The Supreme Court and the Texas Abortion Law - Opinion: Potomac Watch - WSJ Podcasts - The Wall Street Journal

Despite the alarms, the Justices' ruling on Friday was a technical one on the issue of legal standing, and the real action is still in the Mississippi case. Plus, the New York City Council moves to let 800,000 noncitizens vote in local elections, as long as they've been residents for 30 days. But what does the state constitution say?

This transcript was prepared by a transcription service. This version may not be in its final form and may be updated.

Speaker 1: From the opinion pages of The Wall Street Journal, this is Potomac Watch.

Kyle Peterson: The Supreme Court rules on a case involving the Texas abortion law as the New York City Council passes a bill to let non-citizens vote in local elections. Welcome, I'm Kyle Peterson with The Wall Street Journal. We're joined today by my colleagues, columnists Kim Strassel and Bill McGurn. On Friday, the Supreme Court issued a procedural ruling in the case involving SB8, which is the Texas law that generally bans abortions after about six weeks. So Kim, maybe the place to start here is just a reminder of how this law works and why it has been so difficult for abortion advocates to challenge.

Kim Strassel: It has been so difficult because it was written deliberately to make it impossible or very difficult to challenge. And what it does here is it essentially allows private citizens to file civil lawsuits and to sue anyone who "aids or abets an abortion after six weeks." And this is a very odd way of doing things. Nearly every other law delegates enforcement of provisions to public officials, and then you then sue those public officials to try to enjoin them or get the law thrown out. In this case, it set this very odd question of whether or not federal courts could even intervene in here because did anyone have standing to sue on anything? And that is what the Supreme Court heard oral arguments in and what this decision is now about.

Kyle Peterson: And it's a bit of a complicated ruling here from the Supreme Court. The problem, as Kim lays out, is who you can sue to vindicate your rights before the law is enforced. And so the abortion advocates tried to sue a guy named Mark Dixon, who is an activist they thought would bring a suit under SB8, and then he said he had no intention of doing so. So as I read this ruling, there are nine justices who are saying you can't just preemptively sue random private people to enforce your rights. The abortion advocates also said let's try to sue state judges and prevent them from hearing or taking cases about SB8. Again, I think nine justices are saying that you can't sue state judges like this in federal court and part of the problem there is federal courts exist to adjudicate cases and controversies. And so there may be controversy between the abortion provider and the anti-abortion advocates, but the state judge is not a party to that controversy. He's supposed to be a neutral official. So then we get a little bit of disagreement in the Supreme Court ruling on the issue of whether state court clerks can be sued and prevented from docketing any of these cases, and that did not carry a majority of the justices. Chief Justice John Roberts says this, "The court clerks who issue citations and docket SB8 cases are unavoidably enlisted in the scheme to enforce SB8's unconstitutional provisions." But the majority written by Justice Neil Gorsuch, Bill, one of the points it makes is where do you draw the line then? Where do you stop? If we're going to open up federal courts to cases against state clerks, we don't know where that ends up.

Bill McGurn: I think what you're getting at Kyle is that this really wasn't a decision on abortion. It was a decision on standing and judicial process and so forth. And that's why it's a little convoluted because even among the justices they draw different lines. Gorsuch would allow the suit just against, what is it, state licensing officials and so forth. I mean, on the whole, I think it's a reasonable decision. It doesn't break new ground. I think it's largely going to be moot when the judges deliver their decision in Dobbs and so forth. You know, as someone who's pro-life, this is not the kind of law that I would like. I think the American people are owed in these kind of laws up or down things that people could understand, not kind of end runs around process. But I will say the reason we have this law is something Justice Scalia called the ad hoc abortion nullification machine where the federal courts every time there was a state restriction on abortion, no matter how reasonable, would try to preempt it. So the Texas people designed one to make an end run around that. And they apparently designed fairly well. I don't think it's going to last all the way through, but they've passed a few steps here where they haven't confused everyone. So I think there's a great hullabaloo about this. I think in the end this will just be a footnote to larger abortion litigation, which is also largely not about abortion but who gets to make decisions and where these things should be decided, where they should be adjudicated, and so forth.

