The Appeal of Chaos: How Politicians and Pundits are Misconstruing The Supreme Court’s Order on the Texas Abortion Law

Magnum Chaos

Below is my column in The Hill on reaction to the refusal of the Supreme Court to enjoin the Texas abortion law. The order of the Court expressly did not reach the merits and certainly did not, as claimed, overturn Roe v. Wade. The Texas law is not even the greatest threat to Roe. Not only is there a pending case on the docket of the Court that has long been viewed as a serious threat to Roe, but the White House and the House of Representatives are threatening immediate actions that could also create new challenges for pro-choice litigants.

Here is the column:

It is often said that “in the midst of chaos, there is opportunity.” Widely attributed to Chinese military strategist Sun Tzu, that saying came to mind when President Biden declared this week that the Supreme Court “unleashed unconstitutional chaos” by declining to enjoin a Texas abortion law. In this self-described chaos, Democratic leaders moved to renew efforts to pack the court with a liberal majority, end the filibuster and federalize abortion laws.

The problem with chaos, however, is that it can be easier to fuel than control. Indeed, Democrats may undermine abortion rights with plans for ill-conceived federal regulations and legislation.

Just before midnight on Wednesday, the Supreme Court voted 5-4 not to grant an emergency injunction of a Texas law allowing citizens to enforce a highly restrictive abortion law. Rep. Alexandria Ocasio-Cortez (D-N.Y.) promptly declared that the court “overturned” Roe v. Wade, and she demanded immediate action; many media flogged the same narrative that conservative justices killed Roe in a midnight attack.

Both were legally and factually wrong.

The Texas law was enacted in May — but challengers waited until shortly before it was to take effect on Sept. 1 to demand emergency court intervention. It was a gamble that backfired when the court refused to intervene. However, the decision neither upheld Texas’s law nor reversed Roe.

Not only was the court’s order removed from the actual merits of the law, but the majority expressly acknowledged that “the applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue.” The rejection of the injunction was because the challengers are suing a state judge and clerk who are not actually tasked with enforcing the law. They were virtually randomly selected in a challenge that seemed more improvisational than procedural. The majority stated that “federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.” Even in his dissent, Chief Justice John Roberts admitted 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.”

It also is untrue that the court’s decision prevents the law from being challenged. The law can — and will — be challenged in both state and federal courts. (Indeed, it has already been enjoined by a state judge). If anyone seeks to use this law, it will be challenged and likely expedited on review. Moreover, lower courts are likely to find the law unconstitutional under existing law.

The law’s drafters knew that setting the cutoff date before “viability” would conflict with the case law building on Roe v. Wade and Planned Parenthood v. Casey. It was designed to force a new review by the Supreme Court, the only body that can set aside or reverse its prior rulings.

Future abortion rights do not run through Texas or Congress. Challenges to the Texas law will take months. But the most immediate threat to Roe is already on the docket. When Texas was enacting its law in May, the Supreme Court accepted a Mississippi case with a fundamental challenge in Dobbs v. Jackson Women’s Health Organization. The case was accepted for one unambiguous question: “whether all pre-viability prohibitions on elective abortions are unconstitutional.” That case will allow the court a direct, clear case to reconsider the basis for abortion. The final decision in Dobbs will likely long precede any final decision on Texas’s law.

Of course, in some ways, the legacy of Roe is one of chaos. After that decision in 1973, there were widespread protests. Indeed, the late Justice Ruth Bader Ginsburg was a critic of Roe who saw it as too sweeping in supplanting state laws. She later blamed the case for reversing the trend toward more pro-choice states as the issue became a national political rallying cry.

Ginsburg’s criticism is reflected in polls showing the country still deeply divided on the issue; Gallup’s most recent polling shows 49 percent for to 47 percent against abortion — largely unchanged from 2019, when it showed 49 percent to 46 percent. (Notably, the number of citizens who want to see Roe overturned is lower.)

It is not just citizens but jurists and legal experts too who remain divided. For 50 years, the court has faced close votes on the issue. In 1989, a fractured court upheld a restrictive Missouri abortion law in Webster v. Reproductive Health Services. In 1992, Roe was barely saved by a simple plurality of the court in Planned Parenthood v. Casey. In 2000, a 5-4 vote in Stenberg v. Carhart struck down a partial-birth abortion law in Nebraska. But in 2007, the court voted 5-4 to uphold a ban on partial-birth abortion.

Throughout this history, when abortion rights were upheld by a core of five liberal justices, it was called pure constitutionalism. Now, when a core of conservative justices threatens such rights, it is called pure chaos. When the court voted for pro-choice litigants, it was deemed “balanced.” Now, with a possible majority willing to curtail such rights, Biden is calling for action to “restore balance” to the court.

That brings us to the pledge by Speaker Nancy Pelosi (D-Calif.) to codify Roe. Pelosi denounced the “Supreme Court’s cowardly, dark-of-night decision to uphold a flagrantly unconstitutional assault on women’s rights and health.” Putting aside that there was no vote on the merits of the law, Pelosi could be creating an opportunity for pro-life advocates in such a move. The House already has moved to federalize elections. This move could effectively federalize abortions if it mandated a single standard for abortions.

