Any Self-Respecting Supreme Court Would Have Struck Down the Texas Abortion Law

Any Self-Respecting Supreme Court Would Have Struck Down the Texas Abortion Law

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At year’s end last December, on a radio show in the Shenandoah Valley, I was asked for my predictions for the coming year. One prediction I made was that the Court would strike down the Texas abortion law. I thought that the decision might be as much as 6-3 (this was before the death of Scalia), with Chief Justice Roberts joining the majority. My reason was this: whatever a justice might think about abortion, if s/he cares about the authority of the Supreme Court s/he will refuse to accept this Texas law which is clearly an attack on that authority.

The essential fact in this Texas abortion case is this: that the purpose of the law was transparently to prevent women from exercising a right that the Supreme Court has declared that the Constitution grants them.

The idea that the law’s purpose was to protect the health of women was clearly only a fig-leaf. The standards imposed were medically unnecessary. Rather, those standards were a means of imposing economic burdens on abortion providers so great that they would have to close, rendering many Texas women unable to gain access to a facility to provide the procedure to which Roe v. Wade had declared them entitled.

We Americans have a variety of rights under the Constitution.

Sometimes those rights have to be circumscribed to protect other important values. The right to free speech does not entitle us to shout “Fire!” in a crowded theater, the Supreme Court has said. (The right to “bear arms” should also be circumscribed to prevent civilians from owning weapons that are designed purely to kill as many people as possible in a matter of seconds.)

But it is impermissible for legislators to put obstacles in the way of Americans’ exercising some constitutional right simply because they don’t like the right the Supreme Court has said we citizens are granted under the Constitution.

It is legitimate for opponents of a Supreme Court position to work to change what the Supreme Court says (Brown v. Board overturning Plessy v. Ferguson, for example, to get rid of a terrible “separate but equal” fraud legitimating Jim Crow segregation). But it is not legitimate for a state government to try to make an end run around the Court, and take away by majoritarian vote what the independent judiciary has declared to be a fundamental right.

So I thought that the Supremes would strike down the Texas law in order to defend its own essential role in the American system, with support even from justices who are not in agreement with what the voice of the Court had previously declared about the right of a woman to choose whether to complete or terminate her pregnancy.

As it happens, only Justice Kennedy of the four remaining “conservative” justices joined the liberal four in declaring the Texas law unconstitutional. It would seem that the other three were more concerned with their policy positions than with protecting the integrity of our constitutional system.

But then, that’s not news. Shame on them anyway.

  • Jim B

    In the McDonnell case I was wondering if it had been a democratic governor would the conservatives have ignored the law and voted to convict? Or was the case so weak it was an easy call?

  • Andy Schmookler

    If I had this to do over, I would likely have come up with a different title. The title would ideally be a clearer signal that, while this case dealt directly with the issue of abortion, there was another level to the case which concerned what is and is not a legitimate way for a legislature to deal with its disagreement with the Supreme Court on a matter of fundamental rights.

    That’s why I stress the point in the piece that any justice who cares about the integrity of our constitutional system, and about the role of the Supreme Court in that system, should be offended by the Texas law regardless of his or her position on the abortion issue per se.

    It might be noted that the majority decisions — Breyer’s and Ginsburg’s — do not directly deal with the issue of the Court’s authority, and the Texas legislature’s assault upon it. Rather, they assume that authority, and utilize the “undue burden” phrase from the 1992 Casey decision. For them, it is sufficient to argue 1) that the burden is great and 2) that the justifications for it are not credible. Ergo, “undue.”

    I don’t know if it would have been inappropriate for them to have gone further and dealt directly with the illegitimacy of a legislature intentionally doing what that “undue burden” argument shows clearly the legislators were up to. That illegitimacy is implied — doesn’t pass “constitutional muster” — and I understand that there is an ethic that judicial opinions should not go further than they need to to get the job done.

    But I still wonder if it might bear saying, in effect: “End runs around the decisions of this Court are not an acceptable way of trying to change this Court’s opinions.”