Supreme Court decision will have lasting effect beyond Texas

The earth has shifted beneath the abortion battleground in the United States.

Maybe.

Much is being made, and rightly so, of the U.S. Supreme Court’s 5-4 decision not to stay a Texas law that bans abortion procedures in that state after only six weeks. Many women, maybe most, are not aware of their pregnancy by then. 

The court could have ordered a halt to enforcement of the law until legal challenges to it had worked through the judicial system. It did not do that, so the Texas law took effect Sept. 1.

Anti-abortion laws within states in the past have given state and/or local government officials the power to govern them. That provided a target for legal challenges to those laws, since pro-choice individuals and groups could try to enjoin public officials from enforcing them.

The Texas law, apparently for the first time in America, empowers not public officials, but rather citizens themselves, to bring suit against anyone who aids or abets an abortion after six weeks of pregnancy. It allows individuals to become bounty hunters of a sort, with a potential reward of at least $10,000 if the “abettor” is indeed found to have tried to assist a woman seeking a post-six-weeks abortion.

For instance, an Uber driver could report a pregnant passenger if she asks him to take her to an abortion clinic. Or a nosy neighbor could turn in a pregnant woman who he thinks is heading to such a clinic.

Texas Right to Life has begun soliciting “anonymous tips” on its website, asking tipsters to submit information about how the ban may have been violated and to name the clinic or doctor potentially involved.

Under the Texas law, if the lawsuit that results from such vigilante action is unsuccessful, the accused cannot recover reimbursement of his or her legal fees from the accuser. The accused must still pay his or her own lawyer. 

The Texas law specifically exempts the pregnant woman herself from being sued. I’ve never understood that exception, in the Texas law or other anti-abortion laws. It isn’t as though the pregnant woman seeking an abortion is doing it unconscious of her action. 

I think the reason for the inconsistency is because anti-abortion groups don’t want to take on the political reaction that would be sure to come from charging the woman with, in effect, premeditated murder of an unborn child.

I’m certainly not in favor of charging a woman who seeks an abortion with a crime. Far from it. But I do think it’s shameless political cowardice to charge everyone else involved with the procedure - the doctor, the clinic, the boyfriend who drives her to the clinic - and exempt the woman herself. Anti-abortion groups prefer inconsistency rather than a political firestorm.

The reason the effect of the Texas law is only a “maybe” as of now is because the Supreme Court neither validated nor invalidated it. The majority opinion instead refused to stay the law because the five judges who signed it believed the law’s challengers had not presented valid procedural arguments against it.

But they gave no indication they agreed with the law. The law’s challengers, they wrote, “have raised serious questions regarding the constitutionality of the Texas law,” and they stated that their decision “is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”

The court’s majority, though, could have opted to halt the law’s enforcement, as Chief Justice John Roberts wished. His minority opinion stated that the “consequences of approving the state action . . . counsel at least preliminary judicial consideration before the program devised by the State takes effect.”

But the majority chose to let the law stand for now. Challenges to it will have to work their way through the system before they once again reach the Supremes.

About 85 to 90 percent of women who receive abortions in Texas are pregnant for at least six weeks, so the law effectively prohibits nearly all abortions there. Texas women seeking abortion will have to leave the state, and many of them can’t afford to do so. Otherwise they will have to rely on an unlicensed provider, or even try a self-induced method.

Another reason the law is eventually a “maybe” is that the Supreme Court will hear a case yet this fall involving a Mississippi anti-abortion law that prohibits abortions after 15 weeks of pregnancy. Roe v. Wade, which has governed abortion law in the U.S. since 1973, guarantees women the right to abortion until 24 weeks or so.

My guess - and I’m very often wrong on legal predictions - is that the 6-3 conservative majority now on the court will find in favor of the Mississippi law, basing their decision on biological research about fetal viability and advances in prenatal care and premature birth in the nearly 50 years since the Roe decision. 

Such a decision would leave the basic philosophy of Roe in place, but shorten the time frame when abortions would be legal. 

The old saw that “elections have consequences” is certainly evident on the ongoing U.S. abortion battlefield.