It’s Not Just Roe

WaPo has an article that does a decent job of examining the problems and potential avenues to challenge the Texas abortion law. 

Biden administration: Texas abortion ban, in place despite constitutional questions, offers road map for other states
[…]The firsthand accounts from abortion providers and desperate patients come in court filings this week in support of the Biden administration’s effort to block the law, which was intentionally designed to avoid legal scrutiny.…

Because the ban is enforced by citizens filing lawsuits, rather than by state officials, both the Supreme Court and a federal appeals court have refused requests to immediately suspend it pending further review. Those actions did not directly address whether the law violates Roe v. Wade, which guarantees the right to abortion before viability, typically around 24 weeks of pregnancy.

The state of Texas has argued that the only way to challenge the constitutionality of the law is to wait until a doctor is sued under its provisions in state court.

Justice Department lawyers and constitutional law scholars countered in their court filings that state officials should not be permitted to do an end run around the judicial system by outsourcing enforcement of the law to private citizens. Allowing the ban to stand, they said, provides a road map for state legislatures to craft laws that infringe on other constitutional rights. States could ban the sale of firearms, the expression of particular views or worship by certain faiths.

“If Texas’s scheme is permissible, no constitutional right is safe from state-sanctioned sabotage of this kind,” the Justice Department told the U.S. Court of Appeals for the 5th Circuit. “Partisans of one stripe or another might cheer these outcomes, but they should horrify anyone committed to the principle that this diverse nation is bound by one Constitution.”…

The Justice Department case is separate, but procedural hurdles also remain, said Mary Ziegler, a Florida State University law professor and author of “Abortion and the Law in America: Roe v. Wade to the Present.” The department must show it is suing the proper defendants and has legal grounds — or skin in the game and enough of an injury — to challenge the ban.

A more likely path to halting the law, Ziegler said, would come from an abortion provider defending herself in a lawsuit filed by a member of the public. That would allow the provider to raise as a defense that it is unconstitutional to prohibit abortion before viability. At least three individuals have sued San Antonio physician Alan Braid, who announced in a Washington Post column that he had performed an abortion after the six-week mark. But no state court hearings have been held in those lawsuits.…

The design of the Texas law and the deliberate effort to avoid judicial review has led to an “exceptional circumstance,” the department said, that gives the federal government the authority to step in.

Ziegler noted that the Justice Department’s claims are distinct from the initial case filed by abortion providers against state judges and court clerks, which the 5th Circuit rejected last month, saying it was not clear that federal courts have a role in reviewing the state law.

The fact that the Justice Department has taken this step on behalf of the entire federal government, she said, might give the court more pause than in the first round.

“It’s not impossible to imagine the court viewing this differently,” Ziegler said. “What hasn’t changed on the court is who is on the court and their presumed views on abortion.”

And so it goes…