Roe Roulette: Biden Administration Takes a Gamble with Emergency Appeal of Texas Abortion Law

Below is my column in the Hill on today’s argument in Whole Woman’s Health v. Jackson and United States v. Texas on the request for an emergency injunction in Texas to block the state’s controversial abortion law. The merits of the law are not at issue in the questions presented today but the decision to push for an injunction comes with some risks for the Biden Administration. [Update: Justice Brett Kavanaugh suggested in oral argument that he might be open to changing existing precedent to allow for injunctions of court clerks to block the Texas law].

Here is the column:

“Is there a way to win?” Those words from actress Jane Greer, the ultimate femme fatale in the 1947 film-noir classic, “Out of the Past,” could well have been written above the caption of the Biden administration’s brief this week before the Supreme Court, seeking to enjoin the Texas abortion law. The administration is returning to ask for an injunction from a court that just voted against such an injunction as legally unfounded.

Asking the same justices the same question would not seem a way to win. Indeed, as actor Robert Mitchum dryly responded to Greer in the film, this may not be the way to win, but at least “there’s a way to lose more slowly.”

For pro-choice advocates, the pending case of Dobbs v. Jackson Women’s Health Organization, out of Mississippi, is a more ominous threat to abortion rights with a newly constituted conservative majority on the court — including Justice Amy Coney Barrett who, as an academic before joining the court, was highly critical of Roe v. Wade. The Dobbs case is due to be argued in December.

However, the Court has been thrown early into the arena by the Biden administration’s emergency demand to seek an injunction of the Texas law, which imposes an even more stringent limit on abortion than the Mississippi law at issue in Dobbs.

As previously discussed, the attempted intervention of the Justice Department in the Texas case was not just legally unnecessary but unwise. I share the view that this law is unconstitutional, and I have long favored more liberal standing rules, but the Biden administration is risking a great deal to enjoin a law that was already declared unconstitutional in Texas. Indeed, the rushed hearing this week could lock in a majority on language impacting the much more important appeal in Dobbs.

The government’s lawsuit raises questions of both whether it can sue and whether a court can remedy constitutional violations at this time. The Texas brief attacks the very claim of an injury with the words “The federal government cannot get an abortion.” By intervening as an actual party, instead of in its traditional role as an amicus or “friend of the court,” the Biden administration unwisely introduced an additional legal controversy into the case. It is claiming the right to challenge any state law that is considered unconstitutional, and to enjoin any state judge or court from considering such cases. The Supreme Court has long been hostile to federal courts enjoining state courts.

To win, the Biden administration must get at least one of five justices to effectively reverse a position taken just weeks ago when they rejected the same injunction in Whole Woman’s Health v. Jackson. The problem is that, unlike other state limitations on abortion, the Texas law is directed at allowing private citizens to enforce a prohibition after six weeks of pregnancy. That prohibition is clearly unconstitutional under current Supreme Court precedent covering the “pre-viability” period of pregnancies. However, since it creates authority for private citizens to sue, there is no agency or government officers who enforce the rule. So, in the earlier case, pro-choice litigants randomly selected a judge and a clerk to enjoin from allowing such lawsuits.

The practical and procedural problems are obvious. First, you would have to enjoin every judge and clerk to stop this law from being used. Second, this is a not-so-subtle evasion of a long-standing rule that the court enjoins people, not laws. That is why five justices declined to issue an injunction despite acknowledging that “The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue.” However, the justices ruled that “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 three liberal colleagues, admitted that 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.”

Nevertheless, the Biden administration again demanded the same injunction after losing before the United States Court of Appeals for the Fifth Circuit. Moreover, unlike the first attempt, a federal court has already declared the law to be unconstitutional. There is no court that has declared the law enforceable. In addition, the Fifth Circuit has fast tracked arguments on the merits and will hear the case in December.

