Supreme Court Rejects Injunction of Texas Abortion Law But Allows the Challenge to Proceed in Lower Court

The Supreme Court issued decisions today in the pending issues in Whole Woman’s Health v. Jackson and United States v. Texas. As anticipated in the earlier column, the Supreme Court did not grant an injunction and dismissed the Biden Administration’s lawsuit. The Court again rejected the notion of enjoining the judge and clerk but it did identify some private parties who can be sued as part of a pre-enforcement action. That represents a partial victory for pro-choice litigants, but the Court returned to a single track for its abortion review. That track originates in Mississippi, not Texas. Dobbs will remain the key decision on reproductive rights and is likely to answer many of the questions in the ongoing Texas litigation.

The Justice Department lawsuit was dismissed with only Justice Sotomayor dissenting.

Justice Sotomayor also criticized her colleagues in a partial dissent for not granting an injunction: “The (Supreme) Court should have put an end to this madness months ago. It failed to do so then, and it fails again today.”

Justice Neil Gorsuch wrote the lead opinion, joined by Justices Samuel Alito, Brett Kavanaugh and Amy Coney Barrett. Chief Justice John Roberts again joined the liberal wing of the court while Justice Clarence Thomas issued his own partial dissent.

The justices remained firm on their earlier rejection of the challenge against the judge and clerk as virtually arbitrary defendants. Ruling under the doctrine of sovereign immunity, it dismissed defendants Penny Clarkston (a state-court clerk) and Austin Jackson (a state court judge). It also dismissed Texas Attorney General Paxton as a defendant.

It however found that some private parties could be sued in a pre-enforcement action.

The decision was decried immediately by liberal faculty and members of Congress.  However, in her dissent with Justices Breyer and Kagan, Sotomayor echoed those views:

“Today’s fractured Court evinces no such courage. While the Court properly holds that this suit may proceed against the licensing officials, it errs gravely in foreclosing relief against state-court officials and the state attorney general. By so doing, the Court leaves all manner of constitutional rights more vulnerable than ever before, to the great detriment of our Constitution and our Republic.”

However, Gorsuch wrote that the refusal to enjoin the law was based on long-standing procedural principles:

“The Court has consistently applied these requirements whether the challenged law in question is said to chill the free exercise of religion, the freedom of speech, the right to bear arms, or any other right. The petitioners are not entitled to a special exemption.”

16 thoughts on “Supreme Court Rejects Injunction of Texas Abortion Law But Allows the Challenge to Proceed in Lower Court”

  1. “The latest smash and grab operation scores $2 million in watches in Chicago.”
    We are in the midst of the beginning of sorrows. The earth is plunging headlong into the manifestation of the greatest calamaties of all time. Nothing in history begins to hint at the fury about to be unleashed.

    This is the result of progressive politics. We don’t need stricter laws and more rigorous enforcement, they say. Nah! To end crime we must promote chaos everywhere.

  2. It seems Biden is being dismissed a lot and for good reason.

    Joe thinks he is FDR, but reality says he is FJB.

    FDR was denied repeatedly by SCOTUS. That was back in the day when the Jusices actually read the constitution and understood the Federal Government only had enumerated powers.
    Social safety nets are not an enumerated power.

    FJB is hoping for the same result. An eventual softening of SCOTUS, brought on by unrelenting media pressure that drives public opinion. But information flows much different than it did in the 30’s

  3. from Sotomayor’s dissent (joined by Justices Breyer and Kagan):

    Under normal circumstances, providers might be able to assert their rights defensively in state court. These are not normal circumstances.

    And that is her beef. For her, it is all alarmist. For her, SCOTUS “decided” the issue.

    Perspective is key:

    Justice Sotomayor’s Flawed History To Promote The Myth of Judicial Supremacy
    “She still does not understand who decides”

    https://reason.com/volokh/2021/12/11/justice-sotomayors-flawed-history-to-promote-the-myth-of-judicial-supremacy/

    Roe v. Wade and related precedents are not part of the supreme law of the land. They are merely opinions of the Justices who wrote them–and lousy opinions at that.

    Sotomayor is out of her intellectual league. Its all about power for the Left, not medical science, not intellectual heft, not philosophical consistency. This from a woman who has never had children, which is the argument the proaborts in characterizing men and why men can not have a voice in this issue.

  4. “did not grant an injunction and dismissed the Biden Administration’s lawsuit. ”

    It seems Biden is being dismissed a lot and for good reason. Biden has no respect for the Constitution procedure. or the law.

  5. After 24 hours of fertilization, a human being begins its development process which continues until, approximately, the age of 20.

    The development and life of a human being will be stopped by abortion.

    Abortion is homicide.
    ________________

    Infant – Neonate – Baby

    An infant (from the Latin word infans, meaning ‘unable to speak’ or ‘speechless’) is the more formal or specialised synonym for the common term baby, meaning the very young offspring of human beings. The term may also be used to refer to juveniles of other organisms. A newborn is, in colloquial use, an infant who is only hours, days, or up to one month old. In medical contexts, newborn or neonate (from Latin, neonatus, newborn) refers to an infant in the first 28 days after birth;[1] the term applies to premature, full term, and postmature infants.

