Justice Sandra Day O’Connor once complained that “no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.” The Supreme Court should never have had to hear Whole Woman’s Health v. Jackson, the challenge brought by Texas abortion clinics to S.B. 8, because it should never have set the ad hoc nullification machine in motion. Friday’s decision properly declined to claim new victims for that machine.
The Court did not decide anything about the fate of Roe v. Wade or when states may regulate or ban abortion; that will await decision in Dobbs v. Jackson Women’s Health Organization, the challenge to a Mississippi law that was argued in early December. Friday’s decision dealt a partial setback to S.B. 8, because it allowed federal court challenges to the law as it applies to empowering state medical-licensing regulators. But the Court got right the most important part: It refused to allow a newly minted theory that federal courts can issue orders barring state courts from even accepting filings or state judges from hearing cases. That would have been a grave and novel invasion of state legal systems.
The Court also, with only Justice Sonia Sotomayor dissenting, refused to even hear Merrick Garland’s crackpot lawsuit by the Justice Department, dumping it from the Court’s docket and leaving in place a stay against the suit entered by the Fifth Circuit. We would have preferred to see the Court write an opinion discouraging future efforts similar to Garland’s, but at least it made clear that even two of the three liberal justices were not buying yet another of the Biden administration’s legal overreaches.
Finally, we continue to be disappointed in Chief Justice Roberts, whose opinion endorsed the judicial-activist remedy of federal lawsuits against state-court clerks, a bizarre position for a man whose professed judicial minimalism is supposed to be justified by a concern for the institutional integrity and prestige of the courts.
We are skeptical of the enforcement mechanism used by the Texas legislature, which was born of desperation to find some way to protect unborn life. The Court has available, in Dobbs, a better way: End Roe.