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The US Supreme Court handed down a long-anticipated decision called Whole Woman’s Health vs. Jackson this morning.
By way of background, on September 1, S.B. 8, the so-called “heartbeat bill” went into effect in Texas. The law had some unique features. First and foremost, it outlawed abortion after the point of a detectable fetal heartbeat. This was a clear challenge to the whole inhumane sham structure of abortion jurisprudence brought into existence by Roe vs. Wade. However, the most interesting feature was creating a private right to action to enforce the law. That means anyone can bring a lawsuit against anyone or any entity involved in aborting a baby after a heartbeat exists. This includes:
- Clinic staff;
- Anyone who counseled the woman to get an abortion;
- Lawyers representing the abortion clinic;
- And anyone providing transportation to a clinic, including taxis and Uber/Lyft.
A successful lawsuit could bring an award of up to $10,000.
The woman undergoing the abortion, however, could not be sued.
The enforcement mechanism is a critical part of the bill because that prevented Texas from being sued and an injunction obtained. Because the enforcement mechanism is civil and not criminal until someone filed a lawsuit, the abortion industry doesn’t have a clear target. In the meantime, abortion ground to a halt in Texas because the “little Eichmann’s” of the abortion industry didn’t want to risk their homes and life savings defending against lawsuit after lawsuit.
A group of abortion providers banded together to sue a raft of state officials hoping to find someone who could vaguely be linked to the bill. Merrick Garland’s Justice Department tried to bigfoot its way into a major abortion case by suing Texas.
The ruling below is a little complicated.
SCOTUS Whole Woman’s Health 2-10-2021 on Scribd
Let’s unpack it.
First, the Supreme Court dismissed the Department of Justice lawsuit without comment. Only The Wise Latina® would have acted on it. There is no shock here as Sotomayor has never encountered a fetus that an appointment with a shop-vac couldn’t have improved.
Next, the Court did not grant an injunction stopping the law, but it did kick the case back to the district court to proceed. All of the named defendants were given immunity except some licensing officials who might be involved in sanctioning abortionists and clinics in the event of a successful lawsuit. Notably, the one private citizen named was deemed to be immune from court action by the abortionists.
Long story short, the abortionists found a way to challenge the law. Still, the Texas law remains in effect, and the Mississippi abortion law will be decided (Justice Thomas Tears Into Pro-Abortion Lawyers With Hard Opening Questions) before Whole Woman’s Health passes through appellate channels. I also think this case will have some hard sledding. Mississippi is in the same federal circuit as Texas, and those judges saw which way the chips were falling when the Supreme Court debated Dobbs v. Jackson Women’s Health Organization. My guess is they will not approve any injunction against the Texas Heartbeat Bill.
Now we get to the inside baseball part. Four justices, Gorsuch, who wrote the opinion, Coney Barrett, Kavanaugh, and Alito. Thomas concurred with them generally but thought they were p***ies who didn’t go far enough. The Wise Latina® would have ordered the summary executed every Republican in Texas. Robert, Kagan, and Breyer mostly dissented.
Roberts mewled that Roe was the law of the land and the Supreme Court had to enforce its precedents:
The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings. It is, however, a basic principle that the Constitution is the “fundamental and paramount law of the nation,” and “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). Indeed, “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” United States v. Peters, 5 Cranch 115, 136 (1809). The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.
The Wise Latina® became a little unhinged in her dissent.
This is a brazen challenge to our federal structure. It echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to “veto” or “nullif[y]” any federal law with which they disagreed. Address of J. Calhoun, Speeches of John C. Calhoun 17–43 (1843). Lest the parallel be lost on the Court, analogous sentiments were expressed in this case’s companion: “The Supreme Court’s interpretations of the Constitution are not the Constitution itself—they are, after all, called opinions.” Reply Brief for Intervenors in No. 21–50949 (CA5), p. 4.
The Nation fought a Civil War over that proposition, but Calhoun’s theories were not extinguished.
Her screed provoked a reply from Gorsuch.
While this should be enough to resolve the petitioners’ appeal, a detour is required before we close. JUSTICE SOTOMAYOR charges this Court with “shrink[ing]” from the task of defending the supremacy of the Federal Constitution over state law. Post, at 10. That rhetoric bears no relation to reality.
The truth is, many paths exist to vindicate the supremacy of federal law in this area. Even aside from the fact that eight Members of the Court agree sovereign immunity does not bar the petitioners from bringing this pre-enforcement challenge in federal court, everyone acknowledges that other pre-enforcement challenges may be possible in state court as well.5 In fact, 14 such state-court cases already seek to vindicate both federal and state constitutional claims against S. B. 8—and they have met with some success at the summary judgment stage. See supra, at 2. Separately, any individual sued under S. B. 8 may pursue state and federal constitutional arguments in his or her defense. See n. 1, supra. Still further viable avenues to contest the law’s compliance with the Federal Constitution also may be possible; we do not prejudge the possibility. Given all this, JUSTICE SOTOMAYOR’S suggestion that the Court’s ruling somehow “clears the way” for the “nullification” of federal law along the lines of what happened in the Jim Crow South not only wildly mischaracterizes the impact of today’s decision, it cheapens the gravity of past wrongs. Post, at 11.
Some of the pro-abort left are trying to portray this as a victory. But the most radical pro-aborts can see the writing on the wall and what this means.
The biggest practical question is whether Judge Pitman can fashion an injunction against “executive licensing officials” that somehow limits the threat of private lawsuits under S.B. 8. I do not see how he can, and if he can’t, I’m not sure the clinics will risk reopening.
— Mark Joseph Stern (@mjs_DC) December 10, 2021
I think what happens is: Judge Pitman issues a declaratory judgment holding S.B. 8 unconstitutional in its entirety, and an injunction barring “executive licensing officials” from enforcing it. Clinics have to decide whether to rely on that declaratory judgment to reopen. Right?
— Mark Joseph Stern (@mjs_DC) December 10, 2021
Yes, they not only have to decide to reopen, but they also have to get staff to come to work, and they have to pray the Fifth Circuit doesn’t reverse that decision.
In the long run, I think this decision is moot because I think abortion will cease to be a federal issue after the Supreme Court rules around June on.
Source: This post first appeared on RedState