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Supreme Court Leaves Texas Fetal Heartbeat Law In Place, Allows Limited Future Lower Court Challenges

Supreme Court Leaves Texas Fetal Heartbeat Law In Place, Allows Limited Future Lower Court Challenges

In a complicated and contentious decision authored by Justice Gorsuch, Court rules that Texas state judges, clerks, and Attorney General Paxton cannot be sued to challenge the law, but certain state medical licensing officials can be sued.

Just the other day I noted, Supreme Court Sure Is Taking Its Time Deciding Texas Fetal Heartbeat Law “Expedited” Case.The Court just ruled.

In a complicated decision by Justice Gorsuch, the Court has left in place the Texas Fetal Heartbeat Law (the validity of which was not directly before the court, only whether pre-enforcment challenges could be made against state officials where those state officials had no enforcement power under the law), dismissed most defendants, but left an avenue for challengers to pursue on lower courts. Much of Gorsuch’s opinion was responding to the dissent by Justice Sotomayor.

From Gorsuch’s Opinion:

The Court granted certiorari before judgment in this case to determine whether, under our precedents, certain abortion providers can pursue a pre-enforcement challenge to a recently enacted Texas statute. We conclude that such an action is permissible against some of the named defendants but not others…

Because this Court granted certiorari before judgment, we effectively stand in the shoes of the Court of Appeals. See United States v. Nixon, 418 U. S. 683, 690–692 (1974); S. Shapiro, K. Geller, T. Bishop, E. Hartnett, D. Himmelfarb, Supreme Court Practice 2-11 (11th ed. 2019). In this case, that means we must review the defendants’ appeals challenging the District Court’s order denying their motions to dismiss. As with any interlocutory appeal, our review is limited to the particular orders under review and
any other ruling “inextricably intertwined with” or “necessary to ensure meaningful review of” them. Swint v. Chambers County Comm’n, 514 U. S. 35, 51 (1995). In this preliminary posture, the ultimate merits question—whether S. B. 8 is consistent with the Federal Constitution—is not before the Court. Nor is the wisdom of S. B. 8 as a matter of public policy.

After identifying persons and entities who could not be sued because of sovereign immunity, Gorsuch found some claims could be made:

While this Court’s precedents foreclose some of the petitioners’ claims for relief, others survive. The petitioners also name as defendants Stephen Carlton, Katherine Thomas, Allison Benz, and Cecile Young. On the briefing and argument before us, it appears that these particular defendants fall within the scope of Ex parte Young’s historic exception to state sovereign immunity. Each of these individuals is an executive licensing official who may or must take enforcement actions against the petitioners if they violate the terms of Texas’s Health and Safety Code, including S. B. 8. See, e.g., Tex. Occ. Code Ann. §164.055(a); Brief for Petitioners 33–34. Accordingly, we hold that sovereign immunity does not bar the petitioners’ suit against these named defendants at the motion to dismiss stage….

Gorsuch provided this summary of the decision:

The petitioners’ theories for relief face serious challenges but also present some opportunities. To summarize: (1) The Court unanimously rejects the petitioners’ theory for relief against state-court judges and agrees Judge Jackson should be dismissed from this suit. (2) A majority reaches the same conclusion with respect to the petitioners’ parallel theory for relief against state-court clerks. (3) With respect to the back-up theory of relief the petitioners present against Attorney General Paxton, a majority concludes that he must be dismissed. (4) At the same time, eight Justices hold this case may proceed past the motion to dismiss stage against Mr. Carlton, Ms. Thomas, Ms. Benz, and Ms. Young, defendants with specific disciplinary authority over medical licensees, including the petitioners. (5) Every Member of the Court accepts that the only named private-individual defendant, Mr. Dickson, should be dismissed.

Separately, the court rejected the attempt by the U.S. Justice Department to sue, dismissing the case.

(I’m just starting to read the opinions by the other Justices and will add to this post when I do that).

