Texas lawmakers’ novel approach to skirting Roe v. Wade leaves abortion rights advocates without a legal playbook

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Texas’ new law prohibiting most abortions is unprecedented — and so is the legal standoff currently keeping the restrictions in place.

So far, Texas lawmakers have successfully flouted the constitutional right to have an abortion before fetal viability established by Roe v. Wade in 1973 and subsequent rulings. That’s because their law leaves enforcement of the new restrictions not to state officials but instead to private citizens filing lawsuits through the civil court system.

In a late-night, 5-4 decision last week, the U.S. Supreme Court declined to strike down Texas’ new ban on abortions once fetal cardiac activity is detected — which can occur as early as six weeks, before many people know they’re pregnant. The court did so without ruling whether it’s constitutional for Texas’ Senate Bill 8 to allow anyone to sue providers, doctors or even Uber drivers who “aid and abet” someone getting an abortion past that threshold.

That means the large majority of the abortions previously performed in the state — experts estimate over 85% — are now outlawed through a mechanism that makes providers and those who help people get abortions subject to lawsuits. Some providers have stopped providing abortions altogether, even before fetal cardiac activity is detected, for fear that litigation could cause financial ruin, despite there being no known lawsuits filed since the law went into effect Sept. 1.

“No, the court did not formally declare Roe overruled, but the practical effect of the decision is to basically make Texas feel as though it is pre-Roe or in a post-Roe world,” said Melissa Murray, a professor at the New York University School of Law.

The U.S. Department of Justice sued Texas on Thursday in an effort to overturn the law and block its enforcement. Before the lawsuit was filed, legal experts expressed doubts as to how it might succeed in ways that pending litigation so far hasn’t. The law’s construction has caused experts to be dubious about how the legal saga will play out in courts.

Trying to exactly predict the federal lawsuit’s fate is “a little bit like looking at a crystal ball,” Dallas attorney Michelle Simpson Tuegel said.

But the federal lawsuit tackles the problem in a unique way, not only making a case on how Texas’ statute violates the constitutional right to an abortion, but also by targeting how it impacts federal interests, she said.

So what happens next? Legal experts aren’t exactly sure. And they don’t all agree that the Supreme Court had no other option than to let the law remain in effect for now.

The law taking effect was a major victory for Republican lawmakers. But Gov. Greg Abbott — a vocal abortion opponent — has kept largely quiet on the ruling and the law’s unique legal structure. When asked for comment, his office deferred to the governor’s tweets about the Supreme Court decision. But a press secretary blasted the Justice Department’s lawsuit Thursday.

Paxton did not respond to The Texas Tribune’s request for comment. Neither did lead bill author state Sen. Bryan Hughes, R-Tyler, or state Rep. Shelby Slawson, R-Stephenville, a chief sponsor of the legislation in the Texas House.

Josh Blackman, a constitutional law professor at South Texas College of Law Houston, thinks the Supreme Court’s hands have so far been tied. The court cannot issue an injunction against a law or idea alone — it has to have defendants, he said. Since lawsuits are the mechanism for enforcing Texas’ new law — and government officials and law enforcement officers are prohibited to uphold the ban — it is difficult to challenge the statute’s constitutionality in court.

Abortion providers had named a judge, court clerk, anti-abortion activist and Texas Attorney General Ken Paxton as defendants in their lawsuit that went to the high court. But the justices’ majority opinion stated “it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.”

Several legal avenues

How things turn out could lie with the 5th U.S. Circuit Court of Appeals — known as perhaps the nation’s most conservative appeals court — where the case that spurred last week’s high court action again rests.

Shortly after the Texas Legislature passed the law earlier this year, abortion providers filed their lawsuit aiming to block it. The state trial court judge and his court clerk named as defendants were meant to serve as representative defendants for all state judges and clerks given jurisdiction by the new law. A federal district court scheduled a hearing two days before the law went into effect last week to determine its constitutionality. But after the defendants unsuccessfully petitioned for the case to be dismissed, they appealed to the 5th Circuit, which used an administrative stay to cancel the district court hearing and temporarily blocked further lower court proceedings.

Such stays are supposed to be temporary, said Steve Vladeck, a professor at the University of Texas School of Law. But so far, no word has come as to when the appellate court will take further action. Vladeck called that limbo “galling.”

“An administrative stay is supposed to be just long enough for the court of appeals to consider whether to leave the stay or keep it in place,” he said.

In the legal proceeding before the Supreme Court last week, abortion providers also asked the high court to allow district court proceedings to continue. Justices also declined to order such action.

The appellate court can now resume proceedings, remove defendants from the suit or issue an indefinite stay on lower court proceedings, Vladeck said. He says the latter is likely, given the court’s reputation. It’s not immediately clear what could follow if that’s the course appellate judges take.

Blackman thinks there is another possible, albeit unprecedented, approach that could hold up against the procedural barriers in the Supreme Court: Abortion providers might successfully be able to file a class-action lawsuit against all people who are able to sue them under the new law — therefore blocking any lawsuits before they happen.

Federal lawmakers have also vowed to take action. House Speaker Nancy Pelosi, a California Democrat, said the House will have a vote on codifying abortion rights into federal law — therefore overriding state-level attempts to undermine the rights. That effort could likely face barriers as well and, even if passed, the Supreme Court could strike it down.

