SB 8, the Texas law that forbids abortions after six weeks—before many women even realize they are pregnant—has been much in the news lately, and for good reason. Although Texas is hardly the first state to enact legislation that directly contradicts still-binding Supreme Court precedents protecting a constitutional right to choose abortion, SB 8 is highly unusual in relying exclusively on ostensibly private parties for its enforcement. It was deliberately designed to elude a federal court injunction against the law before going into effect.
To the surprise of many observers, the ploy has thus far succeeded. After the U.S. Court of Appeals for the Fifth Circuit halted a federal district court hearing on SB 8, the U.S. Supreme Court declined to intervene. Although state courts have provided some partial relief and the federal Department of Justice sued Texas on behalf of the United States last week, abortion providers, lacking a comprehensive shield, have mostly shut down in Texas.
In a series of essays on my blog (here, here, and here), I explained how SB 8 cynically exploits the uncertainty conservative Supreme Court Justices have cast over the future of the constitutional right to abortion and takes advantage of jurisdictional and other procedural limits the high Court has divined in the Constitution and federal statutes. In this column, I discuss a hitherto-mostly-overlooked further procedural landmine that could turn every red state into Texas, so long as the Supreme Court threatens to overrule or actually overrules the constitutional right to abortion: the threat from what I shall call “zombies”—restrictive abortion laws that have been struck down but not removed from the statute books and might therefore be revived, perhaps even with respect to conduct occurring before the formal overruling of Roe v. Wade.
Enjoined But Not Repealed
In some legal systems, a final ruling that a law is unconstitutional results in the erasure of that law from the statute books. In the United States, however, constitutional adjudication does not work that way. A state legislature (or in the case of a federal law, Congress) might choose to repeal a law that has been struck down as unconstitutional, but if it does not, a ruling of unconstitutionality merely forbids the law’s enforcement. The theory—which is admittedly a plausible reading of the Constitution’s Supremacy Clause—is that the Constitution takes precedence over the invalidated statute, which is thus treated as a nullity.
But what happens if the Supreme Court changes its mind and overrules a line of cases that had earlier been used to invalidate some set of laws? In a 1993 article in the Columbia Law Review, (current Georgetown Law Center Dean) Bill Treanor and (current Senior Advisor to President Biden) Gene Sperling argued that previously invalidated laws should not necessarily be revived. Ordinarily, we can interpret a legislature’s failure to repeal a law as reflecting contemporary agreement with or at least acquiescence in the old law. However, Treanor and Sperling argued, a court ruling deeming a law unenforceable can sap the political strength of a repeal movement. Thus, a judicially invalidated law that remains on the books lacks the democratic pedigree enjoyed by other unrepealed laws.
The argument that Treanor and Sperling offered against automatic revival was subtle and careful. Yet their view has never been the conventional wisdom. Instead, there is good reason to think that if the Supreme Court overrules or substantially weakens the abortion right in the case from Mississippi currently on its docket, states with restrictive abortion laws that were previously invalidated will succeed in reviving and enforcing those laws.
Well, so what? If the Court overrules Roe and other abortion precedents, states like Mississippi and Texas wouldn’t need to rely on the zombie laws that Treanor and Sperling critiqued. After all, even if such laws are not revived, anti-abortion legislators and governors in much of the country will eagerly pass new restrictive abortion laws. It might thus appear that the revivability of previously invalidated laws is a matter of only theoretical interest.
It is not. The issue is real because it has the potential to affect whether abortion remains available today. To see why, we need to dive into the power of courts to issue so-called pendente lite relief.
Relief Pendente Lite
Suppose that Charlotte is the curator of a museum. She would like to display to the public a sexually explicit art installation by a controversial artist. Daniel, the local district attorney, announces that if Charlotte proceeds with the display, he will prosecute her for obscenity. Charlotte could go ahead with the display and then if and when she is charged she could defend on the ground that it was not obscene and thus protected under the First Amendment. But Charlotte does not want to risk a criminal conviction in the event that her defense fails. Accordingly, she sues Daniel in federal district court. She wins an injunction against the enforcement of the obscenity law and proceeds with the display.
