For many waking up yesterday, they must have thought that they had a real Rip Van Winkle of a snoozer for the last 50 years. Across the spectrum, legal experts were declaring the death of Roe v. Wade after the Supreme Court refused to enjoin a Texas anti-abortion law in an emergency filing. Rep. Alexandria Ocasio-Cortez announced that the Supreme Court just “overturned” Roe in the order. The mainstream coverage ranged from the outright death of Roe to its being rendered to a vegetative state. Even more reasoned analysis asked “Is this how Roe v. Wade dies?” The answer is no. This is how legal analysis dies.
Legal analysts once prized our role of transcending the political rhetoric and offering detached and honest appraisals of legal decisions and developments. However, in the age of echo journalism, legal experts are expected to drive ratings and readership with breathless, partisan takes on every story. Some of that analysis constitutes raw conspiracies theories dressed up as legal analysis like declaring that this order proves the “very real possibility in America right now that the federal courts are conspiring against us, against the rights of women, of people of color, of voters, of poor people.” Others cut to the chase and demanded that Congress immediately pack the Supreme Court with a liberal majority to guarantee results in such cases.
The trigger of this apocalyptic coverage was an unsigned, one paragraph order in Whole Woman’s Health v. Jackson. At issue is a Texas law that would effectively gut Roe v. Wade by prohibiting abortions after about six weeks of pregnancy. After Roe v. Wade and Planned Parenthood v. Casey, laws were routinely struck down if they barred abortions “viability” round 24 weeks of pregnancy. The Texas law is clearly meant to test the new majority on the Supreme Court in another attempt to overturn Roe. However, the Supreme Court is already set for such a fundamental challenge after it accepted Dobbs v. Jackson Women’s Health Organization.
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.
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.
I’m going to sue gas stations in Texas which sell rubbers in machines in their do called restrooms.
(music)
Allll my ex es live in Texas!
All my kids in Tennessee!
Eye will sue them down in Texas…
When rubbers used were meant for me!
Julian Sanchez: “This Texas ruling is disturbing for reasons that don’t even relate to reproductive choice. SCOTUS is effectively saying “if you build a Rube Goldberg enforcement mechanism for the express purpose of evading review of a facially unconstitutional law… very clever, that’ll work!””
According to this Texas law, a man can rape a woman and then sue his victim if she tries to get an abortion.
Next step: the Taliban are victims of cancel culture
– National Peoples Radio
😀
No, it’s an awful law, but it doesn’t allow that.
“…A NEW INDIVIDUAL IS INITIATED.”
_____________________________
– A zygote is a human being.
– Homicide is the killing of a human being by another human being.
– Abortion is homicide; abortion is murder.
_________________________________
Fertilization
Fertilization is the fusing of the gametes, that is a sperm cell and an ovum (egg cell), to form a zygote. At this point, the zygote is genetically distinct from either of its parents.
– Wiki
_____
fertilization noun
fer·til·i·za·tion | \ ˌfər-tə-lə-ˈzā-shən
Definition of fertilization
b (2) : the process of union of two gametes whereby the somatic chromosome number is restored and the development of a new individual is initiated
– Merriam-Webster
_______________
homicide noun
ho·mi·cide | \ ˈhä-mə-ˌsīd
Definition of homicide
1 : a person who kills another
2 : a killing of one human being by another
– Merriam-Webster
“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.””
They did that without hearing any arguments. They could have stayed the law until hearing arguments, but instead the majority used the shadow docket and copped out.
Turley can’t even bring himself to address the legal content of the dissents written by Breyer, Kagan and Sotomayor. Such is the state of his legal scholarship that he spends his time whining about the coverage instead of delving into the legal issues.
L. Luppen: “say a blue state passes a law banning possession of handguns and AR-15s, forbidding public officials to enforce the ban, authorizing private citizens to sue anyone who possesses those weapons or abets possessing them, and awarding $10k bounties if they win” — do you think SCOTUS and Turley would respond the same way?
Justice Kagan’s dissent, joined by Breyer and Sotomayor:
“Without full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions. The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State’s behalf. As of last night, and because of this Court’s ruling, Texas law prohibits abortions for the vast majority of women who seek them—in clear, and indeed undisputed, conflict with Roe and Casey.
“Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process. That ruling, as everyone must agree, is of great consequence. Yet the majority has acted without any guidance from the Court of Appeals—which is right now considering the same issues. It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion—that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail. In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend. I respectfully dissent.”
Anonymous,
That idea has already been floated. If the law does stand. It can be copied to address other issues such as 2nd amendment rights. The court needs to act fast because the longer it’s in effect the more legitimate the law becomes.