Justice Thomas would have thrown the whole challenge out:

I join all but Part II–C of the Court’s opinion. In my view, petitioners may not maintain suit against any of the governmental respondents under Ex parte Young, 209 U. S. 123 (1908).1 I would reverse in full the District Court’s denial of respondents’ motions to dismiss and remand with instructions to dismiss the case for lack of subject-matter jurisdiction.

[1] I also would hold that petitioners lack Article III standing. As I have explained elsewhere, abortion providers lack standing to assert the putative constitutional rights of their potential clients. See June Medical Services L. L. C. v. Russo, 591 U. S. ___, ___–___ (2020) (dissenting opinion) (slip op., at 12–14). Third-party standing aside, petitioners also have not shown injury or redressability for many of the same reasons they cannot satisfy Ex parte Young. For injury, petitioners have shown no likelihood of enforcement by any respondent, let alone that enforcement is “certainly impending.” Clapper v. Amnesty Int’l USA, 568 U. S. 398, 410 (2013) (internal quotation marks omitted). For redressability, we held last Term that a party may not “attack an unenforceable statutory provision,” because this Court may not issue “an advisory opinion without the possibility of any judicial relief.” California v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 9) (internal quotation marks omitted); see also Muskrat v. United States, 219 U. S. 346, 361 (1911). Likewise here, petitioners seek a declaration that S. B. 8 is unlawful even though no respondent can or will enforce it.

Chief Justice Roberts, joined by the liberal bloc (Breyer, Sotomayor, Kagan), would have allowed suit against additional defendants. In what may be a precursor to the Mississippi case that was just argued that squarely puts Roe v. Wade in issue, Roberts reiterated the Roe v. Wade force of law:

Texas has passed a law banning abortions after roughly six weeks of pregnancy. See S. B. 8, 87th Leg., Reg. Sess. (2021). That law is contrary to this Court’s decisions in Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). It has had the effect of denying the exercise of what we have held is a right protected under the Federal Constitution.1

Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review….

These provisions, among others, effectively chill the provision of abortions in Texas. Texas says that the law also blocks any pre-enforcement judicial review in federal court. On that latter contention, Texas is wrong. As eight Members of the Court agree, see ante, at 11, petitioners may bring a pre-enforcement suit challenging the Texas law in federal court under Ex parte Young, 209 U. S. 123 (1908), because there exist state executive officials who retain authority to enforce it….

In my view, several other respondents are also proper defendants. First, under Texas law, the Attorney General maintains authority coextensive with the Texas Medical Board to address violations of S. B. 8…. He accordingly also falls within the scope of Young’s exception to sovereign immunity. Ante, at 9–10.

The same goes for Penny Clarkston, a court clerk. Court clerks, of course, do not “usually” enforce a State’s laws. Ante, at 5. But by design, the mere threat of even unsuccessful suits brought under S. B. 8 chills constitutionally protected conduct, given the peculiar rules that the State has imposed. Under these circumstances, the court clerks who issue citations and docket S. B. 8 cases are unavoidably enlisted in the scheme to enforce S. B. 8’s unconstitutional provisions, and thus are sufficiently “connect[ed]” to such enforcement to be proper defendants….

The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings. It is, however, a basic principle that the Constitution is the “fundamental and paramount law of the nation,” and “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). Indeed, “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” United States v. Peters, 5 Cranch 115, 136 (1809). The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.

