To see a black hole, look indirectly. Its immense gravity distorts everything around it, forcing strange movements around seemingly empty space. So too with Roe v. Wade. To understand the Supreme Court’s abortion jurisprudence, don’t look for Roe’s substance—it is vanishingly small—but look instead for its effect on the constitutional institutions that have been pulled into its orbit.
Roe’s critics, and I am very much one, tend to focus on its constitutional vacuity. For good reason, we perennially quote John Hart Ely, one of the 20th century’s leading liberal constitutionalists, who recognized from the start in 1973 that Roe “is not constitutional law and gives almost no sense of an obligation to try to be.” Yet for Roe and its sequel, Planned Parenthood v. Casey (1992), the emptiness itself took on immense weight, asserting a gravitational pull on ever more parts of America’s constitutional government.
So look past Roe, to the Court itself, where otherwise mundane cases raising questions about old non-Roe precedents become a bloody proxy war over Roe’s own precedential weight. Then look beyond the Court, where Senate confirmation hearings and presidential campaigns have changed profoundly due to the politics of Roe. And look to debates over the Senate’s procedural rules and the nation’s voting laws, which now have begun to center around Roe. As with the rest, they have already been and will continue to be deformed by it, too.
Finally, consider what just occurred in Texas:
The state legislature enacted a law meant clearly to defy Roe and Casey, yet with caveats purporting to obey Roe and Casey.
The new law was signed by Governor Greg Abbott, but it contained a caveat preventing him, or any other state officer, from enforcing it.
And Texas abortionists, who could have invoked the new law’s caveat and asserted their rights under Roe and Casey, instead declared themselves to be out of the abortion business.
In a normal world, these would make no sense. But in Roe’s world, they are inevitable.
The Court may overturn Roe next year. It soon will hear oral arguments in Dobbs v. Jackson Women’s Health Organization, a lawsuit challenging Mississippi’s recent law prohibiting most abortions after the 15th week of pregnancy. The law is seemingly irreconcilable with Roe’s and Casey’s prohibition against laws placing an “undue burden” on the exercise of abortion rights, including laws that prohibit abortion of unborn babies who are not yet “viable” outside the womb.
The Court could strike down Mississippi’s law under Roe; or it could uphold the law without overruling Roe; or it could uphold the law by overruling Roe; or the nine justices could split into a messy mix of individual opinions that decide the case without deciding the principle. But pro-life critics of Roe are justifiably hopeful.
Especially in Texas. In May, Governor Abbott and the state legislature enacted Senate Bill 8, the Heartbeat Act, which declares unlawful the intentional abortion of an unborn baby once the heartbeat is detectable—which can be as early as six weeks into the pregnancy.
At the signing ceremony, Governor Abbott declared that the Heartbeat Act “ensures that the life of every unborn child who has a heartbeat will be saved from the ravages of abortion.” After thanking legislators and pro-life groups for passing the bill, he took out his pen to sign. “Now,” he said, “we’re about to make it law.”
A law, that is, with two very significant twists.
First, while the law’s core provision, the heartbeat standard, is a direct challenge to the Court’s abortion precedents, it also contains a provision nominally respecting those precedents. By its own terms, if the Heartbeat Act’s enforcement in a given case would “impose an undue burden” on a woman seeking an abortion, then it cannot be enforced in that case unless “the United States Supreme Court overrules Roe v. Wade … or Planned Parenthood v. Casey.” The actual effect of this caveat is already the subject of a complex dispute, for the statute also prescribes how a defendant can go about proving that such an “undue burden” exists. But the twist seems to freeze the law’s enforcement at least until the Court decides the Dobbs case.
The Act’s second twist prohibits Texas’s own state and local law-enforcement apparatus from actually enforcing the law. “No enforcement” of the Act “may be taken or threatened by this state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this state or a political subdivision against any person.” Instead, the Act provides that enforcement will occur exclusively through private litigants. It says that “any person, other than an employee of a state or local governmental entity in this state, may bring a civil action against any person who” knowingly performs, induces, aids, or abets an abortion.
