Texas abortion ban leaves mixed signals about fate of Roe

“It is evidence tending to show the court is inclined to substantially cut back or overturn Roe, but it’s not conclusive evidence,” Cornell University law professor Michael Dorf said of the justices’ refusal early Wednesday to act on a petition to freeze the Texas law.

The court’s silence is difficult to interpret, given how different the case is from many other recent abortion battles. The case may well be snagged over technical and procedural issues, rather than because of something directly related to the court’s interpretation of Roe v. Wade, lawyers said.

“That the court wasn’t able to sort this through late at night doesn’t really say much,” said Ed Whelan, a senior fellow at the conservative Ethics and Public Policy Center, arguing that it’s not an indicator of what will happen when the justices review Mississippi’s 15-week abortion ban in a case, Dobbs v. Jackson Women’s Health Organization, that’s expected to decide the fate of Roe this fall. “I don’t think this issue will have any particular impact on what the court does in Dobbs,” he said.

Unlike six-week abortion bans passed in more than a dozen states that have all been blocked by courts, Texas’ law has so far survived judicial challenges because it made the public the enforcer instead of state. People who successfully bring suits will win $10,000 in damages, and litigation can be brought against people other than the patient, such as a friend who lends money to pay for an abortion or provides a ride to a clinic.

“Anyone perceived to be aiding and abetting an abortion now has a bounty on their head,” said Planned Parenthood President Alexis McGill Johnson. “The state is empowering vigilantes to enforce a bad law.”

Defendants in the challenge to the law brought by Texas abortion providers include a county judge and clerk who would handle suits brought by private citizens. But preemptive litigation against judges is seldom allowed because of immunity Congress has bestowed.

“There’s a sort of evil genius about structuring the law this way because it involves all sorts of complicated procedural obstacles to getting relief,” Dorf said.

The patient getting the abortion cannot be sued. Neither can individuals who refer a patient to an abortion provider in another state, or help the patient make the journey. But the lawyers representing the clinics say it still will have a chilling effect on physicians who’ll be more reluctant to do the procedure and patients fearful to seek one even prior to six weeks of pregnancy.

“It creates a situation in which, even if the defendants were to win every single case, the burden of having to defend themselves, of getting attorneys, of having to go to around to rural courts across Texas’ 258 counties — that alone threatens to stop the provision of abortion across the state,” said Marc Hearron, a senior counsel with the Center for Reproductive Rights and the lead attorney behind the challenge.

Hearron also argues that the law has baked in incentives for people to file frivolous lawsuits, with no financial penalties if they fail to prove an illegal abortion was performed but a minimum $10,000 reward…