David Coale: Conservative pandemic activists made it more complicated to enforce Texas abortion laws

(David Coale is a Dallas lawyer.) The Supreme Court’s decision on Friday settled little about how abortion restrictions may be enacted and enforced. Thanks to legal precedent established by conservative activists, the issue is more complicated than it might have been before the COVID-19 pandemic. The court’s opinion in Dobbs v. Jackson Women’s Health Organization focused on federalism — whether the legal framework for abortion is established in the Constitution or should be left to states. The court concluded that state legislatures should make those laws, stating: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” In Texas, however, recent court battles have shown that “the people’s elected representatives” include far more than the members of the Legislature. There are not just two levels to our government (state and federal) but also a third: local authorities. Starting in 2020 as the COVID-19 pandemic began, hard-fought litigation addressed the proper division of power between state and county governments for conducting elections.

The continuation of the pandemic led to extensive litigation about the role of state, county and local government as to public health regulation. And finally, the litigation over Senate Bill 8, which established a complex procedure for civil lawsuits about the provision of abortion, examined when the state can claim to have removed itself from the enforcement of a legal ban. Taken together, these lawsuits describe Texas government as far more complex and nuanced than anyone had really appreciated before the COVID-19 pandemic. Three aspects of that complexity suggest ways that “the people’s elected representatives” may react to Dobbs by protecting, rather than attacking, access to abortion. The first is prosecutorial discretion. In the mask-mandate litigation, the attorney general argued that the dispute should be dismissed because state government lacked authority to seek penalties for violating the governor’s emergency order. That power, he argued, rested with district attorneys, who are elected at the county level. The same holds true for the trigger law criminalizing abortion that is set to take effect now that the Supreme Court has overturned Roe. District attorneys enforce that law, not the attorney general, and as the attorney general correctly pointed out in the mask-mandate case, those county-level officials are free to set their own enforcement priorities.