Kyle Peterson: And as Bill points out, so the majority agrees that state regulators, state licensing, medical licensing boards can be sued. And its reasoning is that the Texas Medical Board has the power to take disciplinary action against a physician who violates the Texas Health and Safety Code and SB8 is part of that statutory code. And so there is some parties who can be sued and there will be a federal lawsuit that can move forward. But on the point about the standing doctrine and the clerks, I think it's particularly interesting, Gorsuch's reply to the Chief Justice is, he says where do you stop but then also this creates all sorts of muddy problems because if clerks are going to be prevented from docketing cases involving SB8, he says, what kind of inquiry would a state court have to apply to satisfy due process before dismissing those suits? Would states have to hire independent legal counsel for their clerks, and then would those independent legal counsel be the next people who are going to be sued? And Kim, I mean, the basic point of the majority here is federal courts have a doctrine of standing that specifies who can sue and who cannot sue. And the majority says, basically, we're not going to muddy up that doctrine and try to create some specific SB8 carveout.

Kim Strassel: Right. And given this very complicated law, this was probably the best answer. You know, the bottom line is that lawsuits are going to be able to proceed against certain state officials. The Supreme Court managed to get out of this without, as you say, muddying up a bunch of its old-fashioned principles. This goes, by the way, to the really bad faith nature of this law. And on a broader context, conservatives should not like this law, even whether or not they are pro-life or not, because it's not just the complexity of the proceduralism and the potentiality that it could have undone or muddied up a bunch of really important principles, but it could be used by anybody. I mean, if you could do this for abortion in Texas, why not a law in New York that deputizes private citizens to file lawsuits against any gun owners? You know, why not a law that deputizes people to go after anyone who they accuse of engaging in hate speech? I think the bottom line, whether or not you agree or not with all of the different distinctions, this was a very splintered opinion about who exactly could be sued. And one of the strongest lines in the entire piece was written by the Chief Justice, John Roberts, who just noted bluntly, he said the purpose and the effect that Texas law "has been to nullify this court's rulings." And he added, "The nature of the federal right infringed does not matter. It is the role of the Supreme Court and our constitutional system that is at stake." And basically, what he was saying is, look, this thing was written precisely to mess us around and we need to have that in mind as we write these opinions.

Kyle Peterson: And that same point is taken up by Justice Sonia Sotomayor in the dissent. I'll read a line from her. She says, "By foreclosing suit against state court officials and the state attorney general, the court effectively invites other states to refine SB8's model for nullifying federal rights." And Bill, I understand the point she's making there, but in reply to that concern Justice Gorsuch in the majority opinion also says that there are 14 state court challenges against SB8 also pending. There will be these state licensing officials that can be sued, and so there are other avenues for these abortion providers to vindicate the constitutional right that they have.

Bill McGurn: Yeah. And I think they will eventually. It might take some time to get there because of the way the law is written. But I think sooner or later, I don't see this law as having a long life span. And again, it may all be moot depending what the court comes down on in Dobbs. You know, there was a lot more sensationalism about this. I agree with Kim. I think that the main thing that we don't like to see in the law, people using novel theories and twisting around. I mean, it's very bad precedent to do this kind of thing and to write the law in this kind of way because it can be adopted for a lot of mischief with all sorts of measures right and left. So I don't see it long for this world. I think they were very clever in designing it to get through the first couple of hurdles.

Kyle Peterson: But one final thought about this and particularly the role of this Mississippi case, which is called Dobbs and is coming down, I mean the whole reason, Kim, that Texas was forced to create this weird law and write it in this strange way it did is because a strong majority of Texas lawmakers want to create some restrictions on abortion and they have not been able to do that because of the Supreme Court's precedents in Roe v. Wade and Planned Parenthood v. Casey. And so the conservative argument, again, against those is that this took abortion out of the hands of the states, the political process where it belongs, put it off limits to these strong majorities, and this Texas law is the strange kind of result that you get.

