For the first time in my life, I have a strong feeling that the infanticidal regime established by Roe v. Wade and Doe v. Bolton and reinforced by a bevy of stupid and strictly results-oriented decisions might be on the verge of repudiation by a clear majority of the Supreme Court.
There are two major abortion cases before the Supreme Court. One case, arising from Mississippi and called Dobbs v. Jackson Women’s Health Organization, bans abortion after the 15th week for all intents and purposes. The law has been in litigation since enacted, but six justices seemed inclined to let it go into effect during the oral arguments. Under the original Roe trimester rubric, this should have been a no-brainer as that model recognizes the state has a compelling interest in the life of a child after the first trimester. But, thanks to the dog’s breakfast of lousy law created by pro-abort justices…looking at you Anthony Kennedy and Sandra Day O’Connor…abortion has become some sort of Molochian sacrament where a baby can literally be killed after passing through the birth canal if the “mother” has buyer’s remorse (see Nothing Ralph Northam Or His Media Friends Say Can Cover Up His Monstrous Pro-Infanticide Stance).
The second case gives us a lot more clues about the state of play with the abortion question. This is the Texas “heartbeat” bill titled Whole Woman’s Health v. Jackson. The Texas law outlaws abortion after there is a detectable fetal heartbeat and, to insulate the bill from preemptive legal challenges, it creates a private right to action where anyone can sue anyone involved in the abortion process. By anyone, I mean the clinic receptionist, the cleaning crew, the Uber driver who took the woman to the clinic, the abortionist, the clinic accountant. Literally anyone. Plus, lawsuits can be filed in any Texas county court by as many people who wish to participate in the fun and games. The threat of personal bankruptcy has resulted in abortion being unavailable in Texas. You can read my coverage of that case’s appearance in the Supreme Court at Supreme Court Humiliates Biden, Refuses to Stop Texas Heartbeat Law, and Gorsuch and the Wise Latina Have a Public Spat.
It is the path of the Texas heartbeat bill that bears particular interest. The Supreme Court had two options after its hearing. It could send the case back to the Fifth Circuit panel who had handled it earlier, or it could return it to the district court. The district judge, if not a virulent pro-abort, gives a passable imitation of one when he’s up and has his trousers on. If the case went back to the district court, the Texas law would almost certainly be struck down. So the Supreme Court sent it to the Fifth Circuit. The abortionists appealed for the case to be sent back to the district court. The Fifth Circuit sent it to the Texas Supreme Court to rule which state officers could be sued to stop enforcement of the bill. And there it stands.
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In short, the Supreme Court and the Fifth Circuit had two opportunities to send the Texas law to a court that would slap an injunction on it, and they both passed. The ever-amusing Mark Joseph Stern of Slate describes the action.
Then, in October, the justices agreed to hear arguments in the case, but allowed S.B. 8 to remain in effect in the meantime. Sotomayor dissented from their refusal to halt the law, describing its effects as “catastrophic” and “ruinous.”
In November, by a 5-4 vote, the justices ruled that the providers could not sue state court clerks. (The decision is known as Whole Woman’s Health II.) But by an 8-1 vote, the court held that providers could sue “executive licensing officials” who help enforce the law against clinics. Sotomayor noted that the court “should have put an end to this madness months ago.” But she wrote approvingly that Whole Woman’s Health II would finally allow the district court to provide “relief” for the clinics, a view that Roberts endorsed.
No relief came. The Supreme Court sent the case back down to the 5th U.S. Circuit Court of Appeals, the most conservative circuit court in the country. It landed on a three-judge panel made up of Edith Jones, a far-right Ronald Reagan nominee; Kyle Duncan, a notoriously cruel Donald Trump nominee; and Stephen Higginson, a moderate Barack Obama nominee. Texas promptly asked the panel to certify the case to the Texas Supreme Court so it could decide whether SCOTUS was correct to hold that “executive licensing officials” could be sued. The panel, steered by Jones and Duncan, launched a series of delaying tactics. Panel members scheduled utterly gratuitous oral arguments to run down the clock (over Higginson’s dissent), then certified the case to Texas’ high court (over Higginson’s dissent). At arguments, Jones suggested that her court should sit on the case until June–at which point, she explained, SCOTUS might overturn Roe v. Wade. Despite that audacious comment, Jones also glibly asserted that the S.B. 8 case was “not about abortion.”
Awaiting a decision from the Texas Supreme Court could take months, and clinics will remain shut all the while. So providers asked SCOTUS to issue a writ of mandamus that would send the case back to the district court, which could issue an injunction blocking at least part of S.B. 8. The court refused on Thursday afternoon, apparently by a 6-3 vote, with the three liberals dissenting.
None of this acts like a Supreme Court anxious to freeze the battleground until it renders judgment. On the contrary, it smells very much like the decision has been made, and the Supreme Court is quietly winding down the abortion industry in Texas without appearing to wind it down.
Stern focuses on Sotomayor’s vitriolic dissent as a hint of what will happen.
I dissented in Whole Woman’s Health II because the Court’s dismissal of the most important portions of the petitioners’ claims, beyond being unfaithful to our precedents, left all manner of constitutional rights vulnerable to nullification. I explained that the Court had “clear[ed] the way for States to reprise and perfect Texas’ scheme in the future” in order to target this and other rights with impunity.
Today’s decision shows that any hope that Whole Woman’s Health II might protect the Constitution’s guarantees in this case was illusory. As it turns out, Texas did not even have to amend its law to sidestep the minimal relief this court left available. Instead, Texas wagered that this court did not mean what little it said in Whole Woman’s Health II or, at least, that this Court would not stand behind those words, meager as they were. That bet has paid off. Despite this Court’s protestations over the “extraordinary solicitude” it gave this case and the narrowness of any dispute, it accepts yet another dilatory tactic by Texas. As a result, the District Court will remain powerless to address S. B. 8’s unconstitutional chill on abortion care, likely for months to come.
This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies. I will not stand by silently as a state continues to nullify this constitutional guarantee. I dissent.
He reasons, correctly, I think, that the preliminary vote on the Texas law and the Mississippi law have already been made in Justice’s conferences, and Sotomayor knows the outcome. So she sort of comes unglued because she has nothing left to lose. Roe and its pseudo-Constitutional underpinning are gone; there are not five votes on the bench to preserve it. So her best play is to position herself as the outspoken, unapologetic priestess of Moloch pro-abort icon on the bench. Were that not the case, and the Justices were still debating either case, she’d be much more collegial and circumspect.
She is, instead, in burn-it-all-down mode, unleashing her opprobrium on the justices poised to extinguish a fundamental liberty, unencumbered by the fear of losing a vote that she could never win.
Abortion has poisoned our political life for way too long. It is far past time to recognize it for the hideous and criminal undertaking that it is. All the actions taken by the Supreme Court in these two cases indicate that a majority of the Justices may have decided that not only is abortion wrong, but having to address abortion as a federal Constitutional issue is corrosive to the credibility of the Court. The way to free itself is to do what should have been done in 1973 and return the matter to the states.