(2:25 p.m.) Finally completed my heat shield, and got to read Justice Sotomayor’s dissent, joined by Breyer and Kagan. Here’s the opening:

For nearly three months, the Texas Legislature has substantially suspended a constitutional guarantee: a pregnant woman’s right to control her own body. See Roe v. Wade, 410 U. S. 113 (1973); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). In open defiance of this Court’s precedents, Texas enacted Senate Bill 8 (S. B. 8), which bans abortion starting approximately six weeks after a woman’s last menstrual period, well before the point of fetal viability. Since S. B. 8 went into effect on September 1, 2021, the law has threatened abortion care providers with the prospect of essentially unlimited suits for damages, brought anywhere in Texas by private bounty hunters, for taking any action to assist women in exercising their constitutional right to choose. The chilling effect has been near total, depriving pregnant women in Texas of virtually all opportunity to seek abortion care within their home State after their sixth week of pregnancy. Some women have vindicated their rights by traveling out of State. For the many women who are unable to do so, their only alternatives are to carry unwanted pregnancies to term or attempt self-induced abortions outside of the medical system.

The Court should have put an end to this madness months ago, before S. B. 8 first went into effect. It failed to do so then, and it fails again today. I concur in the Court’s judgment that the petitioners’ suit may proceed against certain executive licensing officials who retain enforcement authority under Texas law, and I trust the District Court will act expeditiously to enter much-needed relief. I dissent, however, from the Court’s dangerous departure from its precedents, which establish that federal courts can and should issue relief when a State enacts a law that chills the exercise of a constitutional right and aims to evade judicial review. By foreclosing suit against state-court officials and the state attorney general, the Court effectively invites other States to refine S. B. 8’s model for nullifying federal rights. The Court thus betrays not only the citizens of Texas, but also our constitutional system of government.

Some more select excerpts.

Now I see why Gorsuch was so preoccupied with responding to Sotomayor’s dissent, she compared what the court was permitting to the breakaway Confederacy:

My disagreement with the Court runs far deeper than a quibble over how many defendants these petitioners may sue. The dispute is over whether States may nullify federal constitutional rights by employing schemes like the one at hand. The Court indicates that they can, so long as they write their laws to more thoroughly disclaim all enforcement by state officials, including licensing officials. This choice to shrink from Texas’ challenge to federal supremacy will have far-reaching repercussions. I doubt the Court, let alone the country, is prepared for them….

This is a brazen challenge to our federal structure. It echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to “veto” or “nullif[y]” any federal law with which they disagreed. Address of J. Calhoun, Speeches of John C. Calhoun 17–43 (1843)….

The Nation fought a Civil War over that proposition, but Calhoun’s theories were not extinguished…. S. B. 8 raises another challenge to federal supremacy, and by blessing significant portions of the law’s effort to evade review, the Court comes far short of meeting the moment….

In its finest moments, this Court has ensured that constitutional rights “can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes . . . whether attempted ‘ingeniously or ingenuously.’” Cooper v. Aaron, 358 U. S. 1, 17 (1958) (quoting Smith v. Texas, 311 U. S. 128, 132 (1940)). Today’s fractured Court evinces no such courage. While the Court properly holds that this suit may proceed against the licensing officials, it errs gravely in foreclosing relief against state-court officials and the state attorney general. By so doing, the Court leaves all manner of constitutional rights more vulnerable than ever before, to the great detriment of our Constitution and our Republic.


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I’m trying to follow this, and I just can’t quite manage it.

At this point, I’m thinking, regardless of how the rulings go, this law should be pulled and replaced by a clean one, especially if Roe gets limited or overturned.

    That’s because Gorsuch chose to address Sotomayor’s tangled logic and arguments rather than provide a grown-up defense of the US Constitution. How lame ARE these judges?

    Pessimist in reply to Voyager. | December 10, 2021 at 5:35 pm

    Speaking of “following”, do petitioners and respondents change places at each stage of appeal? As a case winds its way upward I get more confused as to who is who. The language of the court is often! too dry for me to parse.

      henrybowman in reply to Pessimist. | December 11, 2021 at 3:43 am

      Yes in fact, you see it all the time.
      In the DC Circuit, you will find Heller v. DC. In the Supreme Court, it became DC v. Heller.

Roberts isn’t under duress. He believes that guff.

Interesting that the Administration’s challenge to the Texas statute was an 8-1 dismissal on the grounds cert. was improvidently granted.

