Bench Memos

Law & the Courts

A Procedural Abortion Ruling with a Substantive Lesson

The Supreme Court Building in Washington D.C., August 5, 2021 (Brent Buterbaugh/National Review)

Last night a 5–4 majority of the Supreme Court showed courage and faithfulness to rule of law by refusing to issue a stay or injunction in Whole Woman’s Health v. Jackson — in the face of an onslaught of egregious lies and histrionics from the Left about the case and its procedural posture. But this case involved abortion, so we shouldn’t be surprised by either the Left’s deception and the drama, or the media’s willingness to play along.

Well before it issued its ruling late last night, the Court drew great ire from liberals who were horrified by the prospect that the justices might not prevent the Texas Heartbeat Act from going into effect. That was despite numerous procedural hurdles in the case, most significantly the lack of a proper defendant.

The Court’s brief order — not at all unusual in the emergency-application context — made clear that the procedural issues prevented it from considering the constitutionality of the Texas law. The defendants are state officials plus one private citizen. The state officials claimed they lacked the authority to enforce the Texas law, which allows private citizens to file suit against any person who provides an abortion or aids or abets such an abortion. The one private citizen who was sued stated he has no intention to enforce the law. Absent such authority or intention among the named defendants, the majority concluded, “We cannot say the applicants have met their burden to prevail in an injunction or stay application.” All of that means that, as Ed Whelan has aptly explained, the case did not present a live controversy (i.e., an actual dispute between the parties).

All four dissenters — Chief Justice Roberts, along with Justices Breyer, Kagan, and Sotomayor — issued opinions. Roberts confined his argument to the procedural issue while the other three showed their indignation at Texas’s affront to Roe v. Wade and Planned Parenthood v. Casey. Justice Sotomayor called the Court’s order “stunning” and accused “a majority of Justices” of “bury[ing] their heads in the sand,” allowing “a law that flouts nearly 50 years of federal precedents.” As if the Court’s abortion jurisprudence were not a decades-long exercise in looking the other way when faced with an egregious misreading of the Constitution.

The rhetoric of the dissenters is head-scratching in light of the majority’s straightforward procedural ruling, which stated:

In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. 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.

On its face, the Court’s ruling does nothing to prevent a proper challenge to the Texas law in the future, and we very well may see that happen. Nor does the Court’s order address the constitutionality of Roe or Casey. The Court will have the opportunity to examine that question in depth, and with the benefit of full briefing and oral argument, in Dobbs v. Jackson Women’s Health Organization this coming term.

It is unclear whether a procedurally sound challenge to the new Texas abortion law will ever come before the Court. What is predictable is that if the Court renders a narrow decision on Dobbs that does not grapple with its unsound abortion jurisprudence at its core, another case, whether from Texas or elsewhere, will be just around the corner. Indefensible and unworkable precedents like Roe and Casey have a tendency to cause lingering problems until they are dealt with directly. That should be an incentive for the Court to repudiate its abortion aberration once and for all.

We can also predict that the Left’s lies, fearmongering, distortions, Court-packing threats, and general pressure campaigns of all stripes regarding abortion and the upcoming Dobbs case — and the willingness of the media to amplify them — have only just begun.

Buckle up, everybody.


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