The U.S. Supreme Court, in a decision that was delayed long enough to allow a new Texas abortion ban to take effect, has decided to allow the state requirements to stand pending further court review that is expected to happen in coming months.
The 5-4 majority in the decision included the three justices appointed by President Trump, and left members of the minority complaining about the violation of the U.S. Constitution because of their own perception of a “federal constitutional right” to abortion.
That topic already is on the court’s docket for later this year when a major ruling is expected on another abortion ban, this one from Mississippi, that could be used to undermine, or even overturn, the original 1973 Roe v. Wade decision that created that “right” to abortion.
The justices had failed to act on Tuesday and the law took effect on Wednesday. The opinion actually came out overnight going into Thursday, and might have been delayed because of the insistence by the four dissenters to each write their own opinion on the dispute.
The court’s three liberal justices, Sonia Sotomayor, Stephen Breyer and Elena Kagan, voted against the state’s abortion limit, and were joined by John Roberts, originally described as a conservative on the bench but more and more voting with the liberal minority.
The majority opinion was unsigned, and found that the abortion providers who wanted an emergency order preventing enforcement of the law failed to address correctly a number of “procedural questions.”
“In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit,” the decision said. “In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”
The state law bans abortions after about six weeks of pregnancy, and conflicts with other Supreme Court abortion precedents that have set that limit at about 22 to 24 weeks. But it also could be a signal of the direction of future decisions regarding abortion.
The court puts significant weight on previous precedents, such as Roe v. Wade, but it also has routinely overturned those decisions when the arguments show they were made incorrectly.
The original decision long has been suspected of not being correct, since even its author, Harry Blackmun, said if the personhood of the unborn is established, the arguments for abortion would fail completely because that person would be protected by the Constitution.
And the medical knowledge about the personhood of the unborn has expanded vastly since 1973.
Texas wrote the law specifically to make challenges difficult, as the routine for challenging a state law is to attack those officials charged with enforcement. But Texas allows each and every citizen to be responsible for enforcement, through lawsuits by them and against those offering or providing abortion or abortion services.
For instance, the law allows anyone to sue clinics and individuals alike for “aiding and abetting” abortions performed after six weeks. This creates a liability for clinics as well as people who work there, or even drive women to abortion businesses.
Kagan, without benefit of lower court analysis of many of the issues in the case, jumped to the conclusion that the law is “flagrantly unconstitutional.”
Students for Life of America/Students for Life Action President Kristan Hawkins noted, “Today’s news is a wakeup call for Corporate Abortion that has hidden a predatory and barbaric business behind claims of constitutional cover. But it’s becoming increasingly clear that the Constitution does not create a subclass of human beings whose rights are stripped away based on their age and location, nor will you find ‘abortion’ written in invisible between the lines. Students for Life of America was founded as a Post-Roe organization, working for the day after Roe with help and support for mothers and their children, born and pre-born. We are now one day closer to that reality.”
She continued, “We are celebrating this decision for what it is, baby steps in the right direction toward the obvious conclusion that Roe is fatally flawed and must go. There are a lot of issues not addressed in the ruling today, but thankfully, the court has the opportunity to dive deeper into this when Dobbs v. Jackson (the Mississippi case) is heard later this year.”
Fox News reported the Texas law, which bans abortions once medical professionals can detect a heartbeat in the unborn infant, is the strictest abortion limit in the nation at this point.
It was the Associated Press that lamented the “death of liberal Justice Ruth Bader Ginsburg last year and then-President Donald Trump’s replacement of her with conservative Justice Amy Coney Barrett. Had Ginsburg remained on the court there would have been five votes to halt the Texas law.”
Should the high court eventually overturn Roe v. Wade, it would not prevent abortions across America, it would only return that jurisdiction to the states.
A report from the pro-life Operation Rescue explained abortionists tried to block it but were unsuccessful. “While about a dozen other states have passed similar Heartbeat Bills, the Texas version is the only one in the nation not enjoined by a court,” the report explained.
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