Late Wednesday night, the U.S. Supreme Court declined to grant an injunction to suspend a Texas law which effectively bans most abortions from taking place once a fetal heartbeat is detected. The law went into effect on Wednesday morning after the Court declined to grant the request to the Court before the law took effect. Fox News reported:
The court voted 5-4 to deny an emergency appeal from abortion providers and others that sought to block enforcement of the law that went into effect Wednesday. But the justices also suggested that their order likely isn't the last word on whether the law can stand because other challenges to it can still be brought . . .
It is the strictest law against abortion rights in the United States since the high court’s landmark Roe v. Wade decision in 1973 and part of a broader push by Republicans nationwide to impose new restrictions on abortion. At least 12 other states have enacted bans early in pregnancy, but all have been blocked from going into effect.
Chief Justice Roberts joined Breyer, Sotomayor & Kagan in favor of blocking the Texas law.— Live Action (@LiveAction) September 2, 2021
The law is unique because it utilizes civil lawsuits to enforce the law as opposed to criminal penalties.
Texas lawmakers wrote the law to evade federal court review by allowing private citizens to bring civil lawsuits in state court against anyone involved in an abortion, other than the patient. Other abortion laws are enforced by state and local officials, with criminal sanctions possible.
In contrast, Texas' law allows private citizens to sue abortion providers and anyone involved in facilitating abortions. Among other situations, that would include anyone who drives a woman to a clinic to get an abortion. Under the law, anyone who successfully sues another person would be entitled to at least $10,000.
As Carrie Severino explained, the Court's order on the application was straightforward as expected, but each of the 4 justices who dissented in the case wrote their own opinion.
The Court’s brief order — not at all unusual in the emergency-application context — made clear that the procedural issues prevented it from considering the constitutionality of the Texas law. The defendants are state officials plus one private citizen. The state officials claimed they lacked the authority to enforce the Texas law, which allows private citizens to file suit against any person who provides an abortion or aids or abets such an abortion. The one private citizen who was sued stated he has no intention to enforce the law. Absent such authority or intention among the named defendants, the majority concluded, “We cannot say the applicants have met their burden to prevail in an injunction or stay application.” All of that means that, as Ed Whelan has aptly explained, the case did not present a live controversy (i.e., an actual dispute between the parties).
All four dissenters — Chief Justice Roberts, along with Justices Breyer, Kagan, and Sotomayor — issued opinions. Roberts confined his argument to the procedural issue while the other three showed their indignation at Texas’s affront to Roe v. Wade and Planned Parenthood v. Casey. Justice Sotomayor called the Court’s order “stunning” and accused “a majority of Justices” of “bury[ing] their heads in the sand,” allowing “a law that flouts nearly 50 years of federal precedents.” As if the Court’s abortion jurisprudence were not a decades-long exercise in looking the other way when faced with an egregious misreading of the Constitution.
As has been and will be done with any decision of the Supreme Court that makes headlines, the left is predictably using this to renew calls for remaking the Supreme Court to ensure it is controlled by progressive interests. Similarly, President Biden pledged to use whatever powers he could from the Executive Branch and Speaker Pelosi pledged legislation from the House:
In a statement, Biden said he was directing the Office of the White House Counsel and his Gender Policy Council to involve the Health and Human Services Department and the Justice Department to evaluate what “legal tools we have to insulate women and providers from the impact of Texas' bizarre scheme of outsourced enforcement to private parties." . . .
After the law went into effect, Democratic members of Congress renewed their calls for expanding the Supreme Court to defend Roe v. Wade and demanded passage of a bill that would codify those protections. House Speaker Nancy Pelosi, D-Calif., said Thursday she would bring the measure to the floor when lawmakers return from recess.