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How the Supreme Court could strike down Texas law — and still limit abortion

What makes the Texas law unique, and difficult to challenge in court, is that it allows private citizens to enforce the law, not government officials.

DALLAS — When Texas goes before the U.S. Supreme Court to defend its new abortion law on Nov. 1, the eventual ruling could change 50 years of legal precedent.

“This now becomes just an enormous referendum on not just the future of abortion, but also on the procedural maneuvers,” constitutional expert Stephen Vladeck said on the most recent episode of Y’all-itics.

And those procedural maneuvers are what the Justices will put under the microscope and consider. What makes the Texas law unique - and difficult to challenge in court - is that it allows private citizens to enforce the law, not government officials. Any citizen can sue anyone who helps a woman receive an abortion after six weeks, before many even know they’re pregnant.

And while the Supreme Court Justices took the rare step of fast-tracking two cases brought against the state’s near-total ban, they did not stop its enforcement in the interim. Abortion providers filed one of those cases. The U.S. Department of Justice filed the other.

Vladeck is a constitutional expert and teaches at the University of Texas School of Law. Professor Vladeck has argued multiple cases before the U.S Supreme Court and the Texas Supreme Court. He said the problem is that the Texas law is not abortion-specific on the procedural side.

“So, whatever we think about the right to an abortion - whether it should even be a right to an abortion - I'm troubled by a precedent where any state legislature can frustrate the enforcement of any constitutional right, maybe one that we like more, or not, just by pulling the move Texas has pulled here,” Vladeck told the Jasons on Y'all-itics.

Listen to the full episode of Y'all-itics

In other words, if the Texas law is upheld, what’s to stop other state legislatures from passing, say, a ban on guns by allowing citizens to enforce it, thereby making it more difficult to test the constitutionality of the law itself?

Further complicating the matter, Vladeck said the Justices could actually strike down the Texas law and yet still limit abortion rights. That’s because the Justices will also take up a challenge to Mississippi’s law, which bans abortion after 15 weeks, in December.

“There was always a way for the court to uphold the Mississippi ban without totally getting rid of a constitutional right to abortion just by moving on the line from viability to 15 weeks. That would still be an enormous shift, but it would leave intact at least a meaningful period where pregnant folks could still have a constitutional right to an abortion,” Vladeck said. “The Texas case is the direct assault, right? Because the Texas case, there's no universe in which Texas’ six-week ban and Roe can coexist.”

And keep in mind, there is an entire Supreme Court term ahead of us and the docket contains several other controversial cases. Vladeck said we’ll learn a lot about not only the future of the nation’s highest court, but about the future of our country.

“It's going to tell us a lot about whether the new middle of the court - so Brett Kavanaugh, Amy Coney Barrett, you know, I think to some extent Neil Gorsuch - whether they are going to be in any way sort of swayed by the institutional concerns that are increasingly being raised, by especially folks on the left, or whether this is the term to take the new conservative majority for a spin on gun rights, on abortion, on affirmative action,” he said.

And in our current state of divisive and polarized politics, Professor Vladeck said it won’t take much to push the country heavily in one direction or another.

“There is a gravity to the moment we're in that I think even first-year law students viscerally understand and that has no comparison, guys, since I've been doing this,” Vladeck told the Jasons. “And if we look at constitutional history, I think this is probably the first time we've seen this much constitutional tumult really since the 1930s.”

Professor Vladeck and the Jasons also discussed the latest significant gun case to go before the Supreme Court and how it could impact Texas. And Professor Vladeck explains why we haven’t seen the Justices take up any high-profile voting rights cases yet. It’s all in our latest episode of Y’all-itics. Cheers!