{"id":6961,"date":"2022-01-06T21:35:55","date_gmt":"2022-01-06T21:35:55","guid":{"rendered":"http:\/\/lonecandle.com\/?p=6961"},"modified":"2022-01-06T21:35:55","modified_gmt":"2022-01-06T21:35:55","slug":"dont-be-fooled-the-supreme-courts-texas-abortion-decision-is-a-big-defeat-for-roe-v-wade","status":"publish","type":"post","link":"https:\/\/lonecandle.com\/?p=6961","title":{"rendered":"Don\u2019t be fooled: The Supreme Court\u2019s Texas abortion decision is a big defeat for Roe v. Wade"},"content":{"rendered":"\n

“On first glance, it would be easy to see the Supreme Court\u2019s decision Friday in Whole Woman\u2019s Health v. Jackson<\/em><\/a> as a win for abortion rights. It would also be wrong.<\/p>\n\n\n\n

More than two months after the Supreme Court allowed SB 8, a Texas law that effectively bans abortions after the sixth week of pregnancy<\/a>, to take effect, the Court followed it up with a 5-4 decision that is an even larger defeat to proponents of abortion rights, and a victory to anti-abortion lawmakers in Texas.<\/p>\n\n\n\n

The specific question in Jackson<\/em> is whether abortion providers are allowed to bring a federal lawsuit seeking to block SB 8. Although Justice Neil Gorsuch\u2019s majority opinion technically answers this question in the affirmative, it permits suits only against state health officials who play a very minimal role in enforcing the law. It does not allow suits to proceed against the Texas state officials who play the biggest role in enforcing SB 8: state court judges and clerks.<\/p>\n\n\n\n

The upshot of this decision is that, while the abortion provider plaintiffs in Jackson<\/em> may be able to get a federal court order declaring that SB 8 is unconstitutional, the only real relief they are likely to win is an order preventing a few state health officials from carrying out the minor role they play in enforcing the law. The most important provisions of the law \u2014 the ones that effectively prevent anyone from performing an abortion after the sixth week of pregnancy by threatening them with financial ruin if they do so \u2014 will most likely remain in effect.<\/p>\n\n\n\n

Though procedural sophistry, Gorsuch and the other justices who joined his opinion engineered the outcome Texas wanted. And the implications of this case could stretch far beyond abortion cases.<\/p>\n\n\n\n

SB 8 was written for the very purpose of evading judicial review<\/a>, and Jackson <\/em>largely blesses that tactic. As Justice Sonia Sotomayor writes in dissent, Gorsuch\u2019s opinion \u201cleaves all manner of constitutional rights more vulnerable than ever before.\u201d If states can use an SB 8-style law to nullify the constitutional right to an abortion, they could very well use it to nullify any other constitutional right.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“Normally, private plaintiffs can\u2019t sue a state directly in federal court \u2014 but they can <\/em>sue<\/a> the state official tasked with enforcing an unconstitutional law<\/a>. SB 8 seeks to exploit this structure by forbidding any \u201cofficer or employee of a state or local governmental entity<\/a>\u201d in Texas from enforcing the state\u2019s anti-abortion law. Instead, the law may only be enforced through private lawsuits.<\/p>\n\n\n\n

Such lawsuits may be filed by \u201cany person\u201d who is not<\/em> an employee of the state against anyone who either performs an abortion or who \u201caids or abets the performance or inducement of an abortion.\u201d Plaintiffs who prevail in these lawsuits receive a bounty of at least $10,000, which must be paid by the defendant \u2014 and there is no upper limit on this bounty.<\/p>\n\n\n\n

The idea behind SB 8 is that no one can challenge the law in federal court because there is no state official who can enforce it. And thus there is no proper defendant.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“A federal court, in other words, isn\u2019t allowed to block the most important parts of SB 8 \u2014 the part allowing \u201cany person\u201d to seek a bounty from an abortion provider, and the part allowing state court judges to order providers to pay such a bounty. The Texas legislature, moreover, could potentially shut down federal lawsuits challenging SB 8 altogether, simply by repealing the provision of state law that permits health officials to bring enforcement proceedings against people who violate it.<\/p>\n\n\n\n

