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Once, when Shakespeare crafted a tale of comic intrigue, he called it "Much Ado about Nothing." The title would be just as apt for the Supreme Court’s late night INACTION Wednesday in what is best understood as a non-case about Texas’s fetal heartbeat law.
Because the matter involves the Left’s most sacred cow, abortion, there is the now-familiar hysteria. Yet, nothing has really happened. All the Court did, because it could not properly do otherwise, is let the Texas law go into effect.
Naturally, there came strident dissents from four justices – Chief Justice John Roberts, along with the tribunal’s three progressives, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan. We’re talking abortion here, and since there is nothing in the Constitution about abortion, and certainly no RIGHT to terminate the lives of unborn children, the Left has for a half-century substituted stridency for jurisprudence.
But it’s just noise. Contrary to media-Democrat complex demagoguery, the Court has not green-lighted restrictions on abortion that gut Roe v. Wade.
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Indeed, the five-justice majority was emphatic that it was not rendering a decision on the contested provision’s validity: "[W]e stress that we do not purport to resolve definitively any jurisdictional or substance claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law[.]"
The law prohibits abortion, except in the case of a medical emergency, "if the physician detected a fetal heartbeat for the unborn child … or failed to perform a test to detect a fetal heartbeat." To be sure, the statute would make it illegal in Texas for providers to perform elective, pre-viability abortions – the kind permitted under Roe v. Wade (1973) as refined by Casey v. Planned Parenthood of Pennsylvania (1992). Inevitably, the Supreme Court will have to rule on the validity of such a ban. As we shall see, though, probably not in this case.
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.
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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.
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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.
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It is likely that in wrestling with its abortion jurisprudence in Dobbs, the Court will moot questions about the Texas law. And appropriately, it will do so deliberately on a full briefing by parties who are properly before the court – unlike the situation in last night’s case.
For now, that case is, well, much ado about nothing.
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