Last week, Attorney General Merrick Garland announced that the Department of Justice (DOJ) has filed a lawsuit against the State of Texas seeking a ruling that its unconstitutional abortion ban known as S.B. 8 “is invalid, null, and void.” DOJ further asks the federal district court to issue an order banning “all of [Texas’]s officers, employees, and agents, including private parties who would bring suit under S.B. 8” from enforcing the law. If the court agrees with Garland’s legal argument that the Constitution is the supreme law of the land and issues an injunction halting operation of the Texas law, the question will become whether providers will take the risk of providing care pending an inevitable appeal. But for now, the unconstitutional law remains in effect — and the associated constitutional right is all but dead in Texas.
Although DOJ’s suit is positive news for women in Texas whose constitutional rights are being violated by the hour, the Biden administration should be prepared to take even more urgent action to ensure that states do not get away with bulldozing the highest law of the land. For guidance, one need only look back to the power struggle over the landmark unanimous ruling in Brown v. Board of Education, which on May 17, 1954, declared segregation in public schools unconstitutional. In the wake of Brown, states and localities responded differently to the ruling. In 1955, the court in Brown v. Board of Education II consequently ordered states to eliminate racial discrimination in public schools “with all deliberate speed,” leaving oversight to local courts. The unanimous court added that “it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.”
Some states nonetheless resisted yielding to the Constitution in compliance with Brown. The Little Rock, Arkansas school board adopted a plan for gradual racial integration, beginning with high schools in 1957. But on Sept. 2, 1957, Arkansas Gov. Orval Faubus (D) announced that he would invoke the Arkansas National Guard to stop the first nine enrolled African American students from entering Central High School. And despite a federal judge’s emergency order favoring the students, on Sept. 4, the Arkansas National Guard blocked the “Little Rock Nine” from entering the school.
On Sept. 23, local police escorted the Black students into the building through an angry mob. The next day, President Eisenhower issued executive order 10730 sending 1,200 soldiers from the U.S. Army’s 101st Airborne Division to oversee 10,000 on-duty members of the Arkansas National Guard. On Sept. 25, the nine students finally attended their first full day of classes with the protection of federal forces.
University of Arkansas history professor John A. Kirk has noted that, for his part, Eisenhower “wasn’t that enthusiastic about the Supreme Court’s decision and equivocated in public.” According to Kirk, “[h]e was a military man and didn’t want his orders undermined” and “felt Faubus had been insubordinate.” Eisenhower was also worried about the damage to the U.S. Constitution and the nation’s global reputation and felt it was ultimately the president’s job to protect the rule of law. In a televised address on Sept. 24, Eisenhower explained to the nation:
“[U]nder the leadership of demagogic extremists, disorderly mobs have deliberately prevented the carrying out of proper orders from a Federal Court… Whenever normal agencies prove inadequate to the task and it becomes necessary for the Executive Branch of the Federal Government to use its powers and authority to uphold Federal Courts, the President’s responsibility is inescapable… Mob rule cannot be allowed to override the decisions of the courts… “
Fast-forward to Texas in 2021.
S.B. 8 is legally offensive because it effectively bans abortions after six weeks of pregnancy — in flagrant violation of Roe v. Wade, which places the legal milestone for regulating abortions at the point of “viability,” which arrives long after six weeks. It also establishes a novel end-run around judicial review, anointing private parties to act as de facto law enforcement by filing civil actions against alleged violators (those who “aid and abet” women seeking medical care known as abortion) for a $10,000 bounty. Tragically, a 5-4 majority of the U.S. Supreme Court seized on this cynical procedural maneuver to justify its refusal to stand in the way of an unconstitutional law.
Unlike Eisenhower, who had nine students ready to face potential violence in furtherance of their constitutional rights under Brown, Biden at this moment can only wait for a courageous woman and willing abortion provider to step up and comply with Roe in defiance of the illegal S.B. 8. If such heroes were to step forward, the president should follow in the footsteps of history and invoke the full force of executive authority to protect them. So long as Roe is good law, women in Texas deserve equal opportunity to exercise their basic constitutional rights as human beings.
Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books “How to Read the Constitution — and Why” and “What You Need to Know About Voting — and Why.” Follow her on Twitter and Instagram @kimwehle.