Law & Courts

How Critical Race Theory Made an Appearance in Abortion Case Before the U.S. Supreme Court

By Mark Walsh — November 01, 2021 4 min read
Photo shows a summer day in front of the U.S. Supreme Court building in Washington, DC.
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The U.S. Supreme Court on Monday heard nearly three hours of arguments about whether the federal government or other litigants may challenge a restrictive Texas abortion law that delegates enforcement to private individuals. The issue is relevant to education because if Texas is successful in largely shielding its law from federal judicial review, other states might be emboldened to allow private enforcement of, say, a law barring teachers from discussing critical race theory.

Two friend-of-the-court briefs supporting abortion providers who are challenging the Texas law cite efforts to bar classroom discussion of CRT or other concepts related to race for their relevance to cases before the high court.

The NAACP Legal Defense and Educational Fund said in its brief that Idaho this year barred discussion of critical race theory and had considered a provision authorizing a private right for parents to sue any school that provided a “venue” for “any racist or sexist concept.”

The final Idaho bill omitted the private right of action, but CRT-related bills in other states this year have contained similar language, the brief points out.

A brief from the Lawyers’ Committee for Civil Rights Under Law and other civil rights groups says the Texas law may encourage other states to subvert the U.S. Constitution and chill protected constitutional rights.

The Lawyers’ Committee points to a lawsuit it recently filed challenging an Oklahoma law which limits what educators may say about race and gender in schools. Although there is no private enforcement mechanism, the law has still “chilled speech in the classroom,” the brief says, prompting some educators to remove works such as To Kill a Mockingbird and Their Eyes Were Watching God.

“Educators have been fearful of discussing racial issues at all because of the potential penalties,” the brief says. “But, according to Texas, Oklahoma could easily insulate its law … from facial constitutional challenges in federal court by substituting penalties enforced by the government with civil penalties enforceable by private parties in civil actions.”

One justice wonders about the Little Rock integration crisis of 1957

The Texas law prohibits abortion at about six weeks of pregnancy, well before the point of fetal viability (at around 24 weeks) that current Supreme Court precedent establishes as the limit for the abortion right. The Texas law authorizes any individual to bring a lawsuit in state court against an abortion provider or anyone who assists in one, with the possibility of the plaintiff getting $10,000 in damages plus attorney fees.

In Whole Women’s Health v. Jackson (Case No. 21-463) and United States v. Texas (No. 21-588) the Supreme Court is considering, at this stage, not the constitutionality of the Texas law but whether legal challenges to it by abortion providers and the federal government may proceed. The justices put the cases on a fast track, with arguments 10 days after they granted review.

During the arguments, the justices several times discussed the implications of the cases for signaling to other states that they could adopt laws limiting activities that may be protected under the federal constitution and rely on private enforcement to evade review.

“Essentially, we would be inviting states, all 50 of them, with respect to their un-preferred constitutional rights, to try to nullify the law that this court has laid down as to the content of those rights,” Justice Elena Kagan said. “I mean, that was something that until this law came along no state dreamed of doing. … Guns, same-sex marriage, religious rights, whatever you don’t like, go ahead.”

In fact, a coalition of gun rights supporters filed a brief warning that more-liberal states might adopt a Texas-style law infringing Second Amendment rights by granting private litigants an enforcement mechanism against gun owners.

Judd E. Stone II, the Texas solicitor general defending his state’s abortion law, said some of Kagan’s examples were “extremis” hypotheticals and that “the state of Texas hasn’t nullified anything.”

The justices did not ask about the critical race theory examples discussed in the briefs, but Justice Stephen G. Breyer did ask about race and education from an earlier era.

“Let me think of just a specific example which was the worst one I could think of for you,” Breyer told Stone. “Suppose a governor … had this model [Texas] law and said anyone who brings a black child to a white school is subject to, you know, and then we copy the law. … I mean, if we uphold this, are we retroactively upholding that?”

Stone said that challengers of such a law would have recourse in state court, where judges would rule that such a law would be a “transparent violation” of the 14th Amendment’s guarantee of equal protection of the law.

Breyer quickly retorted that his hypothetical was obviously based on the Little Rock school integration crisis.

“This was Arkansas in 1957,” Breyer said. State court judges there did not respond in that way.

“I mean, we have some experience,” Breyer said.

A decision in the Texas cases could come anytime before next June, but is expected sooner based on the fast-track approach the court adopted.

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