The U.S. Supreme Court this week refused to block a new law in Texas that prohibits most abortions after six weeks of pregnancy. We asked Paul Bender of ASU’s Sandra Day O’Connor College of Law about why the court chose not to intervene in this controversial case.
Bender spoke about one potential flaw in the new law that went into effect Wednesday. He mentioned the fact that, unlike most abortion statutes, it doesn’t make it a crime to violate the statute. It authorizes anyone to bring a civil action lawsuit against the person who performs the abortion.
Doctors don’t want to do that, Bender said, because they don’t want to be a victim of a lawsuit.
Late Wednesday night, the Supreme Court ruled in a 5-4 decision with Chief Justice John Roberts joining the liberals in dissent.
“They were confused because it’s not the normal kind of case and there’s no defendant,” Bender said. “That left the abortion clinics with a huge problem.”
Another way that medical professionals could work around the law is if they perform an abortion, they can defend the lawsuit against them.
“They can challenge the statute and the Supreme Court decision does not stand in the way of that at all,” Bender said. “Otherwise it might be possible for the state or the lower courts to work out a new procedure which gives them a new defendant.”
Under normal law, a defendant is needed, Bender says. There are no defendants in this instance.
“This is clearly unconstitutional, the Supreme Court would have to do a lot of changing or overrule it to make it okay,” Bender said. “This is a strong constitutional case on the merits against the statute, the problem is the clinics who want their relief have not brought their case against a real defendant.”