Justice Gorsuch Gives the Pro-Abort Lobby What They Asked For and They Still Aren’t Happy – Opinion

In a case involving critical abortion, the US Supreme Court issued an opinion. Whole Women’s Health vs. Jackson earlier in the month. Through the Fifth Circuit Court of Appeals, Texas, this case is brought to the Supreme Court. The central issue is Texas’ so-called “heartbeat law” that forbids abortion after the baby has a detectable heartbeat. The enforcement mechanism is the main issue in this case. Pro-abort judges cannot summarily strike down the law so the law relies on private action via lawsuits for its enforcement. The abortion industry was trying to find a way to attack the bill, but without an actual case, they couldn’t. Texas has seen the end of infanticide. Abortionists and their aides fear that they will be saddled with huge legal fees, even though it is unlikely that they are sued. You can read more in my post: Supreme Court Humiliates Biden and Refuses to Stop Texas Heartbeat Law. Gorsuch and Wise Latina have a public spat.

Usually, the Court waits 25 days before returning a case to a lower court (or so says the Washington Post, so that number might possibly be total bullsh**), here the Supreme Court had remanded the case to the Fifth Circuit.

The abortion industry was in chaos. Not only had the Supreme Court case been a devastating defeat for them that seemed to foreshadow the end of abortion as a Constitutional right, but the court that was going to hash out the remaining details was not that of the tame pro-abort federal judge they’d first encountered, it was the very court that had caused the problems for them in the first place. Even worse was the fact that Texas’s abortion industry faced additional financial stress due to the delay of 25 days. They were looking a month’s wait before their case was heard in a hostile court. The appeal was filed. The Supreme Court asked them to refer the case immediately to the lower court. The Fifth Circuit was requested to review the case by the Texas Attorney General.

It seems that their calculation was to be able to count on Pitman (whose career highlights include being the First Openly Gay Federal Judge in the Fifth Circuit), to uphold the law and allow abortion clinics to enjoy a holiday or some other special before they are again hammered by the Fifth Circuit. The Washington Post describes this strategy as follows.

In October, Pitman, the federal judge in Austin, blocked enforcement of the law, which he characterized as an “unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right.” Less than 48 hours later, the conservative-leaning 5th Circuit reinstated the six-week ban.

An important step would be to declare the law unconstitutional by a federal judge. This could give providers of abortion legal defenses to state courts if sued after six weeks. However, it wouldn’t be binding for the state courts.

A state licensing official could not take disciplinary action against pharmacists, doctors, and nurses. However, an injunction wouldn’t protect them or others from legal liability. Individuals could file civil suits seeking minimum $10,000 for anyone helping someone to terminate a pregnancy within six weeks.

On Thursday, they got a response that gave them half of what they’d asked for.

Justice Gorsuch issued an order because John Roberts, who had voted to support abortion again, was not relevant. Whole Women’s Healthimmediately sent to a lower court. The bottom line is that the Fifth Circuit was the lower Court.

On a side note, it is refreshing to see how a “Thomas” Court goes about doing business as opposed to a “Roberts” Court. Can anyone imagine Roberts not giving the pro-aborts exactly what they’d asked for to protect the “image” of the Supreme Court? No.

Pro-aborts don’t like it.

The state’s request means to “indefinitely prevent petitioners from obtaining any effective relief from the district court in the face of a law that is clearly contrary to this Court’s decisions,” wrote Marc Hearron, a lawyer for the Center for Reproductive Rights, which is representing challengers to the law.
…
With its decision to send the case back to the 5th Circuit and not the district court, he added, the Supreme Court “has let Texas nullify constitutional rights and upend our system of justice.”
…
“It’s yet another obstacle,” said Brigitte Amiri, deputy director of the American Civil Liberties Union’s Reproductive Freedom Project, who was among the lawyers asking the court to return the case to the district judge. “This case is going to be stuck in limbo. Even the narrow path the Supreme Court initially afforded us is now off the table.”
…
“The reality of the state court litigation and the reality of the Supreme Court’s devastating decision last week to preclude relief against clerks and judges is that there is not a clear way in which to provide the kind of certainty for abortion providers to go forward without the risk of being sued,” said Julie Murray, a senior attorney with Planned Parenthood, who argued the state case against Texas Right to Life.

The Supreme Court’s decision, she said, “threw out the most promising avenue to relief and full restoration of abortion access in Texas.”

It will return to the same panel who made the Supreme Court’s decision. As a non-lawyer, I cannot give you any insight into the scheduling of cases for hearing. The Washington Post article contains pro-abort remarks. However, it seems that the Fifth Circuit panel hearing the case first has considerable control over the scheduling and the Molochian side is concerned that the matter will not be reheard. As a decision from the Supreme Court in Whole Women’s Health is expected in June, I would not be shocked to see the Fifth Circuit wait until that decision before acting.