Re: Legal Random, Random
Posted: Fri Dec 10, 2021 6:29 pm
Supreme Court says Texas abortion providers may proceed with challenge of six-week ban, leaves law in effect for now
By Robert Barnes
Today at 1:00 p.m. EST
The Supreme Court on Friday left in place a Texas law that bans most abortions after six weeks, but provided a path for abortion providers to challenge what is the nation’s most restrictive law on the procedure.
The court’s splintered decision allows the providers to return to a district judge who once blocked the law, saying it violated the constitutional right to abortion.
That restarts the legal process that has seen the law remain in effect since Sept. 1, when the Supreme Court refused to step in to block it.
Eight justices said the abortion providers may bring the challenge. Chief Justice John G. Roberts Jr., writing for himself and the court’s three liberals, said the district judge should act quickly.
“Given the ongoing chilling effect of the state law, the District Court should resolve this litigation and enter appropriate relief without delay,” Roberts wrote.
The decision was both a partial victory and a disappointment for abortion rights supporters. They had asked the court to block the law while the legal process continued, but have not found the necessary five votes.
Amy Hagstrom Miller, who as president and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance, is lead plaintiff in the case, said that while Wednesday’s outcome offered “hope,” the legal process has been “excruciating” for patients and staff alike.
“We’ve had to turn hundreds of patients away since this ban took effect, and the Supreme Court’s refusal to block the law means the heartbreak doesn’t end,” she said in a statement, imploring the lower court judge to act expediently. “ … We hope this law is blocked quickly so we can resume the full scope of abortion care we are trained to provide.”
Justice Clarence Thomas, an avowed critic of the court’s abortion jurisprudence, wrote that he would not have allowed the lawsuit to continue. Justice Sonia Sotomayor, on the other hand, issued a blistering statement on the court’s refusal to block the law, called S.B. 8.
“The Court should have put an end to this madness months ago, before S.B.8 first went into effect,” wrote Sotomayor, who was joined by fellow liberal justices Stephen G. Breyer and Elena Kagan.
The court’s refusal to block the law “betrays not only the citizens of Texas, but also our constitutional system of government,” she wrote.
While the case over Texas’s law is procedural, the Supreme Court has signaled it is ready to make dramatic changes in the judicial rules governing abortion rights. In debating a Mississippi law that bans almost all abortions after 15 weeks, some justices earlier this month indicated they are open to overturning Roe v. Wade, which for nearly 50 years has said there is a constitutional right to abortion before fetal viability.
Marjorie Dannenfelser, president of the national antiabortion group Susan B. Anthony List reacted saying: “We celebrate that the Texas Heartbeat Act will remain in effect, saving the lives of unborn children and protecting mothers while litigation continues in lower courts.”
“Meanwhile,” she added, “we anxiously await the Court’s decision in the [Mississippi] case in which the court is directly considering the constitutionality of laws that protect unborn children and mothers prior to viability.”
Access to abortion in Texas has been dramatically curtailed, and abortion providers said many who wanted the procedure were forced to leave the state.
Nancy Northup, who heads the Center for Reproductive Rights, which is representing the providers, chastised the court for having “abandoned its duty to ensure that states do not defy its decisions.”
“For 100 days now,” Northup said in a statement, “this six-week ban has been in effect, and today’s ruling means there is no end in sight.”
The court’s decision, wrote Justice Neil M. Gorsuch, was a procedural one.
“In this preliminary posture, the ultimate merits question — whether S.B.8 is consistent with the Federal Constitution — is not before the Court,” he wrote. “Nor is the wisdom of S.B.8 as a matter of public policy.”
The Texas cases raised complicated questions about legal procedure precisely because S.B. 8 was intended to avoid federal court review.
The issue for the justices was whether the law could be challenged in federal court, where judges compelled to follow Supreme Court precedent have stopped other states from enacting similar bans on early abortions.
Texas officials said the challenges must come in Texas courts after the civil suits have been adjudicated, but the law sets up obstacles that could delay a final decision for years.
Texas calls S.B. 8 a “heartbeat” bill — it prohibits abortions after cardiac activity is noted in the embryo. There is no exception for rape or incest, and the abortion patient cannot be sued.
