Bench Memos

Law & the Courts

Lawsuit Against the City of Austin’s Funding of Abortion

The city of Austin, Texas, recently enacted a budget that provides $150,000 in taxpayer money to organizations that provide travel, lodging, and other forms of aid to women seeking abortion. But as a taxpayer petition filed in state court powerfully argues, this taxpayer subsidy violates a Texas statute, dating back to the 19th century, that imposes criminal liability on anyone who “furnishes the means for procuring an abortion knowing the purpose intended.”

That statute, the petition acknowledges, is unenforceable under Roe v. Wade and successor cases insofar as it would penalize actions that have been held to be constitutionally protected under the Roe regime. But “[i]t has long been established that women seeking to abort their pregnancies have no constitutional right to taxpayer assistance, and that the withholding of taxpayer subsidies does not constitute an ‘undue burden.’” Therefore, the statute remains enforceable against Austin’s expenditures of taxpayer money for abortion.

The Texas statute was part of the set of Texas abortion laws that were at issue in Roe v. Wade and that the Supreme Court held to be unconstitutional in many of their applications. But as the petition explains, “A Supreme Court ruling that declares a statute unconstitutional means only that the statute may not be enforced in a manner that contradicts the Supreme Court’s interpretation of the Constitution.” In particular, contrary to common references to a court’s “striking down” a statute, the federal courts “do not wield a writ of erasure over the statutes that they declare unconstitutional, and these statutes continue to exist as laws until they are repealed by the legislature that enacted them.”

Very alert longtime readers might recognize that the mistaken notion that judges “strike down” laws is part of the myth of judicial supremacy that I’ve been combating over the years. (See, e.g., this book review of mine.) One excellent law-review article that I’ve had occasion to cite is Jonathan Mitchell’s “The Writ-of-Erasure Fallacy.” Not coincidentally, Mitchell represents the taxpayer petitioner in the lawsuit against Austin.

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