Here is the column:
“Is there a way to win?” Those words from actress Jane Greer, the ultimate femme fatale in the 1947 film-noir classic, “Out of the Past,” could well have been written above the caption of the Biden administration’s brief this week before the Supreme Court, seeking to enjoin the Texas abortion law. The administration is returning to ask for an injunction from a court that just voted against such an injunction as legally unfounded.
Asking the same justices the same question would not seem a way to win. Indeed, as actor Robert Mitchum dryly responded to Greer in the film, this may not be the way to win, but at least “there’s a way to lose more slowly.”
For pro-choice advocates, the pending case of Dobbs v. Jackson Women’s Health Organization, out of Mississippi, is a more ominous threat to abortion rights with a newly constituted conservative majority on the court — including Justice Amy Coney Barrett who, as an academic before joining the court, was highly critical of Roe v. Wade. The Dobbs case is due to be argued in December.
However, the Court has been thrown early into the arena by the Biden administration’s emergency demand to seek an injunction of the Texas law, which imposes an even more stringent limit on abortion than the Mississippi law at issue in Dobbs.
As previously discussed, the attempted intervention of the Justice Department in the Texas case was not just legally unnecessary but unwise. I share the view that this law is unconstitutional, and I have long favored more liberal standing rules, but the Biden administration is risking a great deal to enjoin a law that was already declared unconstitutional in Texas. Indeed, the rushed hearing this week could lock in a majority on language impacting the much more important appeal in Dobbs.
The government’s lawsuit raises questions of both whether it can sue and whether a court can remedy constitutional violations at this time. The Texas brief attacks the very claim of an injury with the words “The federal government cannot get an abortion.” By intervening as an actual party, instead of in its traditional role as an amicus or “friend of the court,” the Biden administration unwisely introduced an additional legal controversy into the case. It is claiming the right to challenge any state law that is considered unconstitutional, and to enjoin any state judge or court from considering such cases. The Supreme Court has long been hostile to federal courts enjoining state courts.
To win, the Biden administration must get at least one of five justices to effectively reverse a position taken just weeks ago when they rejected the same injunction in Whole Woman’s Health v. Jackson. The problem is that, unlike other state limitations on abortion, the Texas law is directed at allowing private citizens to enforce a prohibition after six weeks of pregnancy. That prohibition is clearly unconstitutional under current Supreme Court precedent covering the “pre-viability” period of pregnancies. However, since it creates authority for private citizens to sue, there is no agency or government officers who enforce the rule. So, in the earlier case, pro-choice litigants randomly selected a judge and a clerk to enjoin from allowing such lawsuits.
The practical and procedural problems are obvious. First, you would have to enjoin every judge and clerk to stop this law from being used. Second, this is a not-so-subtle evasion of a long-standing rule that the court enjoins people, not laws. That is why five justices declined to issue an injunction despite acknowledging that “The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue.” However, the justices ruled that “their application also presents complex and novel antecedent procedural questions on which they have not carried their burden.”
Even Chief Justice John Roberts, who voted for an injunction with his three liberal colleagues, admitted that it is unclear “whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law.”
Nevertheless, the Biden administration again demanded the same injunction after losing before the United States Court of Appeals for the Fifth Circuit. Moreover, unlike the first attempt, a federal court has already declared the law to be unconstitutional. There is no court that has declared the law enforceable. In addition, the Fifth Circuit has fast tracked arguments on the merits and will hear the case in December.
While perhaps politically popular, the Biden administration’s move could create even more restrictive precedent on its ability to seek such relief. Worse yet, the procedural rule could have blowback on that big case pending on the docket: Dobbs v. Jackson Women’s Health Organization. The majority could note that there is an unlikelihood to prevail on the merits because the law contains an affirmative defense that it cannot be used to impose “an undue burden on a woman or group of women.” That is the current test under the controlling case of Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). (Opponents however argue this reference is part of a section on “limitations” on the use of the defense).
The Biden administration seems to overcome the obvious with the hyperbolic in making the same demand, in hopes of a different outcome: “If Texas is right, no decision of this court is safe.” The problem is that the Texas law was already declared unconstitutional and any person actually subject to its application could quickly secure an injunction. That is usually how such cases come before the court — a party with a cognizable injury seeks judicial relief. It can then move quickly through the system with an injunction in place.
With others challenging this law with direct injuries, there is even less reason for the Biden administration to gamble on this filing. Likewise, there is a second case brought by Whole Woman’s Health that is consolidated in the appeal. That is the same group that was just before the court in September and lost on the same demand.
Playing roulette with reproductive rights may pay off for the administration. Or it might not. But forcing this issue at this stage, and just weeks after the prior rejection in Jackson, does not seem to be “a way to win.” Again, this does not take away from the legitimate concerns of pro-choice advocates: Dobbs may indeed curtail or even set aside Roe v. Wade. Yet, even if there is no way to win entirely, there could be a way to lose more slowly.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.