Image 01 Image 03

Supreme Court Refuses To Halt Texas Fetal Heartbeat Law On Procedural Grounds

Supreme Court Refuses To Halt Texas Fetal Heartbeat Law On Procedural Grounds

“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.

[This post has been updated and expanded multiple times.]


Donations tax deductible
to the full extent allowed by law.


“But none of those private citizens have not yet filed a suit… ”


There’s an emerging market for really insensitive “heartbeat” detectors.

All I’ve got to say is that if it pisses off libtards, it’s a good thing.

    Well, according to the left, it’s the end of the world.

    r2468 in reply to Ironclaw. | September 2, 2021 at 1:05 pm

    It used to be that the world ended every week or so while Trump was in office. Glad to see the tradition continues.

    henrybowman in reply to Ironclaw. | September 2, 2021 at 3:35 pm

    “And that’s the judicial rub. The government is not enforcing the law, private citizens are.”
    In other words, welcome to the flip side of “Muh private social media corporation.”
    How’s that public/private fascism working out for you now, tyrants?
    Democrats never learn that all their totalitarian “innovations” are two-edged swords that eventually come back and bite them in the ass “unfairly!” Nuclear option, filibuster, now outsourced mercenary repression.
    Like crooks who never consider consequences because they bank on never getting caught, Democrats automatically assume they’ll never be out of power.

So Robert’s take is that the legality of abortion is a settled issue but he is giving the abortionists an opening for filing lawsuits introducing better arguments for framing why the Texas law is unconstitutional. I’ll be when that happens, the vote will be 6-3 to overturn the Texas law.

    Roberts is most interested in outcomes FOR THE COURT. He doesn’t care if something is constitutional or not. He only cares how badly the left will criticize the court (meaning Roberts) over any given ruling.

    In his way of doing things, the old saw about whose ox is being gored introduces another ox. Himself. And that’s the one all his decisions are based on.

Obviously a federal law allowing random citizens to sue random citizens who sue under the Texas law is needed. $20,000 recovery.

With regards to the drama club ladies in the red dresses and white hats- it was not changes to abortion laws that turned some of the women into forced “birthing people” in the Republic of Gilead. In Gilead there was no need for abortion. It was a severe reduction in the number of women who were fertile that forced some women into forced pregnancy. If the animal testing on covid-19 vaccines, which destroyed the fertility of close to 20% of the test subject rats, one of the most fertile mammals on our planet, turns out to also reduce fertility for humans, a covid-19 vaccine mandate may lead to some women being the only way other women can raise a family. Would the Supreme Court uphold a law that forced any woman capable of carrying a child to full term to become pregnant “because the future of the human race depends on it”? How would the drama club ladies react if other women refused to carry a child for one of them out of “choice”? I really hate it when people like the drama club ladies appropriate a book they obviously never read.

That aside, I doubt the Texas law will stand, but the Right to Life folks are coming closer to a law that will, I think.

    elliesmom: If the animal testing on covid-19 vaccines, which destroyed the fertility of close to 20% of the test subject rats

    That is contrary to the findings of Bowman et al., Lack of effects on female fertility and prenatal and postnatal offspring development in rats with BNT162b2, a mRNA-based COVID-19 vaccine, Reproductive Toxicology 2021.

    henrybowman in reply to elliesmom. | September 2, 2021 at 3:54 pm

    All I can say is that at least the movie we live in has changed.
    I was getting tired of the old one, where the mad emperor torched his own empire while he fiddled with his pudding.

Now what’s to stop a state from creating similar private rights of action against anyone who publishes a newspaper promulgating the pernicious doctrine of communism / islam / white supremacy / wuhan denialism / climate denialism / Trumpism , or against anyone who offers pr0n guns or ammunition for sale?

    pete_edwards in reply to Milhouse. | September 2, 2021 at 10:13 am

    To a limited extent, they left has, but instead of lawsuit, they are cancelled. Even banks are dipping their toes into private citizens cancellation. I disagree with this law. I do not disagree with this as a step towards leveling the field. If they want lawfare, then at a certain point we must start arming ourselves. (I understand this may not be the best ammo, but like I said, we must start somewhere and I think the sooner the better.)

    henrybowman in reply to Milhouse. | September 2, 2021 at 3:40 pm

    “What’s to stop them from?”
    That’s already old news.
    The gun grabbers did precisely that.
    We had to pass a federal law (PLCAA) to stop them from doing it.
    Which, of course, the Biden Administration is fighting tooth and nail either to repeal or to loophole through.

    Colonel Travis in reply to Milhouse. | September 2, 2021 at 4:06 pm

    Private companies are stomping all over freedom and liberty just fine right now, doing the government’s bidding. Big Tech, coronavirus, I wonder how much of a “mistake” Michael Flynn’s credit card cancellation was, etc.

    txvet2 in reply to Milhouse. | September 2, 2021 at 5:27 pm

    I would suggest that such would be a violation of the 1A guarantees of freedom of the press and of speech. There is no such 1A right to murder babies.

