around the Texas heartbeat law put the hoped for outcome in Dobbs in jeopardy.
The procedural issues raised by the Texas law, its distracting dominance in the current conversation about abortion policy, and the reaction by some to SCOTUS’s original decision are the bases for raising this possibility. For example, Gallup reports:
Americans' opinions of the U.S. Supreme Court have worsened, with 40%, down from 49% in July, saying they approve of the job the high court is doing. This represents, by two percentage points, a new low in Gallup's trend, which dates back to 2000. The poll was conducted shortly after the Supreme Court declined to block a controversial Texas abortion law. In August, the court similarly allowed college vaccine mandates to proceed and rejected a Biden administration attempt to extend a federal moratorium on evictions during the pandemic.
Now, a majority of 53% disapproves of the job the Supreme Court is doing, exceeding the prior high disapproval of 52% from 2016. A Sept. 9-13 Monmouth University poll found 54% of U.S. adults disagreed and 39% agreed with the Supreme Court's decision to allow the Texas abortion law to go into effect.
Polls don’t decided moral questions, of course, and even on their own terms they provide sketchy information at best (as the Washington Post notes, you can’t just read off this or other polls whether the drop in the approval rating is a temporary blip or something more long-term). But if you are a justice on the Supreme Court and you are already alert to challenges to the public legitimacy of your institution, you might see any post-Texas poll dip as a worrying sign. We know justices are capable of taking the temperature of the public, as they see it, when deciding how to approach cases or considering which cases to accept at what time. Any perceived “backlash” to a procedural decision in the Texas case might have a justice like that reevaluating just how bold they are willing to be in Dobbs. And if the Texas law comes before the Court again before Dobbs is heard (if, for example, the Justice Department appeals to the Court to reverse the Fifth Circuit’s administrative stay of the injunction) that could complicate things further.
This is speculation, of course. It could be that none of this will have any bearing on the decision in Dobbs one way or another. And if justices are reading the tea leaves, there are other cups they can look in, too. The Virginia governor’s race, in which abortion has become a live issue, is seen as a test case for how much and in what ways abortion will affect upcoming electoral contests. Right now, the race is very close, with the more pro-life candidate hanging in well with the more pro-choice one. Yet other ways of looking at recent polls may likewise paint a much more sanguine picture for any justice scouring the news for signs of any backlash to the Texas decision.
So the possibility I raise here may not come to anything. But if it does, then the pro-life movement’s inability to coordinate better around its one big shot in the Court will have snatched defeat from the jaws of victory.
“A local family is suing the Alachua County Jail after a newborn girl died after being born in the jail,” a local Florida news source reports. “The baby’s mother, Erica Thompson, claims staff ignored her cries for help.”
At National Review, John McCormack reports on the view, held by some Democrats, that the Hyde Amendment would not constrain spending in “a new federal Medicaid-like program” under consideration on the Hill. Relatedly, the Biden administration scraps a rule, put into place by the Trump administration, that prevented organizations from receiving Title X funding if they gave abortion referrals.
From the Washingtonian: “This Saturday, the Women’s March will return to Washington to rally in support of reproductive rights…But there is a new rule for protesters: leave the coat-hanger imagery and “Handmaid’s Tale” outfits at home….The Women’s March website says that coat-hangers ‘reinforce the right wing talking points that self-managed abortions are dangerous, scary and harmful.’”
According to the Guttmacher Institute, U.S. states have passed 106 abortion restrictions to date this year. “Not only is 106 the highest number of restrictions passed since Roe v. Wade was decided in 1973,” the organization stated, “but also this year is the first time that Guttmacher’s count of enacted restrictions has hit triple digits.”
On Twitter, an opportunity to donate (I have not verified anything about this request; just passing it along)
How about a poem?
Maybe all this
is happening in some lab?
Under one lamp by day
and billions by night?
Maybe we’re experimental generations?
Poured from one vial to the next,
shaken in test tubes,
not scrutinized by eyes alone,
each of us separately
plucked up by tweezers in the end?
Or maybe it’s more like this:
The changes occur on their own
according to plan?
The graph’s needle slowly etches
its predictable zigzags?
Maybe thus far we aren’t of much interest?
The control monitors aren’t usually plugged in?
Only for wars, preferably large ones,
for the odd ascent above our clump of Earth,
for major migrations from point A to B?
Maybe just the opposite:
They’ve got a taste for trivia up there?
Look! on the big screen a little girl
is sewing a button on her sleeve.
The radar shrieks,
the staff comes at a run.
What a darling little being
with its tiny heart beating inside it!
How sweet, its solemn
threading of the needle!
Someone cries enraptured:
Get the Boss,
tell him he’s got to see this for himself!
-“Maybe All This” by Wisława Szymborska