A plain English explanation for us non-lawyers would be appreciated.

They’re temporizing until it’s somebody else’s problem.

“The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings.”
Got that right and more power to Texas! Nullification has strong roots in the Founding and needs to be revived among the states. When the SCOTUS starts making up law under the guise of “interpretation” and “judicial review,” leading to grave loss of life, liberty, or property, the states MUST act to oppose it.

I think that SCOTUS will hear argument on the merits of the case from Texas and then consolidate the case from Texas and the case from Mississippi so that it can write an opinion on Roe based on similar facts and thus modify substantially or overrule Roe , a more unlikely possibility

Fetus as a technical term of art to socially distance technicians and abortionists.

The first heart beat. The evolution of a coherent nervous system. The “big bang” of human consciousness. Six weeks and functional viability.

A woman and man still have four choices: abstention, prevention, adoption, and compassion. A woman still has the right of self-defense (including involuntary exploitation) through reconciliation (i.e. not Capitol Hill “heroics”). This only affects a woman’s Choice (i.e. wicked solution a.k.a. selective-child, or one-child, delegated).

One what basis is a woman’s bodily autonomy and reproductive rites denied in the second and third trimesters?

The Pro-Choice religion denies women and men’s dignity and agency, reduces human life to a negotiable commodity, and is a source of diverse mischief.

The apologies offered in defense of the wicked solution are strawclowns dressed as strawmen. A side from Her Choice, a fate for all of us, her Choice should not be normalized for social, redistributive, and fair weather causes.

Roe, Roe, Roe your baby, down the river Styx. #HateLovesAbortion

    AF_Chief_Master_Sgt in reply to n.n. | December 10, 2021 at 2:43 pm

    I’ve never understood the reasoning behind viability as it relates to an abortion, as if the fetus isn’t human to begin with.

    My stance is that one living male and one living female join together and by that action create another living being. That living being naturally resides NATURALLY in the female womb. The act of making a child does exactly that. The continued growth of that being results in the birth of another human. Not a fish, not a dog, not a cancer, not a specimen… another human.

    But as the human body has shown, sometimes the body cannot bring a baby to term, which results in a natural reaction, stillborn, miscarriage, etc.

    Any other action is a voluntary termination.

    One can argue why the woman does not want to bring a baby to term, but that does not make the baby less than human, it merely makes the baby an inconvenience for the woman. The reasoning can be wide and varied; rape, color, sex, employment, etc. Again, the cause of the pregnancy does not change the fact that the result is still a human.

    It isn’t an inconvenience for the man, because the man has no say in the ultimate decision to abort. That is solely a decision by the woman, with or without regard for the man’s opinion. If she wants an abortion, and he doesn’t, he does not have a say. If she wants the baby and he wants an abortion, tough luck, he pays child support.

    So any decision to term a baby rests alone with the woman.


        RandomCrank in reply to Pessimist. | December 12, 2021 at 3:33 pm

        Insofar as I understand it, “viability” is one boundary of the compromise embedded in Roe, based loosely on the “quickening” standard of yore. The idea being no regulation before that point, with more regulation later. At the other boundary, Roe allowed for prohibition in late pregnancy. The compromise was to divide it into trimesters.

        There are valid arguments against all of this, starting with viability being a moving target. Ethics and morality are, to put it mildly, an imperfect fit. Legally, even for a 9th amendment guy like me, and someone who finds merit in the pragmatic elegance (messy as it was) of the original Roe framework, there are good counterarguments, starting with Roe looking a lot like legislation, and thus out of judicial bounds. Also, as Ginsburg noted, the Court’s imposition of that framework — even though I still think it’s the best way to go — was too aggressive.

        I have a libertarian streak a mile wide, and my basic inclination has been to keep government out of it. That includes paying for abortions or requiring insurers to do so. Yet, like most Americans, I’m not a purist. I recognize that there are deeply-held objections to abortion. I tend to regard abortion as an I.Q. test, given that the pill is 99% effective when used as directed, but let’s face it: There are a lot of idiots, and I don’t have a huge problem keeping their crotch fruit out of the gene pool.