      Milhouse in reply to txvet2. | September 2, 2021 at 8:37 pm

      According to the law as it currently stands, there is a “right” to murder babies that is completely equal to the right to publish newspapers or to travel between states. Until Roe and Casey are overturned, that’s unfortunately the law of the land, and we can’t pretend it isn’t. So if this Texas law works, and successfully shuts down the death factories because they’re afraid of being sued, then what’s to stop some other state doing the same to gun owners, or to people who publish the wrong opinions?

        Ironclaw in reply to Milhouse. | September 2, 2021 at 10:51 pm

        Really? Where is that law, what chapter and section is it found in? Or did you mean a court decision, which is not a law and never can be as laws can only come from the legislature.

        txvet2 in reply to Milhouse. | September 3, 2021 at 1:19 am

        It isn’t “law”, it’s a SCOTUS opinion, and you know it. I realize you’d rather have people accept it as law, but it isn’t and never will be. It cannot, and should not, be enforced. Laws are passed by a legislature and confirmed by the executive. There is no other method.

          Milhouse in reply to txvet2. | September 3, 2021 at 11:04 am

          That is not true. Have you never heard of the common law?! SCOTUS’s authority comes from Article 3, which vests “the judicial power of the united states” in it; the judicial power is the power to say what the law is. SCOTUS has that power, and its decisions are binding on all lower federal courts. And federal law is binding on all state courts.

Russ from Winterset | September 2, 2021 at 10:24 am

Milhouse raises a good point. You always have to ask yourself “If I am OK with this law being used against things I oppose, am I still OK with it being used against things I support?”

This is always something that everyone needs to consider about every new law. Unfortunately, with the lawfare tactics used by progressives in America, I fear that that horse is already out of the barn.


    Agreed. Lawfare, forum shopping, carefully crafted legislation designed to get a toe in the water, strategic civil suits and challenges to portions of laws and regulations have been commonplace tools of the d/progressive for years.

    The right has only recently begun to use the same sorts of tactics. Of course the d/progressive and their media allies only decry the tactics when we use them. Unfortunately the pearl clutching r establishment will object as well.

    These are folks who believe that we shouldn’t use the tactics because they aren’t polite or gentlemanly, while ignoring their use by our opponents. Mutually assured destruction seems like the only effective way forward.

    I would much prefer to return to a truly Federalist system that actively presumes State sovereignty over issues not directly delegated in the Constitution. Unfortunately the d/progressive refuse because they want the Massachusetts model to be imposed Nationally.

    The problem they have is that they created the mechanisms in the CT and executive to bypass the legislature. Now that the balance on the CT is unfavorable and the executive power alternating they are scared that those mechanisms will be used to impose the Mississippi model.

    IMO, sauce for the goose is warranted. Good and hard until they join in the call for a return to genuine Federalism and demonstrate they have learned the lesson about the swing of the pendulum.

    caseoftheblues in reply to Russ from Winterset. | September 2, 2021 at 1:46 pm

    You missed the memo…laws can and will only be used against conservatives or upheld if they are liberal/socialist/fascist /marxist

    But keep in mind that this is NOT a new innovation, only repurposing an innovation already in use by our enemies. In other words, “They bring a knife, you bring a knife; they bring a gun, you bring a gun.” You are decrying rules of engagement that are still significantly more moral than the enemy’s published rules, as specified by their own standard-bearer, Obama.

      Milhouse in reply to henrybowman. | September 2, 2021 at 8:40 pm

      No, it’s a completely new innovation. Our enemies have not yet tried such a thing, to effectively ban constitutional rights they don’t like, by creating a private cause of action against them. But if Texas gets away with it, wait for them to copy it.

        Ironclaw in reply to Milhouse. | September 2, 2021 at 11:06 pm

        Haven’t they? Have you not been paying attention to the social media companies squelching free speech rights, but only those with which they and the government agree?

          Milhouse in reply to Ironclaw. | September 3, 2021 at 11:06 am

          Social media companies are merely declining to provide their services to people they disagree with. That is their right. It is completely different from suing someone in a state court and using the power of the state to take money from them.

          The Laird of Hilltucky in reply to Ironclaw. | September 5, 2021 at 5:36 pm

          Milhouse, “Social media companies are merely declining to provide their services to people they disagree with.” Pah! There is nothing mere about this. These companies are only able to do this because they can hide behind a law specifically written to protect them from accountability for their actions. If they are exercising their ‘rights’, then let the courts decide that.

          mark311 in reply to Ironclaw. | September 6, 2021 at 4:56 am

          @The Laird of Hilltucky

          I’ve never seen any law relating to that , google didn’t seem to find anything either. Do you have a link or reference?

          mark311 in reply to Ironclaw. | September 6, 2021 at 5:00 am

          @The Laird of Hilltucky

          Ah apologies just found it. Your reference is actually to Sandy hook where the manufacturers marketed the weaponry as being suitable for criminal purposes. In other words they contributed indirectly to the Sandy hook massacre by the manner of the marketing. That is entirely different from an actual law that explicitly provides and rewards for private individuals to sue another person for having a medical procedure.

