Update (1125ET): Just like he did yesterday, President Biden has chimed in to bash the Supreme Court's handling of the Texas heartbeat bill, which he denounced as an "assault on women's constitutional rights" and an "insult to the rule of law and the rights of all Americans."
"Complete strangers will now be empowered to inject themselves in the most private and personal health decisions," Biden declared. Toward the end of the statement, Biden acknowledged that the law has not yet seen its final ruling from the court, as Chief Justice John Roberts pointed out. However, since the impact of the Court's decision is "immediate", Biden said, it will require "an immediate response."
He also pledged to launch a "whole-of-government" effort to find legal recourse to protect the right to an abortion for every woman in Texas.
"I am directing that Council and the Office of the White House Counsel to launch a whole-of-government effort to respond to this decision, looking specifically to the Department of Health and Human Services and the Department of Justice to see what steps the Federal Government can take to ensure that women in Texas have access to safe and legal abortions as protected by Roe, and what legal tools we have to insulate women and providers from the impact of Texas’ bizarre scheme of outsourced enforcement to private parties."
So, let's review: when it comes to abortions it's "a women's right to choose". But when it comes to vaccines, bodily autonomy goes out the window.
BIDEN: SUPREME COURT’S RULING AN ASSAULT ON WOMAN’S RIGHTS— Quoth the Raven (@QTRResearch) September 2, 2021
But mandatory vaccines for all women
Read the full statement below:
The Supreme Court’s ruling overnight is an unprecedented assault on a woman’s constitutional rights under Roe v. Wade, which has been the law of the land for almost fifty years. By allowing a law to go into effect that empowers private citizens in Texas to sue health care providers, family members supporting a woman exercising her right to choose after six weeks, or even a friend who drives her to a hospital or clinic, it unleashes unconstitutional chaos and empowers self-anointed enforcers to have devastating impacts.
Complete strangers will now be empowered to inject themselves in the most private and personal health decisions faced by women. This law is so extreme it does not even allow for exceptions in the case of rape or incest. And it not only empowers complete strangers to inject themselves into the most private of decisions made by a woman—it actually incentivizes them to do so with the prospect of $10,000 if they win their case. For the 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. Rather than use its supreme authority to ensure justice could be fairly sought, the highest Court of our land will allow millions of women in Texas in need of critical reproductive care to suffer while courts sift through procedural complexities. The dissents by Chief Justice Roberts, and Justices Breyer, Sotomayor, and Kagan all demonstrate the error of the Court’s action here powerfully.
While the Chief Justice was clear to stress that the action by the Supreme Court is not a final ruling on the future of Roe, the impact of last night’s decision will be immediate and requires an immediate response. One reason I became the first president in history to create a Gender Policy Council was to be prepared to react to such assaults on women’s rights. Hence, I am directing that Council and the Office of the White House Counsel to launch a whole-of-government effort to respond to this decision, looking specifically to the Department of Health and Human Services and the Department of Justice to see what steps the Federal Government can take to ensure that women in Texas have access to safe and legal abortions as protected by Roe, and what legal tools we have to insulate women and providers from the impact of Texas’ bizarre scheme of outsourced enforcement to private parties.
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One day after allowing Texas's heartbeat bill - the most restrictive abortion law passed in the US since the dawn of the Roe v. Wade era - to take effect, the Supreme Court has declined to block the law, which bars abortions after a fetal heartbeat can be detected - usually around the six-week mark.
The court's nighttime order, which arrived just before midnight in the form of a single paragraph and rejected an emergency request by clinics and abortion-rights advocates, marks a turning point in the legal battle over abortion rights. While not a final ruling on the measure's constitutionality, the court's action validates - at least temporarily - a novel attempt by Texas lawmakers to insulate antiabortion legislation from court challenge (the novel strategy here is Texas' decision to charge private persons with enforcement of the law, making it more difficult for pro-choice activists to halt enforcement of the law by suing the parties responsible for enforcement). The unsigned order was approved by 5-4 vote, with most of the conservative justices in the majority (with Chief Justice John Roberts joining the court's three liberal justices in opposition).
In the unsigned explanation, the court’s majority added that the decision was "not based on any conclusion about the constitutionality of Texas’s law" and allowed legal challenges to proceed.
The court issued four separate dissents (though the liberal justices took turns co-signing on their colleagues' dissenting opinions), along with a majority opinion penned by Justice Neil Gorsuch explaining that abortion providers "raised serious questions regarding the constitutionality of the Texas law at issue." But the court went on to say that continuing litigation over the abortion restrictions raised “complex and novel” questions about legal procedure that undercut the providers’ request to halt the ban right now.
