Whole Woman’s Health v. Jackson: The procedural erosion of the rule of law

At first reading, Whole Woman’s Health v. Jackson would appear to be another case in the long list of judicial controversies related exclusively to abortion rights. This case, however, raises fundamental questions beyond the abortion issue touching on the exercise of individual civil rights and the authority of state governments to impose its view over and against the supreme law of the land through legislative sleight of hand.

Texas law, known as S.B. 8, bans abortions after six weeks of pregnancy. Texas Health & Safety Code, section 171.208(a), creates a private cause of action that enables Texans to sue those who perform, or aid and abet the performance of, abortions after a fetal heartbeat has been detected, granting standing to assert the third-party rights of a woman seeking an abortion, and awarding relief to the claimant would impose an undue burden. Moreover, a lawsuit under this law can be brought by any person, other than an officer or employee of a state or local governmental entity in this state.

The statutory language denying state officials the right to bring a lawsuit against a person under this law is at the heart of this controversy. Insofar the law expressly denies standing to state government officials of enforcing the law, Texas legislature purposefully placed a procedural obstacle to judicial challenges to its constitutionality. Whole Woman’s Health v. Jackson would appear to validate this strategy.

It must be noted that the Supreme Court did not adjudicate on the constitutionality of S.B. 8, but rather refused to grant injunctive relief at this stage of the proceedings. As the four dissenters —  Chief Justice Roberts and Justices Breyer, Sotomayor and Kagan — make clear in each of their separate dissents, the law runs afoul of judicial precedent, which protects the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state, as decided in Planned Parenthood v. Casey and Roe v Wade.  

On denying injunctive relief, the Supreme Court — through its majority composed by Justices Thomas, Alito, Gorsuch, Kavanaugh and Barrett — scholastically argue that the case presents novel procedural questions, as for example the power of the federal courts to enjoin individuals tasked with enforcing laws, but not the laws themselves; and whether the court can issue an injunction against state judges asked to decide a lawsuit under Texas’ law, among other procedural questions.    

Given the known positions of this majority of the Supreme Court on the question of abortion, one must ask oneself if their procedural misgivings are in fact a stalling tactic rather than a strict reading of judicial precedent on substantive rights. It is difficult to reconcile their procedural misgivings with their willingness to “bury their head in the sand,” as Justice Sotomayor correctly writes in her dissent when fundamental constitutional rights are at issue. As Justice Breyer eloquently concludes in his dissent, the ability to ask the judiciary to protect an individual from the invasion of a constitutional right that threatens immediate and serious injury is a long-settled legal principle.   

President Biden issued a statement in which he criticizes the court for its ruling, stating that it “unleashes unconstitutional chaos and empowers self-anointed enforcers to have devastating impacts,” directing the White House Gender Policy Council to launch government efforts to ensure that women in Texas have access to safe and legal abortions as protected by law.

Insofar the right to an abortion is a federally protected constitutional right, the Civil Rights Division of the Department of Justice needs to seriously consider intervening in Texas under the authority of Title VII of the Civil Rights Act, to guarantee the exercise of said right over and against any private citizen that attempts to use the provisions of S.B. 8 to impede it.

Regardless of one’s position on the abortion issue, Texas S.B. 8 needs to be understood for what it is: a direct challenge to federal authority and the supreme law of the land. It is the province of the court, as Chief Justice Marshall said in Marbury v. Madison, to say what the law is. The Supreme Court has previously ruled on the constitutional questions raised by abortion in Roe v. Wade and Planned Parenthood v. Casey. Until such time as the court revisits its decisions on the matter, the right to abortion is a woman’s fundamental constitutional right, and no state has the authority to place undue burdens in its exercise.  

To allow a state to legislate and enforce laws that unambiguously challenge legal precedent, under the guise of procedural concerns, erodes the rule of law and brings into question the authority of the Supreme Court. This majority of the Supreme Court appears to be more willing to promote its substantive views on the issue than in protecting its institutional integrity.   

Andrés L. Córdova is a professor at Inter American University of Puerto Rico School of Law and Commissioner of the Puerto Rico Civil Rights Commission.