Here’s what’s at stake in Texas abortion case before U.S. Supreme Court | Bruce Ledewitz

The Biden administration is arguing today that We the People have a legitimate interest in Texas’s continuing and flagrant violation of constitutional rights. Hopefully the Supreme Court will agree

November 1, 2021 6:30 am

The U.S. Supreme Court hears oral argument today in United States v. Texas, in which the federal government is attempting to challenge the privately enforced Texas anti-abortion law.

Bruce Ledewitz (Duquesne University Law School photo)

At this stage of the case, the issue before the Court is not the constitutionality of the Texas law, or even whether that law should be temporarily blocked, but simply whether the Biden Administration will be permitted to challenge the law in federal court.

Nevertheless, despite the narrow focus of today’s arguments, the stakes for the rule of law and the nature of constitutional government could not be higher.

Texas intentionally flouted the rule of law in enacting its anti-abortion statute and thus far has gotten away with it. The Texas statue punishes constitutionally protected conduct—banning abortion at around 6 weeks of pregnancy in defiance of Roe v. Wade—but does so by authorizing any private citizen to enforce the statute for a bounty against anyone involved in helping to procure an abortion. As intended, this design has insulated the ban from court challenge.

The result has been the closure or restriction of abortion clinics in Texas, even though Roe remains the law of the land.

Proponents of the Texas law are gleeful that they have been able to get around the Constitution.

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If the Biden administration is not permitted to challenge the Texas law, then, as a practical matter, no one can. The consequences of punishment under the Texas statute are so dire for ordinary people—think of nurses and receptionists having to pay $10,000 in damages—that no one has been willing to risk it. Under the statute you are liable even if the abortion is legal at the time it is performed, if abortion law later changes. That is why abortion clinics have closed.

Thus, if the Biden administration fails, states have a new model to use for violating constitutional rights.

Proponents of the Texas law are not worried that they are fostering future government tyranny. They regard Roe as an infirm constitutional right, soon to be overturned by the high court. They assume that should any state try this same stunt against a “real” constitutional right—religious liberty, gun possession, free speech—the courts would come to a different result.

That is a dangerous fantasy. Roe is the law until it is overruled.

Texas has torn a hole in the rule of law that would be applicable to any future state legislation. The Supreme Court can mend this hole by allowing the Biden Administration to sue. If that occurs, everyone agrees that a lower court will promptly grant an injunction against the Texas law.

But the stakes today involve not only the protection of the rule of law. The justices will also be ruling on the nature of our Constitution.

Texas is arguing that the president, as representative of the federal government and the nation, has no interest in whether victims of unconstitutional conduct by a state are protected. This is a vision of the Constitution as a collection of private and individual rights, the continuing and unaddressed violation of which is a matter of importance only for the victims.

Ironically, this individualistic vision of the Constitution is quite compatible with a pro-abortion perspective. The right to choose abortion is premised on the idea of individual autonomy. In matters affecting one’s own body, only the individual has a say. This is why fathers have never been heard in abortion cases.

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In contrast, opponents of abortion have always countered this claim of individual autonomy with a vision of community, in which we are all affected by what happens to the weakest and most vulnerable among us.

A ruling against the Biden administration means that future Presidents will not be permitted to defend the rights of the defenseless and the voiceless. This is the very last thing that opponents of abortion should want. It means that there will be no one able to raise a challenge in court when a state in some dark future practically legalizes infanticide.

There are consequences when people believe that the ends justify the means and that good results should be pursued even by reckless and dishonest actions. This is the bargain that opponents of abortion have made with the Texas law. It is a short road to chaos and injustice.

There is a reason that our Constitution begins with the words, “We the People of the United States.”

The Biden administration is arguing today that We the People have a legitimate interest in Texas’s continuing and flagrant violation of constitutional rights. Hopefully the Supreme Court will agree.

But there is little law on the subject and the matter is certainly in doubt. I wrote a law review article on the power of the President to enforce the fourteenth amendment 35 years ago and we still do not know how the Supreme Court will rule. Texas may win and the threat of its law may continue its effect.

The harm Texas has done was never even necessary to oppose abortion. The Supreme Court will hear a direct challenge to Roe in a month. Roe will likely soon be overturned or so narrowed that there will no longer be a substantial constitutional right to abortion in America. I welcome that outcome.

On that day, Texas will be free to enact whatever restrictions on abortion the legislature of that state chooses. Ultimately, the voters of Texas will decide the matter.

But until that day comes, Texas must be stopped from destroying the rule of law. Its claim that America is only a collection of individuals must be rejected.

If the Supreme Court allows the Biden administration to sue, the vision of America as a genuine community with a collective commitment to the protection of constitutional rights will be confirmed.

Whether they know it or not, opponents of abortion should be earnestly hoping that President Joe Biden succeeds. It is only in that kind of America that the rights of the unborn will ever be truly vindicated.

Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. Listen to his podcast, “Bends Toward Justice” hereHis latest book, “The Universe Is On Our Side: Restoring Faith in American Public Life,” is out now. His opinions do not represent the position of Duquesne University Law School.

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