Texas is using sovereign immunity to restrict abortions. Why is the Supreme Court silent?

A restrictive abortion law in Texas went into effect Wednesday after the Supreme Court failed to respond to an emergency plea to intervene before midnight. Texas has now banned most abortions after the 6th week of pregnancy. The law also empowers private citizens to file lawsuits against anyone who helps another person get an abortion, and is the most restrictive in the nation. John Yang reports.

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  • Judy Woodruff:

    A new restrictive abortion law in Texas went into effect today, after the Supreme Court failed to respond to an emergency plea to intervene before midnight last night.

    John Yang has more.

  • John Yang:

    Judy, the new law bans abortion after a fetal heartbeat is detected, which is usually after about six weeks of pregnancy, before many women are even aware they are pregnant. It also puts enforcement of the law into the hands of private citizens, not officials like county or district attorneys.

    In a statement, President Biden called that provision outrageous, and said the law "will significantly impair women's access to the health care they need, particularly for communities of color and individuals with low incomes."

    Mary Ziegler is a Florida State University law professor and author of "Abortion and the Law in America: Roe V. Wade to the Present."

    Mary Ziegler, thanks for being with us.

    That provision that says the law is enforced by private citizens filing civil lawsuits, and specifically bans officials, government officials, from getting involved in those lawsuits, why is that significant?

  • Mary Ziegler, Florida State University:

    This is Texas' attempt to make it impossible to sue anyone to challenge the constitutionality of this suit.

    The state's trying to shield itself using a doctrine called sovereign immunity that allows people to sue states only if they're targeting the official who enforces a law they think is unconstitutional. But, obviously, Texas is saying there is no such official to sue, so there's no way to bring this constitutional challenge to court.

    This is Texas' bid, if you will, to ban abortion in the state without legal risk.

  • John Yang:

    And the Texas briefs in this case never mention Roe vs. Wade.

    Is this an attempt to get around Roe vs. Wade, rather than confronting it head on?

  • Mary Ziegler:

    Absolutely. This is sort of an alternative to what we see unfolding in Mississippi, which has tried to confront Roe head on and force the court to reconsider whether the Constitution protects an abortion right.

    Texas instead has opted to ban abortions, while doing as much as possible to avoid Roe and the possibility, of course, of having to pay attorneys' fees if the state were to lose a constitutional challenge.

  • John Yang:

    How does this fit in with the efforts of anti-abortion forces at the state level, just make it sort of an outlier?

  • Mary Ziegler:

    It has been so far, in part because states have been so intent on encouraging this conservative Supreme Court majority to revisit Roe. They relish the opportunity to pass laws that are unconstitutional under current law, because they want the court to change how it interprets the Constitution.

    Texas has been alone so far, I think, in focusing on maximizing the actual lack of access to abortion on the ground. But, of course, if Texas' law works as it promises to, other states could follow suit and hedge their bets, right, try to go after Roe, while at the same time eliminating abortions, while those challenges are pending.

  • John Yang:

    The Supreme Court got — as we sit here, the Supreme Court got the last briefs in this case about 24 hours ago.

    What do you make of the silence? What do you make of the fact that they haven't said anything about this emergency appeal in this time?

  • Mary Ziegler:

    Well, obviously, on some level, we can't make too much of it. We could imagine a scenario where the court is either going to block enforcement of the law, and that's upset some of the court's conservative members who are writing dissents, or, conversely, the court is going to write an order allowing the law to go into effect, which might have upset some of the court's liberal members.

    But either way you look at it, the court's delay is sort of extraordinary, because we have seen in other scenarios on the court shadow docket involving, for example, COVID and churches, that the court can act quickly when it wants to.

    And so the fact that the court has refused to do so here makes it seem as if the court does not view a ban on abortion in Texas as an emergency. And that tells you something about where we may be headed when it comes to abortion rights this term.

  • John Yang:

    As you say, this term, the court is going to hear a big case from Mississippi challenging a 15-week ban. So what does that tell us? You say it does tell us something. What does it tell us?

  • Mary Ziegler:

    Well, it certainly tells us that the court didn't view it as particularly urgent to deal with the application for a stay in this case. The court seemed to think that it could take its time to render a decision here.

    And that — it's hard to imagine the court doing that if we were talking about the free exercise of religion or the right to bear arms, or some other rights that the court takes more seriously.

    Of course, Texas' law, as we already mentioned, is different. It doesn't require the court to reverse longstanding precedent, especially in an election year. But it still tells us that the court is not, I think, treating abortion rights as seriously as the court has treated other rights in recent days.

  • John Yang:

    Mary Ziegler of the Florida State University, thank you very much.

  • Mary Ziegler:

    Thanks, John.

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