The handling of the Texas abortion case is an embarrassment for the federal judiciary

The handling of the Texas abortion case is an embarrassment for the federal judiciary

Ruth Marcus — Read time: 5 minutes

By Ruth Marcus

Deputy editorial page editor

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January 21, 2022 at 7:57 p.m. EST

In the aftermath of the Supreme Court’s 1954 decision in Brown v. Board of Education, Southern states launched a campaign of massive resistance to school desegregation. Today, a version of massive resistance is again playing out, this time to the court’s ruling in the Texas abortion case — and this time, the resistance is coming from within the judiciary itself.

Worse yet: In the years after Brown, the court made clear that it would not tolerate any disobedience of its desegregation ruling. By contrast, in the weeks since the court allowed a limited challenge to the Texas abortion law to proceed, the conservative justices have shown themselves unwilling to enforce even that weak edict.

Since Sept. 1 — for almost five months — women in Texas have been denied the ability to exercise what, for now, remains their constitutional right to abortion.

Texas passed a law, prohibiting most abortions after six weeks, that is flatly unconstitutional under the Supreme Court’s precedents — and the conservative justices let it take effect. The Supreme Court eventually agreed to decide whether the law could be challenged in federal court — and still allowed it to remain in place while that case proceeded.

The court then ruled that a partial challenge to the law could go forward. That was Dec. 10, six weeks ago. What has happened since is nothing short of massive resistance, except this time the robes are black.

Once the case was decided, the court, as is its usual practice, sent the case back to the appeals court. The ordinary thing for the appeals court to do would have been to refer it back to the trial-level judge, who appeared inclined to put the law on hold while the litigation continued.

Not here. The ultraconservative U.S. Court for Appeals for the 5th Circuit, in league with Texas, has managed to ensure further weeks, even months, of delay.

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The diabolical genius of the Texas law is that it forswears enforcement of the six-week abortion ban by state officials and instead outsources that job to private bounty hunters. This twist made it difficult for the abortion providers challenging the law to find an appropriate state official to sue in federal court, because under the Constitution, the state itself can’t be sued directly.

The Supreme Court’s December ruling closed off most of those avenues but allowed one potential opening: suits against state medical licensing authorities. That wasn’t much because the licensing boards play such a limited role, but it offered at least some hope.

Then came Texas, with a new delaying tactic. Actually, the state said, the licensing officials don’t have any authority under Texas law to enforce the abortion law. And, the state added, that question of state law should be sent over — “certified,” in legal terms — to the Texas Supreme Court to decide.

Notably, as the litigation made its way up to the justices, Texas had never before suggested this move. Even more notably, this question had already been considered and decided — by the Supreme Court itself. Eight justices — eight — agreed that the case against the licensing officials could proceed. Only Justice Clarence Thomas, dissenting, suggested otherwise.

Undeterred, the 5th Circuit stepped in to aid and abet Texas’s efforts to sidestep the Constitution and ignore the Supreme Court. The three-judge panel hearing the case took the remarkable step of ordering oral arguments on the certification question — more delay. In the majority were Reagan nominee Edith H. Jones and Trump nominee Stuart Kyle Duncan. Judge Stephen A. Higginson, an Obama appointee, dissented. “The defendants already lost this point in the Supreme Court,” he wrote. “They should not get a second bite.”

At the oral argument, Jan. 7, Jones said the quiet part out loud. “What happens when the Supreme Court, if the Supreme Court, as many expect, says something about Roe v. Wade that implies that [the] prohibition on abortions after heartbeat may be enforceable,” she asked. “What happens then? Is this case alive or dead? … Maybe we should just sit on this until the end of June,” by which point the Supreme Court will have ruled on Mississippi’s abortion law and may well have overturned Roe.

Courts are not supposed to work this way. They are supposed to follow the existing law even if they disagree with it. They are not supposed to place their bets on what they deduce — or hope — the justices might do in the future.

As Marc Hearron, the clinics’ lawyer, told Jones, for the appeals court to “sit on” the case “would be completely inconsistent” with the Supreme Court’s expedited handling. Even Texas wasn’t asking for that, its lawyer conceded.

It will surprise no one that the appeals court this past week agreed to toss the question to the Texas Supreme Court — untold more weeks of delay.

In the meantime, the abortion providers returned to the Supreme Court, imploring the justices to, in effect, order the 5th Circuit to cut it out and follow the court’s own ruling. “There is no clearer rule in all appellate jurisprudence than the rule that a lower court must comply with the mandate of a superior court and that the issues decided by the superior court are not subject to relitigation below,” they argued.

No dice. On Friday, over the anguished dissent of the three liberal justices, the court declined to intercede. Here is Justice Sonia Sotomayor, joined by Justices Stephen G. Breyer and Elena Kagan: “Instead of stopping a Fifth Circuit panel from indulging Texas’ newest delay tactics, the Court allows the State yet again to extend the deprivation of the federal constitutional rights of its citizens through procedural manipulation. The Court may look the other way, but I cannot.”

No one should. After Brown, the Supreme Court and the federal courts stood strong, in defense not only of civil rights but of their own authority. That was a proud, storied moment for the federal judiciary. This is not.