Everyone is rightly concerned that the midnight ruling represents an attack on Roe. But actually, the two-page unsigned majority opinion does something that may be worse than that. It attacks the Court’s own ability to serve as the arbiters of just law. Let’s dig in.
First, it’s important to realize what actually happens when the Supreme Court “strikes down” a law or action as unconstitutional, because that process doesn’t do what most people think. The Court does not actually literally get rid of the law, or declare that the law itself is unconstitutional. This is why all sorts of unconstitutional, unenforceable nonsense remains on the books all over the place. What the Court does is enjoin — prevent — the state from enforcing that law. This morning’s opinion cites California v Texas (2021) to make this point, but that’s just the most recent acknowledgement of the process. Sometimes the process is a little more complicated because citizens of one state can’t sue another state directly (due to the 11th Amendment), but Ex parte Young (1908) allows them the right to sue the individual actor responsible for implementing the law (usually the state Attorney General) in its place. Same result. And because there aren’t multiple governments responsible for implementing and enforcing law at the same time, once one case has blocked enforcement, that essentially closes the door for any future enforcement, too, and the law in question is de facto dead (even it doesn’t cease to be in the book).
The Texas anti-abortion law is pernicious. It is written to give essentially random citizens the ability to engage in novel legal action, but explicitly denies the state itself the ability to take that action. That’s not an accident; it’s a feature of the law designed for exactly this purpose. The way this law is designed, it allows one person (anyone, really) to sue another person for… being vaguely involved in an abortion. Lots of people have wondered how this is possible; how does Joe Rando have standing when he has no injury, much less a “concrete and particularized” injury as Spokeo v. Robins requires? The answer is that some (until now, very few) laws can be written to explicitly grant standing to some party or parties. Until now, this has always been used to give private citizens the ability to sue for enforcement (mostly for environmental laws) in addition to the ability of the state to enforce its own law. In this case, because the Texas law prohibits the state from any enforcement itself, there is — according to the majority ruling, anyway — no state actor “directly or indirectly” responsible for enforcing the law. So there’s no one for the Court to enjoin (at least not yet). We’ll get back to that.
The case whose injunction was just denied, Whole Woman’s Health v. Jackson, named Texas District Judge Austin Reeve Jackson as the defendant, as he is one of many judges who would plausibly be asked to rule on the lawsuits created by the Texas law. The Supreme Court majority denied this injunction in part because, they argue, he’s not an implementing agent of the state as described in Ex parte Young. Indeed, their claim goes, judges hearing cases under this law are… still state judges, and the Supreme Court does not have the authority to directly tell state judges how to rule on state law. And the other people named in this test case lawsuit weren’t actually trying to enforce the law (that’ll change when someone actually sues under it for really reals, by the way), so there’s nothing for the Court to do here. Injunction denied (and we’ll see this case again later on the merits).
Right now, Roe is still controlling precedent, no matter what you’ve read here or elsewhere. The denial of this injunction doesn’t actually change that. At some point, someone will sue under this infuriating Texas law, and that case will rocket back to the Supreme Court to force them to contend with it on the merits (of course, in the meantime, abortion providers in Texas are likely to shutter rather than face crippling legal costs). But that may or may not solve the problem. Because, again, the Court doesn’t strike down laws, it prohibits actions by actors. So unless a future ruling against this law strikes down its novel legal framework entirely or broadly rules against the cause of action citing Roe (ask me how likely that is), it may only chip away at the problem, demonstrating that this lawsuit wasn’t constitutional, but opening the window that other ones might still be. Unlike normal laws, winning one case might not be enough to stop this.
And, all that assumes that Roe survives until the Court revisits Whole Woman’s Health. There’s an upcoming case out of Mississippi that affords the Court the opportunity to knock a different hole in Roe, and that will almost certainly get a ruling before they revisit the Texas issue.
But the attack on Roe isn’t new. Republicans attack Roe. This one is more successful than usual, but the basic attack on women isn’t new. What is new, and what the real danger is, is the willingness of the Court to play along with this “distributed law enforcement” gimmick. It shouldn’t have. A normal law that bans abortions at six weeks and is enforced by the Texas government would have (or at least ought to have) been enjoined as unconstitutional under Roe. The government — state or otherwise — cannot delegate powers that it does not legally possess (which Breyer raises in his dissent, citing a 1973 Planned Parenthood case). And the idea that the state is not even “indirectly” responsible for enforcement when it created the right of action in the first place is… well, my description of that “logic” wouldn’t be very nice. We’re going to see more red state attacks on women’s rights, and as much as that is already a nightmare scenario, it might be even worse if we see more experimentation with this “give the law to the people” framework; the Court’s willingness to entertain it is a risk not only to women’s rights, but to the basic way that judicial review functions in the country. Even Roberts made that point in his dissent; I miss the days when Roberts represented how far to the right the Court had shifted.
Things are likely to get worse.