Yesterday, a unique Texas law went into effect. The statute bans abortion if a fetal heartbeat is detected, which is generally around six weeks in a pregnancy. A smattering of heartbeat bills have made it through state legislatures, and they have mostly been struck down by federal courts. What makes the Texas law different is the enforcement mechanism.

Instead of requiring state or local officials to enforce the law, individual citizens can bring lawsuits against abortion providers and others who “aid or abet” illegal abortions. Aiding and abetting could include those who advise women, or drive them to the clinic, to get an abortion after six weeks. Those who successfully sue can be awarded up to $10,000 in damages.

The law was designed to get around current legal obstacles. Supreme Court precedent, if followed, would strike down any law that creates an “undue burden” on the right to an abortion before fetal viability (around 24 weeks). Clearly, using this reasoning, the Texas law would join the heap of others the Court has struck down since 1973. But since this law does not require overt state enforcement, abortion providers cannot sue the state Attorney General or the Governor in federal court. So far, the federal courts have refused to touch the law or grant an injunction to prevent it from going into effect.

The Supreme Court, in a 5-4 decision, just declined to intervene. The majority noted the unique nature of the law works against an injunction. The named defendant, for example, has no intention to pursue a suit based on the law. Any injunction, the majority says, would prevent Texas judges from deciding a suit based on Texas law, which is an extreme step for a federal court to take. Finally, the majority makes it clear this decision has nothing to do with the constitutionality of the Texas law, and it does not limit upcoming challenges.

Chief Justice Roberts and Justices Breyer, Kagan, and Sotomayor penned dissenting opinions. For Roberts (joined by Breyer and Kagain), the speed of the process, combined with the unusual nature of the Texas law makes any decision difficult. Therefore, he would have granted an injunction to maintain the status quo until the law could be better understood. Breyer (joined by Kagan and Sotomayor) argues that delegating authority to infringe on constitutional rights to one person, a group of people, or to any person should not make much of a legal difference for the Court. The end result is still the same, so he would grant an injunction. Sotomayor (joined by Breyer and Kagan) argues the Texas law is “flagrantly unconstitutional” and should be treated accordingly by the Court. Kagan (joined by Breyer and Sotomayor) says that Texas’ “scheme” is “patently unconstitutional,” and the state’s novel approach should not insulate it from an injunction.*

The Texas law hopes to erode Roe v. Wade, and the right to abortion that grew out of the decision, without forcing the Supreme Court to overrule the controversial precedent. In a sense, advocates argue, the Court could avoid a culture war bombshell by just letting the Texas law play out as written. The gambit is undeniably clever, and early reports indicate abortion providers are already turning away women more than six weeks pregnant. This would be a significant moral victory, especially for those yet born. Still, the law is unlikely to survive, and perhaps it shouldn’t.

The Court will not necessarily sit idly while state courts, which would adjudicate the lawsuits, are used to erode what has been called a “fundamental” constitutional right.** Either the precedents the Court has established for nearly fifty years are meaningful, and the Texas law is unconstitutional, or they are not, and the Court should either overturn Roe and Casey, or clearly distinguish them. Taking a passive approach to Roe, whereby state courts under the guise of civil suits can degrade what Court precedent establishes as vital, potentially makes other rights vulnerable.

Incentivizing private lawsuits against “rights,” and allowing state courts to enforce them could set a catastrophic precedent. Pick your favorite right protected by the Constitution–speech, press, religious liberty, or the right to keep and bear arms. Empowering private citizens to bring lawsuits against engaging in otherwise constitutional behavior would destabilize and neuter the Constitution’s guarantees. What if, say, Connecticut, allowed private citizens to bring lawsuits against those who aid and abet the purchasing of a firearm? Or, what if New York passed a law that encouraged private suits against those who advise women against having an abortion, or against a father who hid the car keys to keep his daughter from driving to an abortion clinic? Technically, none of these examples would require the state to prevent anything, but they would allow private parties to craft a world where constitutional rights are too expensive to practice. States would be able to negate federal guarantees with the stroke of a pen. This seems awfully close to nullification by proxy.

These examples might sound fanciful, but I think the result would be inevitable. While the Court may be able to distinguish these cases somehow, I suspect in doing so it would reveal itself as far more political than legal. Either individual citizens can use state courts to curtail fundamental rights or they can’t. Picking and choosing which “fundamental rights” are subject to such treatment would be an exercise closer to whimsy than reason.

Again, to be clear, my qualms are not about whether the Court should overturn Roe. I am concerned about how the Court handles the Constitution and things it has designated as “fundamental” in the past. I don’t believe that abortion should be considered a fundamental right. To me, Roe was erroneously decided and should be overturned (thereby giving states the authority to set abortion laws for themselves), but I am deeply concerned about the manner in which the Court goes about its business. I cling, perhaps naively, to a conception of the law that separates it from politics. Judges should be bound by the law, regardless of what they want. The law benefits from detached, objective, apolitical reasoning that is consistent and defensible. Handling Roe proactively would be far better than dealing with it passively. There are all sorts of good, legal arguments for overturning Roe, but I have yet to see a good argument for letting a state use private lawsuits to hollow out a constitutional right. That empowers states in potentially dangerous ways.

Finally, I am not sure this law, and how the Court responds to it, will tell us much about the Court’s disposition toward Roe. The enforcement mechanism is so unusual that the Court could strike down the law and use another case to undercut Roe. In short, the bills that restrict abortion may be treated differently than the Texas bill just because it is so odd. A unanimous Court could strike down the Texas bill, while a sharply divided one could upheld another heartbeat bill. Predicting how the Court will act, not only toward the Texas law, but toward Roe itself, seems more speculative than anything else. We will know soon enough how this Supreme Court will handle abortion, but not necessarily due to what is happening right now in the Lone Star State.

*Reading too much into these preliminary thoughts is probably unwise. While Roberts did not join any of the arguments that highlight the law’s possible unconstitutionality, that does not mean he will vote to strike it down in the future. At that point, it will come down to a variety of factors.

**In Shelley v. Kraemer, a 1948 case, the Court had to decide whether homeowner’s associations could restrict the selling of property to African and Asian Americans. When someone attempted to violate the covenant, the association took them to state court to enforce it. After all, these were private arrangements. The state was not engaging in de jure discrimination, but was simply upholding a contract. A unanimous Supreme Court found in Shelley’s favor, ruling the use of the courts in this manner a violation of the Fourteenth Amendment’s Equal Protection Clause, which forbids state actions. Shelley is a tough case, but I think the Court got it right. A similar argument would of course strike down the Texas law, but only if abortion is afforded constitutional protection by the current Court.