        But that’s just me. Others differ, so I can make a third-trimester exception out of recognition of a different view. The end result is a dented car with a bad paint job, but good brakes and a working engine. I wouldn’t want to drive it, but I wouldn’t forbid others to do so.

“Much of Gorsuch’s opinion was responding to the dissent by Justice Sotomayor.”

Unintended consequeces of Affimative Action has made it necessary to do this from now on.

    Affirmative action that accompanies the standard list of “people of color (e.g. people of brown)”, a list of feminist and masculinist friends.

The last “super precedent” was overturned in a civil war. We are struggling to mitigate the profit and progress of diversity [dogma] (i.e. color judgment, class-based bigotry), inequity, and exclusion (DIE). NOW (pun intended), it is elective abortion of human life (e.g. planned parent/hood) for social, redistributive, and fair weather causes, approved by feminists and masculinists alike. It is the Twilight Amendment. It is the establishment of a Pro-Choice (“ethical”) religion under the Progressive Church (PC).

Can you please explain this in a more understandable for Professor?

Form, for should be form

Not any kind of lawyer here, just a reasonably well read citizen. Here’s what I think this means, I welcome actual legal experts’ critiquing of my account:

1. The whole problem for the courts is the deliberate attempt by the Texas legislature to avoid their law being stopped cold by the courts before it ever takes effect. They did this by saying only private citizens, not state officials, enforce the law through civil lawsuits.

2. The reason this works is because when courts block a law, what they actually do is block the *enforcement* of the law by public officials. Since this law purportedly excluded all public officials from enforcing it, that leaves exactly *no one* for the courts to “enjoin,” or tell not to enforce the law.

3. It’s never been the case that a court could tell every single citizen not to do something, and while Justice Sotomayor may be really mad about this law, she and the other liberals may not quite be ready to claim the courts can go that far. But they were willing to say the courts could tell clerks they couldn’t accept lawsuits arising from this Texas law.

4. Gorsuch and the others agreeing with him take the view that the courts can’t go that far, but to throw the abortionists a bone, he figured out that maybe three or four state officials on some licensing board still could enforce this law, and said to the abortionists, *those* you can sue. (Continued…)

5. Chief Justice Roberts sided with the liberals in saying, yes, the courts can enjoin all *clerks* from even handling lawsuits arising from this law, which is concerning for various reasons, both related to abortion and related to the larger issue of how many people can the courts boss around?

6. The question remains whether Roberts has simply sold out altogether, or whether he’s trying to avoid the court looking too partisan, or whether his basic north-star is the *power* of the high court, or whether he just finds Texas’ approach too obnoxious. I guess we’ll find out more when Dobbs is handed down.

7. I think behind all this is that maybe a majority of the justices — for different reasons — don’t really like this business of enacting a law that cannot be enforced by public officials, but again, for various reasons, they don’t want to tackle that entirely right now. Most people may not realize it, but surely the justices do, that many laws allow private enforcement. I have no idea whether laws have been enacted that rely 100% on private enforcement. And I have no idea whatsoever on what basis the courts would strike down a law that relied on private enforcement. Which leaves me thinking that maybe they can’t figure out how to do that; or that they don’t want to strike down a whole swath of laws that allow private enforcement.

    AF_Chief_Master_Sgt in reply to Septimus. | December 10, 2021 at 2:48 pm

    Well, that didn’t stop the SC from enacting a law where none existed when they ruled on Rowe v Wade. It is not logical that they don’t really like the business of enacting a law. The SC does not enact any law. The SC merely rules on the constitutionality of a law. As with homosexual marriage, they enacted a law where none existed.

    Lucifer Morningstar in reply to Septimus. | December 10, 2021 at 4:44 pm

    The question remains whether Roberts has simply sold out altogether, or whether he’s trying to avoid the court looking too partisan . . .

