Texas Abortion Ban Is Both Devious and Doomed

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When a state adopts a flatly unconstitutional anti-abortion law, as Texas did last week, it ordinarily never takes effect. Activists immediately ask a federal court to order state officials not to enforce it, and the court does. What’s unusual — and scary — is that this time, Texas is trying to get around this hurdle through legal trickery. Its efforts are likely to fail, but seeing how and why requires going through a bit of detail.

Start with Texas’s goal. The law just enacted makes abortion unlawful after a fetal heartbeat can be detected. Because that can happen as early as six weeks of pregnancy, the law effectively outlaws abortion — a direct violation of the constitutional right to choose established in Roe v. Wade. The Supreme Court has agreed to consider a case out of Mississippi in which it might overturn part of Roe. But until that happens, Roe is the law, and the Texas statute is certainly unconstitutional.

Texas knows its law violates the Constitution. And it knows the federal courts would ordinarily block it from taking effect. So the legislature devised a trick. Instead of seeking a criminal ban, enforced by the state’s prosecutors, it made abortion a civil violation for which physicians, clinics and anyone else abetting abortion could be sued for monetary damages. Then, the Texas law authorized any private citizen, even someone with no connection to the abortion in question, to bring the civil lawsuit and keep the damages.

If this sounds absurd, that’s because it is. And the law has other constitutional problems, too. It goes so far in imposing liability that it arguably impinges on free speech and free association rights.

It’s a core principle of the rule of law that citizens need to be able to vindicate their rights in court. As the Supreme Court famously noted in Marbury v. Madison, where there is a right, there must be a remedy. If the Texas trick were to work, it would undermine the rule of law itself by rendering basic rights temporarily unprotectable.

The loophole that Texas is exploiting has to do with the legal procedure that federal courts use when they block state officials from enforcing a law. The Eleventh Amendment limits an individual’s ability to sue a state. So instead, the individual sues state officials personally. The courts have long held that, so long as the officials named as defendants have a connection to the law in question, the suit can go forward.

Texas is poised to claim that, because its abortion law is enforced by private citizens, not state officials, the courts can’t entertain an immediate claim to block the law from going into effect. Texas is going to say the courts have to wait for a private citizen to sue an abortion provider — and only then rule on the law’s constitutionality. Of course, the law would then be struck down. But in the meantime, the threat of a lawsuit might convince abortion providers to shut down.

Beyond the way it undermines the rule of law, there are serious further limitations to the legal logic of the Texas approach.

Even though the Texas law isn’t enforceable by state prosecutors, it would have to be applied by the state’s courts. And state judges are also state actors. It follows that federal courts should be able to order state courts not to apply the unconstitutional law — even before someone brings a lawsuit.

This reasoning is supported by a landmark civil rights case, Shelley v. Kraemer, in which the Supreme Court held that state courts could not enforce a racially restrictive covenant that prohibited property in a housing development from being to sold to Black people. The justices said that state courts counted as state actors because they would be enforcing the law.

True, the tradition is to sue state prosecutors, not judges, to block enforcement. But that’s because the Texas subterfuge hasn’t really been tried before.

Imagine if the Texas law granted civil damages against anyone who ran a racially integrated lunch counter, in gross violation of the Fourteenth Amendment guarantee of equal protection of the laws. The federal courts would surely be able to bar the state courts from applying the unconstitutional law. The anti-abortion law is no different.

What’s more, Texas’s approach is based on a 2001 decision by the U.S. Court of Appeals for the 5th Circuit, which disallowed a suit against state officials to block a Louisiana law that allowed women to sue their abortion providers years after their abortions. But the Texas law goes much further – because it empowers anyone to sue abortion providers. The effect is that the state of Texas is outsourcing law enforcement to private parties. In so doing, it effectively creating deputies who would be state actors in all but name. Although it would take some creative lawyering, it could in theory be possible to sue the class of all potential plaintiffs to block them from enforcing the law, using a pro-life activist group as a representative defendant, just as it would otherwise be possible to sue state prosecutors.

It may take a bit of time for the federal courts to figure this out. But the result should be the same, regardless of the route taken: Texas can’t violate the Constitution and use trickery to roll back basic rights.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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