Jonathan Turley
It is often said that “in the midst of chaos, there is opportunity.” Widely attributed to Chinese military strategist Sun Tzu, that saying came to mind when President Biden declared this week that the Supreme Court “unleashed unconstitutional chaos” by declining to enjoin a Texas abortion law. In this self-described chaos, Democratic leaders moved to renew efforts to pack the court with a liberal majority, end the filibuster and federalize abortion laws.
The problem with chaos, however, is that it can be easier to fuel than control. Indeed, Democrats may undermine abortion rights with plans for ill-conceived federal regulations and legislation.
Just before midnight on Wednesday, the Supreme Court voted 5-4 not to grant an emergency injunction of a Texas law allowing citizens to enforce a highly restrictive abortion law. Rep. Alexandria Ocasio-Cortez (D-N.Y.) promptly declared that the court “overturned” Roe v. Wade, and she demanded immediate action; many media flogged the same narrative that conservative justices killed Roe in a midnight attack.
Both were legally and factually wrong.
The Texas law was enacted in May – but challengers waited until shortly before it was to take effect on Sept. 1 to demand emergency court intervention. It was a gamble that backfired when the court refused to intervene. However, the decision neither upheld Texas’s law nor reversed Roe.
Not only was the court’s order removed from the actual merits of the law, but the majority expressly acknowledged that “the applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue.” The rejection of the injunction was because the challengers are suing a state judge and clerk who are not actually tasked with enforcing the law. They were virtually randomly selected in a challenge that seemed more improvisational than procedural. The majority stated that “federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.” Even in his dissent, Chief Justice John Roberts admitted it is unclear “whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law.”
It also is untrue that the court’s decision prevents the law from being challenged. The law can – and will – be challenged in both state and federal courts. (Indeed, it has already been enjoined by a state judge). If anyone seeks to use this law, it will be challenged and likely expedited on review. (Indeed, a pro-choice litigant could immediately force such a challenge in a test case by invoking the law against a willing doctor or clinic.) Moreover, lower courts are likely to find the law unconstitutional under existing law.
The law’s drafters knew that setting the cutoff date before “viability” would conflict with the case law building on Roe v. Wade and Planned Parenthood v. Casey. It was designed to force a new review by the Supreme Court, the only body that can set aside or reverse its prior rulings.
Future abortion rights do not run through Texas or Congress. Challenges to the Texas law will take months. But the most immediate threat to Roe is already on the docket. When Texas was enacting its law in May, the Supreme Court accepted a Mississippi case with a fundamental challenge in Dobbs v. Jackson Women’s Health Organization. The case was accepted for one unambiguous question: “whether all pre-viability prohibitions on elective abortions are unconstitutional.” That case will allow the court a direct, clear case to reconsider the basis for abortion. The final decision in Dobbs will likely long precede any final decision on Texas’s law.
Of course, in some ways, the legacy of Roe is one of chaos. After that decision in 1973, there were widespread protests. Indeed, the late Justice Ruth Bader Ginsburg was a critic of Roe who saw it as too sweeping in supplanting state laws. She later blamed the case for reversing the trend toward more pro-choice states as the issue became a national political rallying cry.
Ginsburg’s criticism is reflected in polls showing the country still deeply divided on the issue; Gallup’s most recent polling shows 49 percent for to 47 percent against abortion – largely unchanged from 2019, when it showed 49 percent to 46 percent. (Notably, the number of citizens who want to see Roe overturned is lower.)
It is not just citizens but jurists and legal experts too who remain divided. For 50 years, the court has faced close votes on the issue. In 1989, a fractured court upheld a restrictive Missouri abortion law in Webster v. Reproductive Health Services. In 1992, Roe was barely saved by a simple plurality of the court in Planned Parenthood v. Casey. In 2000, a 5-4 vote in Stenberg v. Carhart struck down a partial-birth abortion law in Nebraska. But in 2007, the court voted 5-4 to uphold a ban on partial-birth abortion.
Throughout this history, when abortion rights were upheld by a core of five liberal justices, it was called pure constitutionalism. Now, when a core of conservative justices threatens such rights, it is called pure chaos. When the court voted for pro-choice litigants, it was deemed “balanced.” Now, with a possible majority willing to curtail such rights, Biden is calling for action to “restore balance” to the court.
That brings us to the pledge by Speaker Nancy Pelosi (D-Calif.) to codify Roe. Pelosi denounced the “Supreme Court’s cowardly, dark-of-night decision to uphold a flagrantly unconstitutional assault on women’s rights and health.” Putting aside that there was no vote on the merits of the law, Pelosi could be creating an opportunity for pro-life advocates in such a move. The House already has moved to federalize elections. This move could effectively federalize abortions if it mandated a single standard for abortions.
Roe affirmed a federal constitutional right to an abortion. Yet the court has always recognized that states continue to exercise authority over abortion services subject to that constitutional standard. If the House just affirms the constitutional standard, it would be a meaningless exercise. Presumably, the House would federally enforce that standard, which could create a new basis for challenge. It could create additional federalism issues that might alienate some on the court, including Chief Justice Roberts, and improve the strategic position of pro-life litigators.
Following a poorly crafted federal lawsuit with a poorly crafted federal law is hardly an improvement for pro-choice voters.
Biden may magnify those problems by pledging a “whole-of-government response” to the court’s order. There is a real possibility that Democrats could lose ground in Dobbs. Moreover, the civil abortion provision may indeed be replicated in other states. However, the range of permissible state action is likely to be decided not by Congress but by the court, based not on a Texas law but on a Mississippi statute.
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Roe has long been the battlefield described by Napoleon as “a scene of constant chaos” in which “the winner will be the one who controls that chaos, both his own and the enemies.” The problem is that Biden cannot control that chaos any more than his predecessors and may, in fact, make it far worse.