Any abortion decision from the United States Supreme Court generally gets people very excited, or worried, depending on their views on the subject matter. This week, there has been a tremendous outbreak of excitement from pro-lifers, and anger from pro-choicers, at the Court’s decision not to injunct a Texas law which bans abortion when a foetal heartbeat can be detected.
The law in question is, make no mistake, in direct conflict with the US Supreme Court’s decision in 1973, in Roe versus Wade. If Roe versus Wade were to be upheld, the pro-choice argument goes, then the law should be struck down. Legally, that is almost certainly correct. But, the court did not strike it down, so does that mean that they have reversed Roe?
No. For several reasons.
The main thing to understand about Roe versus Wade, and American abortion jurisprudence, is that it constitutes a restriction on what the Federal Government, and the States, can enforce. Texas has taken an end-run around Roe, legislatively, by not including any enforcement mechanism by the State itself. What does that mean?
Well, it means that under the Texas law, the means for enforcing the abortion ban is civil: Texas police will not be visiting abortion clinics to check what is happening there. Instead, the law creates a civil penalty: Citizens who suspect that abortions are being carried out contrary to the law are empowered to bring a civil case against the abortionist, and recover $10,000 in damages. In essence, it makes abortion into a civil case, much like defamation or libel is here in Ireland.
The Supreme Court was not asked, the other day, to answer the question as to whether this is constitutional. They were asked instead to injunct the law pending cases being taken against it. In plain English, they were asked to make a decision stopping the law from taking effect until after courts had ruled on whether it might be constitutional. Their decision, then, does not say “this law is constitutional”. Their decision says “we will let this law remain in place while we, and other courts, consider whether it is constitutional”.
Five Judges took that view, and four dissented. Of those dissenting judges, only one – Sonia Sotomayor, appointed by Barack Obama – would have immediately declared the law unconstitutional. The other three all wanted some form of injunction. Notably, the Chief Justice, John Roberts, only wanted to injunct Texas – the state – from enforcing the law, which would have had no legal impact, since Texas itself does not propose to take enforcing action.
And what of the law itself? Is it constitutional?
The answer is almost certainly not, while Roe V Wade stands. That decision banned any restrictions, of any kind, on abortion during the first three months of pregnancy. Absent a Supreme Court reversal of that decision, it is vanishingly unlikely that this law will be upheld by a lower court. The bad news for pro-lifers is that the law has probably received a stay of execution, rather than a reprieve.
Unless, of course, the court does reverse Roe. And the significance of this decision may well be that there are five justices who were unwilling to immediately invoke Roe and strike the law down, which suggests that they would like to see it advance through the courts. That should give pro-lifers hope, and worry pro-choicers.
One last thing, though: The Texas law has introduced a new mechanism for making an end-run around constitutional restrictions. It is a clever piece of legislating, but American conservatives (as opposed to pro-lifers specifically) should be wary. If Texas can do this with abortion, then there is little stopping California from doing it with guns, or New York doing it with climate change. And all of us should be wary of laws which turn private citizens into the police.
This might be an unpopular thing to say, if you are a pro-life reader, but if Texas wants to ban abortions, it should simply have banned abortions, and asked the court to reverse Roe V Wade. At the end of the day, nothing of significance will change in the medium to long term until that happens.