    Before birth, the term fetus is used. The term infant is typically applied to very young children under one year of age; however, definitions may vary and may include children up to two years of age. When a human child learns to walk, the term toddler may be used instead.

    – Wiki
    _____

    Fetus

    A fetus or foetus (/ˈfiːtəs/; plural fetuses, feti, foetuses, or foeti) is the unborn offspring that develops from an animal embryo.[1] Following embryonic development the fetal stage of development takes place. In human prenatal development, fetal development begins from the ninth week after fertilisation (or eleventh week gestational age) and continues until birth.[2] Prenatal development is a continuum, with no clear defining feature distinguishing an embryo from a fetus. However, a fetus is characterized by the presence of all the major body organs, though they will not yet be fully developed and functional and some not yet situated in their final anatomical location.

    – Wiki
    _____

    Embryo

    An embryo is the early stage of development of a multicellular organism. In general, in organisms that reproduce sexually, embryonic development is the part of the life cycle that begins just after fertilization and continues through the formation of body structures, such as tissues and organs. Each embryo starts development as a zygote, a single cell resulting from the fusion of gametes (i.e. the process of fertilization which is the fusion of a female egg cell and a male sperm cell). In the first stages of embryonic development, a single-celled zygote undergoes many rapid cell divisions, called cleavage, to form a blastula, which looks similar to a ball of cells. Next, the cells in a blastula-stage embryo start rearranging themselves into layers in a process called gastrulation. These layers will each give rise to different parts of the developing multicellular organism, such as the nervous system, connective tissue, and organs.

    A newly developing human is typically referred to as an embryo until the ninth week after conception, when it is then referred to as a fetus. In other multicellular organisms, the word “embryo” can be used more broadly to any early developmental or life cycle stage prior to birth or hatching.

    – Wiki
    _____

    Zygote

    A zygote (from Ancient Greek ζυγωτός (zygōtós) ‘joined, yoked’, from ζυγοῦν (zygoun) ‘to join, to yoke’)[1] is a eukaryotic cell formed by a fertilization event between two gametes. The zygote’s genome is a combination of the DNA in each gamete, and contains all of the genetic information necessary to form a new individual organism.

    In multicellular organisms, the zygote is the earliest developmental stage. In humans and most other anisogamous organisms, a zygote is formed when an egg cell is fertilized by a sperm cell.

    – Wiki
    _____

    Human fertilization

    Human fertilization is the union of a human egg and sperm, occurring in the ampulla of the fallopian tube.[1] The result of this union, leads to the production of a zygote cell, or fertilized egg, initiating prenatal development. Scientists discovered the dynamics of human fertilization in the nineteenth century.[2]

    The process of fertilization involves a sperm fusing with an ovum. The most common sequence begins with ejaculation during copulation, follows with ovulation, and finishes with fertilization. Various exceptions to this sequence are possible, including artificial insemination, in vitro fertilization, external ejaculation without copulation, or copulation shortly after ovulation.[3][4][5] Upon encountering the secondary oocyte, the acrosome of the sperm produces enzymes which allow it to burrow through the outer jelly coat of the egg. The sperm plasma then fuses with the egg’s plasma membrane, triggering the sperm head to disconnect from its flagellum as the egg travels down the Fallopian tube to reach the uterus.

    Wiki

  6. I agree it’s evasive and cowardly. The question (as Roberts cites) is whether a State can design a law that encroaches on a federal Constitutional right upheld by the Courts in such a manner as to evade federal review. This is a non-decision. There were only 4 votes deciding a State cannot write law that way.

    1. I don’t think this is about whether there can be federal review, but when. Thomas argues that until an enforcement action is brought pursuant to the law, the federal courts have no role, under standard doctrines traditionally applied. Once an enforcement action is brought they could have a role.

      Gorsuch and the other three get around this by reading the saving clause of the law in a way that allows them, arguably, to act now. I agree with you that this is evasive. They should have either agreed with Thomas or gone into new territory with Roberts.

    2. Your reasoning is circular. You’ve already decided that the Texas law “encroaches on a Constitutional right.” The whole point of the litigation is decide whether it does. The conservatives are correct here. Let the case come through the system in the usual manner.

  7. Gorsuch and his three colleagues reached their decision by concluding that this law’s saving clause authorised the licensing officials to take action under the licensing laws they applied based on a violation of this law. Those officials were thus said to be able to “enforce” this law. They were therefore legitimate parties. Thomas read the saving clause differently, concluding that it did not have this effect, and also argued that in any event any such alleged possible enforcement was not imminent so there was no standing, under traditional doctrines.

    The Texas legislature could fix this loophole by clarifying that no action could be taken by any state official or licensing authority as a result of a violation of this law.

  8. 6 weeks is enough time to figure out that you have to murder your child. They shouldn’t even get that much time.

  9. Put a hole in their rubbers, dear Liza dear Liza…
    Put a hole in their rubbers dear Liza a hole.
    Don’t pork em dear Georgie dear Georgie dear Georgie…
    Don’t pork em deer Georgie keep your dong out!

Leave a Reply