It can be copied to address other issues such as stupid comments, dumb people, desperate trolls and the current inhabitant of the Whyte House
Whether it’s gutting the 1965 voting rights bill or now, Roe. This SCOTUS has proven again that they have no problem with gutting settled law for the right-wing agenda all thru the “Shadow Docket”.
CALIFORNIA SHOULD PASS A LAW..
that says anyone who sues in Texas courts to harass abortion providers can be sued in California courts for trying to deny women their right to proper healthcare.
Now granted, a law like this would be absurdly broad. But it would be no less broad than the Texas law. What’s more, Turley is more disengenous, with this column, than he has ever been. To pretend that mainstream media is over-reacting to this development is maliciously dismissive; especially towards women.
As you should know by now, Turley uses the “Bill Barr Summary” method when explaining, tell only what they want told, and leave out details that might make their version BS.
I see this as a response to the Biden Eviction Ban extension. Biden, in an obvious act of defiance to the court forced an extension of his unlawful Eviction Ban by ignoring the court’s warning. This refusal to stay the Texas law is an act in kind – in effect telling Biden if you play this game to delay ending illegal acts you want , the court will allow delays to Admin requests to ending acts it opposes by forcing the admin to go through the full process to get rulings on their requests to overturn actions Biden Admin deems unlawful. Notice should be given to the fact SCOTUS explicitly said this decision is not a decision oh the merits of the Texas law, only a refusal to stay the law until a full hearing on the merits.
“Biden, in an obvious act of defiance to the court…”
Biden didn’t defy the court. He defied Kavanaugh’s concurring opinion, which was NOT the opinion of the court.
There were 4 justices that had ruled against it and in favor of striking it down. Kavanaugh was the 5th justice who said the Ban was illegal and only allowed it to expire on it’s end rather than end it immediately because it’s expiration was so close. There can be no doubt that if the act would have been set to end a year from then Kavanaugh would have voted to end it immediately.
“There were 4 justices that had ruled against it and in favor of striking it down.”
Yup, those 4 dissented. Their dissent wasn’t the court’s opinion EITHER. Again: Biden did not defy the actual opinion of the court.
Nowhere did I say he defied the ACTUAL OPINION of the court. I said he IGNORED the court’s WARNING that the ban was illegal. When 5 justices are telling you that something is unlawful that is a clear warning not to continue. You jump to the same extreme conclusion on my remark as many are doing about the court’s current action.
“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.”
Is Texas using private citizens to curtail a contitutional right close to the same as the federal government using private companies to curtail a constitutional right through “robust content modifiation”?
“ Is Texas using private citizens to curtail a contitutional right close to the same as the federal government using private companies to curtail a constitutional right through “robust content modifiation”?”
No, it’s not the same thing. You’re referring to social media platforms censoring speech. Government is not using social media to censor speech thru private companies. The private companies are not bound by the prohibitions on censoring speech in the constitution. Government can’t force private companies to carry anyone’s messages or speech. Private companies have direct protections from the constitution.
Clearly there is no constitutional right to an abortion, BUT there is a constitutional right to liberty and being able to make your own choices is part of that. Making abortion illegal infringes on a woman’s right to determine her own choices free from government intrusion or anyone else. That’s the issue.
Conservatives are currently fighting for their right to determine what they put in their bodies and decide whether they should wear a mask or not by arguing “their body their choice”. Except if you’re a woman. Conservatives get to dictate what your choice should be when it comes to abortion. They want to deny a woman her right to choose for herself.
There’s also a constitutional right to life.
Zygotes have no constitutional right to life.
Life is life, but in your case we can make an exception
Citation please, Anonymous.
Zygotes have no constitutional rights at all. Only legal persons have rights, and as SCOTUS noted in Roe, personhood starts at birth: “The Constitution does not define “person” in so many words. Section 1 of the Fourteenth Amendment contains three references to “person.” The first, in defining “citizens,” speaks of “persons born or naturalized in the United States.” The word also appears both in the Due Process Clause and in the Equal Protection Clause. “Person” is used in other places in the Constitution… But in nearly all these instances, the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application.”
Life is life and it should never been ended by another
You kill living things every day. “Life is life” is bunk.
Apoptosis doesnt mean what you think it does
Oh goodie, a straw man argument that assumes facts not in evidence.
Anon likes to kill things.
Kill babies, Kill speech, Kill Americans left behind, etc. Amazing how the capital letters add up to KKK.
“Life is life and it should never been ended by another”
That statement really is remarkably empty.
A carrot in the ground is life, as are tumors and viruses. So a carrot never should be pulled, a tumor excised, a virus killed?