While perhaps politically popular, the Biden administration’s move could create even more restrictive precedent on its ability to seek such relief. Worse yet, the procedural rule could have blowback on that big case pending on the docket: Dobbs v. Jackson Women’s Health Organization. The majority could note that there is an unlikelihood to prevail on the merits because the law contains an affirmative defense that it cannot be used to impose “an undue burden on a woman or group of women.” That is the current test under the controlling case of Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). (Opponents however argue this reference is part of a section on “limitations” on the use of the defense).

The Biden administration seems to overcome the obvious with the hyperbolic in making the same demand, in hopes of a different outcome: “If Texas is right, no decision of this court is safe.” The problem is that the Texas law was already declared unconstitutional and any person actually subject to its application could quickly secure an injunction. That is usually how such cases come before the court — a party with a cognizable injury seeks judicial relief. It can then move quickly through the system with an injunction in place.

With others challenging this law with direct injuries, there is even less reason for the Biden administration to gamble on this filing. Likewise, there is a second case brought by Whole Woman’s Health that is consolidated in the appeal. That is the same group that was just before the court in September and lost on the same demand.

Playing roulette with reproductive rights may pay off for the administration. Or it might not. But forcing this issue at this stage, and just weeks after the prior rejection in Jackson, does not seem to be “a way to win.” Again, this does not take away from the legitimate concerns of pro-choice advocates: Dobbs may indeed curtail or even set aside Roe v. Wade. Yet, even if there is no way to win entirely, there could be a way to lose more slowly.

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

201 thoughts on “Roe Roulette: Biden Administration Takes a Gamble with Emergency Appeal of Texas Abortion Law”

  1. How straightforward would it be to find that TX S.B.8 violated the Constitution in attempting to evade Federal Judicial Review combined with a state nullification of major portions of Casey?…..and then to rule the law unconstitutional and unenforceable on those grounds? There’s no need to enjoin anyone. If any citizen of TX then waged an SB8 lawsuit, the plaintiff could sue for imminent injury/damages.

    That would serve notice to all the State Legislatures that writing a State law in defiance of a SCOTUS Precedent so as to make its challenge difficult is a waste of time. The deterrence has to be levied on Legislators, not Clerks, and not Judges.

    This would dispatch Whole Women’s Health and the Biden lawsuit without any need to revisit Casey.

    Then, the Mississippi AGA could be heard as more germane to Casey.

  2. I find it most interesting–and incredibly frightening and sad–that only people who are religious are against abortion. So atheists are not disgusted by the torture of a pain-capable unborn child as it is ripped from the supposedly safest place it will be ever be? Atheists do not find infanticide as Hillary Clinton and others have advocated abhorrent. If there is no opposition to late term abortion practices, at a minimum, of people who do not believe in God, then we are truly lost. And it is proof than only through belief in God and faith can we have a truly compassionate and good society. If someone–religious or otherwise–is not sickened by late-term abortions and the sales of fetal tissue, then they are no better than the Nazis and Margaret Sanger.

  3. “. . . any person actually subject to its application could quickly secure an injunction.”

    They could? How? Pitman enjoined the Texas law. Then the 5th Circuit temporarily reversed him. By reference to what court ruling could “any person” “secure an injunction?”

  4. Are they really ‘Pro-Life’?

    For 12 years Republicans have tried to kill Obamacare. But no Republican has offered a viable alternative. One could say, quite factually, that expanding healthcare access is not a Republican priority.

    Why then is life so precious with regards to abortion? Should the life of an unborn child be more important than the life an adult with no health insurance?

    Every year ‘X’ number of adults die needlessly because they lack healthcare access. Consequently a serious health issue goes untreated too long. Republicans know this occurs. The problem is no secret.

    But Republicans feel expanding healthcare constitutes an unwise expansion of government. Therefore Republicans are willing to let ‘X’ number of adults die from ‘lack’ of healthcare. They calculate the loss of life is tolerable to keep government from growing.

    Therefore Republicans are not sincere about life with regards to abortion. Controlling women is the obvious thrust. Look who cares the most: ‘Christian Evangelicals’. That’s a tip-off there. They take The Bible seriously!

