No, the Supreme Court did not uphold Texas' heartbeat law.

This week a new law went into effect in Texas, outlawing most abortions after the unborn child's sixth week of life. The not-very-bright, never-thinking-independently talking heads and professional shriekers all did their thing, especially when the U.S. Supreme Court did not do anything to block the new law. As a result, this looks like a big victory for the prolife cause.

Well, hold on.

First, here's why the U.S. Supreme Court didn't do anything. Normally, when a court blocks a law, what it actually does is issue an injunction stopping individuals from enforcing the law. Most of the time, those individuals are office holders: presidents, governors, attorneys general, judges, etc. (Here's a good explanation of the legal landscape.)

But this new law did something rather different. It specifically bars anyone in public office from enforcing this particular law! Instead, it allows for any private citizen to sue, in civil court, anyone who provides or facilitates abortions that are contrary to this new law.

So, the reason the U.S. Supreme Court didn't do anything, is because it's far from clear who, precisely, the court was supposed to enjoin: every citizen and resident in the state of Texas? Thankfully, the too-expansive powers of the courts aren't that expansive. Indeed, if you look closely at the petition that came before the high court this week, the abortion-defenders were asking for injunctions against a handful of people. Setting aside whether such an injunction would have been lawful, it would have been ineffective, because as I said, anyone at all can file a lawsuit against an abortion-provider.

So, is that it? Is that the end of the story? Not at all.

There's still a lot of legal wrangling to come, and as I am not an attorney, I won't try to parse all that. But here's what the framers of the law expect to have happen. At some point, someone actually files a civil lawsuit; and now there's a court case; and the abortionist or someone else who is implicated in abortion must defend him- or herself in court. The new law specifically says that one defense is to say that the abortion was legal under existing legal precedents (i.e., Roe and Casey). In other words, it's entirely possible that someone brings a civil suit against an abortionist, and the abortionist wins in state court.

On the other hand, in the event the abortionist (or insurer, or landlord who rents to the abortionist) loses, then it seems very likely that case ends up in the federal courts, and now, the federal courts have something they can "enjoin" -- i.e., the adverse judgment. Why? Because it conflicts with Roe or Casey. Alternately, the Supreme Court could then decide that the new law should be upheld, and so much the worse for prior precedents. 

In the meantime, this new law makes things much more complicated for abortionists and their enablers; they have to deal with the threat of lawsuits from every side. And that prospect alone seems to be a victory, right?

Well, not so fast. What the conservative, pro-life majority in the Texas legislature can do, the liberal, pro-abortion majority in the California legislature can also do. Several years ago, California passed a law making life difficult for pro-life crisis pregnancy centers. After several years of litigation, the U.S. Supreme Court struck down that law. So why can't California try again, only this time, barring any public official from enforcing the law, and instead, invite private citizens to file lawsuits against pro-life pregnancy counseling centers?

Or, do the same against gun manufacturers and sellers?

Or, do the same to get at speech they don't like?

The possibilities are endless and not appealing. Recall the scene from Hunt for Red October: the Russian sub captain cleverly turns off the safeties on his torpedoes after Ramius tricks him; but then those torpedoes circle back on the Russian sub.

 

Again, I'm not a lawyer, but it seems to me there could be a case to be made that when government passes a law, it's the government's job to enforce it, and to make sure enforcement of that law is fair and unprejudiced. Call it a matter of due process, or "equal protection under the law," or an application of the "privileges and immunities" clause in the 14th Amendment. But if laws are passed with empower a flood of lawsuits, the chilling effect on the exercise of a constitutional right is real and serious. Of course, the Constitution does not and ought not grant a right to kill an unborn child. But so the U.S. Supreme Court has held more than once, and that is the real problem.