Members-Only Article
A DC lawyer reader is dismayed by the coverage of today’s Supreme Court decision on the Texas abortion ban:
The press coverage of this decision is all wrong.
Sure, the 5-justice majority permitted a narrow route into federal court. But it will be easy for Texas and other states to close that route and block all access to federal court – because the majority makes clear that is permissible.
The threat posed by the Texas law is the private lawsuits against abortion providers, and anyone who provides related help to those seeking abortions, threatening draconian liability. The relief that providers and other prospective defendants need, therefore, is an injunction blocking those suits. But the majority’s ruling – barring suits against the court clerks and prospective plaintiffs, makes clear that federal courts can’t give any relief against those lawsuits.
As the Chief Justice explains, the plaintiffs should be able to sue the attorney general and the court clerks
What the majority permits is only a federal court suit based on the threat of enforcement action by state licensing entities. But all Texas, or another state, would have to do is to make clear that no enforcement action is permissible, by any entity. If it does that, there is no federal court action permissible under the majority’s rationale.
Now, perhaps this doesn’t matter because it’s pretty clear Roe is being overruled anyway. (There is also a state court ruling today declaring the law unconstitutional under Texas law – but that court refused to issue an injunction, which means that there is nothing preventing folks from filing suits against providers.)
But the 5-justice ruling shows just how far this majority is willing to go in limiting access to federal court – and how unwilling it is to protect constitutional rights against novel threats. That is of a piece with the Dobbs argument and this week’s argument in the Maine Establishment Clause case. We are in for dramatic changes in our entire legal system.
Not clear to me why abortion groups are unwilling to make clear how bad this ruling is. Maybe they are focused on the next steps in the litigation. But, as usual, Justice Sotomayor is clear-eyed about what’s going on: “By foreclosing suit against state-court officials and the state attorney general, the Court effectively invites other States to refine S. B. 8’s model for nullifying federal rights. The Court thus betrays not only the citizens of Texas, but also our constitutional system of government.”
She lays it all out in Part III of her opinion, starting on page 10. Here’s the opening graph but you should read it all: “My disagreement with the Court runs far deeper than a quibble over how many defendants these petitioners may sue. The dispute is over whether States may nullify federal constitutional rights by employing schemes like the one at hand. The Court indicates that they can, so long as they write their laws to more thoroughly disclaim all enforcement by state officials, including licensing officials. This choice to shrink from Texas’ challenge to federal supremacy will have far-reaching repercussions. I doubt the Court, let alone the country, is prepared for them.”
