The US Supreme Court handed down a long-anticipated decision called Whole Woman’s Health vs. Jackson this morning.
For background: On September 1, S.B. 8, the so-called “heartbeat bill” went into effect in Texas. It had several unique characteristics. The law prohibited abortions after a detectable heartbeat in a fetal baby. This clearly challenged the inhumane, sham-like structure of abortion jurisprudence that was created by Roe vs. Wade. But the best part was the creation of a private right-to-action to enforce the law. This means that anyone may sue anyone, or any entity, for aborting a child after the heartbeat has been detected. These include:
- Abortionists;
- Staff at the clinic;
- Anybody who advised the woman on having an abortion
- The abortion clinic is represented by lawyers
- Anybody who transports patients to and from a clinic using taxis, Uber/Lyft or other means of transportation.
An award up to $10,000 could be possible for a successful suit.
However, the woman who had to have an abortion could not be sued.
It is important that the legislation includes an enforcement mechanism. This prevents Texas from being sued or obtains injunctions. 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 number of abortion providers joined together to sue state officials in an attempt to identify someone connected to the bill. Merrick Garland’s Justice Department tried to bigfoot its way into a major abortion case by suing Texas.
This is the tricky part.
SCOTUS Whole Woman’s Health 2-10-2021 on Scribd
Let’s unpack it.
The Supreme Court first dismissed without comment the Department of Justice suit. Only The Wise Latina®It would have been a good idea to act 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.
The Court didn’t issue an injunction to stop the law. However, it did send the case back the the district court for further proceedings. Except for some licensing officers who may have been involved in sanctioning clinics or abortionists, all of the defendants named were granted immunity. The only private person named in the lawsuit was not subject to any legal action from the abortionists.
The abortionists were able to contest 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. This case is going to be tough. Mississippi shares the same federal circuit with Texas. These judges knew which direction the chips would fall when they debated the Supreme Court. Dobbs v. Jackson Women’s Health Organization. My guess is they will not approve any injunction against the Texas Heartbeat Bill.
The inside baseball portion is now. The opinion was written by Gorsuch and Coney Barrett. Kavanaugh and Alito were also present. Thomas concurred with them generally but thought they were p***ies who didn’t go far enough. The Wise Latina®I would have ordered that every Republican in Texas be summarily executed. Robert, Kagan and Breyer mostly dissented.
Roberts stated that Roe was the law, and the Supreme Court must enforce its precedents.
S. B. has a clear and direct purpose. 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, Cranch 115.136 (1809).. It doesn’t matter what the nature of federal rights are being infringed; the issue is how the Supreme Court plays its role in the constitutional system.
The Wise Latina® She was a bit unhinged when she dissents.
This brazen challenge is 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.
Gorsuch responded to Gorsuch’s screed.
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. Post, at 10.
There are many ways to uphold federal law’s supremacy in this field. Although eight members of the Court have agreed that sovereign immunity doesn’t bar petitioners from filing this pre-enforcement case in federal court; everyone recognizes that there are other state-court challenges that may also be available.5 Indeed, fourteen such cases seek to defend both the federal and the state constitutional claims against S. B. 8—and they have met with some success at the summary judgment stage. See also supra at 2. Separately, the S. B. Act provides that any person sued can sue. 8. may also pursue federal and state constitutional arguments for his or her defense. See supra, n. 1. 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.
Pro-abort Leftists are trying to make this a victory. However, the pro-aborts who are most radical can see that the walls are crumbling and understand what it means.
It is unclear whether Judge Pitman could issue an injunction to “executive licensing officers” which would limit the possibility of private lawsuits. 8. He doesn’t have the ability to do that, and I don’t think he will.
— Mark Joseph Stern (@mjs_DC) December 10, 2021
What I believe will happen is that Judge Pitman declares S.B. 8 is inconstitutional and an injunction prohibiting “executive license officials” (from enforcing the law). It is up to the clinics to decide whether or not to use that declaratory judgment in order 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.
Long-term, this decision will be moot as I believe abortion will no longer be considered a federal matter after the Supreme Court rule in June.
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