I can’t see how it is reasonable to argue that the MSM is hyperventilating when the three remaining liberals on the court are using such extraordinary language to describe the ruling. MSM coverage of any field normally requiring real expertise (like law–or virology) can be sloppy and hyperbolic, but if a solid chunk of the relevant experts are raising red flags, journalists can’t reasonably be attacked for doing likewise. This is the legal analsyis equivalent of res ipsa loquitur–iudices ipsi loquuntur.
Saying libs needn’t panic about this ruling because they should be panicking about Dobbs utterly misses the point. Dobbs is part of the context for this “decision.” It seems quite clear that SCOTUS will approve of state measures that effectively eliminate a woman’s access to abortion (at least non-rich women’s access to abortion), even if they skirt the issue of directly overturning Roe. This ruling makes that still clearer.
Dave, that’s an excellent point. Only the wealthy will still be able to have an abortion. It gives those who oppose abortion a reason to judge those less able to afford it.
Good points Dave!
The law itself is unconstitutional obviously, but it’s also not as easy to use against abortion providers as many may think. First of all it’s unenforceable. There are no real way to enforce it, even by anyone who chooses to sue.
For example, the law allows anyone who aids and abets in helping someone get an abortion to get sued by anyone. Not state officials. The law specifically states that ANY state official cannot enforce the law.
Uber drivers are used as an example of being liable to be sued in court. The problem is that in order for the lawsuit to be successful the person suing has to prove that an illegal abortion was done. You can’t sue just because a driver dropped off a patient at the clinic. Abortion clinics don’t just exclusively perform abortions. They also perform other healthcare services such as screenings, pelvic exams, consultations, etc. A private citizen cannot and will have no access to any patient’s records and determine if the person being driven actually had an illegal abortion.
You can’t tell if a woman is more than 6 weeks pregnant from watching her in a car or walking in.
You can’t sue if you can’t determine that the person who “aided or abetted” someone if you can’t prove illegal abortion was performed.
Those who do choose to sue and fail to prove the person had an illegal abortion can be counter sued for defamation.
How can anyone who is “deputized” to enforce a law determine if an illegal abortion was done?
Then there’s the problem of a judge in the case. By what the law says. He couldn’t issue a ruling because he wouldn’t be able to enforce it.
“The law itself is unconstitutional obviously” Obvious to liberals who get off on murdering innocent babies. Not obvious at all on constitutional grounds.
If you want to have ‘innocent babies,” nobody will stop you.
Anonymous,
How can anyone wanting to use the law in Texas determine if an illegal abortion was done? How can a person dropping off a patient be proven that they abetted an abortion procedure?
Seems to me regarding the driver a key element of any crime is proving intent. If I call Uber to take me to the bank and I then rob it surely the driver is not an accomplice to the crime. As far as he knows he just dropped me off in front of the bank. He really doesn’t even know if that is my final destination, just that that was where I wanted dropped off.
This is of course assuming I do not announce my intent on the ride over.
Liberal love murdering defenseless, innocent, precious babies.
Sam,
“ Liberal love murdering defenseless, innocent, precious babies.”
Nope.
Right now. You have the ability to enforce the Texas law. How will you be able to determine if someone aided or abetted an illegal abortion?
Anonymous, are you not able to enforce the law? You don’t have to be a Texas resident to be able to enforce the new Texas law.
You should be able to answer the question, how can you determine a person aided and abetted someone to have an abortion?
You will have to prove in court that the particular person you allegedly aided or abetted did indeed had the procedure. How would you determine that? Remember you have the full power to sue anyone.
Turley leaves out one pertinent problem. It wasn’t what the court said. It was the silence and the vagueness of its rationale that is giving a strong impression that the court is deliberately being biased.
Says the liberal with liberal glasses on…
Svelaz, I don’t think the court was being silent or vague. They said they could not order a stay or injunction at this time because none of the defendants was about to take enforcement action under the law. In constitutional terms, there was not yet an Article 3 case or controversy. If a suit were to be brought by a private plaintiff to enforce the law the posture would be different. The federal court would then have to consider whether it could enjoin the private plaintiff from continuing the suit, perhaps on the theory that it was deputised as a state actor, or the state court from enforcing it, pending a resolution of the claim that the law was unconstitutional, which it clearly is so long as Roe and Casey are the law. It is also possible that the state court itself would throw the case out on the ground that the law is unconstitutional.
Roberts once again showed an unwillingness to do his job. He acknowledged that the defendants may be correct in their argument that the court could not intervene at this stage but nonetheless dissented
Daniel, but the issue of harm still persists. The clinics and the patients are still being harmed by it.
The only way to force the court as you say would be to defy an unenforceable law. Because technically it’s not illegal to perform the abortion after 6 weeks. The only entity who determines it would be illegal would be a private citizen. How would that private citizen determine if an illegal abortion occurred?
“They said they could not order a stay or injunction at this time because none of the defendants was about to take enforcement action under the law.”