Kim Strassel: Absolutely. And these are the things that were being thrown back at the justices when they heard Dobbs recently. The reality is that Roe and its follow-on, Casey, have put this country into a cultural war for decades because it created whole cloth a right out of the Constitution. It removed from the states their own ability and their own populations to set their own limits and have their own debates on this. It really contorted everything and made the environment incredibly poisonous. And not only that, and as we discussed when we had our podcast about Dobbs, it's also been ambiguous as well, too, in that it's had changing standards over the years, that ruling and what it means, it hasn't kept pace with science in that we are able to deliver babies younger and younger gestational ages. So there's just, there's been so many problems with it. And that really did come clear in that Dobbs argument, that the justices were thinking very hard about what had happened and whether there's a way out. Now, there might be something that they come up with that falls short of overturning Roe and Casey. And it could be that that doctrine is something that maybe Texas would want to adopt itself rather than this law. But this definitely seemed to be a way, and remember it's been going on for a while, to certainly kickstart a national conversation at the Supreme Court's level about all of this again. And it certainly did play a little bit of a role in that.

Kyle Peterson: Hang tight, we'll be right back. You're listening to Potomac Watch from The Wall Street Journal.

Speaker 1: From the opinion pages of The Wall Street Journal, this is Potomac Watch.

Kyle Peterson: Welcome back. On Thursday, the New York City Council approved a bill that would let non-citizens, permanent residents, and people with work authorization vote in local elections. And Mayor Bill de Blasio, who has opposed this in the past, he says he doesn't think it's legal, recently said that he would not veto it. And the argument, as far as I can tell, involves the fact that a lot of these people have lived in these communities for a long time. They pay taxes in these communities. And we have a clip of Councilwoman Margaret Chin making this argument.

Margaret Chin: There are a lot of people, a lot of immigrants from around the world. And I march and I rally with immigrants from Africa, from Russia, from Asia. They want representation. My mother couldn't vote for me because she wasn't a citizen. She had a green card. She paid tax. There were a lot of members in the community, especially senior citizens, that's been going to classes trying to learn the language. It's not that easy. And the price for the application has been, keep going up.

Kyle Peterson: Bill, I'll just throw that to you. I mean, the argument, again, is that these people are paying taxes, they're in our communities, and it's not always easy to become a citizen; there's an application fee involved.

Bill McGurn: Yeah, there's a fee. But I mean, I think that the reason is that U.S. citizenship is highly valued. It's one of the most valued things I think in the world right now. Look, I lived in two European countries and one Asian country and I paid taxes for many, many years and I couldn't vote and I didn't think there was anything wrong with not giving me the vote. Also, I believe the New York law is you can establish residency in 30 days. To me, this is an invitation for corruption, chaos, voting fraud, and all sorts of things with that kind of thing. I don't think it's a close call. I think citizenship should mean something. And if it's just about paying taxes, we have a lot of people who pay taxes over here and should they all be citizens? I think there should be a price to citizenship. We have a lot of rights and responsibilities, and we have a lot of protection when we go overseas because we're an American citizen. And I don't think we should take that lightly. And also, look, let's be clear, this is a way for Bill de Blasio and Democrats, they think they're going to get a lot more votes just by not asking any questions and giving everyone a voting card.

Kyle Peterson: On the point about residency, that is the rule that the bill would impose. It would be a 30-day residency requirement. And that brought some opposition during the debate over this. We have a clip from Councilman Mark Gjonaj.

Mark Gjonaj: This bill, in its current form, doesn't protect New York City or make it fairer. It makes it vulnerable to outside influence, whether that be Russia, China, or any other nationality that does not share the same principles in freedom and values that we do as Americans.

Kyle Peterson: And part of his argument was that 30-day residency is a pretty short period of time. So that would cover people who are coming to New York for the duration of a job or a project, and then going back to their home country or their other place of origin. So he was arguing for a year residency requirement. And Kim, I mean, that makes a little bit more sense, but I think I'm with Bill on this one.

Kim Strassel: Oh, absolutely. This is crazy. I mean, just think about it. I guess it's a little farfetched, but we know the degree to which some of our foreign adversaries want to mess with our elections, want to sow a problem. You know, what if Russia or China was to literally put a whole bunch of people on airplanes, they all land and pose as tourists in New York City. They're there for at least 30 days. They vote in an election, and then they go back home. I mean, there has to be some integrity involved in the vote. You know, this is the debate that we've been having as a nation, especially over the past year, because what we know is that you can make it easier to vote, you can provide more people the right to vote, but if you don't have a system in which people feel confident that their vote is not being diluted by unfair cheating votes, then they tend to lose interest in taking part in elections. The whole thing is just kind of crazy too because if you look at New York's constitution, it isn't even clear that this is remotely legal given, and I know you know this argument too, Kyle, and I'll tee it up, but right now New York's constitution says citizens have the right to vote "provided that such citizen is 18 years of age" and has been a resident for 30 days. They're essentially arguing that since it doesn't say non-citizens can vote, they can vote. Well, I mean, does that mean anything not listed in the constitution specifically spelled out is something that's allowed?

