Thursday Reads: SCOTUS=American Taliban
Posted: September 2, 2021 Filed under: abortion rights, just because, morning reads, SCOTUS | Tags: abortion, American Taliban, Roe v. Wade, US Supreme Court, women's bodily autonomy, women's reproductive rights 24 Comments
American Taliban
Good Day, Sky Dancers.
As far as I’m concerned, the most important story today is that the corrupt U.S. Supreme Court is signaling the approaching death of reproductive rights for American women. I was so angry that I couldn’t sleep last night, and I’m not thinking too clearly this morning. As I’m sure you know, the Court allowed the insane Texas abortion ban to take effect around midnight on Tuesday, without explanation or comment. Late Wednesday night, the court released the justices’ opinions. The New York Times summarized all of them: Supreme Court, Breaking Silence, Won’t Block Texas Abortion Law.
The vote was 5 to 4, with Chief Justice John G. Roberts Jr. joining the court’s three liberal members in dissent.
The majority opinion was unsigned and consisted of a single long paragraph. It said the abortion providers who had challenged the law in an emergency application to the court had not made their case in the face of “complex and novel” procedural questions. The majority stressed that it was not ruling on the constitutionality of the Texas law and did not mean to limit “procedurally proper challenges” to it.
But the ruling was certain to fuel the hopes of abortion opponents and fears of abortion rights advocates as the court takes up a separate case in its new term this fall to decide whether Roe v. Wade, the landmark 1973 decision establishing a constitutional right to the procedure, should be overruled. It also left Texas abortion providers turning away patients as they scrambled to comply with the law, which prohibits abortions after roughly six weeks.
The “conservatives” were too cowardly to explain their votes, but the other four justices filed dissenting opinions
“The court’s order is stunning,” Justice Sonia Sotomayor wrote in her dissent. “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.”
“The court has rewarded the state’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the court’s precedents, through procedural entanglements of the state’s own creation,” Justice Sotomayor wrote. “The court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.”
Chief Justice Roberts wrote that he would have blocked the law while appeals moved forward.
“The statutory scheme before the court is not only unusual, but unprecedented,” he wrote. “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 chief justice underscored the tentative nature of the majority’s ruling. “Although the court denies the applicants’ request for emergency relief today,” he wrote, “the court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue.”
Justice Elena Kagan criticized the court’s practice of deciding important issues in rushed decisions without full briefing or oral argument — on what Supreme Court specialists call its “shadow docket.”
“Today’s ruling illustrates just how far the court’s ‘shadow-docket’ decisions may depart from the usual principles of appellate process,” she wrote. “That ruling, as everyone must agree, is of great consequence.”
“Yet the majority has acted without any guidance from the court of appeals — which is right now considering the same issues,” she wrote. “It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion — that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail.”
“In all these ways,” Justice Kagan wrote, “the majority’s decision is emblematic of too much of this court’s shadow-docket decision making — which every day becomes more unreasoned, inconsistent and impossible to defend.”
“Today’s ruling illustrates just how far the court’s ‘shadow-docket’ decisions may depart from the usual principles of appellate process,” she wrote. “That ruling, as everyone must agree, is of great consequence.”
“Yet the majority has acted without any guidance from the court of appeals — which is right now considering the same issues,” she wrote. “It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion — that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail.”
“In all these ways,” Justice Kagan wrote, “the majority’s decision is emblematic of too much of this court’s shadow-docket decision making — which every day becomes more unreasoned, inconsistent and impossible to defend.”
Justices Breyer and Kagan joined Roberts’ dissent, and Breyer also wrote his own dissent. Zoe Tillman at Buzzfeed News:
Breyer — who has spent the past year fending off calls from the left to step aside and let President Joe Biden appoint a successor while he has a Democratic majority in the Senate — wrote that it was true that the lawsuit raised difficult threshold questions about how this type of case could be handled by the courts. But he wrote that there had to be a way for courts to deal with an imminent violation of a party’s legal rights.
“There may be other not-very-new procedural bottles that can also adequately hold what is, in essence, very old and very important legal wine: The ability to ask the Judiciary to protect an individual from the invasion of a constitutional right — an invasion that threatens immediate and serious injury,” Breyer wrote.
