Amicus Brief of Professors Lamparello, MacLean, and Owsley in favor of Petitioners in Whole Woman's Health v. Jackson, US Supreme Court No. 21-463

Abstract

If a private enforcement scheme is sufficient to eviscerate abortion rights, judicial review – and fundamental constitutional rights – will eventually be buried in the “graveyard of the forgotten past.” In re Gault, 387 U.S. 1, 24 (1967). Texas is up to its old tricks again. Indeed, “[l]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried,” Texas Senate Bill 8 (“SB8”)), which bans all abortions after six weeks, stalks the Court’s abortion jurisprudence yet again with a law that is flagrantly unconstitutional. Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993) (Scalia, J., concurring). Unfortunately, Texas’s desire to outlaw abortions at any cost and through whatever means necessary has once again reared its ugly head. Undeterred by the Court’s decision in Hellerstedt, Texas now seeks to circumvent this Court’s abortion jurisprudence with an “uncommonly silly law” that dispenses with any pretense whatsoever. Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). Specifically, SB8 categorically bans all abortions after six weeks, and its drafters, almost certainly aware of its unconstitutionality, seek to evade judicial review by deputizing private citizens to enforce its provisions. In so doing, SB8 – and the State of Texas – thumbs its nose at this Court, its well-settled precedent, and the judiciary’s exclusive power to “say what the law is.” Marbury v. Madison, 5 U.S. 137 (1 Cranch) (1803); see also Roe v. Wade, 410 U.S. 113 (1973) (holding that the liberties protected under the Fourteenth Amendment’s Due Process Clause encompass the right to terminate a pregnancy before viability); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (holding that states may not unduly burden a woman’s ability to access abortion services). Accordingly, the Court should quickly – and unanimously – grant Petitioner’s request for relief. SB8 is obviously unconstitutional as a frontal assault on Roe v. Wade and the fetal viability threshold. Given SB8’s obvious unconstitutionality – and the irreparable harm that would result from allowing it to remain in effect – denying Petitioners relief would severely, if not irreparably, damage Texas’s citizens and the Court’s institutional legitimacy. To be sure, the public’s opinion of the Court results, at least in part, from the perception that some decisions reflect the current ideological composition of the Court. When the justices’ votes conveniently and consistently align with their policy preferences – and constitutional meaning changes based on whether a majority of the justices is liberal or conservative – the perception is that politics, not law, and party affiliation, not principle, motivate the Court’s decisions. Of course, although the justices continually emphasize that their decisions are never motivated by policy preferences, the fact remains that perception matters more than reality. Indeed, it is reality. Any decision that either allows SB8 to remain in effect or denies Petitioners the ability to seek relief in federal court would re-enforce this perception. It would suggest that constitutional meaning can – and does – change simply because the political and ideological predilections of the justices change. It would suggest that constitutional rights can be tossed in the proverbial garbage simply because there are more conservatives on the Court in 2021 than there were in 1973 or 1992. That is the point – and the problem. This case provides the Court with a golden opportunity to disabuse the public of the notion and reaffirm that the United States is a country of laws, not men. if the Court refuses to grant Petitioners relief, it will give other states the green light to enact similar duplicitous schemes that strive to erode other fundamental constitutional protections. For example, If the Court upholds this Texas tactic – re-assigning to private persons the acts Texas itself cannot constitutionally pursue – virtually any recognized constitutional right, politically unpopular in some states, could be eviscerated by simply deputizing private bounty hunters. Simply put, if the Court countenanced such transparent legislative end-arounds – such as the one at issue here – constitutional rights would be worth the equivalent of Monopoly money. The founders, the Constitution, and its citizens, deserve better. Granting Petitioner’s requested relief is what the Constitution requires, and what justice demands.