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An illustration of the Supreme Court. Photo illustration by Michelle Budge, Deseret News

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Perspective: I’m a pro-life lawyer. But Texas’ abortion law erodes the rule of law

The country cannot embrace Supreme Court decisions we like and defy the ones we loathe

I’m a law professor with seven kids, and I care deeply about protecting the rights of all children, born or unborn. But after reading Chief Justice John Roberts’ recent concurring opinion in a case about the controversial Texas abortion law, I have to agree: the Texas law is troubling for reasons that have little to do with abortion, but everything to do with the rule of law.

The Supreme Court’s decision last week in the Texas case was about process, not substance — about how and when the abortion law can be challenged in court, not about whether the law is constitutional. For 48 pages, the justices debated the finer points of state sovereign immunity and other thorny procedural issues. But in the midst of these technical tussles, Roberts raised a sobering warning about the law’s substance.

By undermining the Supreme Court’s role in our constitutional order, he suggested, the law presents a risk to the Constitution itself.

Adopted earlier this year, the Texas law bans all abortions after roughly six weeks of pregnancy and is thus unconstitutional under Supreme Court precedent. But the law also prohibits its own enforcement by state officials. Instead, it allows citizens to bring a private lawsuit against any other citizen who “aids or abets” an abortion. Such suits carry a minimum damages award of $10,000, plus legal fees if the suit is successful. Special rules allow multiple litigants to sue the same person simultaneously for the same abortion.

The upshot is that anyone who plays any role in providing an abortion in Texas risks significant legal costs and potentially ruinous liability. Unsurprisingly, many in Texas have become suddenly reluctant to seek or supply abortions.

This may sound like a clear “win” to some pro-life advocates. But by relying on citizen enforcement through private lawsuits rather than public enforcement by state officials, the law seeks to insulate itself from court review and thus to evade the force of earlier Supreme Court rulings on the subject.

It’s not clear that the law will ultimately succeed in escaping judicial review. In any event, the attempt itself should give us pause. It raises the prospect that other states might similarly seek to undermine constitutional rights and circumvent Supreme Court rulings. That can’t be healthy for the rule of law in our constitutional Republic.

Suppose, for instance, that the governor of a progressive state decided to promote a Texas-style law creating a private right to sue fellow citizens who exercise their constitutional right to bear arms? This hypothetical — as Justice Sonia Sotomayor noted in her dissenting opinion last week — turns out not to be all that hypothetical. California’s Gavin Newsom has already toyed with just such a law.

One might object that gun rights are “real” rights rooted in the Second Amendment, whereas abortion rights are judicial fabrications lacking any foundation in the Constitution’s text. But most progressives are just as convinced that the Constitution does not guarantee an individual right to bear arms as most conservatives are convinced that the Constitution doesn’t protect a right to abortion.

The question, in terms of the rule of law, is not who is right in these disputes, but who is authorized to resolve them. And since the early days of our Republic, the Supreme Court has played a special role in interpreting the Constitution and enforcing it against the countervailing claims of state governments.

This isn’t to imply that the Supreme Court never gets things wrong, or that elected officials must never push back against its rulings. Following what I regard as the worst decision in Supreme Court history, an Illinois lawyer named Abraham Lincoln observed “that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, ... the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

Lincoln, as always, had a point. But although Supreme Court decisions are not “irrevocable,” they are authoritative. If they are to be challenged, they should be challenged, as it were, through the front door — the way Mississippi is currently challenging the Court’s abortion precedents — not through the back door by seeking to shield laws from any judicial review at all.

The Texas law’s “clear purpose and actual effect,” wrote Roberts, “has been to nullify this Court’s rulings.”

The rulings he referred to include Roe v. Wade, a decision long regarded in the pro-life camp as a moral and constitutional travesty. John Hart Ely, a legendary law professor, wrote that Roe “is not constitutional law and gives almost no sense of an obligation to try to be.” I believe that Roe was wrongly decided and that, given the appropriate opportunity, the justices should seek responsible ways to reverse or revise it. As it happens, they have just such an opportunity in the Mississippi case of Dobbs v. Jackson Women’s Health Organization, in which the justices heard oral arguments earlier this month.

In the meantime, as citizens of a constitutional republic we cannot simply embrace Supreme Court decisions we like and defy the ones we loathe. Our constitutional order is rooted in a written constitution backed by judicial review — the power of courts to declare laws unconstitutional. Indeed, written constitutionalism and judicial review represent our most enduringly influential national exports. This arrangement, which other nations have so eagerly copied, is challenged by the Texas law.

If state legislatures could evade Supreme Court rulings by manipulating legal procedures, the threat wouldn’t end with abortion or guns. Following Texas’s example, states could target unpopular (often conservative) political views, minority religious practices, or even “unenumerated” constitutional rights such as parental rights to have children taught certain subjects or educated at home or in private schools. Such laws, like the Texas law, might not ultimately succeed in eluding judicial review. But they could still cause harm in the attempt.

“The nature of the federal right infringed does not matter,” Roberts wrote last week. “It is the role of the Supreme Court in our constitutional system that is at stake.”

That is a role worth defending — against risky laws like Texas’, as well as against reckless proposals to “pack the court.” Our constitutional system depends on both the reality of judicial independence and the power of judicial review. Such reliance has its drawbacks, of course, but no one has yet invented a better way to enforce a written constitution.

The Texas law sets a troubling precedent. Not only does it risk undermining the rule of law, it risks pitting citizens against one another in adversarial litigation regarding one of the most sensitive and emotional political topics of the past two generations. Our country is sufficiently divided without such polarizing litigation.

To repeat: I appreciate that the Supreme Court occasionally gets things wrong — sometimes badly so, as in Roe v. Wade. But the durability of our constitutional democracy requires that we live with decisions we dislike until they are corrected through constitutionally approved means.

The wrongs of Roe might well be righted late next June. And as the Supreme Court made clear last week, the Texas abortion law remains subject to future constitutional challenge.

In the meantime, and at all times, states should honor the Constitution’s supremacy clause and respect the rule of law. States tempted to follow Texas’ example should think more about the long-term viability of our constitutional order than about short-term political goals.

Justin Collings is a professor at Brigham Young University Law School and a fellow at the Wheatley Institution.

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