Amber Phillips at The Washington Post: What to know about the Texas abortion law.
The law, which was passed in May and went into effect Wednesday, says that any pregnancy in which a heartbeat is detected cannot be aborted. That effectively means if you’re six weeks pregnant, you cannot have an abortion in the state of Texas, because that is around when most fetal cardiac activity can be detected. (Doctors opposed to this legislation say that is misleading language, and that the fluttering detected isn’t always necessarily a heartbeat so early in a pregnancy.)
The law makes no exceptions for rape, sexual abuse or incest.
The law does something else novel: It effectively incentivizes the public to police abortions. It allows people — anyone living in the state of Texas — to sue an abortion provider or anyone else they suspect is “aiding and abetting” abortions after that six-week mark. And the law sets a $10,000 award for any successful lawsuit to stop an abortion.
Taken together, those decisions allowed Texas lawmakers to essentially end abortions in their state, abortion rights activists say.
On the SCOTUS decision:
The court announced that a five-person conservative majority had decided to let the ban stand. The court’s most conservative justices, including the three President Donald Trump nominated, such as Amy Coney Barrett, decided to let the law stand. In a one-paragraph statement, these justices said there are “serious questions regarding the constitutionality of the Texas law,” but indicated that the way the law was set up, the court is unsure how to stop if from going into effect.
The three liberal justices, joined by Chief Justice John G. Roberts Jr., dissented. Roberts said he would stop the law from going into effect because it is so novel and far-reaching.
The justices didn’t say anything about whether the statute is constitutional. They just said it will stay in place while that question is litigated.
That was an unexpected move that could signal the court is ready to strike down Supreme Court precedent created nearly 50 years ago in Roe v. Wade that guarantees a woman access to abortion services in the first half of her pregnancy before the fetus would be viable outside the womb,said Lisa Soronen, executive director of the State and Local Legal Center, which supports municipalities in cases before the Supreme Court.
“The justices know that this Texas law violates Roe v. Wade. They all know that,” she said. To keep the law in place, “that still doesn’t overturn Roe v. Wade, it just makes a really big statement about what they think of it.”
Phillips notes that other Republican-controlled states are likely to quickly pass similar laws effectively banning abortion. Read about it at the WaPo link.
Joan Biscupic at CNN: In the shadows: Why the Supreme Court’s lack of transparency may cost it in the long run.
Supreme Court justices tout judicial integrity and the importance of public confidence in their decisions, but the court’s midnight silence Tuesday while letting a Texas law that curtails abortion rights take effect — followed by a midnight order Wednesday — offers the latest and most compelling example of its lack of transparency and the cost.
The justices’ secretive patterns have gained new attention as confidence in all government institutions has waned. Witnesses before a bipartisan commission set up by President Joe Biden to consider court revisions — most visibly, the options of term limits and the addition of more seats — have targeted the justices’ secrecy and how it contributes to public distrust of the high court, along with the lopsided advantage the court gives to some litigants.
Such lack of transparency is only part of the context behind the Supreme Court’s silence in the closely watched Texas case. The emboldened conservative majority already is poised to reverse or at least undercut Roe v. Wade, the 1973 landmark ruling that declared women’s constitutional right to end a pregnancy. The court announced last spring that it would take up in the 2021-22 session a dispute over Mississippi’s ban on abortions after 15 weeks. The Texas law goes much further, making it illegal to terminate a pregnancy when a fetal heartbeat is detected, which may be typically around six weeks.
Both laws sharply conflict with Roe v. Wade, which forbade states from interfering with a woman’s abortion decision before the fetus would be viable, that is, able to live outside the womb, at about 22-24 weeks.
The justices have made plain their concerns regarding public mistrust and misunderstanding of the Supreme Court. Chief Justice John Roberts regularly declares that judges differ from elected lawmakers, and Justice Stephen Breyer protested in a speech at Harvard last spring that they should not be regarded as “junior-varsity politicians.” Breyer cited the court’s long-standing preservation of abortion rights as evidence of its nonpartisan, nonideological character.