        CommoChief in reply to Milhouse. | September 3, 2021 at 8:05 am


        IMO, the ongoing series of private actions v Masterpiece Cake demonstrates that;
        1. The left does in fact use similar tactics
        2. A business can continue to operate in the face of these actions

          Milhouse in reply to CommoChief. | September 3, 2021 at 11:14 am

          There’s only been one private action against Masterpiece. And it’s not by some random person but by the alleged “victim”. So bakeries in general are not in fear that at any moment anyone might sue them. Also, Masterpiece is confident of winning the suit in the end; Texas baby-killers have no such confidence.

          CommoChief in reply to CommoChief. | September 4, 2021 at 11:51 am

          Fair enough. Environmental lawsuits would have been a better example. Lots of private suits that impede, delay or prevent economic activity of otherwise lawful business activity.

          mark311 in reply to CommoChief. | September 5, 2021 at 4:58 pm


          Again with respect to environmental actions it would be on the basis of harm or enforcement of basic standard by the state. In this case the person suing could be anyone and the person being sued could be just about anyone connected with the abortion procedure.

          It’s a bad law plain and simple, a pretty blatant attempt to ban abortion on the basis of bad scientific knowledge or ethical principles.

        The Laird of Hilltucky in reply to Milhouse. | September 5, 2021 at 5:27 pm

        Milhouse, apparently you weren’t watching when progressives tried to limit our second amendment rights by enabling private persons to sue firearms manufacturers when their constitutionally legal products were used in crimes. There is no action that leftists will not use to further their agenda.

    Yes. Who said “We can forgive them for what they do to us. I cannot forgive them for what they force us to do to them.” ?
    So Roe v. Wade is the law of the land? Which session of Congress passed that law? Seems the Supreme Court sort of peered into the Constitution and made it up out of whole cloth. Texas is finding life exists with a heart beat. The life of the unborn is more important than a woman wishing for the death of her unborn child.

    Russ from Winterset in reply to gonzotx. | September 2, 2021 at 10:45 am

    There’s “regret” and then there’s “enough regret to vote for the BAD ORANGE MAN”.

    But 10%? That might not seem like much, but a 10% swing at the polls would be apocalyptic. And that’s after 7 months, so it will only go up as time passes, barring a miracle.

    henrybowman in reply to gonzotx. | September 2, 2021 at 3:44 pm

    Four of those nine can’t afford for the checks to stop coming.

Sotomayor’s dissent cracks me up. Oh, the righteous indignation! Too bad she can’t see actual rights where they exist in the constitution. You’d never see her pen a furious dissent against say… a 2nd amendment case where the rights of the people are being infringed by government.

The Court had no right to cram abortion down our throats. None.

We all know it.

So all these ruling are ultra vires.

We only respect them because of concern we may go to jail.

So we enable it to continue to issue ultra vires decisions.

Honor, it has none.

Why am I not surprised that Roberts joined the pro-death faction?

John Roberts- cakes, smiles and comfy sweaters.

If no harm has yet occurred then who has standing to oppose the law? Any harm is purely theoretical, at least that was the position of the courts when the 2020 election was challenged.

Or is standing dependent on the politics of the individualsorganisations involved?

    “Harm” has already occurred. The murder mills have shut down, because everyone who works there is afraid of being sued if they don’t. No actual suits were required for that to happen. And until a murder takes place, and someone sues for it, there will be nobody for the murderers to sue.

    To the extent that this means fewer murders are happening, I’m glad. But I fear for our constitutional system, because this way of getting around the constitution will come to bite us all.

    To the extent

      Ironclaw in reply to Milhouse. | September 2, 2021 at 11:09 pm

      Ok, so who do they sue for this “harm?” The State has taken no action against them, so they can’t claim standing there. So, until someone actually brings suit, there is no harm that can be used for standing.

      Milwaukee in reply to Milhouse. | September 2, 2021 at 11:14 pm

      We have, since 1972, had a great deal of harm. Millions of harm. Roe v. Wade did a great deal of harm. How often do the courts get to make a ruling which becomes a law? That was harm.
      The death of an innocent is on the short list of sins which cry out to Heaven for vengeance.

Roe’s (and Casey’s) lack of any grounding in the text or structure of the Constitution failed to produce a settled body of law. Harry Blackmun’s three trimester analysis held up about as well as Sandra O’Connor’s rootless “undue burden” test. The Fourteenth Amendment is silent on the topic and abortion is accordingly one for the states to figure out. Life tenured lawyers are ill-equipped to deal with the monumental issues of determining when life begins and when (or if) bodily autonomy overrides a right to life. These matters were being slowly addressed state by state through the political process until the Supreme Court decided to invent a right to abortion out of thin air.

Bork in his confirmation hearing had it right The states should have been left alone to slug it out. Messy but in the long run better and constitutionally correct. “Privacy ? Privacy to do what ? Snort cocaine, commit incest on children ?” (I paraphrase)

You know it is serious when Ted Wheeler is proposing that no Oregon state employees be allowed to conduct business with or travel to Texas. because he has nothing going on in PDX which needs his attention. BTW, when I was in Fort Worth a few weeks ago we counted 3 homeless people, 1 tent, and no BLM signs. I think Ted is more scared that any Oregonian seeing that will come back and ask “what?”