Abortion in Texas and the Judiciary

People attend the Women’s March ATX rally, at the Texas State Capitol in Austin, Oct. 2.


Stephen Spillman/Associated Press

So much for the claim that the Supreme Court overruled Roe v. Wade on its “shadow docket.” A federal judge late Wednesday ruled that Roe remains the law of the land and blocked Texas’s ban on abortions after six weeks. While the judge is right about the current legal status of Roe, he didn’t have the legal authority to make this call.

The Justice Department sued Texas last month after the Court issued an unsigned opinion declining to block the law, with the three liberals and Chief Justice

John Roberts

dissenting. The majority didn’t rule on the merits; the order was based on the narrow grounds that abortion providers lacked Article III standing under the Constitution.

We’ve criticized the Texas law for attempting to circumvent federal judicial review by delegating enforcement to private parties. But federal courts can only decide cases or controversies in which a plaintiff has suffered a concrete and specific injury. This is a bedrock constitutional principle—or was.

The federal government hasn’t been tangibly harmed by the Texas law, but federal Judge

Robert Pitman,



appointee, nonetheless invented a case. He cites several examples in which federal agencies or contractors could be affected by the law, but doesn’t explain how they are actually injured.

“The United States Marshals Service offers individuals in its custody the opportunity to seek elective abortions,” he writes, and the Office of Refugee Resettlement “may not interfere with access to a pre-viability abortion for unaccompanied minors in the agency’s custody.” But these are individual rights, not federal government interests.

The judge adds that the U.S. has a “‘profound sovereign interest’ in vindicating its citizens [sic] constitutional rights and ensuring those rights ‘remain redeemable in federal court.’” States can sue private parties to vindicate the rights of their citizens under the doctrine of parens patriae, but the Court has ruled they can’t sue the feds.

So why can Justice sue a state? Good question. The judge doesn’t cite any precedent, which raises serious constitutional problems. If he is right, the Trump Administration could have sued progressive states to block their gun-control laws or pandemic restrictions.

The judge also cites an 1895 Court decision that allowed the federal government to seek an injunction against striking railroad workers who were interfering with the mail: “The obligations which [the United States] is under to promote the interest of all, and to prevent the wrongdoing of one resulting in injury to the general welfare, is often sufficient to give it a standing in court.”

He says this ruling “suggests the type of interest sufficient to give the United States standing can be interpreted broadly to encompass harms to the public interest and general welfare.” But the U.S. government had a concrete interest in ensuring mail delivery. Allowing Justice to sue to protect whatever it deems the “public interest” would eviscerate standing requirements.

Judge Pitman acknowledges his “decision could increase the number of suits brought by the United States against states,” but he says “the Court is satisfied that this is an exceptional case and likely will remain an exceptional case for several reasons.” Want to bet?

The Texas law in our view is unconstitutional. It will be appropriately overturned when someone tries to enforce it by suing an abortion provider, and the abortion provider seeks dismissal on grounds that this violates Roe. A Texas doctor who acknowledged performing an abortion in a Washington Post op-ed was sued and this week asked a federal judge in Illinois to declare the law unconstitutional.

Judge Pitman’s ruling is likely to be overruled by the Fifth Circuit Court of Appeals, so the High Court may be asked to weigh in again. The Biden Administration may figure that, even if it ultimately loses the lawsuit, this will keep the political pressure on the Court’s conservative Justices as they consider Mississippi’s 15-week abortion ban in early December.

Judge Pitman has done the rule of law no service by letting the passions of abortion politics interfere with his legal duty.

Wonder Land: Justices Stephen Breyer and Amy Coney Barrett share at least one opinion: The Supreme Court is in trouble. Images: Pool/AFP/Getty Images Composite: Mark Kelly

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