Thursday, September 02, 2021

Houston, we have a problem.

 At least it's not Florida this time.  It's Texas.  It's always Texas or Florida...

The Supreme Court 5-4 last night did not take action to stop Texas' new abortion law.  From SCOTUSBlog:

Nearly 24 hours after a Texas law that bans nearly all abortions in the state went into effect, the Supreme Court on Wednesday confirmed what it had previously only implied through its failure to act the night before: The court rejected a request to block enforcement of the law, which abortion providers say will bar at least 85% of abortions in the state and will likely cause many clinics to close, while a challenge to its constitutionality is litigated in the lower courts. The vote was 5-4, with Chief Justice John Roberts joining the court’s three liberal justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – in dissent.

The case, Whole Woman’s Health v. Jackson, had come to the court on an emergency basis on Monday, with a group of abortion providers asking the justices to intervene. It was the first major test on abortion rights for the Roberts court since the death of Justice Ruth Bader Ginsburg in September 2020, and Ginsburg’s replacement by the conservative Justice Amy Coney Barrett was likely decisive in the outcome.

The court’s inaction on Tuesday night that allowed the Texas law to go into effect and its brief order on Wednesday night denying any relief to the abortion providers unquestionably represented a victory for abortion foes, but the five-justice majority emphasized (and Roberts in his dissent reiterated) that the court was not endorsing the constitutionality of the law. The ruling also revealed a court that is deeply divided, not only on the merits of the case but also on the procedures that the court uses to resolve these kinds of emergency appeals.

The law, known as S.B. 8, is one of several so-called “heartbeat bills” that Republican legislatures have enacted around the country as part of an effort to overturn Roe v. Wade and Planned Parenthood v. Casey, ...


In a one-paragraph, unsigned order issued just before midnight on Wednesday, the court acknowledged that the providers had “raised serious questions regarding the constitutionality of the Texas law.” But that was not enough to stop the law from going into effect, the court explained, because of the way the law operates. Specifically, the court observed, it wasn’t clear whether the state officials – a judge and court clerk – and the anti-abortion activist whom the abortion providers had named as defendants “can or will seek to enforce the Texas law” against the providers in a way that would allow the court to get involved in the dispute at this stage.

In his dissent, which was joined by Breyer and Kagan, Roberts described the Texas scheme as “unprecedented.” By deputizing private citizens to enforce the law, Roberts stressed, the law “insulate[s] the State from responsibility.” He wrote that because of the novelty and significance of the question, he would stop the law from going into effect to preserve the status quo and allow courts to consider “whether a state can avoid responsibility for its laws in such a manner.”

Breyer wrote his own dissent, which was joined by Kagan and Sotomayor, in which he acknowledged the procedural challenges posed by the Texas law but expressed skepticism as to “why that fact should make a critical legal difference” when “the invasion of a constitutional right” is at issue.

Sotomayor, joined by Breyer and Kagan, described the court’s order as “stunning.” “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny,” she wrote, “a majority of the Justices have opted to bury their heads in the sand.”

Both Breyer and Sotomayor also noted that, within the first day that the Texas was in effect, clinics in the state began turning away most or all abortion patients.

Kagan’s dissent, joined by Breyer and Sotomayor, focused largely on the process by which the court reached its ruling on Wednesday night. She complained that, “[w]ithout full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions.” The result, she concluded, “is emblematic of too much of this Court’s shadow-docket decisionmaking — which every day becomes more unreasoned, inconsistent, and impossible to defend.”

The Texas case will now return to the lower courts, where litigation will continue. ***


Anonymous said...

No more Souters.

Your welcome.

Anonymous said...

This law allows for vigilante justice and citizens to hunt down and sue anyone that assists or drives a woman to a clinic. I was listening to some Constitutional Scholars today who asked the question if New York passed a law to allow its citizens to sue gun owners would the court acted the same way?

Yeah right. Its a sad day for America when even the courts have turned into tribal groups. Their disregard for precedent is shocking.

Anonymous said...

The law allows abortion providers to be "hunted down?" That seems wrong.

Rumpole said...

How many of our Texas "colleagues" will be expanding their practice to represent Texas plantiffs suing doctors?

Anonymous said...

Rump is so thirsty. Go away.

Anonymous said...

I am starting an abortion clinic in California, as close to the Texas border as I can find space. I will make a fortune.

Anonymous said...

It's amazing to see conservatives becoming the "commies" they claim to so despise. This is a law that turns neighbor against neighbor, incentivizing them to monitor and bring down the power of the state upon each other. Not only does this create division that ruins communities, but this is exactly like what happens in Cuba with the CDR turning neighbors against each other to rout out political dissidents.

Basically, this is conservatives becoming the oppressive autocrats that they claim to stand against, but under the guise of a purportedly theocratic bent which is just a political autocracy bent on "owning the libs."

Anonymous said...

Is this even America anymore?

Anonymous said...

1109, you may want to consult a map first.