The Supreme Court’s Texas abortion decision is a threat to constitutional rights (all of them)

Abortion opponents are jubilant about the Supreme Court’s recent refusal to block a Texas law banning abortion after six weeks. The law was carefully crafted to evade judicial review by empowering private parties, not the state, to enforce it. The law accomplished what its proponents hoped. As soon as it went into effect, most abortions in Texas stopped. But the full reach of the law hasn’t been understood. This decision endangers all constitutional rights, not just abortion.

When legislatures try to violate constitutional rights, courts routinely issue injunctions forbidding officials from enforcing those laws. If, say, a state made it a crime to praise the late Supreme Court Justice Antonin Scalia, a court would quickly block it as a flagrant violation of First Amendment free speech. But the Texas law cleverly privatizes enforcement. It allows any private citizen to sue anyone who “aids or abets” an abortion after six weeks. If a plaintiff prevails, they win at least $10,000 per abortion plus legal costs. Defendants who win must still pay for their own lawyers. Plaintiffs can sue anywhere in the state, even hundreds of miles away from the defendant’s home or business.

The scheme was devised by former Texas Solicitor General Jonathan Mitchell, who helped write the statute. In a 2018 Virginia Law Review article, he wrote that “a defendant has no entitlement to attorneys’ fees when he asserts his constitutional rights defensively in a private enforcement action, and the need to foot one’s own legal bills may induce statutory compliance even for those who expect to prevail on their constitutional objections.” Read that sentence carefully. It says that the threat of expensive litigation could bully people into surrendering their constitutional rights — any of them.

Imagine, instead of a prohibition, a statute that authorizes lawsuits against anyone who says anything nice about Scalia, with the accompanying Texas apparatus. Maybe you admire Scalia and want to say so. But if you do, you can be sued in a court 300 miles from your home. If you don’t hire a lawyer and respond, you’ll face a big default judgment. And even though eventually you are sure to succeed in getting the suit dismissed on First Amendment grounds, this will have cost you thousands of dollars in attorney’s fees. You’d be wise to keep your opinions to yourself. Similarly with any other constitutional right. Chief Justice Roberts, dissenting, was right to worry about “the consequences of approving the state action, both in this particular case and as a model for action in other areas.”

The chilling effect on rights is even frostier when the defendant is not sure what courts will do. The Supreme Court may well be about to overrule Roe v. Wade and abandon constitutional protection of abortion. If it does that, there will be no constitutional defense to assert, and ruinous liability will follow. That is why, once the Court decided to let the statute stand, abortions essentially became unavailable in Texas.

Again, the logic here is not confined to abortion. This trick will work with any contested constitutional right. Suppose Texas had thought of it in the 1950s, when it was defending segregated schools. “Any private citizen can sue any black child who seeks to attend an integrated school, or who aids and abets such a child . . .” Before Brown v. Board of Education settled the question in 1954, most Southern courts would not have been inclined to dismiss such lawsuits, and the NAACP would have faced bankruptcy if it persisted in its campaign against legal racism.

Today’s Supreme Court has been unusually zealous in defending religious rights. But the Court is still working out what those rights amount to. In some cases, they are as unsettled as abortion is. Probably a lot of wedding vendors who have refused same-sex weddings have gone unmolested, because the rejected customers shrugged their shoulders and went elsewhere. But suppose anyone at all could force them into court?

The abortion providers wanted an injunction binding all the Texas judges who would have enforced the law. The district court observed that such an injunction was the only effective remedy. But the Supreme Court responded that “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.”  

There are two ways of reading that sentence. One is that, as a matter of law, laws of this kind can never be challenged before they are enforced, because it is always possible – vanishingly unlikely, but possible – that nobody will respond to these handsome financial incentives. If that is the law, however, then the courts cannot enjoin any law of this kind in advance of enforcement. A state could create liability for celebrating the Catholic Mass and courts would be helpless. The other, more likely reading is that this reasoning applies only to this case and not to future ones. The justices are not stupid. They will pretend to be only if – as happened in Texas – you challenge a law that they like.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Gay Rights vs. Religious Liberty? The Unnecessary Conflict”(Oxford University Press, 2020). Follow him on Twitter @AndrewKoppelman.