Hillary Clinton weighed in on the newly passed Texas abortion law on Twitter, alleging that “the Supreme Court officially overturned five decades of settled law and permitted Texas’ unconstitutional abortion ban to stand.”
“Yes: They gutted Roe v. Wade without hearing arguments, in a one-paragraph, unsigned 5-4 opinion issued in the middle of the night,” asserted the 2016 Democratic nominee for president.
That is not what the Supreme Court did by refraining from striking down the law on Wednesday night.
The approximately one-page majority decision — reached by the conservative majority, excluding Chief Justice Roberts — specifically states that “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 Texas law permits private citizens to sue abortion providers — not the women seeking the procedure — for performing abortions after a fetal heartbeat is detected. It does not compel state law enforcement action against said providers.
Because no one — private citizen or government entity — has sued any provider, there is no relief to be granted against any defendant. As the majority notes, “federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.” The government lacks the power to enforce the law, and the only private citizen named in the suit “filed an affidavit stating that he has no present intention to enforce the law,” according to the Court.
If Clinton had read the Court’s opinion, it should have been immediately clear that its decision did not turn on the constitutional matter of whether the right to an abortion can be found in the Constitution, but on a much more mundane procedural question.