So the bottom line is that Texas won. The state devised a scheme to evade judicial review, and five justices just blessed that scheme.”<\/p>\n\n\n\n

https:\/\/www.vox.com\/2021\/12\/10\/22827899\/supreme-court-texas-abortion-law-sb8-decision-whole-womens-health<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

“On first glance, it would be easy to see the Supreme Court\u2019s decision Friday in Whole Woman\u2019s Health v. Jackson as a win for abortion rights. It would also be wrong.<\/p>\n

More than two months after the Supreme Court allowed SB 8, a Texas law that effectively bans abortions after the sixth week of pregnancy, to take effect, the Court followed it up with a 5-4 decision that is an even larger defeat to proponents of abortion rights, and a victory to anti-abortion lawmakers in Texas.<\/p>\n

The specific question in Jackson is whether abortion providers are allowed to bring a federal lawsuit seeking to block SB 8. Although Justice Neil Gorsuch\u2019s majority opinion technically answers this question in the affirmative, it permits suits only against state health officials who play a very minimal role in enforcing the law. It does not allow suits to proceed against the Texas state officials who play the biggest role in enforcing SB 8: state court judges and clerks.<\/p>\n

The upshot of this decision is that, while the abortion provider plaintiffs in Jackson may be able to get a federal court order declaring that SB 8 is unconstitutional, the only real relief they are likely to win is an order preventing a few state health officials from carrying out the minor role they play in enforcing the law. The most important provisions of the law \u2014 the ones that effectively prevent anyone from performing an abortion after the sixth week of pregnancy by threatening them with financial ruin if they do so \u2014 will most likely remain in effect.<\/p>\n

Though procedural sophistry, Gorsuch and the other justices who joined his opinion engineered the outcome Texas wanted. And the implications of this case could stretch far beyond abortion cases.<\/p>\n

SB 8 was written for the very purpose of evading judicial review, and Jackson largely blesses that tactic. As Justice Sonia Sotomayor writes in dissent, Gorsuch\u2019s opinion \u201cleaves all manner of constitutional rights more vulnerable than ever before.\u201d If states can use an SB 8-style law to nullify the constitutional right to an abortion, they could very well use it to nullify any other constitutional right.”<\/p>\n

…<\/p>\n

“Normally, private plaintiffs can\u2019t sue a state directly in federal court \u2014 but they can sue the state official tasked with enforcing an unconstitutional law. SB 8 seeks to exploit this structure by forbidding any \u201cofficer or employee of a state or local governmental entity\u201d in Texas from enforcing the state\u2019s anti-abortion law. Instead, the law may only be enforced through private lawsuits.<\/p>\n

Such lawsuits may be filed by \u201cany person\u201d who is not an employee of the state against anyone who either performs an abortion or who \u201caids or abets the performance or inducement of an abortion.\u201d Plaintiffs who prevail in these lawsuits receive a bounty of at least $10,000, which must be paid by the defendant \u2014 and there is no upper limit on this bounty.<\/p>\n

The idea behind SB 8 is that no one can challenge the law in federal court because there is no state official who can enforce it. And thus there is no proper defendant.”<\/p>\n

…<\/p>\n

“A federal court, in other words, isn\u2019t allowed to block the most important parts of SB 8 \u2014 the part allowing \u201cany person\u201d to seek a bounty from an abortion provider, and the part allowing state court judges to order providers to pay such a bounty. The Texas legislature, moreover, could potentially shut down federal lawsuits challenging SB 8 altogether, simply by repealing the provision of state law that permits health officials to bring enforcement proceedings against people who violate it.<\/p>\n

So the bottom line is that Texas won. The state devised a scheme to evade judicial review, and five justices just blessed that scheme.”<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[13],"tags":[521,528,21],"class_list":["post-6961","post","type-post","status-publish","format-standard","hentry","category-article-share","tag-abortion","tag-supreme-court","tag-texas"],"_links":{"self":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/6961","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=6961"}],"version-history":[{"count":1,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/6961\/revisions"}],"predecessor-version":[{"id":6962,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/6961\/revisions\/6962"}],"wp:attachment":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=6961"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=6961"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=6961"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}