As is typically the case with legal news, it is very possible to follow the main stream media and get a very inaccurate perception of what is happening in the courts.  This misreporting isn’t intentional, it’s just that most reporters are not lawyers and thus miss the details that matter.  This past week, the United States Supreme Court denied a stay application related to a new Texas statute that bars abortion after the sixth week of a pregnancy and allows private individuals to enforce that bar by filing a civil case against anybody who aided the woman in getting the abortion — with the remedy being a $10,000.00 payment from the defendant to the person bringing the case.  Given the news coverage, I have three comments.

First, most of the impact of the law will come from its nuisance value.  The actual age of a fetus is an estimate.  Barring some other method that gives a more accurate estimate, gestational age is estimated based on a woman’s last menstrual period (which assumes a regular menstrual cycle and not all women have a regular cycle).    Even the woman herself may not know the exact date of conception (unless she only had sex once since her last period).    And in the early stages of pregnancy (and most abortions occur in the first trimester), it is impossible for the average person to know the gestational age of the fetus by simply looking at the woman.  So unless the woman tells her friend who is driving her to the doctor’s office that she is ten weeks pregnant, the friend will have no idea that the gestational age is beyond six weeks.  While I haven’t read the full statute, it seems at first glance that it will be hard for plaintiffs to win.  But, particularly for abortion providers, the new statute will mean that they are regularly in court with significant legal expenses and average people might be reluctant to help their friends given the expense of defending against these claims.

Second, the empowering of private citizens to bring claims on behalf of the government is not new.  The exact way that these cases will work might have some new wrinkles, but there is an established legal procedure known as qui tam (a shortened title for a latin phrase that translate as “he who sues in this matter on behalf of the king as well as for himself”).  As the reference to the king in the translation hints, this procedure is quite old.  Usually, in the U,S., qui tam statutes involve allowing those with inside information to bring fraud claims on behalf of the government.    If certain legal requirements are met, the successful qui tam plaintiff splits the recovery with the government.  Even without the precedent of qui tam, however, it is clear that any legal claim is state action for the purpose of constitutional law which is why libel suits are restricted by the First Amendment.

Third, technically speaking, the decision by the Supreme Court was not a decision on the constitutionality of the Texas law.  Typically, in a case challenging a new statute, one of the requests by the plaintiffs is to “stay” the statute (in other words, delay the statute from taking effect or suspend the statute if it has already taken effect).  There is a four-part test that courts are supposed to apply.  Two of those parts involve the interests of the plaintiffs (how much the statute harms them) and the interests of the government furthered by the law.  But one part of the test looks at the likelihood of the challenge to the statute succeeding.  It is this part that often lead to stay opinions reading like a decision on the merits.  And in some cases, it is effectively a decision on the merits — a holding that the statute so clearly violates the Constitution that a stay is appropriate or that the challenge is so frivolous that a stay is inappropriate.

In the short opinion on behalf of the 5-4 majority, the majority characterized the new Texas statue as novel.  (For the reasons noted above, it isn’t.)  Based on that novelty, the majority characterized the likelihood of success as sufficiently uncertain that a stay should not be issued without further details being developed about the impact of the statute at an evidentiary hearing.

Which gets to the rest of the proceedings in a case like this.  Typically, there are three stages in such a case.  At stage one, the plaintiffs ask for a stay pending further proceedings.  Regardless of the decision of the trial court on the stay, the case moves to stage two — a hearing on a temporary injunction.  This hearing is typically a short hearing held soon after the filing of the case.  At this stage, full discovery has not been completed.  Instead, the purpose is to get enough evidence in front of the judge so that the judge can have a more informed view of the merits of the case and the likelihood that the plaintiffs can prevail at the final hearing.  Assuming that a stay was entered at the start of the case, the judge at the hearing on the temporary injunction either enters a temporary injunction extending the stay or lifts the stay.   If no stay was entered earlier, the judge decides whether to issue a temporary injunction blocking the enforcement of the statute.  Finally, in stage three, after giving the parties an opportunity to complete discovery, the parties proceed to a final hearing on a permanent injunction.  It is not unusual for the hearing on the temporary injunction to be the main action in a case.  The parties can appeal from the temporary injunction and the appellate opinion — using a similar standard to the standard for a stay — typically resolves what will happen at the final hearing (unless there is some major piece of new information).  The main difference between the stay application and the temporary injunction is that the trial court would have received more information on the actual impact of the statute on the plaintiffs.

For example, in the current case, I would anticipate evidence along the following lines:  1) the first sign that a woman is actually pregnant is missing a period; 2) under the method used to calculate gestational age, the gestational age will be approximately four weeks at that point; 3) many women will wait several days after a missed period just to be sure that it is not a late period;  4) many women — rather than going immediately to a doctor — will take a home pregnancy test; 5) as a result,  by the time that a woman goes to a doctor for a pregnancy test, they are in the sixth week (i.e. more than five weeks have passed since the start of their last period); 6) Texas law already requires a waiting period after the first visit to an abortion provider; 7) as a result, unless the woman makes a decision to seek an abortion within hours of confirming that she is pregnant, she will be unable to complete the abortion process until after the end of the sixth week; 8) this short time frame is a substantial burden on the woman’s right to have an aboriton; and 9) the potential for civil liability will chill potential abortion providers, again, placing an undue burden on the woman’s right to have an abortion.  While it is always possible that the majority of the Supreme Court is intending to effectively overturn Roe and Casey, the above summary would seem to indicate a great likelihood that the opponents of the Texas statute would prevail under current law.  In declining to make this finding, the majority seem to be willing to engage in linguistic games and simply avoid looking at reality.

Abortion is already on the fall agenda with two pending cases.  Whether this week’s ruling is a hint at what is coming or just the conservative justices simply wanting to make it harder for pro-choice groups to get stays prior to hearings of draconian abortion laws is unclear at this time.  The last time that we had a similar issue — prior to Justice Ginsburg’s death — we had a 5-4 ruling against the state with Justice Kavanaugh stating that the stay was inappropriate because additional evidence was needed on the impact of the law prior to finding that there was a substantial burden.  If that opinion is taken as Justice Kavanaugh agreeing with Chief Justice Roberts on some variation of the substantial burden test as the appropriate legal standard and just disagreeing on the evidence at that stage of the proceeding, this week’s ruling may have limited long-term impact.  In the short-term, however, it means that laws like the ones in Texas will go into effect requiring abortion providers to temporarily cease operations.  What that will do to the ability of women to have abortions remains to be seen, but it is unlikely to be good.