Vladeck said another path to getting a ruling on the constitutionality of Texas’ new law is through individual cases in which someone is sued for violating the new ban. Individual cases would probably be easier to fight and prove that the law is unconstitutional, he said.

The Supreme Court’s decision to not block the law makes it all the harder to prevent a litany of individual lawsuits. But there has been no indication yet of when such a lawsuit could be filed — or even that one ever would. Texas’ major abortion clinics canceled appointments scheduled after the law’s effective date and have said they will abide by the new ban, which could largely prevent an instance triggering a lawsuit under the new law.

Legal experts, abortion rights advocates and providers said even if the law is overturned down the road, lots of damage is already done. Women will be unable to get abortions in the meantime, and she predicts that it will force clinics to shutter services indefinitely — even if they become legal again.

“If Senate Bill 8 is in effect for longer than it needs to be, which it already is, then it will have an impact on the number of clinics in Texas and a person’s ability to access care in the state,” said Dr. Bhavik Kumar, an abortion provider for Planned Parenthood.

The Supreme Court’s decision

The Supreme Court in 2016 handed abortion providers a win by overturning previous Texas abortion restrictions passed three years earlier. But as that legal fight played out, the restrictions caused the number of abortion clinics open in Texas to drop from more than 40 to 19. By 2020, there were 15 licensed clinics in the state.

“So it was a win on paper, restoring reproductive rights in principle, but to rebuild the infrastructure and the fabric of care that existed with the clinics all over the state takes a lot of resources,” Amy Hagstrom Miller, CEO of Whole Woman’s Health, said. “You can’t just keep a clinic open for three years and employ people without any income.”

The potential long-term effects on clinics even if the new law is overturned is one reason many have criticized the Supreme Court’s decision to allow the law to stand without weighing in on whether it’s constitutional.

“It allows the courts the political cover of being able to curtail abortion in a really significant way in the second-most populous state in the country without ever having to pay the political cost of seeing that Roe has been overruled,” Murray said.

And Vladeck says the Supreme Court could have stopped Texas’ law from going into effect, and he doesn’t believe the procedural questions raised to be “insurmountable.” He also said the court has acted under more uncertain legality recently in the name of protecting other constitutional rights.

In April, the same 5-4 court majority cited religious freedom to overturn coronavirus restrictions on home gatherings in California. While the court typically uses existing law and precedent to issue rulings, Vladeck said it instead essentially created new law outside its established jurisdiction by making a substantive ruling ahead of lower courts, rather than following its traditional role of serving as a court of review.

If the court could do so to protect religious freedom, it should have been able to do the same for a person’s constitutional right to an abortion, he argued.

Katherine Franke, a professor of law at Columbia University and director of the university’s Center of Gender and Sexuality Law, said the Supreme Court acted on a “constitutional emergency” when “religious liberty rights were speculatively at risk.”

Yet, the court is ignoring the clear precedent of Roe v. Wade by allowing Texas’ law to stand, she said. She says justices’ inaction in this case versus their action in April shows the court’s willingness to “trivialize some rights over others.”

Leah Litman, a law professor at University of Michigan Law School, agrees.

“There’s no question that some people will be irreparably harmed given that they can’t actually access abortion in the state,” Litman said. “I also don’t think that procedural obstacles were a bar to the court enjoining the law. The court has issued stays or emergency relief in other cases where there were plenty of procedural uncertainties. That includes cases involving challenges to coronavirus public health measures.”

Vladeck said the Supreme Court majority was complicit in Texas passing a law engineered to buck judicial oversight. Justice Sonia Sotomayor argued the same in her dissent.

“The court has rewarded the state’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the court’s precedents, through procedural entanglements of the state’s own creation,” she wrote.

The “shadow docket”

The Supreme Court’s decision last week was made on what has been dubbed the “shadow docket” — where the court makes an emergency decision without a hearing. It lacks the usual transparency that accompanies its usual decision making, Murray said. The practice has been increasingly criticized, especially by Democrats, when used to make rulings with large impacts.

Justice Elena Kagan blasted the Court’s majority decision in her dissent, saying it “is emblematic of too much of this Court’s shadow-docket decisionmaking — which every day becomes more unreasoned, inconsistent, and impossible to defend.”

The decisions made under the shadow docket have mostly been conservative priorities on the court, which is now a 6-3 conservative majority.

Litman said the way Texas stopped most abortion in the state is troubling because it creates a new way to circumvent constitutional rights and opens the door for other states to follow suit. Florida lawmakers have already signaled support for a similar bill. Some experts also say the mechanism could be used by Democratic majorities as well — for example, to block gun sales by opening gun store owners to cost-prohibitive lawsuits.

“It’s a radical and novel way to think about how to avoid what would have been clearly unconstitutional law under existing Supreme Court precedent, and we don’t know how the court is going to deal with this private enforcement mechanism. It creates a kind of complex puzzle,” she said. “That’s precisely why they wrote the law the way they did. I would expect many other states will now pass similar laws.

“So this is not the end of the story,” Litman said. “It’s just the beginning.”

Bethany Irvine contributed to this report.

Disclosure: Planned Parenthood has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

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