The law is enforced by private citizens rather than the state government. Any individual can sue anyone who aids or abets a prohibited abortion. Successful lawsuits would result in an award of at least $10,000 to the person who filed the complaint — at oral argument, some justices referred to the award as a “bounty.”
Gorsuch wrote that the state’s judges, clerks and attorney general were not proper defendants in the case. But he said it could go forward against executive licensing officials who have regulatory authority over the providers.
Roberts wrote that was too cramped a view of the state’s responsibility for the law. His opinion in the case, joined by the court’s liberals, focused on what he called Texas’s attempts to undermine the judiciary’s role in determining the constitutionality of laws.
“Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review,” Roberts wrote. He quoted from an 1809 Supreme Court opinion that said attempts by state legislatures to annul judgments of the courts make a “mockery” of the Constitution.
“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,” he added.
The case presumably returns to U.S. District Judge Robert L. Pitman, who previously rejected a request from Texas officials to dismiss the lawsuit from abortion providers and scheduled a hearing to consider whether to block the six-week ban before it took effect.
But he was preempted by the U.S. Court of Appeals for the 5th Circuit, which called off the hearing pending further review and declined to halt the law. Pitman is likely to quickly issue an injunction while the renewed litigation is pending.
In a separate proceeding brought by the Biden administration, Pitman characterized the six-week ban as an “unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right,” adding that he would not “sanction one more day of this offensive deprivation of such an important right.”
But Pitman’s order would be reviewed by the 5th Circuit, which already has overruled him twice. And that could return the issue to the Supreme Court.
A stay from Pitman “will provide a reprieve for abortion providers, though for how long?” said Melissa Murray, a New York University law professor, who is closely following the litigation.
On Friday, the court said it should not have granted review of the case brought by Biden’s Justice Department, and dismissed it in the court’s parlance as “improvidently granted.” Sotomayor dissented from that decision.
Anthony Coley, a spokesman for the department, said in a statement that the administration became involved in the case because Texas’s law “was specifically designed to deprive Americans of their constitutional rights while evading judicial review.” The department, Coley said, “will continue our efforts in the lower courts to protect the rights of women and uphold the Constitution.”
The cases are Whole Woman’s Health v. Jackson and United States v. Texas.
Ann E. Marimow contributed to this report.
By Robert Barnes
Today at 1:00 p.m. EST
The Supreme Court on Friday left in place a Texas law that bans most abortions after six weeks, but provided a path for abortion providers to challenge what is the nation’s most restrictive law on the procedure.
The court’s splintered decision allows the providers to return to a district judge who once blocked the law, saying it violated the constitutional right to abortion.
That restarts the legal process that has seen the law remain in effect since Sept. 1, when the Supreme Court refused to step in to block it.
Eight justices said the abortion providers may bring the challenge. Chief Justice John G. Roberts Jr., writing for himself and the court’s three liberals, said the district judge should act quickly.
“Given the ongoing chilling effect of the state law, the District Court should resolve this litigation and enter appropriate relief without delay,” Roberts wrote.
The decision was both a partial victory and a disappointment for abortion rights supporters. They had asked the court to block the law while the legal process continued, but have not found the necessary five votes.
Amy Hagstrom Miller, who as president and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance, is lead plaintiff in the case, said that while Wednesday’s outcome offered “hope,” the legal process has been “excruciating” for patients and staff alike.
“We’ve had to turn hundreds of patients away since this ban took effect, and the Supreme Court’s refusal to block the law means the heartbreak doesn’t end,” she said in a statement, imploring the lower court judge to act expediently. “ … We hope this law is blocked quickly so we can resume the full scope of abortion care we are trained to provide.”
Justice Clarence Thomas, an avowed critic of the court’s abortion jurisprudence, wrote that he would not have allowed the lawsuit to continue. Justice Sonia Sotomayor, on the other hand, issued a blistering statement on the court’s refusal to block the law, called S.B. 8.
“The Court should have put an end to this madness months ago, before S.B.8 first went into effect,” wrote Sotomayor, who was joined by fellow liberal justices Stephen G. Breyer and Elena Kagan.
The court’s refusal to block the law “betrays not only the citizens of Texas, but also our constitutional system of government,” she wrote.