    If one takes The Bible seriously, men should be the dominant gender. Husbands and fathers have a responsibility to supervise their women.
    It’s basic Bible stuff embraced by The Vatican, in addition to Evangelicals.

    The Anti-Abortion movement is driven by religion. And one could surely label it a ‘Tryanny of a minority’. Most Americans are not Catholic nor Evangelical. Yet these religious sects play an outsize role in the abortion debate. If they just shut up the issue would cool dramatically.

    1. ATS- “The Anti-Abortion movement is driven by religion”.
      +++

      I think a fair number of people are simply disgusted with crushing skulls and ‘harvesting ‘ body parts to sell.

      One could make a pretty good Halloween horror movie out of little more than what some abortion factories do.

      1. The Left quashed Christianity to make their own religion, a god in their own image. It is always about their “dogmas”, their “truth”, their “way”, their “judgments”. Sacrificing the innocent, most defenseless life, the unborn baby, is part of their religious ritual. The Aztecs and Incas had nothing on them.

        Politics as Religion After George Floyd. This Isn’t an Orwellian Novel. This Is Your Country

        What are you really seeing as Americans kneel, hands raised in secular prayer, repeating political creeds on the TV news? And that secular foot-washing? You’re witness to neo-Marxist appropriation of Christian symbolism, in the aftermath of the horrifying Minneapolis police killing of George Floyd. And now, the priests of the secularist left separate the biblical sheep from the goats on the basis of skin color.

        Real Clear Politics

        1. “. . . neo-Marxist appropriation of Christian symbolism . . .”

          Why does the religious Right think that religion is the cure for Marxism?

          The two ideologies have more in common, than not: Allegiance to a higher power, that is beyond reason and evidence. Absolute “truths” known only by that higher power. The individual must surrender his mind to that higher power. The individual must be sacrificed to whatever that higher power asserts is “good.” The state exists to compel individuals to obey the dictates of that higher power.

          1. Allegiance to God and religion is voluntary, while taking a knee to mortal gods (and goddesses) and religion is compelled through Choice and force. That said, whether a religion is based on morality, ethics, or law, judge a philosophy by its principles, not principals.

    2. “One could say, quite factually, that [socialized medicine] is not a Republican priority.”

      *Now* it’s a factual statement.

    3. The pro-life movement is driven by human and civil rights.

      Obamacares was opposed for sustaining the status quo (i.e. single/central/monopolistic practices), including progressive prices and availability, masked under a thinly veiled redistributive change scheme, and its anti-choice policy while funding Pro-Choice (i.e. planned parent/hood or elective abortion for social progress, clinical cannibalism, and climate mitigation). The pro-abortion movement is driven by the ethical (i.e. relativistic) Pro-Choice religion with secular “benefits”.

    4. Men should be the dominant sex? Men and women are equal in rights and complementary in Nature/nature. That said, in the course of normalizing the transgender spectrum, specifically homosexuals, the Progressive Church, corporation, clinic conflated sex: male and female, and gender: masculine and feminine, or sex-correlated physical and mental (e.g. sexual orientation) attributes. The Pro-Choice religious sects have conflated logical domains to deny women and men’s dignity and agency, and reduce human life to a negotiable asset. Obamacares sustains progressive prices and availability under a single/central/monopolistic regime and a thinly veiled redistributive change scheme that is anti-choice and Pro-Choice.

    5. Actually republicans have constantly offered alternatives.

      Merely returning to the status qui ante is a perfectly viable alternative.

      PPACA costs us almost 2T/decade.
      But its actual benefits are very near zero.

      It has had no measurable effect on cancer trends, or mortality rates.

      This should not surprise – health insurnace does not improve health.
      Fire insurance does not prevent fires. Auto insurance does not prevent car wrecks.

      The benefits of insurance are fiscal not health.

      So we are paying 200B/year to address a financial problem that is less than $1B in scope.