    Or whether Roberts is simply attempting to punt the whole thing down the road far enough that he won’t be the Chief Justice any longer when the SCOTUS is forced to make the decision to overrule Roe and throw the whole issue of abortion back to the individual states to decide.

      Um, that’s coming up soon with Dobbs, and he definitely plans on still being chief justice then. So that explanation won’t wash.

      The truth is everyone should be upset at this workaround to the constitution that Texas has come up with, because if Texas gets away with it every Dem state will jump on it to ignore the constitution too, and those who cheered Texas will be morally estopped from objecting.

      But on the other hand, babies who would have been murdered are now alive, and that has to be happy thing. Texas has bombed the tracks to Auschwitz, and no matter how good the arguments are for not doing so, that doesn’t change the fact that the murder factory has slowed down.

        Milwaukee in reply to Milhouse. | December 12, 2021 at 2:14 am

        “The truth is everyone should be upset at this workaround to the constitution that Texas has come up with, because if Texas gets away with it every Dem state will jump on it to ignore the constitution too, and those who cheered Texas will be morally estopped from objecting.”
        The upstream problem is the Supreme Court’s work around of the Constitution to create Roe v. Wade in the first place. Their job is to determine if laws are constitutional or not, not to create a law out of thin air.

        The left has already pulled similar nonsense. For example, environmental groups have standing to sue the EPA. So the EPA wants a regulation which they are denied by usual process. The EPA funds a group, the group sues, the EPA rolls over in court and the court settlement gives them the regulations they wanted.

        Part of the problem at the border is the Flores settlement in regards to how long minors can be separated from family. The situation has changed, the Trump administration could have returned to court and asked for new directions.

        The second amendment is in the constitution. Abortion is not.

Heck, I don’t know that *I* like laws that rely on private enforcement, because I can think of ways that liberals might use that tactic. Could California take that route to go after crisis pregnancy centers again? What about empowering lawsuits against employers, including religious employers, who don’t go along with same-sex marriage or gender ideology and so forth?

I heard and read that California will soon have laws on the book that will enable the once thriving Golden State, which is reeling from excessive regulations, an exodus of businesses and high crime,, will become a “sanctuary state” for abortions, whereby the state will subsidize the costs for abortions incurred by residents and non residents. Only a one party dominated legislature in a blue state could enact such an awful law.

    AF_Chief_Master_Sgt in reply to Steven Brizel. | December 10, 2021 at 2:50 pm

    As long as they become a sanctuary state for ultra-leftist liberals to abort, I’d be hard pressed to fight against that. I may even be willing to purchase flights for some of my ultra-leftist liberal neighbors.


” In what may be a precursor to the Mississippi case that was just argued that squarely puts Roe v. Wade in issue, Roberts reiterated the Roe v. Wade force of law.”

If that’s the case, it appears that Roberts may be in the minority. If I understand matters correctly, that means that Roberts can’t assign the writing of the majority opinion. That duty falls to the most senior justice, namely Clarence Thomas.

That bit of good news makes it more likely (though not necessarily probable) that Thomas would write the majority opinion himself, which in turn makes it way more likely that Roe will be overturned.

    Milhouse in reply to Oregon Mike. | December 11, 2021 at 8:21 pm

    Maybe. I don’t think it tells us anything about what he thinks of Roe. Even if the Dobbs decision is about to overrule it, nobody denies that right now Roe is the court’s precedent and therefore binds the states. So in saying so Roberts is simply uttering a truism.

    Think of the third-degree murder charge against Derek Chauvin. The state supreme court was on the verge of striking down the appeals court’s novel interpretation of third-degree murder, and thus invalidating the charge against Chauvin. If I recall correctly they’d already heard the appeal in Noor and it was merely a matter of writing the court’s opinion and issuing it. And yet when the judge dismissed the charge against Chauvin the supreme court said “Not so fast; until we actually say it was wrong, the appeals court’s view is still a binding precedent that you are required to obey, so you must reinstate the charge. When we strike it down he can appeal his conviction on this charge and it will be overturned. Which is what happened.

