Supremes let Texas abortion law stand as challenge moves forward

The Supreme Court has issued a ruling that allows a Texas abortion law to remain in effect even as a court challenge progresses through the system.

The precedent-creating law, S.B. 8 enacted in the state, does not allow state officials to bring criminal prosecutions or civil actions to enforce a ban on abortions after physicians can detect the unborn child’s heartbeat.

But it instead “directs enforcement through ‘private civil actions’ culminating in injunctions and statutory damages awards against those who perform or assist with prohibited abortions.”

Participants in America’s huge and lucrative abortion challenged the law before it had been enforced, and the Supreme Court ruling said that case could continue, but also that the law could continue at the same time.

The abortionists had sought a court ruling ordering government officials in the state including judges to refuse to file, or hear, cases that could be brought, but the high court removed them from the list of defendants.

The court said the abortion interests “failed to identify a basis in existing law that could justify disturbing the Fifth Circuit’s decision to deny injunctive relief” at this time. The opinion noted the actual issue of the status of the law is not being decided now.

The case is being allowed to proceed only against a few defendants, the opinion said, those “who may or must take enforcement actions against the petitioners if the petitioners violate terms of Texas’s Health and Safety Code, including S.B. 8.”

Washington Examiner noted the decision comes more than a month after justices heard arguments over the law that makes abortion illegal after a fetal heartbeat is detected.

CNBC reported the 8-1 decision came came a little over a week after the Supreme Court heard arguments in a separate case, Dobbs v. Jackson Women’s Health, where the state of Mississippi is asking the justices to overturn the Roe v. Wade decision from 1973 that created a “right” to abortion in the Constitution.

CNBC reported, “During those arguments, the court’s 6-3 conservative majority appeared ready to weaken that precedent over the strenuous objections of the three liberal justices.”

On the pro-abortion side, Justice Sonia Sotomayor fretted at that time, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”

Justice Clarence Thomas would have thrown out the Texas case in its entirety for lack of subject-matter jurisdiction.

But the pro-abortion wing of the court, predictably, turned political in a diatribe against efforts to protect unborn life. Sotomayor, in a section joined by Stephen Breyer and Elena Kagan, claimed the effect of the law has been to threaten abortionists “with the prospect of essentially unlimited suits for damages, brought anywhere in Texas by private bounty hunters…”

She claimed that has chilled the opportunities for women to abort their children in the state.

Claiming abortion is a “constitutional right,” even though the Constitution does not mention abortion, Sotomayor accused the Supreme Court of betraying “not only the citizens of Texas, but also our constitutional system of government.”

The law, she charged, “allows defendants to be haled (sic) into court in any county in which a plaintiff lives, even if that county has no relationship to the defendants or the abortion procedure at issue.”

She also objected to other components of the law, including the provision for legal fees for plaintiffs but not defendants.

She cited a 1908 railroad case decision to support her agenda regarding pre-enforcement challenges and retroactive liability.

Sotomayor wanted state court clerks and judges to be left as defendants, since they are sufficiently “adverse” to the abortion industry representatives.

“State-court clerks are proper defendants in this action. This court has long recognized that ‘the action of state courts and judicial officers in their official capacities is to be regarded as action of the state,'” she wrote.

She appeared to be arguing on behalf of the plaintiffs in the case, complaining, “My disagreement with the court runs far deeper than a quibble over how many defendants these petitioners may sue. The dispute is over whether states may nullify federal constitutional rights by employing schemes like the one at hand. The court indicates that they can, so long as they write their laws to more thoroughly disclaim all enforcement by state officials, including licensing officials.”

She claimed dire consequences, “This choice to shrink from Texas’ challenge to federal supremacy will have far-reaching repercussions. I doubt the court, let alone the country, is prepared for them.”

Marjorie Dannenfelser, chief of the pro-life Susan B. Anthony List, said, ““We celebrate that the Texas Heartbeat Act will remain in effect, saving the lives of unborn children and protecting mothers while litigation continues in lower courts.

“Meanwhile, we anxiously await the Court’s decision in the Dobbs case in which the court is directly considering the constitutionality of laws that protect unborn children and mothers prior to viability. Dobbs presents the biggest opportunity in generations to modernize our laws. We have great hope that the court will return the issue back to the people to decide through their elected representatives, letting democracy and consensus prevail.”

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