      Thebest alternative to PPACA is NO PPACA.

    6. Democrats seek to end qualified immunity – a policy that I agree with.

      Are they obligated to provide an alternative ?

      Of course not.

      QI is a mistake. Just eliminate it and we will be better off.

      PPACA is a mistake – we will all be better off without it.

      But if you want an alternative – end the federal government role in healthcare completely.

      Real free markets decrease costs and decrease scarcity.
      The real cost of everything that is not regulated by government declines over time. Often dramatically.

    7. “Every year ‘X’ number of adults die needlessly because they lack healthcare access.”

      Where the evidence is that X = 0

      1. John, as you know, people make up these numbers so that others that know little of the subject can repeat them.

        Anonymous needs to question his hypothesis but doesn’t. I wonder if he knows the law. If a person is suffering the risk of morbidity or mortality hospitals must admit whether or not the sick individual pays the bill.

    8. “But Republicans feel expanding healthcare constitutes an unwise expansion of government”

      PPACA did not expand healthcare – it merely changed how health insurance was paid for – to a much less efficient form.

      PPACA was an expansion of government a quite expensive one – without demonstrable benefits.

      You claim PPACA had some benefit.

      So where is that benefit ?

      Approximately 3M people per year die in the US – and the trend is slight increases.

      That trend mirrors birth rates approximately 80 years ago – surprise surprise.

      There has been no change in that trend as a result of PPACA.
      In fact deaths have increased – because we are seeing the beginings of baby boomers dieing.

      Or you could pick something else – cancer, heart disease ?

      Is there a single health trend that has changed as a result of PPACA – NO!

    9. I am not interested in the speculation regarding the bible by someone who has not read it. And who has no meaningful understanding of either catholicism or evangelical christianity.

      23% of US population is catholic. according to Pew 25.4% of the population is evnagelical protestant.
      47% of americans call themselves pro-life.

      Most americans are not catholics or evenagelicals, but a plurality are.
      A plurality are also pro-life.

  5. This Turley post touches on administration competency.

    Now there is another thing reflecting on it.

    There is a rumor going about Rome [and now the world] that Biden had a toilet accident in his pants when he met the Pope. You can look up the accounts. Some people are now sniggering and calling Biden ‘President Poopy Pants’.

    I have no idea whether there is any truth to this, but the live feed to his meeting with the Pope was mysteriously shut off.

    It could be only a nasty joke but what is horrible for our country is that a joke like this can so quickly gain traction when it refers to Biden.

    Does anyone think that a rumor like this about Putin, Boris or Macron would move it all? Of course not. The tragedy is that with Biden most of us suspect that it might just actually have happened. That’s how low his reputation, and the reputation of our country has sunk.

    Seen that way, it isn’t funny at all.

    1. What is deeply disturbing is not that whether this is funny.
      It is that millions of americans voted for someone clearly suffering from declining mental health.

      I do not like the Joe Biden that once was – but he is gone.
      It is hard to dislike this pathetic old man.

      But it is very easy to loath those who put him and his army of clueless children into office.

      Just think but for a lawless election and the idiots who voted for Biden we could all be enjoying an actual economic recovery, a secure border.

      It is probable Trump would have done no better than Biden on Covid. It is certain we would not have the same covid policy idiocy.
      It is also certain that the left would be telling us all that Covid would have been beaten had we elected Trump.

      We would not have the terrifying nonsense that is going on in congress – because even if Democrats controlled both houses – they still could not pass this idiocy.

      I suspect we would have some inflation – and Trump would be pummeled for that – but not inflation that is going to last for years.

        1. At the time I thought the election of Obama was the point of no return. If the American people were that gullible, the fall of America was ready to begin. The Republicans did not show respect for what America was all about. Too many were globalists as was Bush. The middle class was dying while the entitlement class growing and the elites satisfied living in their own world. Without the middle class the nation we love and admire is gone.

    2. Biden is Obama without the Obama charm, standing naked.

      Here is another laugh at the expense of this administration and Democrats as a whole.

