“it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention”
The Supreme Court just issued one of the biggest non-abortion abortion rulings in memory. It was a non-abortion ruling because by 5-4, with Roberts voting with the liberal block, the court found the case not ripe for judicial intervention. But it’s related to abortion, so according to the left, it’s the end of the world, and we’re already in that movie with the women in red robes and head coverings.
Actually, the law is not a ban on abortion, contrary to the common terminology applied to it. The law authorizes private rights of action by citizens against abortion providers who perform abortions after a heartbeat is detected or without trying to detect a heartbeat. This threat of private lawsuit reportedly has caused abortion providers to stop rendering services. Structuring the law this way apparently was a deliberate attempt to avoid federal judicial scrutiny.
And that’s the judicial rub. The government is not enforcing the law, private citizens are. But none of those private citizens have not yet filed a suit under the law, so there’s nothing for SCOTUS to decide yet. The Court left open that there might be other procedural ways to judicially challenge the law, and made clear it was not ruling on the merits.
Here’s the majority opinion (emphasis added):
The application for injunctive relief or, in the alternative, to vacate stays of the district court proceedings presented to JUSTICE ALITO and by him referred to the Court is denied. To prevail in an application for a stay or an injunction, an applicant must carry the burden of making a “strong showing” that it is “likely to succeed on the merits,” that it will be “irreparably injured absent a stay,” that the balance of the equities favors it, and that a stay is consistent with the public interest. Nken v. Holder, 556 U. S. 418, 434 (2009); Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 66 (2020) (citing Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 20 (2008)). The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. California v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 8). And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention. Clapper v. Amnesty Int’l USA, 568 U. S. 398, 409 (2013) (“threatened injury must be certainly impending” (citation omitted)). The State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly. Nor is it clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law. See Ex parte Young, 209 U. S. 123, 163 (1908). Finally, the sole private-citizen respondent before us has filed an affidavit stating that he has no present intention to enforce the law. In light of such issues, we cannot say the applicants have met their burden to prevail in an injunction or stay application. 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.
By mentioning challenges in Texas state courts, SCOTUS invites such lawsuits. Reportedly a Travis County, Texas, judge already stayed the law, but I’m not sure what the implications of that are and if SCOTUS was aware of it, one would think it would have been mentioned. That would have been an easy way to dispose of the case.
Roberts, joined by Breyer and Kagan, dissented, arguing the case was important enough at least to issue a stay until it could be fully argued and heard:
The statutory scheme before the Court is not only unusual, but unprecedented. The legislature has imposed a
prohibition on abortions after roughly six weeks, and then
essentially delegated enforcement of that prohibition to the
populace at large. The desired consequence appears to be
to insulate the State from responsibility for implementing
and enforcing the regulatory regime.
The State defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place. I would grant preliminary relief to preserve the status quo ante—before the law went
into effect—so that the courts may consider whether a state
can avoid responsibility for its laws in such a manner. Defendants argue that existing doctrines preclude judicial intervention, and they may be correct. See California v.
Texas, 593 U. S. ___, ___ (2021) (slip op., at 8). But the con-sequences of approving the state action, both in this particular case and as a model for action in other areas, counsel
at least preliminary judicial consideration before the program devised by the State takes effect.
Breyer, joined by Sotomayor and Kagan, argued in dissent that the procedural posture was irrelevant:
I recognize that Texas’s law delegates the State’s power to prevent abortions not to one person (such as a district attorney) or to a few persons (such as a group of government officials or private citizens) but to any person. But I do not see why that fact should make a critical legal difference. That delegation still threatens to invade a constitutional right, and the coming into effect of that delegation still threatens imminent harm.
Sotomayor, joined by Breyer and Kagan, wrote one of her signature fiery and quotable dissents:
The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention. Ante, at 1. Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent.
Expect more litigation. Probably today in the state and lower courts. I would not be shocked if the case came back to SCOTUS in a different procedural posture and the court issued a stay at that time.
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