Read the Tea Leaves in Supreme Court’s First Abortion Test

(Bloomberg Opinion) -- On Monday, when the Supreme Court hears oral arguments in the blockbuster Texas abortion law case, more listeners than ever will tune in to the court’s new real-time audio function, available on its own website. If they’re looking for a deep discussion of whether the court will overturn Roe v. Wade, they are going to be disappointed — it’s going to be a deep dive into civil procedure. But here’s why people should pay close attention.

The justices are going to focus on a devilishly clever aspect of the Texas law, which bans abortions as early as six weeks after conception. A feature in it puts enforcement of the law in the hands of private parties to sue abortion providers, not the state. This aspect was designed to sidestep the ordinary process by which a federal district court would block the implementation of an obviously unconstitutional law like Texas’s.

There’s a fair chance that the justices will ultimately decide that the only way the Texas law can be challenged is by actual lawsuits brought under the law being defended in state court and then making their way all the way to the highest courts of Texas and then to the Supreme Court. That result, if it comes, will be read by many as definitive proof that the justices are going to overturn Roe in the separate Mississippi case that they will consider later this year. Abortion opponents don’t have to worry about higher courts blocking the Texas law if the Supreme Court has done away with Roe.

That interpretation is possible — but it’s not certain.

The Mississippi law bans most abortions after 15 weeks. The progress of that case demonstrates the way the legal process is supposed to work when a state passes a law that openly violates the Constitution as it is interpreted by the Supreme Court. Before the law can go into effect, private parties go to the federal district court and ask it to issue an order commanding the state attorney general and the other officers of the state not to enforce the law.

The district court normally agrees. Even if the district court judge thinks Roe was wrongly decided, it’s not the job of a lower court to overturn the Supreme Court. The state can appeal the district court’s decision to the Court of Appeals and then to the Supreme Court, which does have the authority to overrule itself. All that has happened in the case of the Mississippi antiabortion law.

The drafters of the Texas law specifically designed it to break this process. Their basic insight was that, although it’s well-established that a federal court can order state enforcement officials not to violate the Constitution, there’s no parallel legal mechanism for the court to order private citizens not to go to state court to vindicate rights they have been given under state law — like the right to sue the abortion providers.

Although nothing in civil procedure counts as intuitive, you can sort of see why no obvious pre-existing legal mechanism for this purpose existed. The core problem is, whom do you sue? In the case of a suit against a state, the theoretical basis for the suit is that it would be outside of the authority of the state officials to enforce an unconstitutional law — so the courts can tell those officials not to take such an unauthorized action.

When it comes to the general public, however, no particular individual has yet brought a suit under the law. What’s more, those private individuals aren’t individually bound to follow the Constitution, the way a state official is bound by oath. So it would seem weird and inapposite to issue an order to everyone in the world saying, “you can’t sue under the Texas law.”

The trouble with suing the state officials is of course that they have no role in enforcing the law. To get around that, pro-choice advocates also sued Texas judges who might enforce the law, on the theory that these judges are also officials of the state, bound by the U.S. Constitution. (I suggested a version of that idea back in May when the law was passed.)

Yet in response, Texas argues that you shouldn’t be able to sue state judges based on the expectation that they might not follow the Constitution. After all, the purpose of the judicial system is to let judges decide case and to appeal the outcome if they get it wrong. When that happens, you aren’t suing the judge, you’re appealing the judge’s decision.

The Joe Biden administration separately went to court to sue for the law not to be applied, citing the federal government’s interest in acting on behalf of citizens. But Texas says that there is no general authority in the federal government to challenge state laws that it thinks might be unconstitutional — the federal government has to be a proper party.

These are the issues that will preoccupy the justices — and notably, none of them is directly focused on Roe v. Wade. It’s understandable that the justices who want to uphold Roe want to find a way to block the Texas law from going into operation. And it’s also possible that the justices who want to strike down Roe may not care. So a 5 to 4 decision to allow the Texas law to stay in place might foreshadow the outcome of the Mississippi case.

Yet at the same time, it’s also in principle possible to have a different view about the civil procedure issues than about the logically unrelated constitutional question of whether Roe is correct. Even conservative justices should be worried that the Texas law could create a new mechanism for states to violate the Constitution and get away with it while cases slowly wend their way up to the Supreme Court. Some states have already begun to talk about passing other openly unconstitutional laws, like laws repudiating the right to gay marriage.

Consequently, five justices might vote to block the Texas law, and yet a majority might still overturn Roe in the Mississippi case.

It’s also conceivable that things could go the other way: the majority of the court could allow the Texas law to remain in place, and yet the court might still uphold Roe, provided one or more of the conservative justices decided the time was not right to do so.

The Texas case is crucial for both supporters and opponents of abortion. But it isn’t the same as the Mississippi case, and its outcome isn’t going to be the last word on Roe v. Wade.

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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