While the case over Texas’s law is procedural, the Supreme Court has signaled it is ready to make dramatic changes in the judicial rules governing abortion rights. In debating a Mississippi law that bans almost all abortions after 15 weeks, some justices earlier this month indicated they are open to overturning Roe v. Wade, which for nearly 50 years has said there is a constitutional right to abortion before fetal viability.
Marjorie Dannenfelser, president of the national antiabortion group Susan B. Anthony List reacted saying: “We celebrate that the Texas Heartbeat Act will remain in effect, saving the lives of unborn children and protecting mothers while litigation continues in lower courts.”
“Meanwhile,” she added, “we anxiously await the Court’s decision in the [Mississippi] case in which the court is directly considering the constitutionality of laws that protect unborn children and mothers prior to viability.”
Access to abortion in Texas has been dramatically curtailed, and abortion providers said many who wanted the procedure were forced to leave the state.
Nancy Northup, who heads the Center for Reproductive Rights, which is representing the providers, chastised the court for having “abandoned its duty to ensure that states do not defy its decisions.”
“For 100 days now,” Northup said in a statement, “this six-week ban has been in effect, and today’s ruling means there is no end in sight.”
The court’s decision, wrote Justice Neil M. Gorsuch, was a procedural one.
“In this preliminary posture, the ultimate merits question — whether S.B.8 is consistent with the Federal Constitution — is not before the Court,” he wrote. “Nor is the wisdom of S.B.8 as a matter of public policy.”
The Texas cases raised complicated questions about legal procedure precisely because S.B. 8 was intended to avoid federal court review.
The issue for the justices was whether the law could be challenged in federal court, where judges compelled to follow Supreme Court precedent have stopped other states from enacting similar bans on early abortions.
Texas officials said the challenges must come in Texas courts after the civil suits have been adjudicated, but the law sets up obstacles that could delay a final decision for years.
Texas calls S.B. 8 a “heartbeat” bill — it prohibits abortions after cardiac activity is noted in the embryo. There is no exception for rape or incest, and the abortion patient cannot be sued.
The law is enforced by private citizens rather than the state government. Any individual can sue anyone who aids or abets a prohibited abortion. Successful lawsuits would result in an award of at least $10,000 to the person who filed the complaint — at oral argument, some justices referred to the award as a “bounty.”
Gorsuch wrote that the state’s judges, clerks and attorney general were not proper defendants in the case. But he said it could go forward against executive licensing officials who have regulatory authority over the providers.
Roberts wrote that was too cramped a view of the state’s responsibility for the law. His opinion in the case, joined by the court’s liberals, focused on what he called Texas’s attempts to undermine the judiciary’s role in determining the constitutionality of laws.
“Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review,” Roberts wrote. He quoted from an 1809 Supreme Court opinion that said attempts by state legislatures to annul judgments of the courts make a “mockery” of the Constitution.
“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,” he added.
The case presumably returns to U.S. District Judge Robert L. Pitman, who previously rejected a request from Texas officials to dismiss the lawsuit from abortion providers and scheduled a hearing to consider whether to block the six-week ban before it took effect.
But he was preempted by the U.S. Court of Appeals for the 5th Circuit, which called off the hearing pending further review and declined to halt the law. Pitman is likely to quickly issue an injunction while the renewed litigation is pending.
In a separate proceeding brought by the Biden administration, Pitman characterized the six-week ban as an “unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right,” adding that he would not “sanction one more day of this offensive deprivation of such an important right.”
But Pitman’s order would be reviewed by the 5th Circuit, which already has overruled him twice. And that could return the issue to the Supreme Court.
A stay from Pitman “will provide a reprieve for abortion providers, though for how long?” said Melissa Murray, a New York University law professor, who is closely following the litigation.
On Friday, the court said it should not have granted review of the case brought by Biden’s Justice Department, and dismissed it in the court’s parlance as “improvidently granted.” Sotomayor dissented from that decision.
Anthony Coley, a spokesman for the department, said in a statement that the administration became involved in the case because Texas’s law “was specifically designed to deprive Americans of their constitutional rights while evading judicial review.” The department, Coley said, “will continue our efforts in the lower courts to protect the rights of women and uphold the Constitution.”
The cases are Whole Woman’s Health v. Jackson and United States v. Texas.
Ann E. Marimow contributed to this report.