Texas Abortion Law Puts Judges in a Tight Spot

Athens residents protested downtown against the Texas abortion law Sunday, Oct. 3. Credit: Chris Dowd

With the focus on the plight of women seeking abortions in Texas under its recently enacted “heartbeat” law, nobody has noticed that the Texas legislature also threw state court judges under the bus. I wouldn’t want to be a woman of child-bearing age in Texas right now, but I wouldn’t want to be a state court judge there, either. 

When five members of the U.S. Supreme Court recently rejected a petition asking it to stay enforcement of the Texas law, Chief Justice John Roberts, dissenting, declared the law’s enforcement scheme “unprecedented.” There’s nothing unprecedented about the core provisions of the law. It just recycles similar abortion bans enacted in other states and promptly struck down as blatantly unconstitutional. But the head-snapping feature of the Texas law is that public officials are expressly barred from prosecuting violations. The only people who are authorized to enforce the ban are private individuals filing civil suits for damages, set at a minimum of $10,000. It’s unprecedented that plaintiffs need not claim an injury from or any connection whatsoever to the defendants. 

Here’s why I’d be grinding my teeth or worse if I were a judge in a Texas state court: The suits Texas relies on to enforce its abortion ban aren’t adjudicated on street corners. They’re decided in civil courts presided over by judges who, not incidentally, take an oath to “preserve, protect and defend the Constitution and laws of the United States and of this State….” So here you are, Judge Straight Arrow, finding one of these suits on your docket. The defendants are being sued for conduct protected by the U. S. Constitution under the Supreme Court’s abortion precedents. But it’s illegal under the Texas abortion ban. You’ve taken an oath to “preserve, protect and defend” the laws and Constitution of both the United States and the state of Texas. What do you do? 

The easy answer is that under the Supremacy Clause in Article VI of the U. S. Constitution, you should dismiss this and any other such case. The Supremacy Clause says: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof… shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” 

But it gets worse. The Constitution of Texas, in its bill of rights no less, provides that, “All courts shall be open, and every person for an injury done [to] him, in his lands, goods, person or reputation, shall have remedy by due course of law.” Texas courts have understood this to mean that only plaintiffs who’ve suffered an actual injury have standing to bring civil suits for damages. So it looks like Texas judges who take their oath seriously, facing one of these bizarre abortion suits where no one has to claim an injury, would be in danger of failing to “preserve, protect and defend” both the Constitution of the United States and that of the state of Texas. 

Nor are Judge Straight Arrow’s worries over even yet. In the standard civil case, what’s at issue is whether the defendant caused the plaintiff injury. And whichever party the weight of the evidence favors prevails. But that’s not what would happen in these weird abortion cases where nobody has to claim an injury to have standing to sue. The parties aren’t contending over whether the defendant injured anybody, but only whether the defendant violated the abortion ban. And although the statute describes the $10,000 a successful plaintiff earns as “damages,” that’s crazy. Damages are due, in common sense and in law, to someone who’s been harmed. But functionally, all the award can be in this context is a fine collected by the plaintiff. In other words, these cases are really criminal cases tried in civil court.

So what? Well, in Athens and many other cities, some local ordinances provide for a fine of up to $1,000 for violations. For the fine to be imposed, the county prosecutor has to prove the violation beyond a reasonable doubt, as in any other criminal case. But in Texas, you can be fined, in effect, $10,000 or more on nothing but a preponderance of the evidence, the lower standard of proof the litigants in civil cases have to meet. 

Here, then, is the corner the Texas legislature has backed Judge Straight Arrow into. The enforcement scheme it wrote into its abortion ban abuses the state’s judiciary in expecting judges to violate their oath of office and to preside over what are essentially criminal trials in which defendants nonetheless don’t enjoy the protections of proof beyond a reasonable doubt. 

It was a stunning understatement when Chief Justice Roberts called all this unprecedented. More than that, it lays bare the deeply debased condition of Texas’s political culture.