Roe affirmed a federal constitutional right to an abortion. Yet the court has always recognized that states continue to exercise authority over abortion services subject to that constitutional standard. If the House just affirms the constitutional standard, it would be a meaningless exercise. Presumably, the House would federally enforce that standard, which could create a new basis for challenge. It could create additional federalism issues that might alienate some on the court, including Chief Justice Roberts, and improve the strategic position of pro-life litigators.

Following a poorly crafted federal lawsuit with a poorly crafted federal law is hardly an improvement for pro-choice voters.

Biden may magnify those problems by pledging a “whole-of-government response” to the court’s order. There is a real possibility that Democrats could lose ground in Dobbs. Moreover, the civil abortion provision may indeed be replicated in other states. However, the range of permissible state action is likely to be decided not by Congress but by the court, based not on a Texas law but on a Mississippi statute.

Roe has long been the battlefield described by Napoleon as “a scene of constant chaos” in which “the winner will be the one who controls that chaos, both his own and the enemies.” The problem is that Biden cannot control that chaos any more than his predecessors and may, in fact, make it far worse.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.

170 thoughts on “The Appeal of Chaos: How Politicians and Pundits are Misconstruing The Supreme Court’s Order on the Texas Abortion Law”

  1. In my opinion the abortion argument needs to be solved once and for all; the Supreme Court of the United States needs a science based rule that actually defines when a human being becomes a human being. If that ruling is that when there is a detectable heartbeat then let it be done.

    The real problem we have around the pro-abortion pro-choice arguments is the complete lack of personal responsibility and morals.

    Who really has the moral high ground in the abortion argument? It’s certainly not the ones that are exterminating helpless human beings because they blindly shirked their personal responsibilities regarding sexual intercourse and unintentionally created an “unwanted” human being. Yes, there are actually responsibilities regarding sex that are something other than “getting off” to fulfill your personal enjoyment goals. There are responsibilities for those who engage in sexual intercourse regardless if it’s consensual sex or not and every male and female should be taught these things by their parents and reinforced by our society/culture before they enter puberty and continued as they grow to be an adult.

    GIVEN 1:
    Biologically speaking; sexual intercourse is the beginning of the human reproductive process and breeding human beings is the sole biological purpose.

    GIVEN 2:
    Pregnancy is one of the consequences of sexual intercourse even if a form of birth control is used.

    GIVEN 3:
    No form of “birth control” is 100% effective.

    What are the responsibilities?
    1. The male has the legal, moral and human responsibility to not force the act of sex upon a female.

    2. The male has a responsibility to use a condom unless there is consent from the female to engage in unprotected sex.

    3. The female has the responsibility to tell the male to use a condom unless she is willing to take all the risks associated with unprotected sex.

    4. Both the male and the female engaging in sex must understand that condoms are not 100% effective at preventing pregnancy and the ultimate responsibility for a possible pregnancy lies on both the male and the female.

    5. If a female chooses to be sexually active then that female has the responsibility to use birth control if she doesn’t want to get pregnant and the ultimate responsibility for a possible pregnancy lies on both the male and the female.

    6. If a female is forced into sexual intercourse, whether it’s unprotected or not, she has the moral and human responsibility to get immediate medical treatment to prevent a possible pregnancy if she doesn’t want to become a mother.

    7. If a female is forced into sexual intercourse, whether it’s unprotected or not, she has the moral and civic responsibility to report the incident to police to help prevent the male individual from forcing himself upon another female.

    8. If a female chooses to have sex and doesn’t want to get pregnant, even if it was protected, she has the moral and human responsibility to get immediate medical treatment to prevent a possible pregnancy if she doesn’t want to become a mother.

    9. If a male and a female do not want the responsibility of breeding a human child then it is their responsibility to do the things it takes to not become a parent.

    10. ABORTION IS NOT A FORM OF BIRTH CONTROL, it’s exterminating a completely helpless human being. It’s the responsibility of those engaging in sex to do the responsible things required of them to prevent “unwanted” pregnancies and therefore prevent the perceived need for abortions.

    This really isn’t rocket science, it’s just common sense; but unfortunately, common sense has been buried in the quaint anecdotes of history. Legal or not, abortion is immoral.

    Imagine If You Will…

  2. LOL, no, Estovir and I have very different views.

    He’s conservartive, Catholic, and anti-choice. I’m liberal, an atheist, and pro-choice.

    I was pointing out that there are scientists who don’t hold the same views as some scientists he quoted in a different exchange, here: https://jonathanturley.org/2021/09/02/supreme-court-rejects-injunction-of-texas-abortion-law-media-erupts-with-roe-obituaries/comment-page-4/#comment-2119714

    It’s truly odd that you’d think us to be the same person.

  3. Natural infection with COVID works to produce immunity against future severe disease and future infection at a rate that’s probably equal to or better than vaccination.

    ZDoggMD

    Zubin Damania, MD

Leave a Reply