Texas's Abortion Law Blunder - WSJ Editorial ( a lot of legalese)
(Remember, this is the WSJ)
America is back fighting its endless legal war over abortion. A new front opened late Wednesday when five Justices issued an unsigned opinion declining to block a Texas law banning abortion after six weeks. This law is a misfire even if you oppose abortion, and neither side should be confident the law will be upheld. For starters, the Texas statute clearly violates the Court’s Roe v. Wade (1973) and Casey (1992) precedents by making abortion illegal during the first trimester without exceptions for rape or incest—and it does so in a slippery way to duck federal judicial review.
Most laws delegate enforcement to public officials. This one delegates exclusive enforcement to private citizens, who are authorized to sue anyone who “aids or abets” an abortion after six weeks. Citizens who prevail in their civil lawsuits are entitled to at least $10,000 per abortion along with legal costs. The law sets an awful precedent that conservatives should hate. Could California allow private citizens to sue individuals for hate speech? Or New York deputize private lawsuits against gun owners?
Texas argues that abortion providers don’t have standing to challenge the law because the state isn’t enforcing it and neither at this point is any private citizen. Thus there is no case or controversy, which is what courts are supposed to settle. This is technically correct and it is why the five Justices declined to enjoin the law. “Federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves,” says their unsigned opinion, citing the Court’s recent decision in California v. Texas (2021). In that case a 7-2 majority dismissed Texas’s ObamaCare challenge after finding the Court lacked jurisdiction to hear the case since the feds weren’t enforcing the individual mandate.
(snip)
Abortion providers 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,” the five Justices write. “We stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit” and the Court’s order “is not based on any conclusion about the constitutionality of Texas’s law.” Texas state courts may also have a say, the Justices add... But the dissenting Justices acknowledge that Texas may be correct that “existing doctrines preclude judicial intervention.” What they want is to issue what is essentially an advisory opinion in the form of an injunction. This is not the role of the courts. In any case, a provider who gets sued under the Texas law will undoubtedly seek to dismiss the lawsuit under the Court’s abortion precedents. Then the law will be properly enjoined.
Meantime, Texas Republicans have handed Democrats a political grenade to hurt the anti-abortion cause. Pro-life groups have spent nearly 50 years arguing that abortion is a political question to be settled in the states by public debate. Yet now in Texas they want to use the courts via civil litigation to limit abortion.
More..
https://www.wsj.com/articles/texas-abortion-law-blunder-supreme-court-samuel-alito-john-roberts-whole-womans-health-11630619631 (subscription)
= new reply since forum marked as read