Normally, a new law regulating abortion is met immediately by federal lawsuits, invoking the Court’s nebulous, ad hoc “undue burden” standard in the friendliest federal trial court available to them. The challengers sue the state or local officials charged with enforcing the law, in addition to the state itself, asking the court to issue an injunction prohibiting the officials from their imminent enforcement of it; the act of seeking injunctions against specific individuals avoids the states’ own sovereign immunity. (When the Obama administration filed a lawsuit to block Arizona’s own immigration laws, it sued not just the state itself but also the governor, and it asked the court for an “injunction against the State of Arizona, and its officers, agents, and employees, prohibiting the enforcement of” the state law.)
But the Heartbeat Act prohibits enforcement by state and local officials. Therefore, its opponents have no one to sue. And it is difficult if not impossible to identify which private citizens would file their own enforcement actions until those actions commence, so they can’t be preemptively sued either.
That’s exactly the point. Given the history of preemptive injunctions against state officials enforcing new abortion laws, “we knew we had to have another way,” the Heartbeat Act’s senate sponsor told the Wall Street Journal. And they came up with one.
Such private enforcement frameworks are not unprecedented. Federal laws have long deputized private litigants to enforce environmental laws, for example. And the False Claims Act empowers plaintiffs to be bounty hunters against those who would defraud the government. Now Texas has deputized the public to enforce state abortion policy, inviting people to monitor other people and report on them, for court-awarded fees of $10,000 or more for every unlawful abortion they successfully litigate against.
This private-enforcement provision was the reason the Supreme Court declined to block the Heartbeat Act from going into effect in August. A month earlier, a coalition of abortion providers and activists had filed a federal lawsuit, asking a trial judge to block the law preemptively. Since they lacked defendants self-evidently empowered to enforce the law, they sued a state judge and a court clerk as stand-ins for all state judges and clerks who would oversee private litigation enforcing the Act. They also named a private defendant whom they expected would file lawsuits to enforce the Act, and some state officers whom they alleged would play roles in enforcing it.
The trial judge did not dismiss the lawsuit, but the court of appeals froze the litigation in place. The challengers then petitioned the Supreme Court for emergency relief—namely, to block the Texas law from going into effect while their constitutional litigation moved forward. Two days later, the Supreme Court denied the request, spurring abortion advocates’ panicked and enraged criticism and stoking their fears that Roe itself is no longer viable.
In declining to block the Texas law preemptively, the Court’s reasoning was straightforward, and it had nothing to do with the merits of the pro-abortion groups’ constitutional arguments. “The applicants now before us have raised serious questions regarding the constitutionality of the Texas law,” the Court briefly explained, but “their application also presents complex and novel antecedent procedural questions”—namely, questions about how the challengers could maintain a lawsuit without naming state officials who would enforce the Heartbeat Act.
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 investigation,” the Court noted. “Nor is it clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law.” The Court sent these procedural questions back to the lower courts to consider in the first instance. And it pointedly declined to offer any thoughts on whether the Heartbeat Act is constitutional.
This surely was the proper decision. Whatever constitutional arguments might surround the Act, the Supreme Court is not a debating society. Rather, it exists only to decide particular kinds of “cases” and “controversies,” as the Constitution itself enumerates. Such cases must be brought by litigants who suffer real injuries caused by the people they are suing and who are therefore seeking actual remedies from the courts. In their attempt to freeze the Heartbeat Act, the pro-abortion challengers were putting the judicial branch’s cart before its horse, filing a lawsuit now and hoping to figure out the defendants later.
That is true, too, of the Biden administration’s subsequent lawsuit against Texas. The Justice Department’s complaint, filed in September, named only one defendant, the State of Texas. At the end of its complaint, DOJ asked the trial court for relief against the state and “all of its officers, employees, and agents, including private parties who would bring suit under” the Heartbeat Act.1 Because it does not name any defendants other than the state and does not indicate which public officials would enforce the Act in a way that harms the federal government, this suit should fail.
But note the Biden administration’s broad characterization of Texas’s “agents,” which includes “private parties who would bring suit” to enforce the Heartbeat Act. Setting aside the fact that the complaint does not specifically identify any such people—the DOJ is effectively asking for an injunction against every person in Texas—it’s not clear that private plaintiffs who would attempt to enforce the Act’s citizen-suit provision would actually qualify as “agents” of the State of Texas. The Supreme Court cast doubt on such a theory years ago, in
Vermont Agency of Natural Resources v. U.S. ex rel. Stevens (2000), when it emphasized that a similar private-enforcement framework in the federal False Claims Act did not create an “agency” relationship between private plaintiffs and the federal government.