That was disingenuous of them.
1. Supremacy clause: “This Constitution … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, anything in the … Laws of any State to the Contrary notwithstanding.”
2. All Writs Act: “The Supreme Court … may issue all writs necessary …”
It was within their right to issue a writ staying enforcement of a law that clearly contradicts their SCOTUS ruling in Casey.
Svelaz, it is not within the constitutional power of the court simply to declare a law invalid or ineffective before a hearing on the merits in an Article 3 case or controversy. If enforcement is sought by a private plaintiff under this law, the person against whom it is sought can challenge the law and if necessary seek to enjoin enforcement pending resolution. The court will enjoin enforcement if the criteria for that interim measure are met. There was no enforcement here, and there was no one to enjoin. So what the court did was correct. As to harm, the law is manifestly unconstitutional under current law so there is no reason why the clinics can’t continue to operate. If any private plaintiff seeks to challenge them under the law, there is little doubt they will win.
My impression is that the 5th Circuit prevented a case from being heard in the district court. It would have been within their power to stay the law while the case works its way through the courts.
By continuing to perform abortions, clinics would not only risk facing multiple suits and having to pay for attorneys, but would also create a risk of the same for anyone outside the clinic charged with aiding and abetting.
oh come now
Thank you, Dr. Turley, as usual, for the insight. Your analysis always helps me see through the clutter and crap and rest in conclusions rooted in solid analysis.
Lefties love to go after conservatives on any possible grounds: the Colorado baker; the 1/6 “insurrectionists”, the Second Amendment; etc.
Why are Lefties surprised when conservatives hit back (on the abhorrent practice by mothers of killing their babies).
In the end, we respect each other’s rights, or we condemn ourselves to lawfare.
“In the end, we respect each other’s rights, or we condemn ourselves to lawfare” Unfortunately, that ship may have sailed
Abortion is not a constitutionally guaranteed right. I believe it was the right to privacy that abetted the performances of abortions. Now, after decades of scientific discoveries we know that there are 2 sets of DNA involved, two individual humans, and we need to address the rights of this second human in this equation. It is not, now, only about the mother’s right to privacy, but that new human’s right to life. When will this so obvious situation be addressed and when will legal advocates for these new, and distinct, humans be appointed by the courts. We are no longer able to swallow that old line of “just a clump of unwanted cells within the mother’s womb, but a distinctly singular individual.
“we need to address the rights of this second human … that new human’s right to life”
Personhood begins at birth. That human is not yet a person and so has no rights. Not a right to life, and not any other rights.
It is currently a tension between the woman’s rights and state rights, and if you want that to change, you must amend the Constitution.
“Abortion is not a constitutionally guaranteed right.”
I suppose by that you mean that because the word “abortion” is not mentioned in the Constitution, then it is not a right.
Neither are the words: eating, sleeping, or drinking — or walking, skateboarding, skiing — or choosing a profession, a mate, friends. So by your premise, those (and countless other activities) are not “rights.”
I gather that civics education really is dead. The notion that if it’s not listed in the Constitution, then it’s not a right, betrays a woeful ignorance of the nature and purpose of the U.S. Constitution.
Alma, by itself, “2 sets of DNA” does not imply “two individual humans.” Lots of people have two sets of DNA in their bodies. This occurs in genetic chimerism, it occurs for women who’ve previously been pregnant, it occurs for people who’ve had bone marrow transplants, …
If you are a pregnant woman who needs and abortion then from your point of view Roe is dead. The legalisms do not matter. Abortion is inaccessible in Texas.
Then, drive over the border if you’re desperate to murder a child.
Abortion is still legal in Texas/ Furthermore is legal AT ANT POINT during the pregnancy if the life of the mother is at risk. So anyone who NEEDS an abortion in TX can still get one.
On what basis does a pregnant woman “need” an abortion vs the baby in her womb needs the opportunity to have a a go at life, just like the rest of us? In 99% of the cases the woman is pregnant as a result of freely chosen decisions. There are other options such as adoption is she does not want to raise the child.
It’s not your choice to make for her, any more than it is to tell 2nd Amendment advocates that they don’t “need” a new gun.
I read a few MSM stories about this order. It wasnt until now that the state govt wouldn’t enforce the law, private citizens can bring a lawsuit. It’s not even a crime. That is why I hate when the press spreads “disinformation” about legal issues. They are wrong more often than right.
Free press. All the news that’s fit to print. Yakkity yak. Don’t come back!
And don’t forget that individual citizens are not subject to Roe’s decision, just the government. Just like businesses are not subject to the first amendment.
How can you prosecute someone for freedom of speech? If I advise someone in Texas about getting an abortion I can be prosecuted when getting an abortion is still legal in Texas,