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Supreme Court’s focus on constitutional procedure in Texas decision is healthy

Written by William C. Duncan

January 7, 2022

Over the holidays, the U.S. Supreme Court issued its decision in the Texas abortion case that received so much attention in the autumn. The case involves a law passed by the Texas legislature that allows private citizens to bring lawsuits against abortion providers for performing abortions after a set point in the pregnancy.

This unique enforcement mechanism was intended to prevent the typical fate of abortion regulations – a lawsuit by an abortion provider concerned about being sued under the regulation, followed by a federal court injunction preventing the regulation from going into effect.

As noted at the time of the oral argument in the case, the issue raised by the case was not whether the state could restrict abortions. That issue is more likely to be resolved in a pending challenge to a Mississippi abortion law.

Instead, the Texas case involves an important procedural, and constitutional, question. That question is whether a lawsuit can be brought to challenge enforcement of a law if no state official is authorized to do the enforcing. The Constitution requires that the risk of prosecution be real and not hypothetical. In addition, in our federal system, federal courts do not superintend state court proceedings.

That indicates, in this instance, that the Texas law could not be challenged unless a state official who would be enforcing the law could be identified and who therefore could legitimately be ordered not to do so by a federal court.

So, rather than ruling on abortion, the Supreme Court’s decision last month answered this question: Can anyone be sued to challenge the law?

The court’s decision was that most of the defendants could not be sued:

  1. Federal court judges cannot order state court judges or clerks not to consider lawsuits based on state laws.
  2. The attorney general cannot be sued because he does not have authority to enforce the law.
  3. A private citizen who had been included as a defendant, but who has said he is not planning to bring a lawsuit, can’t be sued merely because he might do so in the future.

The Supreme Court did, however, ultimately conclude that the Texas law could be challenged before it was enforced against anyone. The decision said there was a group that could be appropriately ordered not to enforce the law: state licensing officials who would be required to take actions regarding the licenses of clinics or medical professionals who violate the abortion law.

In a separate lawsuit over the same dispute, the court dismissed without comment and with only one dissent (Justice Sonia Sotomayor) the federal government’s attempt to challenge the Texas law.

So, what does this mean in practice? It means that abortion providers can continue their lawsuit challenging the Texas law and that the state attorneys representing the licensing officials have the responsibility to argue that the law is constitutional.

More to the point, later this year the Supreme Court will issue an opinion in the challenge to Mississippi’s law. Depending on that outcome, the constitutionality of the Texas law is likely to be clear. If the court finds Mississippi’s law unconstitutional, the Texas law would presumably be considered unconstitutional as well. If the court decides that the Constitution leaves Mississippi free to prohibit abortions at an early stage of pregnancy, Texas would be as well.

So, is the Texas decision irrelevant? Not at all. It will not likely settle the abortion regulation issue. However, it provides direction to courts that might be tempted to undermine the constitutional separation between state and federal courts: It blocks federal judges from interfering with how state courts act on state law matters.

The case stands for the proposition that no matter how significant the subject matter of a particular case, the court will follow standard constitutional procedures. That may be frustrating to some litigants in the short term, but it is civically healthy in the long term.

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