Kyle Peterson: Yeah. Bill, I think that that's a key argument. And my guess is that this is going to get tangled up in the courts and that Bill de Blasio, the voice of reason here will prove correct when he thinks that this is not legal or not constitutional. And there are some Republicans who are already threatening to sue over this. So I haven't seen any lawsuits yet, but no doubt they'll be coming in the weeks to come.

Bill McGurn: Yeah. And I'm not sure this helps the Democrats. I do not think this would be a popular issue for a lot of people. I think a lot of Americans take their citizenship very seriously. They think we've cheapened it rather than enhanced it. And I think they have a good case. But it will be interesting because the Constitution largely leaves it to the states to decide about voters. So there will be some interesting back and forth when it inevitably lands in the courts.

Kyle Peterson: But it seems to me, Kim, that there are all sorts of people who pay taxes in New York or who have interest in New York. Second homeowners certainly have an interest in city services, police, fire. They may pay property taxes. International students may live in New York. They may pay sales taxes. They may work on campus. There are a lot of people in these in between categories who are living in New York and part of the community. But the bright place to draw the line to me is citizenship. And if you go beyond that, then I think you have a hard time explaining why this group should get to vote in local elections and this group shouldn't.

Kim Strassel: Absolutely. And you use the word bright line, and that is the most excellent bright line. And it's notable listening to the first woman who was advocating for this that we ran the clip on. You know, she was talking about how, well, it's hard to get your citizenship. Yeah, it is. It's hard by necessity because, as Bill said, this is something that is a great privilege and an honor and you have to do some work for it and, yeah, you have to pay a fee. And I think that that's a really important point though, is that the people that she was advocating for it isn't as though anyone is refusing to allow them to be citizens. It's not as if they are in some sort of situation in which they desperately want to, but someone has told them no. It's that they haven't, even though that option is available to them. That makes a lot of sense to me, therefore, and also pushing your bright line point is that for people who are here, their green cards, they put in the commitment, then they can go and they get their citizenship. That is the reward is the right to vote. And if you open it up to everybody else, you just end up having endless and complex questions about who exactly should qualify, and, again, with the ultimate problem of really sowing a lot of distrust by everyone else about the sanctity of elections.

Kyle Peterson: One last point, and, Bill, we'll give you the final word here is a practical problem because non-citizens can't vote in state and local elections. Essentially, what this would mean is that New York City would need two voter lists, one for citizens and one for non-citizens. It would need two completely different sets of ballots at every polling location because if a non-citizen came and was registered and was able to vote, you'd have to get a ballot without those state and federal races on it. And particularly, in a city like New York where the board of elections has not proven itself to be able to run a clean shop even under the current rules, giving them a more complicated challenge seems to me like a serious risk.

Bill McGurn: Yeah. It's a recipe for chaos. And who takes advantage of chaos? People that want to cheat and finagle. So I think it's just an invitation for disaster to go ahead with it. And as you say, in addition to the constitutional and philosophical objections, there are real practical objections given the division between our federal, city, and state lines about how we would manage this. And there's no place which is likely to pass this in addition to New York that should give us confidence that they can handle it. We're having so much trouble with our regular federal elections, right? We're having trouble sorting all this out. And then we're going to add this further complexity that someone who comes for 30 days might be a citizen. Even if they're there for a year, I just think it's an invitation for disaster and will not be manageable.

Kyle Peterson: Thank you, Bill and Kim. Thank you all for listening. We'll be back next week with another edition of Potomac Watch.

source: https://www.wsj.com/podcasts/opinion-potomac-watch/the-supreme-court-and-the-texas-abortion-law/7e5f6bff-e16b-43ed-bb19-f7cf6296bdf1

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