By ED WHELAN
November 4, 2021 11:40 AM
The Texas Heartbeat Act has as thorough and comprehensive a severability provision as you are ever likely to encounter. Due respect for that severability provision poses yet another obstacle to any effort by the Supreme Court to rule for the abortion providers or for the Department of Justice in their cases against enforcement of the Act.
Here are excerpts from section 171.212:
(a) … [I]t is the intent of the legislature that every provision, section, subsection, sentence, clause, phrase, or word in this chapter, and every application of the provisions in this chapter, are severable from each other.
(b) If any application of any provision in this chapter to any person, group of persons, or circumstances is found by a court to be invalid or unconstitutional, the remaining applications of that provision to all other persons and circumstances shall be severed and may not be affected. All constitutionally valid applications of this chapter shall be severed from any applications that a court finds to be invalid, leaving the valid applications in force, because it is the legislature’s intent and priority that the valid applications be allowed to stand alone.
(c) The legislature further declares that it would have enacted this chapter, and each provision, section, subsection, sentence, clause, phrase, or word, and all constitutional applications of this chapter, irrespective of the fact that any provision, section, subsection, sentence, clause, phrase, or word, or applications of this chapter, were to be declared unconstitutional or to represent an undue burden.
It is indisputable that the Act has constitutionally permissible applications even under the terribly misguided regime of Roe and Casey. The simplest example concerns post-viability abortions that are not necessary to preserve the life or health of the mother. Other examples that intervenors supporting Texas present include lawsuits against those who provide financial coverage for post-heartbeat abortions and lawsuits against non-physicians who perform such abortions. (And if you think that either of these other examples is disputable, you’re just reinforcing my point below.)
Under the severability provision, if the Court were somehow to block enforcement of the Act against physicians performing pre-viability abortions, it would still have to allow the Act to operate in applications that the Roe/Casey regime allows.
Consider what this means for, say, the crazy option in which the Court would dictate that court clerks could be enjoined from docketing complaints by private parties to enforce the Act. By carving out, as it must, an exception for the Act’s constitutionally permissible applications, the Court would place a burden on court clerks of carefully examining every complaint before docketing it and of making sophisticated legal judgments as to whether the private party is suing over an application that the Roe/Casey regime allows—all at the risk of being held in contempt by a federal district judge.
By ED WHELAN
November 4, 2021 11:53 AM
Just a reminder that the abortion providers did not file their complaint against the Texas Heartbeat Act until nearly two months (55 days) after the Act’s enactment, and it wasn’t until 80 days after enactment (on August 7) that they filed their motion for a preliminary injunction.
The Supreme Court granted extraordinary expedition of the briefing and oral argument in the two cases (abortion providers and DOJ) involving the Act, and it is unsurprising that the expedition seems to have affected some justices’ consideration of the issues.
The resolution of the recondite issues of federal-court jurisdiction, standing, and so on could well have enduring and unanticipated consequences. It would be a profound folly for the Court to race to rule. It’s far more important for it to get the cases right.
By ED WHELAN
November 4, 2021 8:00 AM
1986—What do actual citizens think of liberal judicial activists? By large margins, the people of California unseat state chief justice Rose Bird (66% no) and justices Cruz Reynoso (60% no) and Joseph Grodin (57% no). All three justices had been appointed by Jerry (“Moonbeam”) Brown, California’s governor from 1975 to 1983. Bird had voted to overturn death sentences in all 61 capital cases that had come before her, and all three were widely regarded as activists who imposed their own liberal policy preferences, particularly on crime and business issues.
2008—In reaction against the California supreme court’s May 2008 decision inventing a state constitutional right to same-sex marriage, California voters adopt Proposition 8, which adds to the state constitution a provision expressly declaring that “Only marriage between a man and a woman is valid or recognized in California.”
But Proposition 8 will itself soon become the victim of egregious acts of liberal judicial activism.
2016—In defiance of governing Third Circuit precedent holding that Title VII’s bar on sex discrimination in employment does not encompass a bar on sexual-orientation discrimination, federal district judge Cathy Bissoon (in EEOC v. Scott Medical Health Center) denies an employer’s motion to dismiss the EEOC’s claim of sexual-orientation discrimination under Title VII.
M. Edward Whelan III
Distinguished Senior Fellow and
Antonin Scalia Chair in Constitutional Studies
Ethics and Public Policy Center
1730 M Street N.W., Suite 910
Washington, D.C. 20036