By Erwin Chemerinsky / The Washington Post
The Supreme Court’s decision, in the wee hours of Thursday morning, declining to enjoin a Texas law that bans abortions after about the sixth week of pregnancy, immediately prompted the reaction that “Roe v. Wade is dead” and “Roe v. Wade got overturned.” But Roe v. Wade wasn’t expressly overturned.
The landmark 1973 ruling in Roe was, as former secretary of state Hillary Clinton tweeted, “gutted.” The insult to the injury of the court’s decision is that a 5-4 majority didn’t countermand the court’s own holding in Roe. Instead, in a cowardly unsigned opinion, members of the majority — over the signed dissents of Chief Justice John G. Roberts Jr. and the court’s three liberal justices — declined to carry out their central and sacred functions: to protect constitutional rights and uphold the rule of law.
The court ruled in Roe that the 14th Amendment’s due process clause contains an inherent right to privacy, and that that right, as Justice Harry Blackmun wrote, “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” The Roe court also precluded states from prohibiting women from having abortions prior to viability, when a fetus would be able to survive on its own outside the womb. In 1992, the court affirmed Roe in Planned Parenthood v. Casey.
The Texas law at issue now, in clear violation of Roe, prohibits abortions after a fetal heartbeat can be detected, at around the sixth week of pregnancy, a time before many women even know that they are pregnant and many weeks earlier than science has found that a fetus would be viable. It’s been estimated that this will preclude as many as 85 percent of abortions in the state, many, if not most of which are the legal right of the women seeking them.
Beyond that, to thwart the Constitution — the highest law in the land — Texas’ law enlists private citizens (even those with no connection to a woman seeking an abortion) to enforce its unconstitutional ban by giving them the right to sue anyone who performs an abortion after about six weeks of pregnancy, with an award of at least $10,000 for successful suits. In effect, in Texas, there is now a bounty on many of those exercising their constitutional right to choose to have an abortion, but the court’s majority said nothing in defense of the Constitution, or its own role in enforcing it.
The Supreme Court can, and probably will, overturn Roe v. Wade. But until that happens, it is the law, and all citizens and all branches and levels of government, including courts, are bound by it. The appropriate action in the current case, Whole Woman’s Health v. Jackson, would have been for the court’s justices to enjoin the Texas law from going into effect at least until they reconsider Roe on its merits.
By failing to do this, the court’s majority — Justices Clarence Thomas, Samuel Alito, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — effectively said that Texas is free to flout the Constitution and that the high court itself is powerless to defend the Constitution. As the chief justice pointed out in his dissent, the court’s decision, at a minimum, “cannot be understood as sustaining the constitutionality of the law at issue.” And as Justice Sonia Sotomayor made plain in her dissent: “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand,” and that Texas’ law “is a breathtaking act of defiance; of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas.” She comes very close to saying that five of her fellow justices endorsed lawlessness.
If you follow Sotomayor’s point to its logical conclusion, states could undermine any constitutional right — the right to bear arms or the right to same-sex marriage — by attempting to revoke those constitutional rights and authorizing, even encouraging, any private citizen to sue anyone who exercises those rights.
Texas’ legislature, of course, wrote the law this way to make it harder to challenge it in court: If state prosecutors play a role in enforcing this clearly unconstitutional statute, they can be sued for an injunction to prevent them from doing so. But since the law is not being enforced by government agents, Texas is impeding legal challenges. Under this view, the way to challenge its law would be for a doctor to violate the letter of the law, be sued, then forced to argue in court that the law is unconstitutional, which it is. But that is lawlessness: You don’t have to violate a law to demonstrate its unconstitutionality when that law, as written, violates an already enshrined constitutional right.
Rather than waiting to adjudicate Texas’ law on its merits, members of the Whole Woman’s Health majority tossed out, as Roberts explained, “very old and very important legal wine: The ability to ask the Judiciary to protect an individual from the invasion of a constitutional right.” They handed the Constitution’s power to Texas’ legislature and a gang of waiting bounty hunters. They have the authority and enough votes to reverse precedent, explain their legal reasoning in a signed opinion after briefs and oral argument, and to revoke reproductive rights, however flawed such a ruling might be.
But they didn’t do that.
The majority was mute on the right to privacy, abandoned its constitutional role and held, indirectly but unmistakably, that the Constitution is a mere inconvenience that states are at liberty to violate if they can come up with cunning statutory language. Even though Roe is still the law, women in Texas no longer have the right that it protects. That has no resemblance to the rule of law.
Erwin Chemerinsky is dean and Jesse H. Choper distinguished professor at the University of California, Berkeley School of Law.