Last updated on December 16th, 2021 at 01:26 pm
The US Supreme Court has issued its ruling in the much-hyped Texas Heartbeat case brought by abortion providers who oppose a Texas law (Senate Bill 8) prohibiting physicians from performing abortions after a fetal heartbeat has been detected and allowing private lawsuits against anyone aiding or abetting such an abortion. The left has gone berserk criticizing the underlying legislation and the fact that the Supreme Court has refused to stop its enforcement while abortion providers sue. Their reaction has been one of abject shock that despite the obvious conflict that the Texas law presents to the current abortion jurisprudence in Roe v Wade and Planned Parenthood v Casey, the Supreme Court ruling this past Friday leaves the law intact while it is being challenged. This, they claim with faux outrage, shows that the conservative justices on the Court are hell-bent to strip women of their “constitutional right” to control their own bodies.
Let’s take a brief look at what this ruling actually reveals, and what it doesn’t.
First off, despite the overheated emotional gnashing by leftist abortion activists and their loyal sympathizers in the mainstream media, the Court’s ruling says nothing about the constitutional muster of the Texas Heartbeat act, SB 8. Indeed, as Justice Neil Gorsuch said in his majority opinion, the constitutionality of the Texas law was not even at issue at this stage of the case. “In this preliminary posture,” Gorsuch wrote, “the ultimate merits question—whether S.B. 8 is consistent with the Federal Constitution—is not before the Court. Nor is the wisdom of S.B. 8 as a matter of public policy.” Rather, the issue presented by the emergency filling from the abortion providers, was whether they had the right to sue certain state officials – including state judges, court clerks, the state Attorney General, and various licensing and regulatory officials – in federal court before there is any attempt to enforce the law in order to enjoin enforcement of the act because it violates the constitutional pronouncements of Roe and Casey.
The Supreme Court majority held that the abortion providers are able to sue some, but not all, of the named defendants in a pre-enforcement action to enjoin the law, but the Court allowed the law to remain in effect while pre-enforcement challenges proceed.
I will spare readers a lengthy discussion of the legal rationale supporting the decision – hyper-technical legal issues relating to the doctrine of sovereign immunity, exceptions to that doctrine, Article III standing, procedures for ex parte and ex ante injunctions, etc. To me the refusal of the Court to put the Texas law on hold while it is challenged is not the most interesting or even particularly significant part of the ruling. After all, some 14 lawsuits have already been filed in Texas state courts seeking to stop enforcement of SB 8, and the evening before the Supreme Court issued its ruling in the case, a state judge handling the consolidated state cases ruled that the law was unconstitutional under both the Texas and US Constitutions.
The most interesting aspect of the Texas case is the degree to which politics has infiltrated the Supreme Court when it comes to issues relating to abortion. This is most apparent in the actions of two justices – Sonia Sotomayor and John Roberts – who though portrayed as being from oppose ends of the ideological spectrum seem to share a results-oriented approach to abortion jurisprudence.
When the US Supreme Court heard the seminal challenge to Roe v Wade and Planned Parenthood v Casey that is presented in the Dobbs v Jackson Women’s Health Organization case, Justice Sonia Sotomayor made an impassioned – some would say hysterical – plea to leaving undisturbed Supreme Court abortion precedent even when justices think the underlying precedent was wrongly decided. This, she plaintively asserted, was essential for the very survival of the US Supreme Court. Otherwise, the Court would be seen as being political. “Will this institution survive the stench that [overturning abortion rights] creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.”
Contrast that extreme position – the legitimacy of the Supreme Court will be questioned if it strays from past abortion precedent, even if wrongly decided – with her comments in the Texas heartbeat case. In the Texas case, Sotomayor unhesitatingly discards as “wooden” precedent that prohibits lawsuits against state court clerks, and instead favors “modern” case law that does not even discuss actions against state court clerks.
What ties together Sotomayor’s irreconcilable approach to precedent? Certainly not principle. It’s politics of course. Sotomayor is an unabashed partisan supporter of abortion and is willing to concoct any rationale necessary in order preserve an unfettered “right” to abortion in every circumstance.
Once again, John Roberts’ results oriented approach was on display in the Texas case, just as it was in Dobbs. In the Dobbs case, Roberts made numerous attempts during oral argument to press for a “middle ground” on abortion, preserving a constitutional “right” to abortion but upholding the Mississippi law in question by recasting abortion jurisprudence by eliminating fetal viability as a bright-line standard. In the Texas case, Roberts was quick to insist on strict adherence to bright-line abortion standards because he finds that the Texas law runs afoul of Roe and Casey. He even went so far as to say that a state court clerk may be sued in order to stop enforcement of the Heartbeat act merely for ministerially doing her job of accepting the filing of a private lawsuit against an abortion provider “in any of Texas’s 254 far-flung counties.”
It was politics and politics alone – not the text of the Constitution, nor historical precedent or American tradition – that led to the fraudulent creation of a constitutional ‘right’ to abortion in Roe v Wade, a ‘right’ restated but revamped in Casey. And if Roe and Casey are not overturned, it will be politics and politics alone, masquerading in the doctrine of stare decisis to maintain wrongly-decided Supreme Court precedent, that saves the ‘right’ to abortion.
On behalf of the millions more unborn children whose lives will be extinguished if politics and not the Constitution continues to control abortion jurisprudence, let us hope that the Supreme Court majority in the Texas case – Gorsuch, Alito, Kavanaugh, Barrett and Thomas – has the courage to resist politics and hold firm in their handling of the Dobbs case. Sotomayor and the other two liberals are surely lost, and probably Roberts as well – unless after failing to secure the votes for a “middle ground,” he decides to preserve some semblance of a reputation in the conservative legal community and among the public as a constitutional originalist.