RayR wrote:F*ck precedents. The SOTUS refused to hear the challenge to the new Texas law by the Texas abortion providers.
Does this effectively nullify Roe v. Wade and affirm that the states have the constitutional right to regulate abortions as they see fit and not the federal government as that idiot Biden thinks?
Guns and abortions are meaningful issues when it comes to trying to save the constitutional republic from the left authoritarian nationalists.
Texas’s Abortion Law Blunder
The Supreme Court was right not to interfere for now, but the statute won’t survive scrutiny on the merits.
WSJ Editorial BoardAmerica is back fighting its endless legal war over abortion. A new front opened late Wednesday when five Justices issued an unsigned opinion declining to block a Texas law banning abortion after six weeks. Cue the hysterics about the end of abortion rights. But this law is a misfire even if you oppose abortion, and neither side should be confident the law will be upheld.
For starters, the Texas statute clearly violates the Court’s Roe v. Wade (1973) and Casey (1992) precedents by making abortion illegal during the first trimester without exceptions for rape or incest—and it does so in a slippery way to duck federal judicial review.
Most laws delegate enforcement to public officials. This one delegates exclusive enforcement to private citizens, who are authorized to sue anyone who “aids or abets” an abortion after six weeks. Citizens who prevail in their civil lawsuits are entitled to at least $10,000 per abortion along with legal costs.
The law sets an awful precedent that conservatives should hate. Could California allow private citizens to sue individuals for hate speech? Or New York deputize private lawsuits against gun owners?
Texas argues that abortion providers don’t have standing to challenge the law because the state isn’t enforcing it and neither at this point is any private citizen. Thus there is no case or controversy, which is what courts are supposed to settle. This is technically correct and it is why the five Justices declined to enjoin the law.
“Federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves,” says their unsigned opinion, citing the Court’s recent decision in California v. Texas (2021). In that case a 7-2 majority dismissed Texas’s ObamaCare challenge after finding the Court lacked jurisdiction to hear the case since the feds weren’t enforcing the individual mandate.
Justices Samuel Alito and Neil Gorsuch wrote in a fierce dissent that the Court—read Chief Justice John Roberts —had applied standing principles selectively. They’re right. And some conservative Justices may now enjoy hoisting the Chief on his own standing petard. But their unsigned opinion suggests they also have doubts about the Texas law.
Abortion providers have “raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden,” the five Justices write.
“We stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit” and the Court’s order “is not based on any conclusion about the constitutionality of Texas’s law.” Texas state courts may also have a say, the Justices add.
The Chief writes in a dissent, joined by Justices Elena Kagan and Stephen Breyer, that he would grant the providers “preliminary relief” to “preserve the status quo ante” so “the courts may consider whether a state can avoid responsibility for its laws in such a manner.” But the dissenting Justices acknowledge that Texas may be correct that “existing doctrines preclude judicial intervention.”
What they want is to issue what is essentially an advisory opinion in the form of an injunction. This is not the role of the courts. In any case, a provider who gets sued under the Texas law will undoubtedly seek to dismiss the lawsuit under the Court’s abortion precedents. Then the law will be properly enjoined.
Meantime, Texas Republicans have handed Democrats a political grenade to hurt the anti-abortion cause. Pro-life groups have spent nearly 50 years arguing that abortion is a political question to be settled in the states by public debate. Yet now in Texas they want to use the courts via civil litigation to limit abortion.
[h]Democrats are already having a field day with the Texas law. “This law is so extreme it does not even allow for exceptions in the case of rape or incest,” President Biden said in a statement. Look for Democrats to raise the political pressure even higher on the Supreme Court this coming term when it hears a Mississippi case that bans abortion after 15 weeks. The Justices could uphold the Mississippi law by narrowing Casey’s “undue burden” standard. But the left will flog the Texas law and proclaim that upholding the Mississippi law is a fast track to overturning Roe.
Sometimes we wonder if Texas Attorney General Ken Paxton is a progressive plant. His ill-conceived legal attack against Obama Care backfired on Republicans in last year’s election and lost at the Supreme Court. Now he and his Texas mates are leading with their chins on abortion. How about thinking first?