Daniel does not give up. He appeals the ruling and two months into the exhibition, he wins. The federal appeals court holds that the district court erred. Applying the Supreme Court decision in Miller v. California, the appeals court says that a reasonable jury could conclude that “the work, taken as a whole, lacks serious . . . artistic . . . value.” The court orders the injunction dissolved.
Charlotte promptly shuts down the exhibition, but what happens if Daniel now goes after her for her conduct during the pendency of the district court injunction? Surely she cannot be prosecuted for acting in accordance with a court ruling, right?
That’s probably right. Unfortunately, however, the Supreme Court case law is somewhat muddled.
Reassuringly for Charlotte, in the 1920 case of Oklahoma Operating Co. v. Love, Justice Louis Brandeis wrote for the Court that if the party challenging a law wins initial relief that is eventually found to be unjustified, “a permanent injunction should nevertheless issue to restrain enforcement of penalties accrued pendente lite,” (that is, during the litigation), “provided that it also be found that the plaintiff had reasonable ground to contest them.” Of course, the very fact that a court initially granted relief will typically suffice to show that the plaintiff did have reasonable grounds for the challenge.
Yet unfortunately for Charlotte, Oklahoma Operating Co. was not the Court’s last word on pendente lite protection. In the 1982 case of Edgar v. MITE Corp., Justice Thurgood Marshall, in a dissent joined by Justice William Brennan, asserted that federal courts “have the power to issue a preliminary injunction that offers permanent protection from penalties for violations of the statute that occurred during the period the injunction was in effect.” So far so good. However, Justice John Paul Stevens, in a concurring opinion, disagreed. Although he suggested that such immunity might be sensible, he opined that federal courts lack the power to confer it.
Implications for Zombie Abortion Laws
Suppose that Justice Stevens was correct that federal courts lack authority to confer immunity pendente lite if their decisions are later overturned. What implications would that conclusion have for zombie abortion laws?
Aggressive attorneys for states like Mississippi and Texas could argue that the overruling of Roe and the abortion right eliminates both prospective protection against prosecution for abortions and even exposes women, doctors, and others to legal penalties for abortions that were performed while the laws were enjoined. Citing Justice Stevens in Edgar, they would contend that the injunctions against these laws lost all effect upon Roe’s overruling.
Nonetheless, there are several reasons to hope that a state scheme to retroactively enforce zombie abortion laws would fail, even if the Supreme Court curtails or eliminates the abortion right itself.
First, Justice Stevens did not speak for the Court in Edgar when he announced his view that courts cannot grant pendente lite protection based on subsequently reversed judgments of unconstitutionality. Justice Brandeis’s opinion in Oklahoma Operating Co.—which Justice Stevens did not even cite—remains the law.
Second, it is hardly clear that even Justice Stevens himself would have denied protection in the zombie abortion law context. In Edgar, he focused on the possibility that a district court’s injunction might be reversed on appeal in a single course of litigation. He did not address the very different circumstance in which a court enjoins a law as unconstitutional, that ruling becomes final through the appeals process, and then only years later the underlying constitutional doctrine on which the injunction was based is overturned.
Third, one must hope that the Supreme Court itself would not allow the retroactive reanimation of zombie abortion laws to completely undermine a central purpose of anticipatory litigation: allowing people to learn their rights through the legal system without having to act at their peril. After all, the fundamental objection to reanimating zombie abortion laws retroactively is not that they are abortion laws but that they are zombies.
Retroactive application of zombie laws is fundamentally unfair. Even a Court that thinks the Fourteenth Amendment’s Due Process Clause establishes no right to abortion should be able to recognize that it does establish a right to due process.