Texas abortion ban and mockery of America’s Constitution

Mayank Chhaya-

Mayank Chhaya

Does the controversial and, to many, draconian Texas law banning abortions after six weeks make a mockery of America’s Constitution?

The answer to the provocative question could be a firm yes if a personage no less than the country’s Chief Justice John Roberts express opinion is any guide.

What is extraordinary is that America’s highest justice is saying unambiguously that the Texas law could have the effect of nullifying not just the Supreme Court’s rulings but essentially allowing states to overrule the constitution.

In a sharply expressed opinion on Friday the chief justice said the “clear purpose and actual effect of” the Texas law known as S. B. 8 “has been to nullify this Court’s rulings. It is, however, a basic principle that the Constitution is the “fundamental and paramount law of the nation,” and “[i]t is emphatically the province and duty of the judicial department to say what the law is.”

He then said something that ought to alarm America. “Indeed, “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.”

He also said, “Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review.”

The strong opinion came in a case where abortion providers were demanding to not just challenge the Texas law but even sue state officials over the restrictive law.

In an 8-1 ruling, the Supreme Court decided only Texas licensing officials can be sued. It disallowed that anyone else such as state’s Attorney General can also be sued. Broadly the supreme court ruled that the Texas law will remain in effect while legal challenges to it play out.

“The Court granted certiorari before judgment, in this case, to determine whether, under our precedents, certain abortion providers can pursue a pre-enforcement challenge to a recently enacted Texas statute. We conclude that such an action is permissible against some of the named defendants but not others,” Justice Neil Gorsuch, who wrote the court’s opinion, said.

In terms of challenges to abortion as a constitutional right, there is also a case of a Mississippi law that bans abortions after 15 weeks of pregnancy and thereby creating a precedent that would essentially upend what was until recently believed to be the settled law of the land—the 48-year-old Roe v. Wade that established abortion as a constitutional right. It also prohibited states from banning abortion 23 weeks until fetal viability.

It is a measure of how ideologically fractious the debate over abortion is that Chief Justice Roberts failed to win the fifth vote in favor of the view that the Texas laws defies the Supreme Court precedent. He ended up siding with the three liberal justices out of the nine, Justices Sonia Sotomayor, Elena Kagan, and Stephen G. Breyer.

While Roberts was characteristically understated and calibrated, even while being rather sharp in his opinion, Sotomayor was particularly aggressively direct. She wrote, “The Court should have put an end to this madness months ago, before S. B. 8 first went into effect. It failed to do so then, and it fails again today. I concur in the Court’s judgment that the petitioners’ suit may proceed against certain executive licensing officials who retain enforcement authority under Texas law, and I trust the District Court will act expeditiously to enter much-needed relief. I dissent, however, from the Court’s dangerous departure from its precedents, which establish that federal courts can and should issue relief when a State enacts a law that chills the exercise of a constitutional right and aims to evade judicial review. By foreclosing suit against state-court officials and the state attorney general, the Court effectively invites other States to refine S. B. 8’s model for nullifying federal rights. The Court thus betrays not only the citizens of Texas, but also our constitutional system of government.”

The observation that the country’s highest court “betrays” America’s constitutional system of government” is stunning in its candor.

The fate of Roe v. Wade is unlikely to change its broad impact at least until June 2022, when the Supreme Court is expected to give its judgment. However, in the meantime, there are clear expectations that the Republican-ruled states will do their best to chip away at the constitutionally guaranteed right to abortion. Roe v. Wade allows abortion until fetal viability which is now determined to be 23 weeks. The period before that is considered not viable for a fetus.

The 5-4 decision allows abortion providers only a limited to seek relief in federal court. The decision is expected to continue to prevent abortion clinics in Texas from offering their services.

If Roberts had his way, the Texas law would be suspended until legal challenges to it had been dealt with.

For the nine justices, particularly the six right-leaning ones, the legal challenges are particularly a complex maneuver. For instance, Roberts appeared to be inclined to uphold the Mississippi law on abortion after 15 weeks of pregnancy, which flies in the face of Roe v Wade over the question of fetal viability, as long it preserved the constitutional right to abortion.

In the case of the Texas law, which took effect on September 1, women seeking abortion in the state have their lives turned upside down. Many of them travel to neighboring states for abortion and related care. One measure of how draconian the Texas law is can be found in its empowerment of private citizens to sue anyone who performs an abortion or assists a woman in ending her pregnancy. Such a private citizen could gain at least $10,000 in damages in winning such a case. In effect, the law sets private citizens on each other in a rather insidious and dangerous fashion.