May 5, 2021, file photo, Texas state Rep. Donna Howard, D-Austin, center at lectern, stands with fellow lawmakers in the House Chamber in Austin, Texas, as she opposes GOP lead abortion bill.
( Eric Gay, File
Melissa Harris-Perry: We're back with The Takeaway. I'm Melissa Harris-Perry. At midnight on Wednesday, the Supreme Court of the United States effectively overturned Roe v. Wade in a 5-4, page-and-a-half, unsigned, decision delivered without the court receiving briefings or hearing arguments.
In a move that legal scholars undoubtedly will teach as a particularly insidious act of judicial activism, the nation's highest court let stand a Texas law, which based on decades of binding precedent, is inarguably unconstitutional. Here with me is Mary Ziegler, law professor at Florida State University and author of Abortion and the Law in America: Roe V. Wade to the present. Mary, welcome to The Takeaway.
Mary Ziegler: Thanks for having me.
Melissa Harris-Perry: I did some legal analysis there, I am not myself an attorney. Let's first check my analysis, does this law in Texas have components which do seem to counter legal constitutional precedent of the court itself?
Mary Ziegler: Yes. Absolutely. Texas has banned abortion at six weeks before most people know they're pregnant and that's in pretty much direct contravention of Roe V. Wade in the case was following it, which say that there's a right to choose abortion before viability, which is usually around the 24th week. How Texas has tried to get around that, and this has been, I think the Supreme court has let that go with a wink, is by saying that Texas has sovereign immunity from a constitutional challenge.
Now this doctrine protects states from challenges, unless you sue the State official, who's charged with enforcing the unconstitutional law. Texas has tried to get around this by writing into its law that no state officials can enforce the law. The only people who can are these bounty hunters, quite literally any person who wants to bring a lawsuit can sue either an abortion provider or someone who aids or abets in the language of the statute, someone seeking an abortion.
Texas has said there's no one for you to sue, you can't bring this constitutional challenge in federal court and 5 justices in the Supreme court bought that argument. I think in part, because they don't really believe abortion is a constitutional right.
Melissa Harris-Perry: Let's walk through that aspect of it for just a bit more so that we can have a clear understanding of the legal aspect here. As we heard from some providers in our earlier conversation, there are no criminal penalties associated with this. These become civil penalties, but what it does seem to do is to remove what had previously been a requirement in Texas state law, that in order to sue for a civil case that you had to have standing, it basically gives everybody standing. Now, doesn't that have much broader repercussions in the legal system beyond abortion itself. I'm wondering if that then becomes a basis for a suit?
Mary Ziegler: Absolutely. Texas is law doesn't change the rules on standing. It changes the entire functioning of the legal system when it comes to civil suits. It changes who gets attorney's fees if they lose. It changes where you can be sued. It changes when abortion providers have third party standing. As you mentioned, it allows people to sue when they have absolutely nothing to do with the abortion in question.
That could set-- If the Supreme court is going to sign off on this law, there's no stopping really any State from passing a law that doesn't end run around other constitutional rights. Now, I think we've seen so far commentators worrying primarily about things like the right to vote or the right to freedom of speech. Of course, progressive states could adopt this strategy, for example, when it comes to the right to bear arms. I don't know if the court has recognized what kind of a Pandora's box that might be opening, but this could have pretty negative and wild consequences on the legal system across the board.
Melissa Harris-Perry: Now, explain to us why the court even had the opportunity to hand down this weird midnight decision. This wasn't a fully decided and presented case. That's still working its way through. That's a Mississippi case. What was going on here that allowed the court to speak on this.
Mary Ziegler: This is part of what scholars call the courts Shadow Docket. We are the most familiar with cases, as you mentioned, that are part of the merit stock. They get oral argument and briefing. The Shadow Docket was supposed to handle uncontroversial stuff like a party says, we need more time to file our brief or there's an emergency petition and every reasonable person agrees there's no emergency.
It was supposed to handle that kind of thing, but during the Trump administration, the Shadow Docket grew exponentially and it began handling more and more controversial things. For example, disputes about the border wall, disputes about COVID stay at home orders and in-person church attendance. All of these orders strikingly, as you mentioned, are decided without briefing, without argument often in the middle of the night, often without even the legal reasoning we got in this order, or a sense of who voted how.
This is actually relatively speaking a beacon of clarity compared to some of the stuff we're getting on the Shadow Docket. It's disturbing, of course, because the Supreme court isn't elected, there's no way of change unless we have court reform doing much to hold the justices accountable. The closest thing we have to accountability is public reaction to what the justices are saying. That, of course, requires the justices to say something, to offer an explanation of what they did and why they did it. The Shadow Docket allows them to escape from that accountability.
Melissa Harris-Perry: Are there any legal pathways now for opponents of the Texas Law?
Mary Ziegler: Well, as you mentioned, there are still challenges playing out even to this law in the federal courts. This was very early in the litigation. I don't feel good about the odds of those challenges because we've seen from both the fifth circuit court of appeals, the intermediate appellate court and the Supreme court that they don't seem to think there's any problem with this law. There are state challenges that are proceeding.
Those are narrower. They tend to be focused on whether specific plaintiffs can bring challenges. There's the possibility that some abortion provider or "hater in a better" violates the law, and then can argue that it's unconstitutional actually in practice as applied to them versus in general in the abstract, which was the challenge that was brought earlier.
Of course, most people in Texas aren't going to want to do that because they're not going to want to face thousands of dollars in liability in the prospect of having to pay that and attorney's fees, but those are the most realistic routes. I think the long and short of it is that it's not easy to imagine a challenge to the Texas Law as a whole. It's not easy to see either short of court reform, how Democrats in Congress or in the White House will be able to do much about this law.
Melissa Harris-Perry: Mary Ziegler is a law professor at Florida State University, and the author of several books on the topic of abortion. Mary, thanks so much for joining us.
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