Friday, November 19, 2021
I've seen people wondering out loud on social media the past few days about what might be going on with the Texas Heartbeat Act at the Supreme Court. I have not quite caught up with all the briefing, but I did get a chance to listen to the arguments recently. With apologies to anyone else who has advanced the line of analysis below, it's not one that I've seen out there but that seems plausible to me.
First, let's put aside the question of whether there is anything unconstitutional about the Texas Heartbeat Act. Just assume that at least five Justices think that there is.
Second, assume that the unconstitutionality comes not from any textually discrete portion or temporally discrete set of possible applications but from the combination of all the features of the statutory scheme.
Third, identify what aspect of the scheme can be disregarded in order for the currently apprehended/assumed unconstitutionality to go away.
It is this third step that is most analytically liberating. For there need not be one-to-one correspondence between what makes a statutory scheme unconstitutional and what follows as a matter of being declared unconstitutional. Suppose a statute ABCDE, in which A, B, C, D, and E are distinct textual provisions of an act that each contribute something different to its operation. Now suppose that ABCDE as a combination is unconstitutional. It can but need not follow that A, B, C, D, and E are all to be judicially disregarded as unconstitutional. But it might also be enough that A or B or C or D or E be treated as not-law.
Something of this sort happened in Barr v. American Association of Political Consultants (2020). That was the robocalls-to-cellphones case in which the Court held (1) the robocalls-to-cellphones ban was unconstitutionally content-based because of its exception for government-backed debt collection robocalls, and (2) the ban was still enforceable going forward, because (3) the offending exception could be severed.
Note the imprecise wording of (3). It's not so much the exception itself that offended. An exception does not abridge speech. The abridgement comes from the ban. The offending thing was the ban-with-exception as a package. But even though the ban-with-exception was unconstitutional, the ban remained enforceable after AAPC was decided. (Put aside for now whether severance is a thing that Courts do, or just a metaphor that has spun out of control. It's the latter, but that need not detain us here.)
There are any number of ways in which AAPC-style damage control could operate on the assumed-to-be-unconstitutional combination known as the Texas Heartbeat Act. For example, I haven't studied Texas law enough to know whether something like this would work, but presumably there is some pre-existing enforcement authority in some of the named defendants that would enable their enforcement of the Texas Heartbeat Act's criminal-law-like prohibition against performing certain abortions but for the provision that specifically singles out certain officials and says that they cannot enforce the THA. If that's right, then judicially disregarding that provision alone would be enough for the private suit to go forward, which is the only issue before the Court in the current posture.
I haven't done the work to know if something like this might be a path the Court could take. But once one recognizes the possibility of AAPC-style damage control in situations of unconstitutional combinations, then one can appreciate one reason why a quicker answer may not have been forthcoming from the Court. It could also be, of course, that the opening assumption of this post is wrong; maybe there are not at least five firm votes for unconstitutionality. For now, we'll have to wait, see, and occasionally speculate.