The Texas abortion ban cleverly obstructs legal challengers. The cleverness was needed because the statute is clearly unconstitutional given the precedent of Roe v. Wade.
The legislation denies Texas officials power to enforce it but authorizes private citizens to bring civil suits against anyone performing or contributing to an abortion. This blocks the way legislation is usually challenged before anyone is convicted for violating it. .
Challengers usually sue the official who could enforce the law, but here there is no such official. Since any private citizen could enforce this law, it is unclear who challengers could sue.
And successfully suing someone might not block enforcement of the law. Washington Post columnist Henry Olsen, a lawyer, maintains that a court could only grant an injunction against the particular private party who is the defendant in a lawsuit challenging the Texas statute. Anybody else could still sue abortion providers.
So why bother? You can't sue everybody.
Texas is playing with constitutional fire. Its approach is one that conservatives could never support as a general rule.
Or can you? Perhaps Olsen didn't consider the possibility of a "class action" — "a type of lawsuit where one of the parties is a group of people who are represented collectively by a member or members of that group." (Wikipedia)
Wikipedia adds that :
"Although normally plaintiffs are the class, defendant class actions are also possible. For example, in 2005, the Roman Catholic Archdiocese of Portland in Oregon was sued as part of the sexual abuse scandal in the Catholic archdiocese of Portland. All parishioners of the Archdiocese's churches were cited as a defendant class."
The class of people to be sued here was created by the Texas statute itself: the private citizens authorized to sue abortionists. A lawsuit challenging the Texas statute therefore merely needs to make all of them a defendant class.
If a court granted an injunction it would bind all members of the class. No one would remain available to sue abortionists.
Justice Sonia Sotomayor's blistering dissent from the Supreme Court's 5-4 refusal to enjoin enforcement of the law puts matters concisely:
"The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention."
Of course, the Texas legislation at most can only delay legal challenges, not prevent them. The minute an abortionist gets sued by a private citizen acting under the new statute the case will be in court.
If the court rules against that doctor, its decision can be appealed to higher courts and end up in the U.S. Supreme Court. This could take several years.
But a lot of women who are denied their current constitutional rights would be irreparably harmed by the delay. "Justice delayed is justice denied."
The more cautious abortion opponents have avoided putting the issue squarely before the Supreme Court, fearing that some justices personally opposed to abortion might uphold Roe on grounds ofstare decisis — the importance of stable rules people can rely on.
Instead, they have enacted increasingly severe procedural limits on abortion, seeking to nibble Roe to death. But Texas has chosen to be "in your face" about it.
The Supreme Court therefore may not be able to evade the basic issue forever. It might either have to overrule Roe or strike down the Texas statute. I predict the latter.
Texas is playing with constitutional fire. Its approach is one that conservatives could never support as a general rule. It could also be used to protect other legislation violating the Constitution, including laws prohibiting ownership or possession of all guns.
Paul F. deLespinasse