      Biden’s 85-vehicle G20 motorcade gives conservatives fodder to claim climate hypocrisy

      Conservative Lisa Boothe also notes how John Kerry, special presidential envoy for climate, “exclusively flies private.”

      https://justthenews.com/politics-policy/environment/lisa-boothe-bidens-85-vehicle-g20-motorcade-shows-how-climate-change?utm_source=daily&utm_medium=email&utm_campaign=newsletter

  6. Life begins at conception.

    Roman Catholic Diocese of Albany v. Emami

    The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the Appellate Division, Supreme Court of New York, Third Judicial Department for further consideration in light of Fulton v. Philadelphia, on Nov. 1, 2021.

    Issues: (1) Whether New York’s regulation mandating that employer health insurance plans cover abortions, which burdens a subset of religious organizations by forcing them to cover abortions, is “neutral” and “generally applicable” under Employment Division v. Smith and Church of the Lukumi Babalu Aye Inc. v. City of Hialeah; (2) whether New York’s mandate interferes with the autonomy of religious entities, in violation of the religion clauses of the First Amendment; and (3) whether — if, under the rule announced in Smith, the free exercise clause of the First Amendment allows states to demand that religious entities opposing abortions subsidize them — Smith should be overruled.

    https://www.scotusblog.com/case-files/cases/roman-catholic-diocese-of-albany-v-lacewell/

  7. Actually, this is a win-win for the Biden Administration. The more times SCOTUS rules against them, the more momentum Democrats get for court packing. I suspect this is why the Administration mischaracterized the previous decision agains the injunction as having anything to do with the merits of the case.

    Roe v Wade would have to be overturned for the Texas law to hold, in my humble opinion as a lay person.

    Aside from the viability bright line in Roe, the 6 week gestation is so early that many women don’t know they’re pregnant until then, let alone have time to make an appointment to end the life growing inside them. Some women are irregular, and don’t even consider themselves late by then. Athletes like gymnasts are pretty commonly irregular. Then there are all the people who don’t mark their cycle on a calendar or app, and have no idea when the date of their last period is. It just seems like it’s been longer than normal for them to take a pregnancy test.

    I didn’t start tracking my cycle until later in adulthood.

    Having a 6 week gestational limit would effectively ban most abortions.

    Personally, I find most cases of abortion to be horrifying. A mother is supposed to fight tigers to protect her child. The strong feeling of love and protectiveness I felt the first time I saw my unborn child in an early ultrasound is difficult to express. There are strong arguments about the rights of mothers, the dangers of childbirth, medical reasons, and privacy. Most arguments for unfettered access to abortion fall under autonomy of decisions for whatever reason, including convenience, and eugenics. Cases of non viability are very rare; the majority of fetal abnormality abortions boil down to women simply not wanting an imperfect child they have never seen to get attached to. There is a very real ongoing genocide against unborn children with Down’s Syndrome.

    Most people think that abortion should be allowed in some cases, at the very least an ectopic pregnancy, and that they should not be allowed at some point. There comes a point in gestation when most Americans believe the child has the right not to be killed. There is overlap between Pro Life and Pro Choice. The very people who say it should be the woman’s right to choose might balk at the thought of aborting a full term, healthy 39 week old fetus. While TX might have been too restrictive under Roe v Wade, others argue NY is too lenient.

    The woman aborting a fetus is not removing her own tissue. She’s not having liposuction. She is removing the body of a completely different human being, someone who could not have a say. This is why it’s important for there to be a Pro Life movement, in order to speak on behalf of the voiceless. We need that tension between Pro Choice and Pro Life in order to have any hope of coming up with a balance between the rights of the mother and the fetus, and yes, I do think the fetus should have legal protection, at least at some point.

