The Worst of Times
-
-
@jolly said in The Worst of Times:
https://www.cnn.com/2021/09/03/politics/biden-supreme-court-abortion-joe-manchin/index.html
"the Texas abortion law -- which bars abortion after as early as six weeks into the pregnancy "
An interesting twist is that the Texas law is not a criminal provision and it may not be enforced by state officials. Instead, it creates a private, civil right of action: If a doctor performs an abortion in violation of the law’s terms, he or she could be sued for $10,000, although a plaintiff would have to establish legal standing to file a lawsuit.
The Supreme Court’s brief opinion Wednesday night involved a lawsuit – Whole Women’s Health v. Jackson – in which abortion providers tried to sue state officials, judges, and a pro-life activist. But there is no case against those defendants: The state officials have no power to enforce the law and have sovereign immunity. Settled law bars precluding state courts from entertaining lawsuits. And the pro-life activist filed an affidavit attesting that he had no plans to file any lawsuits for violations of the law.
The abortion providers knew this. They were trying to game the system: They dawdled for over two months after the law was enacted, waiting until it was about to go into effect. Then they sought an injunction against its operation, hoping a federal court would block the law without grappling with such inconveniences as the fact that there is no legal basis to sue people who can’t or haven’t taken an action they are not required to take.
Naturally, the abortion providers found a friendly Obama-appointed judge who tried to accommodate them by absurdly ruling that the state officials did not have sovereign immunity, and who was poised to hold a hearing on the injunction. But the Fifth Circuit put a stop to that. This set the stage for the Supreme Court to act – or, more accurately, not act … because, at the moment, there is nothing to act on.
The law is in effect, but nothing has happened. Until someone files a lawsuit in a concrete situation where the law is actually being applied – e.g., an abortion provider performs the procedure, or a woman claims she is being prevented from getting an abortion – there is no case.
That said, the five conservative justices in the majority – Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – were adamant that, if such a case arises, they have not prejudged it. Even justices philosophically opposed to abortion would have to grapple with Court precedents (Roe and Casey in particular) that permit it.
As noted above, that probably won’t happen in this case. That’s because the Court has already accepted a case for its upcoming term – Dobbs v. Jackson Women’s Health Org. – in which it will consider the constitutionality of a Mississippi law that bans abortions after 15 weeks.
-
As much as I dislike abortion, I am opposed to the Texas law. It's a horrible precedent and akin to 'Nice little career you have there. Shame if something should happen to it'. It's not the business of a state legislature to set up civil suits to enforce a societal goal.
