Published September 2, 2021
The remnants of Hurricane Ida were not the only storms rocking the country Wednesday night. The Supreme Court’s 5-to-4 refusal to grant a preliminary injunction to prevent operation of Texas’s law banning abortion after a fetal heartbeat can be detected has unleashed a squall of public debate over abortion law. While that furor won’t calm for months or more, one thing is clear: The court’s majority was legally correct.
Courts are not legislatures. They are frequently mistaken by many, including many lawyers, as bodies vested with plenary power to examine social problems and devise novel solutions. But a court can only act if there is an identifiable defendant whose acts could cause an identifiable plaintiff harm contrary to law.
Most legislatures that have sought to limit legal abortion contrary to Roe v. Wade have run afoul of this because the laws they passed made the state the agent of enforcement. The state could thus be enjoined by a court from enforcing the law given its presumptive unconstitutionality. The Texas law, however, avoids this by placing the exclusive authority to enforce the law in the hands of private citizens who could sue abortion providers in civil actions. Therefore, there are no governmental defendants who have the power to harm.
The abortion providers in this case sued people and groups that might be involved in the enforcement process, such as trial judges and Mark Lee Dickson, director of Right to Life East Texas, who has called for people to sue abortion providers. But enjoining these defendants still would not remove their potential harm. The court therefore could not have granted any relief that could forestall the alleged harms to the abortion providers, as my colleague at the Ethics and Public Policy Center, Ed Whelan, has clearly demonstrated.
Henry Olsen is a Washington Post columnist and a senior fellow at the Ethics and Public Policy Center.