"In light of such issues, we cannot say the applicants have met their burden to prevail in an injunction or stay application," the court wrote. Justices Clarence Thomas and Samuel Alito, along with Trump appointees Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, formed the majority.
The majority said its order allowing the ban “is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other challenges to the Texas law, including in Texas state courts."
The dissenting opinions were described by WSJ as "scathing", with each of the dissenting justices writing their own opinion. The most critical was penned by Justice Sonia Sotomayor, who accused the Texas lawmakers of cynically flouting legal precedents.
"Taken together, the Act is a breathtaking act of defiance—of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas," she wrote, joined by Justices Stephen Breyer and Elena Kagan.
Chief Justice Roberts opted for milder language, questioning the state's "not only unusual, but unprecedented" way of crafting its abortion ban, which for tactical reasons delegated enforcement to private parties instead of state officials.
Joined by Justices Breyer and Kagan, the chief justice said the law should be blocked while "courts may consider whether a state can avoid responsibility for its laws in such a manner."
The emergency appeal, which was sent to SCOTUS on Monday, focused on what, if any, provisions of the law should apply in Texas while the courts continue to debate and decide the issue. The justices were confronted with that issue after a federal appeals court halted trial-court proceedings in the case for now and declined to block the ban from taking effect.
All four Whole Woman’s Health clinics in Texas were open Wednesday and operating within the strictures of the new law. The clinics are able to offer ultrasounds and make plans to provide the procedure for anyone without detectable embryonic cardiac activity, though abortion providers say the new bill will bar 85% of abortions in the state.
The order actually addressed a serious flaw in the challenge brought by pro-choice advocates to the Texas law. The drafters of the law were creative in leaving enforcement of the law to private parties rather than state officials. It allows private individuals to bring lawsuits against anyone who either providers or “aids or abets” an unlawful abortion and allows for an award of $10,000 if successful in such a challenge.
Of course, such a lawsuit will not immediately end Roe v. Wade. It will be challenged on the very grounds cited by advocates. That includes the question of whether Texas is using private citizens to curtail a constitutional right. Those cases will also lead to judicial review. In the meantime, if any state official tries to curtail constitutionally protected rights, they can be enjoined pending any decision. Federals courts enjoin people, not laws, when there are actions that are being taken to violate the Constitution. This order concerns whether a court can enjoin the law before any final review on the merits. Any challenge to the law could be expedited on appeal.
The problem is that the challengers to the Texas law picked defendants (a state court judge and a court clerk) that do not enforce the law. Indeed, they appear virtually random. That is why five justices did not issue the emergency order. However, they expressly stated “The applicants now before us 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.”
Even Chief Justice John Roberts who voted for an injunction with his liberal colleagues admitted that this is a serious procedural hurdle and it is unclear “whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law.” One can honestly disagree with how insurmountable this issue is for the Court, but it is ridiculous to say that it was some manufactured excuse for a partisan ruling.
Nevertheless, liberal professors and commentators immediately pounced and declared that this was just a procedural trick or excuse. Many noted that this is why Amy Barrett was added to the Court. However, these same experts did not make similar objections when standing or procedural grounds were used to protect abortion or other rights. Indeed, the only case cited in the order is California v. Texas where the Court rejected a challenge to Affordable Care Act due to a lack of standing, including Barrett. That order noted that “federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.”
So the Court was not ruling on Roe and it was not ruling on this case, which is described as raising “serious questions regarding the constitutionality of the Texas law.” The actual ruling seemed immaterial to the coverage as people rushed to ride a wave of anger. It is not the first time that actual orders or decisions seemed immaterial to their coverage. The Washington Post’s Jennifer Rubin published legal analysis that actually got the rulings wrong in an effort to flog an anti-Trump narrative. NBC’s Chuck Todd previously misrepresented a ruling against Michigan Gov. Gretchen Whitmer as not citing a single case despite an opinion with dozens of such citations. The actual opinion was entirely immaterial to the reporting on the opinion.
As Turley concluded, the order this week was based on a fundamental barrier to emergency relief that was even recognized in dissent. What is most striking is that none of that takes away from the legitimate concerns over the future of Roe v. Wade. There was no need to inflate the meaning of the order when there is a massive threat just behind it on the docket. The Texas law is an existential threat to Roe. So is the Dobbs case now before the Court. However, the press today has little patience for nuance or delay when there is rage to feed.