Ban Them All; Let the Courts Sort Them Out: Saving Clauses, the Texas Abortion Ban, and the Structure of Constitutional Rights

Abstract

SB-8—Texas’s new abortion ban—was designed to evade constitutional review. It was drafted to preclude pre-enforcement suits brought in federal court under Ex parte Young. Yet constitutional review is coming, either in Texas’s state courts or in a new federal lawsuit brought by the United States directly against the state itself. The courts will then have to decide: Is this ban constitutional? This substantive question has gotten surprisingly little attention. Most commenters believe that the statute’s broad ban on pre-viability abortion is obviously forbidden, at least as long as Roe and Casey re-main good law.

But the statute has one more trick up its sleeve: a saving clause that allows individual defendants to escape liability if they can show that imposing it would create an “undue burden” on abortion access. ‘Undue burden,’ of course, is Casey’s magic phrase—a test used to evaluate the constitutional sufficiency of certain abortion restrictions. The statute thus at-tempts to mount a tautological defense against unconstitutionality: It forbids all abortions, except those that it would be unconstitutional to forbid. Surely, a statute with that structure cannot pose any constitutional problem. Or so the argument will go.

This Essay shows why the saving clause does not save the statute. There are three reasons. First, the saving clause does not do what it says. Its protection against undue burdens is substantially narrower than Casey requires. Second Roe, not Casey, supplies the correct test here, rendering the saving clause a non-sequitur. Finally, even if Casey supplied the right test, and even if the statute actually implemented it, that itself would doom the statute. SB-8’s saving clause defines the law’s restrictions in terms of what is constitutional. But as will be shown, figuring out what is constitutional first requires knowing what the law restricts. This recursion produces an infinite loop, rendering the statute’s restrictions literally undefined. SB-8 is thus a nullity and unenforceable on that ground. The only way to make the statute a non-nullity would be to ignore the saving clause, which would immediately render the law unconstitutional.