    As for the medically necessary argument, abortion means deliberately killing the child, over and above simply terminating the pregnancy. Delivery ends a pregnancy, for example. A late term abortion requires labor, and takes the added step of lethal injection to the child, waiting for the child to die, having the mother carry that dead child to return to the facility to check that it is no longer alive, finishing the job if the unborn is still alive, and then removing the baby in pieces. There are certainly medical reasons to end a pregnancy early, such as preeclampsia. If it’s before viability, then the fetus will die, such as the removal of an ectopic pregnancy in which the process of removal alone kills the hopeless fetus. But there is no medical necessity that benefits the mother to deliberately take the extra step of killing the child instead of just removing it. Arguments about fetal non viability, birth defects or other fetal abnormalities, are topics of euthanasia and eugenics, and should be debated as such.

    My own pregnancy became life threatening, and required early delivery. My son had his own team ready and waiting to ensure he was alright, which thankfully he was. He was a patient who received a high standard of care. Shouldn’t every baby be treated with such care and respect? The thought that babies of similar gestational age would be under threat in places like NY is chilling. Medical necessity is so poorly defined that a great many excuses could be made to kill late term unborn children “for the health of the mother”. How would having an abortion after 24 weeks over the course of 2 days save the life of the mother, instead of an emergency C-section or induction of labor, which would end the pregnancy quicker, as well as save the child? Third trimester abortions are risky and they do not spare the woman from dilation.

    Abortion has two components, for me at least. The moral side, and the legal one. Something can be immoral but still legal. I don’t know what a perfectly fair abortion law would look like. But I do hope our culture can improve its value of precious, unborn human life.

    Girls and women are given the impression that a fetus is just a ball of cells, like it’s magically held in the blastula stage until quickening. That’s not the case. That’s a baby in there, and I’ll bet if their womb were clear more women with unplanned pregnancies would feel compassion and attachment to that little life in there.

    Here is a link to an article about the famed photographer Lennart Nilsson, who published the first ever photos of unborn children in Life. All, except one, were dead, either miscarried or aborted. The deceased fetuses were placed in an aquarium, which is why they seemed to be floating serenely in space. They are beautiful, and create an emotional response. Nilsson himself was not political, and being Swedish, he had no idea for a while that his photos had become so popular with the Pro Life movement. Very little else can explain why people want to limit abortion better than images of what people look like during stages of gestation.

    https://www.theguardian.com/artanddesign/2019/nov/18/foetus-images-lennart-nilsson-photojournalist

    Here is a former abortionist describing a 2nd trimester abortion. Hearing the procedure will also help explain why people feel a need to limit abortion.

    https://youtu.be/j0tQZhEisaE

    1. Karen, you are very thoughtful about a very difficult problem. I will add two thoughts to yours in agreement.

      Physicians live by the rule, “do no harm”, while “abortion means deliberately killing the child.” That is harm. Morally it is reprehensible.

      “Girls and women are given the impression that a fetus is just a ball of cells”

      It is not ‘just a ball of cells’ it is an act between two consenting adults that choose to have intercourse. That results in a third being that has no ability to protect himself.

      1. S Meyer:

        Good points.

        The truly innocent person in all this is the baby.

        The baby had nothing to do with how it was conceived. It is unethical to punish an innocent person for the crimes or convenience of another.

        One of my relatives was adopted as a newborn. We have no idea if the two people who made him loved each other, barely knew each other, or worse. All we knew was him. A person separate from those who made him, whom we all loved very dearly. He was born before Roe v Wade. I wonder if he was conceived after, if his mother would have allowed him to live.

        Perhaps anyone who was adopted, or knows someone who was adopted, prior to 1973 would wonder the same thing.

        1. “The truly innocent person in all this is the baby.”

          Karen,

          I agree the baby is innocent from the second of conception, where personhood begins. That person is the offspring of two bonafide persons and from conception exists as a unique and individual person.

          People can attempt to stretch morality in all different directions to assuage their guilt for their part in a murder, but they need to accept that what they are doing is wrong and morally unjust. They cannot make a satisfactory argument justifying the fetus as a non-person, but that is nothing more than disregarding morality.

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