Whoa, Roe: 5-4 SCOTUS refuses to block Texas abortion law

Whoa, Roe: 5-4 SCOTUS refuses to block Texas abortion law
Erin Schaff/The New York Times via AP, Pool

So much for silence. The Texas fetal-heartbeat abortion law will continue to remain in effect until a trial takes place, thanks to a 5-4 vote on the Supreme Court that refused to intervene in the case. The only unanimity among the justices focused on their insistence that this procedural decision didn’t reflect on the law itself.


But come on, man …

A deeply divided Supreme Court is allowing a Texas law that bans most abortions to remain in force, for now stripping most women of the right to an abortion in the nation’s second-largest state.

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. …

The high court’s order declining to halt the Texas law came just before midnight Wednesday. The majority said those bringing the case had not met the high burden required for a stay of the law.

“In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts,” the unsigned order said.

Chief Justice John Roberts joined the three liberal justices in dissent, but explicitly agreed that this has noting to do with constitutionality:

Roberts noted that while the majority denied the request for emergency relief “the Court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue.”


Gee, can’t it? Normally, one would expect that the Supreme Court would act immediately when a challenge to an unconstitutional law or act came before them. Of course, ever since the court gave a pass to the CDC issuing eviction moratoriums on the basis of temporary unconstitutionality, that assumption might have reached its expiration date.

At the very least, five justices don’t think that the law is unconstitutional enough to act.

As I suspected yesterday, the problem might be that the law doesn’t allow for state enforcement of its “ban.” That leaves the court in a strange position, the majority argued, since they can’t enjoin the state when the state isn’t acting at all:

The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. California v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 8). And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention. Clapper v. Amnesty Int’l USA, 568 U. S. 398, 409 (2013) (“threatened injury must be certainly impending” (citation omitted)). The State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly. Nor is it clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law. See Ex parte Young, 209 U. S. 123, 163 (1908). Finally, the sole private-citizen respondent before us has filed an affidavit stating that he has no present intention to enforce the law. In light of such issues, we cannot say the applicants have met their burden to prevail in an injunction or stay application.


In essence, the majority argues that the issue isn’t “ripe,” and this suggests that it would take a lawsuit against an abortion provider to get to ripeness. Until then, all harms are hypothetical (legally speaking, anyway), and federal courts do not act on hypothetical harms. In order to prevail at trial, and especially in seeking an injunction, the applicants must show real and irreparable harm as well as a likelihood to prevail at trial.

Oddly, Roberts agrees that the five justices “may be correct,” but would have granted an injunction anyway:

The State defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place. I would grant preliminary relief to preserve the status quo ante—before the law went
into effect—so that the courts may consider whether a state
can avoid responsibility for its laws in such a manner. Defendants argue that existing doctrines preclude judicial intervention, and they may be correct. See California v.
Texas, 593 U. S. ___, ___ (2021) (slip op., at 8). But the consequences of approving the state action, both in this particular case and as a model for action in other areas, counsel at least preliminary judicial consideration before the program devised by the State takes effect.

The decision has the other three justices so angry that each of them wrote separate dissents — and each of them joined the other dissents as well. Why not just write a single comprehensive dissent? This seems like showboating, as though the three decided that each of them wants their own bite at the apple while still showing a weird kind of ideological solidarity.


However, Stephen Breyer does have a point in this part of his dissent:

But a woman has a federal constitutional right to obtain an abortion during that first stage. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 846 (1992); Roe v. Wade, 410 U. S. 113, 164 (1973). And a “State cannot delegate . . . a veto power [over the right to obtain an abortion] which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.” Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 69 (1976) (internal quotation marks omitted). Indeed, we have made clear that “since the State cannot regulate or proscribe abortion during the first stage . . . the State cannot delegate authority to any particular person . . . to prevent abortion during that same period.” Ibid. The applicants persuasively argue that Texas’s law does precisely that.

The very bringing into effect of Texas’s law may well threaten the applicants with imminent and serious harm. One of the clinic applicants has stated on its website that “[d]ue to Texas’ SB 8 law,” it is “unable to provide abortion procedures at this time.” Planned Parenthood South Texas, https://www.plannedparenthood.org/planned-parenthoodsouth-texas. And the applicants, with supporting affidavits, claim that clinics will be unable to run the financial and other risks that come from waiting for a private person to sue them under the Texas law; they will simply close, depriving care to more than half the women seeking abortions in Texas clinics. See, e.g., App. to Application 105, 148–150, 178–179. We have permitted those whom a law threatens with constitutional harm to bring pre-enforcement challenges to the law where the harm is less serious and the threat of enforcement less certain than the harm (and the threat) here. See Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 392–393 (1988); Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979); see also Susan B. Anthony List v. Driehaus, 573 U. S. 149, 164 (2014) (finding substantial threat of future enforcement where statute permits “‘any person’” to file a complaint and “the universe of potential complainants is not restricted”).


The imposition of massive civil liabilities is not really “potential” or “hypothetical,” is it? Of course not, nor was it intended to be merely theoretical. The law has already begun doing its damage, which was an entirely predictable and intentional consequence of passing the law. Regardless of whether the state of Texas officially enforces the law through its executive branch, it has deputized all of us to enforce it through lawsuits that will quickly bankrupt the abortion providers, and the impact of the law has been immediate and nearly plenary.

Breyer cites Supreme Court precedents that certainly could have justified what Roberts seeks — a pause via temporary injunction. Nevertheless, the majority settled on process instead to allow the law to go into effect, theoretically until someone files a more direct and ripe challenge to it. That and their rejection of the precedents Breyer cites would tend to undermine the argument made by the majority that this order doesn’t reflect on the law’s constitutionality. After all, precedents that descend from Roe such as those cited by Breyer will have no force if and when the Supreme Court overturns Roe — including Casey, which is more the controlling precedent on abortion matters since 1992.

This case won’t directly challenge Roe. However, the Supreme Court accepted a case from Mississippi that does directly and explicitly challenge Roe and all its descending decisions. The court will hear that case in its new term, long before it has an opportunity to rule on the merits of this Texas law. By that point, the issue might be moot. It certainly appears that five justices are not terribly interested in acting on the Roe-descending precedents at the moment.


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