On Tuesday, there was at least one good piece of good news for supporters of reproductive freedom, as the proposed post-20-week abortion ban the Prospect's Amelia Thomson-DeVeaux covered earlier this week was defeated by an encouraging ten-point margin. At another venue, however, there was bad news for the reproductive rights of women. A bare majority of the Supreme Court allowed the draconian new abortion restrictions passed by the Texas legislature to go into effect, and did so in a way that represents bad news for the possibility of the law being struck down by the Court.
The question the Supreme Court was considering was an appeal to a decision written by ultra-reactionary Circuit Court Judge Priscilla Owen "staying"—that is, preventing from going into effect—a District Court ruling holding some parts of the Texas law unconstitutional. Owen's absurdly narrow reading of Casey was not surprising, and unfortunately it's not necessarily an inaccurate prediction of how the Supreme Court will decide the case. It's important to note, however, that under the standards for granting a stay, a good chance of success is not enough. For the Texas law to go immediately into effect, the Fifth Circuit panel had to find that suspending the application of the Texas law pending its appeal would constitute "irreparable harm" to the state of Texas. In addition, the court had to show that issuing the stay would not "substantially injure the other parties interested in the proceeding."
As Justice Breyer's dissent from the Court's refusal to vacate the stay makes clear, Owen's conclusion on these two points is transparently wrong. Not only does suspending the application of the law not constitute "irreparable harm"—if found to be constitutional, the statute would go into effect immediately—the balance of harms is tilted to the women in Texas affected by the law, not the state:
If the law is valid, then the District Court’s injunction harms the State by delaying for a few months a change to the longstanding status quo. If the law is invalid, the injunction properly prevented the potential for serious physical or other harm to many women whose exercise of their constitutional right to obtain an abortion would be unduly burdened by the law. And although the injunction will ultimately be reinstated if the law is indeed invalid, the harms to the individual women whose rights it restricts while it remains in effect will be permanent.
In other words, while preventing the law from coming into effect does no irreparable harm to the state of Texas, any women forced to carry a pregnancy to term or otherwise unnecessarily burdened by an unconstitutional law has been done harm that is in fact irreparable.
What makes Owen's opinion remarkable, however, is her justification for the conclusion that temporarily preventing the law from going into effect would constitute "irreparable harm" to the state of Texas. Circuit Court judges are bound by Supreme Court precedent; they cannot create new legal standards on their own. But as one lawblogger notes, the basis for Owen's conclusion would be embarrassingly feeble if there was any evidence that she was capable of embarrassment. The following is a comprehensive list of the precedents cited by Owen to justify her conclusion:
- A bare assertion from a 1977 solo opinion—not speaking for the court—by then-Associate Justice Rehnquist that "[i]t also seems to me that any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury." ("It seems"—well, I'm convinced!)
- A solo opinion—again, not speaking for the Court—by Chief Justice Roberts citing the Rehnqiuist opinion without any further defense.
- That's it.
This precedential basis would need a lot more heft to merit being called "threadbare." And it's even worse than it appears at first glance. First of all, Rehnquist's opinion applied to a case where the at least the statute had already gone into effect, making the argument of "irreparable harm" to the state even weaker as applied to the Texas abortion case, where it had not. And second, there's a reason that this dictum has never appeared in an actual Supreme Court majority opinion—it doesn't make any sense. If this "principle" were taken seriously, states would have an unlimited right to enforce unconstitutional laws for as long as the legal challenges take to wend their way through the courts, irrespective of the harm caused to those who rights were violated. This simply cannot be right.
How does Scalia's counter to Breyer—typically long on belligerence and short on logic—reply to these obvious objections? Why, by merely citing the Rehnquist and Roberts opinions again. So now, the next time a hack Republican judge wants to make a politically expedient decision to deny or vacate an injunction preventing the enforcement of potentially unconstitutional legislation, he or she can now cite four precedents endorsing the same erroneous tautology without any attempt to defend it. It's a nice con if you can pull it off.
Of course, the bad faith evident in the Scalia and Owen opinions is a bad omen for the future of the Texas law. If a majority of the Court is willing to endorse these silly arguments, it seems unlikely that they will find any part of the statute unconstitutional. And Roe v. Wade will continue to become more and more toothless.