On Friday, the Supreme Court issued its ruling on two cases concerning a pro-life law in Texas that bans abortions after fetal cardiac activity can be detected, which is typically around six weeks of pregnancy.
As reported by The Daily Wire, the high court decided to allow abortion providers to continue with a lawsuit against the state, but it is allowing the legislation to stay in effect as the legal battles continue. “The ruling is procedural and will not be the final word on the law’s constitutionality,” Fox News reported.
The Supreme Court also got rid of a challenge brought by the Department of Justice against the Texas pro-life measure.
In the Whole Woman’s Health v. Jackson decision concerning the abortion providers’ case, Justice Neil Gorsuch wrote the opinion, stating:
The Court holds that the petitioners may bring a pre-enforcement challenge in federal court as one means to test S. B. 8’s compliance with the Federal Constitution. Other pre-enforcement challenges are possible too; one such case is ongoing in state court in which the plaintiffs have raised both federal and state constitutional claims against S. B. 8. Any individual sued under S. B. 8 may raise state and federal constitutional arguments in his or her defense without limitation. Whatever a state statute may or may not say about a defense, applicable federal constitutional defenses always stand available when properly asserted.
Gorsuch went on to respond to several of Justice Sonia Sotomayor’s objections to the ruling. He wrote:
JUSTICE SOTOMAYOR offers a radical answer, suggesting once more that this Court should cast aside its precedents requiring federal courts to abide by traditional equitable principles.
Nor does JUSTICE SOTOMAYOR explain where her novel plan to overthrow this Court’s precedents and expand the equitable powers of federal courts would stop—or on what theory it might plausibly happen to reach just this case or maybe those exactly like it
He wrote, “[Justice Sotomayor] charges this Court with ‘shrink[ing]’ from the task of defending the supremacy of the Federal Constitution over state law. …That rhetoric bears no relation to reality.”
“The truth is, many paths exist to vindicate the supremacy of federal law in this area,” he went on.
Gorsuch responded to a portion of Sotomayor’s opinion in which Sotomayor discussed the different effects of S.B.8, writing, “This is a brazen challenge to our federal structure. It echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to ‘veto’ or ‘nullif[y]’ any federal law with which they disagreed.”
JUSTICE SOTOMAYOR’S suggestion that the Court’s ruling somehow “clears the way” for the “nullification” of federal law along the lines of what happened in the Jim Crow South not only wildly mischaracterizes the impact of today’s decision, it cheapens the gravity of past wrongs.
To Sotomayor’s concern that this ruling opens the door for other states to pass laws similar to the Texas ban, Gorsuch pointed out this isn’t a good reason to “[throw] aside our traditional rules.”
“If other States pass similar legislation, pre-enforcement challenges like the one the Court approves today may be available in federal court to test the constitutionality of those laws,” he wrote.
Gorsuch pointed out how it would be wrong of the high court to act outside of tradition, and pressed the importance of the different branches of government and the power that each of them holds.
To the extent JUSTICE SOTOMAYOR seems to wish even more tools existed to combat this type of law, Congress is free to provide them. … But one thing this Court may never do is disregard the traditional limits on the jurisdiction of federal courts just to see a favored result win the day. At the end of that road is a world in which “[t]he division of power” among the branches of Government “could exist no longer, and the other departments would be swallowed up by the judiciary.”
Justice Clarence Thomas dissented from one part of the ruling, stating, “I part ways with the principal opinion only in its conclusion that the four licensing-official respondents are appropriate defendants under Ex parte Young.”
Thomas stated that the District Court should “dismiss this case against all respondents, including the four licensing officials, because petitioners may not avail themselves of the exception to sovereign immunity recognized in Ex parte Young.”
Chief Justice John Roberts wrote an opinion on the decision, writing that the provisions in S.B. 8 “effectively chill the provision of abortions in Texas.” He was joined by the more liberal wing of the Court, who concurred in the judgment in part and dissented in part.
Roberts explained, “As eight Members of the Court agree … petitioners may bring a pre-enforcement suit challenging the Texas law in federal court under Ex parte Young … because there exist state executive officials who retain authority to enforce it.”
“In my view, several other respondents are also proper defendants,” Roberts noted, going on to explain the figures he believed could also be defendants.
He concluded, “The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.”
In Justice Sotomayor’s opinion, she criticized the law itself, as she has done in the past, and pointed out several issues with the court’s decision.
The Court should have put an end to this madness months ago, before S. B. 8 first went into effect. It failed to do so then, and it fails again today. I concur in the Court’s judgment that the petitioners’ suit may proceed against certain executive licensing officials who retain enforcement authority under Texas law, and I trust the District Court will act expeditiously to enter much-needed relief. I dissent, however, from the Court’s dangerous departure from its precedents, which establish that federal courts can and should issue relief when a State enacts a law that chills the exercise of a constitutional right and aims to evade judicial review.
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