A great deal of damage will be done, and even more bad precedents set just because they re trying to preserve a wrongly decided case.

Better to overturn Roe in its entirety and let the people through their legislatures decide when life begins and possesses all of the protections and rights of a newly minted citizen.

They are just making a mess of things by dancing around the issue and there is no telling what the consequences will be.

That law is contrary to this Court’s decisions in Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992).
Which violates the Constitution and reason. But, of course, we should simply accept what the black-robed magi tell us.

This is what I hate more than anything else about the Supreme Court and the progressivism that permeates it. Precedent should only be a valid basis for future judgment when the precedent itself is valid.

The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings.
No kidding. Because your rulings in this case are wrong.

the Constitution is the “fundamental and paramount law of the nation,”
Absolutely right. Which is why they feel they need to challenge your assumption of authority in this matter.

“[i]t is emphatically the province and duty of the judicial department to say what the law is.”
Only up to the point where it conflicts with clear reason and the text of the document. If you simply make it the province of the Supreme Court to “say what the law is” then you set them up as 1984-style Ministry of Truth arbiters. If they ignore science, history, the text of the document, and the origins of the document, in order to rule as they see fit, based on their ultimately religious doctrine, they should no longer have the authority to which they lay claim.

Louis K. Bonham | December 10, 2021 at 2:57 pm

My reading of the tea leaves from this morning’s opinions strongly suggests that we are looking at a 5-4 or 6-3 opinion in Dobbs.

And given the enhanced tenor of Sotomajor’s screeching, methinks she knows Roe / Casey is going down . . . .

I’m in the midst of domestic stuff, so I will say two things for now.

1. I’m agnostic on abortion, and have a mixed mind on how to handle it in the real world.

2. The TX law’s empowerment of private enforcement is one of the most dangerous ideas I can recall. I think it’s a real test of principles for conservatives. If you want to outlaw abortion, enforcement should start and end with government.

#2 is a deal-breaker for me. Conservatives, think it through. You don’t have to be “pro-choice” to see what a mortal threat that is. BE CAREFUL WHAT YOU WISH FOR.

    This one largely happened because we have been seeing the leftists outsource action to private entities for some time. We’ve seen that happen with guns and speech already, and this year added medicine to the list.

    So, while this is not a good law, if you want to stuff the genie back in the bottle, you need to start at the bottle it came out.

Beginning to think every leftist has a double secret probationary copy of the constitution that no one else has ever even seen much less ratified.

The explicit right to bear arms that shall not be infringed is contextual,nuanced, and problematic in their version.

The imaginary constitutional right to an abortion shall not be infringed under any context, nuanced, and “because shutup” in their made up document.

    RandomCrank in reply to healthguyfsu. | December 10, 2021 at 5:22 pm

    Now let’s imagine a private right of action on guns. Do you want that tactic to be legal? I sure as hell do not. As for abortion being a “made-up right,” there is this:

    We can and should argue over how to apply it. I am strongly biased toward “textualism,” and think it means what it says it means. I also think the Supremes went too far with Roe, even though I favor the formula in that case. Still, the idea that there are no rights other than those enumerated is deeply unwise to me. Even if I liked the idea, it directly contradicts the 9th.

    My broader point is this: You don’t have to like this or that right, but all rights should be respected. The unennumerated right to abortion may or may not sit well, but I do NOT buy into the idea that we only have those rights specified in the Constitution.

      RandomCrank in reply to RandomCrank. | December 10, 2021 at 5:31 pm

      Something else. The notion that we have only the rights on a list implies that government grants our rights. Nope. Government RECOGNIZES rights. Abortion as a “right” rests on the “made-up” right to privacy in personal affairs. Perfectly legit to wrangle over the interpretation and extent of that “made-up” (unenumerated) right to privacy, but not at the expense of the principle underlying that right.

