Josh Hammer: End the ‘Abortion Exceptionalism’ Double Standard

“There are rules for most cases, and then there are rules for abortion cases,” began a dissent of U.S. Court of Appeals for the Sixth Circuit Judge Amul Thapar in a case last month. “The majority reveals that abortion exceptionalism knows no bounds,” he added.

Thapar’s allusion to the peculiar rules and procedures that characterize modern litigation surrounding the peculiar institution of on-demand abortion is especially apt, as the U.S. Supreme Court prepares for its expedited Nov. 1 hearing in U.S. v. Texas. That case, pertaining to the Lone Star State’s recently enacted fetal heartbeat law, has attracted outsize attention. The media has obsessed over the procedurally novel manner in which the anti-abortion statute operates. But the untold story is the special treatment afforded abortion’s defenders.

As the media has reported (and misreported) ad nauseam, the Texas Heartbeat Act (S.B. 8) expressly strips Texas government officials of the ability to enforce the state’s own law, instead relying upon private-citizen watchdogs for enforcement. The media’s ire has partially focused on Jonathan Mitchell, the conservative attorney who was S.B. 8’s lead architect.

As a mid-September New York Times article accurately noted, much of the groundwork for S.B. 8 was laid out for all to see in Mitchell’s 2018 law review article, “The Writ-of-Erasure Fallacy,” which explains: “The federal judiciary has no authority to alter or annul a statute. The power of judicial review is more limited: It allows a court to decline to enforce a statute, and to enjoin the executive from enforcing that statute.” The Supreme Court’s majority in its Sept. 1 decision adopted Mitchell’s argument, writing: “Federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.”

Doctrinally, this is well-settled and unexceptional. What is exceptional is less a creatively designed piece of anti-abortion legislation but the entirety of abortion litigation itself. Not incidentally, those invariable procedural quirks and oddities always tend to favor liberalized abortion access.

First, as we most recently saw in a 2020 case, June Medical Services v. Russo, the Court allows an extremely liberal third-party “standing” standard in abortion cases that it does not extend to virtually any other type of litigation affecting the invocation of a constitutional — or, in the case of abortion, a purported “constitutional” — right. As Justice Clarence Thomas noted in dissent, “Under a proper understanding of Article III,” which establishes the federal judiciary, abortion clinic “plaintiffs lack standing to invoke (the Supreme Court’s) jurisdiction” for the simple and intuitive reason that the underlying abortion “right” is not the clinic’s to vindicate.

The Court does have a test permitting extremely limited third parties to invoke injured constitutional rights, but as Justice Samuel Alito demonstrated in his own June Medical Services dissent, abortion advocates plainly fail that test. Unfortunately, as Thomas wrote in his 2016 dissent in Whole Woman’s Health v. Hellerstedt, the Court has a “habit of applying different rules to different constitutional rights — especially the putative right to abortion.”

Second, the mere fact that the Court so dramatically expedited consideration of the U.S. v. Texas litigation as part of its so-called rocket docket is itself anomalous — and telling. The Nov. 1 oral argument in Texas will take place a mere two weeks after Attorney General Merrick Garland’s Justice Department requested Court intervention. For litigation involving the alleged infringement of few, if any, other constitutional rights (or “rights”) would the Court feel emboldened to act this swiftly.

The last time a Court case moved at this speed was Bush v. Gore. That says something. The Court is apparently willing to throw out all its normal customs and rules pertaining to writs of certiorari — agreeing to hear a case — in precisely two instances: a contested presidential election, on the one hand, or the alleged infringement of the progressive left’s foremost pagan sacrament, abortion, on the other.

Third, there is the broader overarching arrogance of the Justice Department’s suit in Texas: namely, that it seeks, to quote Mitchell’s Court brief, to permit the United States to “obtain injunctive or declaratory relief against the State (of Texas), state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced.” Legalese aside, the federal government’s argument is that, as chief vindicator of all constitutional rights (or “rights”), it has the unique ability to forestall all relevant actors in Texas from enforcing Texans’ duly enacted statute.

The Justice Department suit’s fatal problem is simple: As the Court maintained in the Sept. 1 order, a federal court in our constitutional order simply does not act as a roving commission capable of enjoining the entire enforcement of a statute. Rather, a court can merely enjoin specific individuals tasked with enforcing a statute. Here, private citizens bring lawsuits under S.B. 8, but the Justice Department sued the state of Texas. Hence, the problem.

Yet again, abortion defenders want exceptional legal treatment. They want to be able to enjoin S.B. 8 first, even though doing so requires ignoring a mountain of settled legal doctrine. Of course, the real reason they are nervous is because Roe v. Wade itself is on the chopping block this Court term, especially in the Dobbs v. Jackson Women’s Health Organization case arising out of Mississippi. A law like S.B. 8 wouldn’t have a “chilling effect” if the left were confident in a strong constitutional defense of Roe in Dobbs. But they’re not confident; they’re scared.

In a just world, Texas would prevail 9-0 in Texas. Thankfully for anti-abortion advocates, a mere 5-4 outcome would be sufficient to start rolling back decades of misguided “abortion exceptionalism” jurisprudence.

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