Separately last spring, Justices Sonia Sotomayor and Neil Gorsuch emphasized in a joint appearance, advocating civics education, the deep reasoning that underlies their opinions. They criticized those who would look only for a bottom-line judgment.
Yet no judgment — or word of any sort — came late Tuesday night, with the clock ticking, anxiety rising among both sides in Texas and a national audience watching.
Read the rest at CNN.
More opinions:
Gail Collins at The New York Times: Texas Is Trying to Overturn Roe v. Wade All by Itself.
Mark Joseph Stern at Slate: The Supreme Court Overturned Roe v. Wade in the Most Cowardly Manner Imaginable.
Dana Millbank at The Washington Post: Opinion: Texas shows us what post-democracy America would look like.
Michelle Goldberg at The New York Times: Republicans Are Giving Abortion Opponents Power Over the Rest of Us.
Any man who expresses “concerns” about women in Afghanistan needs to explain why they aren’t concerned about women in Texas and ultimately the entire U.S. Or they need to STFU!
Hang in there Sky Dancers!!
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Sky Dancing 
The biggest problem is not stranger danger. The biggest problem is the power this gives to any vindictive jerk near the woman. Abusive husbands, boyfriends, relatives, “friends,” rapists (no, seriously, rapists, could sue if the vicitm of their crime aborts), anyone. All of whom have the nice little inducement of getting $10,000 for harassing her, while she, explicitly, can’t get any compensation even if she wins some long and tedious court case. While she’s pregnant and then delivering a child she doesn’t want at her own expense and then supporting him or her.
The woman doesn’t get sued, just the people who help her. That’s why all the clinics have shut down. Even a friend who expressed emotional support could be sued if someone witnessed it.
Yes, I’m too angry to type properly. The point I was trying to make was that the biggest ratbags were likely to be people connected to the woman involved and trying to ruin her life.
Agree. There will also be heavily funded right wing organizations that will get in on the act.
We all remember Kavanaugh’s befuddled face and stammering incomprehension. He couldn’t even grasp the concept of how laws could limit men’s bodily autonomy.
Suing people for aiding and abetting so-called illegal aliens comes to mind…
I am pissed at everyone who could not bother to help stop Trump.
I am mad at everyone who could not bother to help stop Kavanaugh.
I am angry at everyone who could not bother to help stop McConnell scuttled the Garland nomination.
I am sick of everyone who could not bother to help stop Trumps lame duck appointment of Coney-Barrett.
How much more shit will people sit back and watch happen?
I hope the answer to your last question will turn out to be, “The shit stopped there.” I’m terrified it’s not.
But emailzzzzzz. And she’s over-prepared.
I’m not really surprised that this has happened. Trump’s gone but his judiciary will impact America for decades.
She laughs funny.
About that “it isn’t always a heartbeat.” It is NEVER a heartbeat.
At that stage of development, there is no heart.
The cells that will eventually become a heart and some of the big arteries have a rhythmic pulse from when they first form. It’s what they do. They do it isolated in a petri dish. Are they going to call a single cell in a petri dish a heart?
It’s not about hearts, or life, or baybeez. It never was.It was only ever about control.
As Mohammed Safa said: When the penalty for aborting after rape is more severe than the penalty for rape, that’s when you know it’s a war on women.
I flame up every time I see a media story on the “heartbeat” bill. It’s as if every time the media reports on Biden they put “fraudulently elected” in front of his name. Sure, the wingnut media thinks that, but the rest of journalism should know better.
Of course not. The GOP Taliban doesn’t care what science says.
Interview with Treasury Secretary Janet Yellen, wherein a journalist hears again that being prepared and knowledgeable is key:
Just like Hillary. Except she was deemed “too prepared.”
So the Texas law doesn’t have an exception for rape and incest, but it does have one for medical emergencies.
So…does it count as a medical emergency if a woman says if they don’t let her have an abortion she’s going to beat a republican so bad they end up in the emergency room?
Yeah. Until that, I thought she was just being her usual Feinsteinian self. Then I began to think she really did not have all her marbles.
Really dark times happening now. It is hard to get oriented, so much is happening at once. I guess that is the new normal. Thanks for the post.