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By now, those of you who are paying even a smidgen of attention to the news are aware that legislation titled the Texas Heartbeat Act (S.B. No. 8) went into effect yesterday. The law prohibits a physician from performing an abortion, absent a medical emergency, “if the physician detected a fetal heartbeat for the unborn child.” This occurs at about six weeks from conception. Of most interest is the fact that the law–unlike some other state attempts–does not permit state officers to enforce it. In a rather unique piece of draftsmanship, it permits a private party to sue in state court against anyone who violates the law or aids and abets in the violation. If the plaintiff is successful, they are entitled to injunctive relief, attorney’s fees, and at least $10,000 in damages.
There is a somewhat complex procedural history leading up to yesterday’s Supreme Court action which I’m not going to track here. The bottom line is that, by a 5-4 vote, the Supreme Court denied abortion providers’ request for an emergency injunction preventing the law from going into effect. This is not a decision “on the merits”–on the ultimate constitutionality of the law, but only a determination that the defendants in the suit–Texas officials (including the Attorney General) and a citizen activist–were not attempting to enforce the law, so there was (among other things) no “case or controversy” to be resolved. That is, or should have been, a fairly simple resolution. But not so fast. It’s abortion.
“By its inaction, the Supreme Court ended abortion access in TX last night. Roe v. Wade was effectively overruled, not with a bang, but with a whimper, through the shadow docket . . .” said Senator Richard Blumenthal of Connecticut, indicating little knowledge of the Supreme Court’s action. Not to be outdone, President Biden said the statute “unleashes unconstitutional chaos and empowers self-anointed enforcers to have devastating impacts.” According to Biden, “For the [Supreme Court] majority to do this without a hearing, without the benefit of an opinion from a court below, and without due consideration of the issues, insults the rule of law and the rights of all Americans to seek redress from our courts . . .”
Surprising no one, a collective of “legal experts” on Twitter unleashed a barrage of criticism directed at the Supreme Court, and public demonstrations have followed. The freak out is so severe that we are even hearing about “women’s” rights once again, with the inclusiveness of “birthing people” seemingly forgotten. Since a degree of subtlety is rarely the hallmark of criticism from the left, the fact that none of the defendants in the case had actually done anything seems to have escaped notice.
There are, of course, lessons to be learned even at this intermediate stage of the dispute. There is a strong case that, based on the law, the decision should have been 9-0. The dissents, including one from Chief Justice Roberts (natch), are weak, and never really say what an injunction against the named defendants would accomplish. This reminds us, again, that politics, and in Roberts’ case, optics, frequently drives the unanimity from Justices on the left. It’s also no surprise that the usual suspects are demagoguing a complex issue, or that the reaction of Twitter is usually a contrary indicator to what is actually right. But, hopefully, we already knew that.