Injustice at midnight: Whole Woman's Health v. Jackson (09/01/2021)

Texas has barred abortions after six weeks.  The Supreme Court has allowed that law to stand.

The fifty year old precedent of Roe V. Wade - permitting pre-viability abortions - has been overruled effectively - without even a mention of the case.  Nor did the majority mention that Casey v. Pennsylvania Planned Parenthood forbade practices that place an undue burden on the exercise of an established constitutional right.  Regardless of the majority's private preferences Texas women's freedom is plainly jeopardized as are the financial interests of their health care providers.

John Roberts, Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented.  Each wrote a frank opinion. 

There has been, of course, a tsunami of commentary. Some of the sharpest is that of Remedies and Election law scholar Rick Hasen.  What strikes most as central is that the Texas statute commonly referenced as SB 8 offers any citizen the right to bring an action against an abortion provider or anyone who aids in obtaining an abortion beyond the sixth week.  It offers financial incentives of  at least $10,000 plus counsel fees.

Since the law went into effect only yesterday of course no such action has been filed.  But constitutionally permitted abortions have already been deterred, as Sonia Sotomayor noted.

Because the statute does not authorize any state official to enforce the action identification of defendants was problematic.  But ultimately state judges will be asked to enforce the act.  There is an established right to elect pre-viability abortions, [Roe v. Wade], and substantial burdens on the right are prohibited [Casey v. Pennsylvania Planned Parenthood].  Harm has already occurred so a declaratory judgment declaring the act unlawful seems plainly warranted.  A stay of the operation of the law to preserve the status quo  should have been granted because as the majority admits the law has raised serious constitutional questions.  

Unless and until Roe and Casey are overruled Texas SB8 is facially unconstitutional.  

- GWC

Whole Woman's Health v. Jackson (09/01/2021)

JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and JUSTICE KAGAN join, dissenting. 

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