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September 03, 2021

Supreme Court Leaves Texas "Heartbeat" Abortion Law in Effect -- For Now

The Texas abortion law says that abortionists who perform abortions on fetuses six weeks old or older (when the heart starts being) can be sued by private actors -- not any state actor or agency.

Leftist groups filed for an emergency injunction against enforcement of the order. By a 5-4 vote, the Supreme Court refuse to enjoin the law.

Usually this is where people say, "Because one of the three or four factors (depends on jurisdiction) for granting a stay is likelihood of winning on the final merits (that is, at full trial), this means that the Supreme Court is tipping its hand that they will uphold the law as Constitutional when it comes to a full hearing."

An emergency hearing is, well, an emergency hearing. A highly abbreviated hearing with no chance to subpoena or depose or anything like that.

Anyway, in this case, I don't think you can say this presages that the Supreme Court will uphold the law. Because in this case, the law is different from most. State actors aren't enforcing it; rather, private citizens will bring private causes of action against abortionists who perform abortions on fetuses with a heartbeat, which will ultimately bankrupt them.

So who would you enjoin in this case? The Supreme Court can't enjoin state officials from enforcing the law; they're not part of the mechanism of enforcing the law.

What they might do -- and I bet this is what they will do -- is wait for a private cause of action against an abortionist and then stay that lawsuit until the law can be fully litigated.

More from Carrie Campbell Severino, who was Mollie Hemingway's coauthor on the book about the Kavanaugh hearings.

She's writing at NRO but don't hold that against her.

Last night a 5–4 majority of the Supreme Court showed courage and faithfulness to rule of law by refusing to issue a stay or injunction in Whole Woman's Health v. Jackson -- in the face of an onslaught of egregious lies and histrionics from the Left about the case and its procedural posture. But this case involved abortion, so we shouldn’t be surprised by either the Left’s deception and the drama, or the media’' willingness to play along.

Well before it issued its ruling late last night, the Court drew great ire from liberals who were horrified by the prospect that the justices might not prevent the Texas Heartbeat Act from going into effect. That was despite numerous procedural hurdles in the case, most significantly the lack of a proper defendant.

That refers to the question I asked: Who would be enjoined, if you did grant an injunction? Every citizen in the state of Texas -- the ones who could bring suit?

The Court's brief order -- not at all unusual in the emergency-application context -- made clear that the procedural issues prevented it from considering the constitutionality of the Texas law. The defendants are state officials plus one private citizen. The state officials claimed they lacked the authority to enforce the Texas law, which allows private citizens to file suit against any person who provides an abortion or aids or abets such an abortion. The one private citizen who was sued stated he has no intention to enforce the law. Absent such authority or intention among the named defendants, the majority concluded, "We cannot say the applicants have met their burden to prevail in an injunction or stay application." All of that means that, as Ed Whelan has aptly explained, the case did not present a live controversy (i.e., an actual dispute between the parties).

Ed Whelan found the dissenters' claims weak and entirely political.

Oh, Bush appointee John Roberts joined the liberals. Of course.

Why do I say he "joined" the liberals? He rules in lockstep with the liberals in 90% of cases. He is a liberal.

Last night the Court denied abortion providers' beyond–audacious request for emergency relief against the Texas Heartbeat Act by a 5–4 vote. The feebleness of the four dissents shows that the denial should have been 9–0.

...

The most disappointing -- because we should have expected so much better, especially from someone who often presents himself as very serious about jurisdictional limits on judicial power --is the Chief's (which Breyer and Kagan join). The Chief acknowledges that defendants "may be correct" that "existing doctrines preclude judicial intervention." That acknowledgment should be enough to require him to deny relief. Instead, he somehow imagines that the Court has the power to "grant preliminary relief to preserve the status quo ante" so that the lower courts can address the "particularly difficult" questions that the case raises. And, again, he also mistakenly assumes that preliminary relief against the named defendants actually could "preserve the status quo ante."

One bright note for those who fear that the Chief holds extraordinary sway over a couple of his conservative colleagues is that neither of them went south with him.

The usual liberal "Republicans" are campaigning against this bill, warning actual conservatives that this type of "innovative" legislation -- authorizing the use of private causes of action to vindicate policy objectives -- might be used against conservatives in the future.

Might?

In the future?

Are they aware that anyone attempting to develop his own land can be sued for a host of claimed environmental offenses?

Did they notice that bakers can be sued and harassed (by a state agency with a virtually unlimited budget) if they refuse to bake a "Gender Transition Cake" for a serial stalker?

Did they notice that employers can be sued for not hiring enough minorities, or firing too many minorities during a downsizing?

This type of law is already rife in our legal codes, and deployed exclusively against the right, against traditionalists.

They never argue against those laws. Their "libertarianism" only comes to the fore when someone on the right wants to use the left's tactics against the left.

But as to the left's own tactics? They have no problem with that. Sure, if you make an issue of it with them on Twitter, they will reluctantly mumble "Well I'm against those laws, too."

But are they? Strange we never hear about this supposed opposition to the left's impositions on the right until we probe them about their inconsistency on these issues.

You don't really "oppose" something if your "opposition" only gets voiced when someone pressures you into stating it.

They'll ignore the pile of laws permitting the left to enforce its priorities through the lawsuit, but then shriek about the right adding one grain of sand to the pile.

These people are liberals, have been liberals, will always be liberals. They do not object to liberal policies or laws, especially those that advance a liberal social agenda, because they are, in fact, liberals.

They object exclusively to the right's ventures into these areas because, again, they are liberals.

I'm getting sick and tired of being told that I can't pick up the same legal club the left has been beating the shit out of me with my whole life, because of "Muh Principles."

I have no principles requiring me to be a chump, or a simp for the left's agenda.

Maybe those with such "principles" should reexamine them.

Or at least stop claiming to be "conservative." Or even "libertarian."

Meanwhile, the fake conservatives/fake libertarians will have no problem with Jen Psaki's announcement that the Biden Puppet Administration is looking for ways to use the federal government's power to rewrite a state's law.


Among the histrionics on Twitter was this doctor, who offered the sage medical opinion that now -- and only now -- women who did not seek to become pregnant should avail themselves of birth control to prevent pregnancy, rather than relying on the Plan A of an abortion.


birthcontrol.png

Your Ruling Class, everyone. Please clap.

One type of controversial tweet was that offered by Trans "Women" who felt somehow obligated to weigh in on abortions.

This did not go over well with feminists who do not believe that Trans "Women" are women.

transabortions.png

I don't really buy into the argument that only those with a direct personal stake in a policy debate (be it abortion, war, etc.) are permitted to weigh in on it.

But I thought I'd mention that bit of contention between pro-women feminists and trans "women" activists.

Meanwhile, DeSantis says he'd welcome a similar Florida bill.

Tucker Carlson notes that the left's "My body, my choice" rhetoric is out the window now that they've embraced vaccine mandates.

He also points out that the left's rhetoric -- "men should not get a say on abortion, because they don't get pregnant" -- must also be abandoned, because, according to the same left, "men" do get pregnant.

27 I think the "punishment" for Texas should be kicking it out of the union. Who's with me? Posted by: Joe XiDen - Delta Delta Delta Can I help ya help ya help ya Variant

Let's get that #HashtagTrending.

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posted by Ace at 01:12 PM

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