Indeed, in the two decades since the case, the DOJ has repeatedly argued in legal briefs that private plaintiffs enforcing the False Claims Act’s bounty-hunter provision are not the government’s agents. Such a plaintiff “is not an agent of the Government, has no Government powers, does not represent the Government, and cannot be understood to represent the Government,” the DOJ argued in one such brief. In another, it argued that a bounty-hunter plaintiff “does not sue as the United States or even its statutorily-designated agent.” To succeed in its lawsuit against Texas, the Biden Justice Department will need either to disavow that reasoning, or to convince judges that the Heartbeat Act is different.
Finally, the Biden administration will have to contend with a 2001 decision by the Fifth Circuit that rejected similar attempts to block a Louisiana law empowering women to sue abortionists for harms suffered by them and their babies. The challengers had failed to show the requisite connection between government officials and private tort lawsuits that the Louisiana law had allowed; plaintiffs “need to find an actual enforcement connection—some enforcement power or act that can be enjoined—between the defendant official and the challenged statute,” the Fifth Circuit explained. Indeed, the judges were offered not a single precedent “in which a federal court [has] enjoined enforcement of a statute” with only “private civil, but no criminal penalties.” Again, it is difficult to see how the Heartbeat Act is any different.
The Biden administration, the private pro-abortion litigants, and the justices who dissented from the Court’s decision not to intervene preemptively will also need to grapple with the fact that the Heartbeat Act explicitly preserves Roe and Casey’s “undue burden” protection so long as the Court itself does not overrule those precedents. Given the Act’s Roe–Casey caveat, how can challengers show that the Act undermines Roe and Casey?
The Act’s critics point to the fact that abortionists in Texas have stopped aborting. “To date, abortion providers have ceased providing services prohibited by S.B. 8,” the Biden administration’s complaint alleges. “It takes little imagination to discern Texas’s goal—to make it too risky for an abortion clinic to operate in the State.” But this isn’t a question of imagination; it’s a question of evidence and the Act’s self-evident terms. No part of the Heartbeat Act actually prohibits abortion clinics from aborting babies, so long as the Act’s own protection of Casey’s “undue burden” standard remains intact. An abortion provider’s own worries that it might someday need to litigate that question in defense against a future civil lawsuit does not give the abortion provider legal standing to file a preemptive lawsuit today. Plaintiffs “cannot manufacture standing by choosing” to modify their actions “based on hypothetical future harm that is not certainly impending,” the Court explained in 2013.
The authors of the Biden administration’s new complaint are clearly aware of this problem. They argue that the Heartbeat Act “fundamentally distorts” the undue-burden standard by “limiting the scope of evidence on which a defendant may rely” and other tactics, but they offer no actual explanation of what that would mean, in practice, in a Heartbeat Act case. Once more, the Court’s 2013 decision seems dispositive: “We decline to abandon our usual reluctance to endorse standing theories that rest on speculation about the decisions of independent actors,” the Court wrote.
The Biden administration and abortion providers surely would prefer to litigate all these things now, in the lawsuits of their own choosing. But until there is a connection between Texas law-enforcement officials and the Heartbeat Act’s implementation, or a real case in which private plaintiffs are trying to enforce the Act for a particular abortion, there is no case for the federal courts to adjudicate.
But the federal courts’ limited power is only part of this conversation. All of us, especially Constitution-minded conservatives, should be wary of the legal framework that Texas has created. Our system of government, at the federal and state levels, depends on the bedrock of constitutional structure, separating government powers and committing them to the proper parts of government. But the Heartbeat Act, like so many other statutes that empower civil suits, sits uneasily in that framework.
In the aforementioned Vermont case, in which the Court considered the federal False Claims Act’s private-enforcement provision, Justice Scalia’s opinion made note of arguments that such a framework interferes with the executive branch’s own constitutional powers and responsibilities. The Court did not decide that matter, because the parties in the case had focused on completely different constitutional issues. But Justice Scalia and his colleagues took care to highlight the possible executive-power problem.