      Conservatism is in part a belief that government should be limited. I think that government should be sharply enjoined from disparaging “made-up” rights, no matter how messy the details.

        Milhouse in reply to RandomCrank. | December 11, 2021 at 8:24 pm

        I just find the idea that there is any privacy in a surgical procedure to be absurd.

        RandomCrank: I agree with you completely about unenumerated rights.

        As Madison said: “It is evident, therefore, that according to their primitive signification, they [bills of rights] have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations.”

        Madison worried that an enumerated bill of rights would come to be treated as a complete enumeration of rights, leaving all other as fair game to be usurped by the politically powerful.

        Alas, what worried Madison has come to pass. Those on the political left and right both argue that, effectively, any non-enumerated right that they disagree with, that is not explicitly listed in the bill of rights, is a “made up” right and suitable to be ignored.

        This is supposed to be a system where the government has the enumerated powers, and no more than those clearly granted. Now, that whole proposition has been turned on its head. The government has asserted all powers that are not forbidden to it. God help us.

          RandomCrank in reply to Rand. | December 12, 2021 at 3:51 pm

          There are a few “elastic clauses” in the Constitution, put there on purpose partly in reaction to the Founders’ belief that the Articles of Confederation had overly constrained the federal government. I see the 9th as one such clause, but that one a protection against an overzealous government.

          I recognize conservative objections to abortion, although I can’t say I’m on the pro-life train. I wish right-wingers would be more careful. If you don’t like the 9th, then pursue its repeal, just as left-wingers who don’t like the 2nd should pursue repeal. Don’t ignore, deny, or try to water either one down.

The narcissistic, fanatical, intemperate and manifestly “dim-witted Latina,” Sotomayor, strikes again. Her so-called “jurisprudence” is firmly grounded in Dhimmi-crat venom, bile, histrionics, hysterics and spite.

Well, it looks like the Supremes went up against Texas and they blinked first, overcome by Texas’s clever legal Jiu-Jitsu. The justices had no stomach for allowing state court judges to be defendants in federal lawsuits over state laws, much less subject to federal injunctions preventing them from hearing cases under state law, The justices realized this could wind up being a pitched battle, and they didn’t have the balls to go there. Splitting hairs and saying they can sue state court clerks and enjoin them from accepting lawsuits, without enjoining the state judges themselves, the actual folks with the legal authority, is just total chicken-shit. If Texas state judges really want to hear these cases, they will go ahead and figure out a way to hear them, especially if they are not themselves enjoined from doing so. Yet so far, there is no evidence that Texas judges have any appetite for proceeding with lawsuits that are plainly unconstitutional per Roe.

The main argument seems to be that abortion clinics are deathly afraid of the mere prospect of being sued. Well, folks, join the club. The U. S. is an overly litigious society, and we are all under the threat of ruinous frivolous and unconstitutional lawsuits, and until something is done to reign that it in. In the meantime, I don’t want to hear any sui generis arguments from the pro-abortion folks about how this particular instance deserves special treatment and everybody else fearful of having their rights trampled by malicious prosecutions can just go pound sand. The enforcement mechanism in S. B. 8 is a big problem that needs to be solved generally with respect to ALL constitutional rights, not treated as some special wrinkle in abortion jurisprudence that is somehow otherwise okay.

I had the weirdest experience today. I was at a bar, and sometimes as women do a woman began spontaneously crying. I don’t know why women do this, but they do. So I said, “I don’t want to say anything wrong, but if could I would hold you in my arms and comfort you.”

She then proceeded to call me a pervert.

And when a woman in a bar calls you a perve, you’re done. So I left.

I’ve dated some psychotic chicks before. And you just don’t know ahead of time which ones are psychos. And, if you want to keep your security clearance this info is kind of important.

It’s like you have to give the local cops a heads up.