They weren’t the first. Eleven years earlier, the Justice Department’s Office of Legal Counsel (OLC) published a long and detailed memorandum, written by William Barr, arguing that the False Claims Act’s private-lawsuit provision (known traditionally as a qui tam law) was, in fact, unconstitutional.
By such laws, “Congress has attempted to create universal standing to prosecute purely public offenses,” posing “a devastating threat to the Executive’s constitutional authority and to the doctrine of separation of powers,” Barr wrote. “If qui tam suits are upheld, it would mean Congress will have carte blanche to divest the executive branch of its constitutional authority to enforce the laws and vest that authority in its own corps of private bounty hunters.”
The Court’s Vermont decision concluded that qui tam laws do not violate the judicial branch’s constitutional duties, but their constitutionality with respect to executive power has remained an open question.2
Conservative constitutionalists should not shrug this question off lightly. In 1997, Justice Scalia and his colleagues saw a similar issue in the Brady Act, where Congress had delegated responsibility for enforcing the new handgun rules to state law-enforcement officials instead of the president. “The Brady Act effectively transfers this responsibility to thousands of [officers] in the 50 States, who are left to implement the program without meaningful Presidential control,” he wrote. “The insistence of the Framers upon unity in the Federal Executive—to ensure vigor and accountability—is well known.… That unity would be shattered, and the power of the President would be subject to reduction, if Congress could act as effectively without the President as with him, by simply requiring state officers to execute the laws.”
It is dangerous enough to transfer executive power to many disparate executives. It is still more worrisome to transfer it to the people at large, to act through civil lawsuits. As Scalia and his colleagues noted in 2000 in the Vermont case, the tradition of bounty-hunter qui tam lawsuits dates back hundreds of years, but for “obvious reasons,” such lawsuits “were highly subject to abuse.”
Chief Justice Roberts has noted the constitutional questions raised by bounty-hunter lawsuits, too. In a 1993 article, he took note of Barr’s OLC opinion and observed that modern respect for the pre-constitutional tradition of qui tam lawsuits “must be tempered with a recognition that the Framers were moving from a unitary system of government to one of separated powers,” such that bounty-hunter statutes’ tension with constitutional executive power needed to be taken seriously. The article spurred Senator Chuck Grassley to raise the issue during Roberts’s Senate confirmation hearing in 2005; Roberts reiterated to the Senate that these constitutional questions continued to surround the federal bounty-hunter law and said that he would approach them with an open mind.
So should we. Granted, the previous debates arose in the context of the federal constitution, and so the issues noted by Scalia, Roberts, and Barr do not apply squarely to Texas’s state-level enactment of the Heartbeat Act. But the federal Constitution’s principles exist for good reason, and the same kinds of concerns raised in the earlier debate inform this one, too. Do we want state legislatures to outsource important or sensitive public policies to individual litigants and plaintiffs’ lawyers, and the trial judges who oversee the cases, instead of the governors and other officials who we elect to be responsible for the execution of the laws?
The abortion of babies is a profoundly terrible thing, and we should welcome any lawful measure that reduces it. But we also should recognize that the Texas law will be a new model for activists in blue and red states to outsource other policies to bounty hunters. The Heartbeat Act’s novel approach, seeking to deter abortion while avoiding trial judges’ injunctions, is just the latest sophistry echoing Roe’s own sophistic legal calamity, the ad hoc and baseless doctrines that judges created to strip states of their constitutional authority to legislate on the question of aborting babies. Only Roe and its progeny could have produced such a surreal statute—and the chaotic political and legal responses to it. Such things will continue to be warped by Roe’s gravity until the Court finally reconsiders its vacuous 1973 decision. But let’s hope that this new deformation of constitutional administration, which Roe produced in Texas, proves short-lived.
1 To show that the federal government’s own interests are harmed by Texas’s law, the DOJ complaint provides a detailed explanation of various ways in which the federal government funds abortions—an eye-opening narrative that may attract new criticism of its own.
2 The issue reached the Court in 2019, but a settlement mooted the case.
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