As I discussed three weeks ago we are operating in a new era of nullification. The State of Texas sought to further delay SB 8, the return to Austin federal District Judge Robert Pitman of the narrowed challenge to the Texas Heartbeat Act. On August 25 Pitman had declared the six week post conception abortion ban to be unconstitutional. 2021 WL 3821062 On Friday the Texas effort succeeded at the Supreme Court.
When Whole Women's Health - the Texas gynecology and abortion services provider saw that its December narrow win at the Supreme Court was going to be sidelined by the U.S. Court of Appeals they went back to the high court. WWH sought a writ of mandamus - an order to the 5th Circuit to send the case back to the District Court instead of putting the case in limbo. A divided panel granted 2022 WL 142193 the Texas A.G.'s motion to ask the Texas Supreme Court to decide if the law outlawing abortions after six week is legal under state law. That kept the abortion ban in effect, delaying its return to the District Judge who had granted a preliminary injunction against the law.
Yesterday the Supreme Court answered. It will not order the Circuit Court to remand the case to the District Judge to decide the constitutionality of the Texas law. Justices Sotomayor and Breyer were outraged. Breyer said "As a result, an unconstitutional 6-week abortion ban remains in effect in Texas—as it has for over four months." Sotomayor [joined by Justices Kagan and Breyer] concluded her opinion with passion:
This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies. I will not stand by silently as a State continues to nullify this constitutional guarantee. I dissent.
Without a word respecting the right it established fifty years ago the six member majority on the Supreme Court has effectively overturned the right to elective abortion embedded in its own decisions. A court does not endanger - in fact it may enhance its legitimacy - by overturning precedent, by changing the law. The U.S. Supreme Court did that in Brown v. Board of Education. But it did so by explaining the contradiction between the Constitution's call for equal protection of the laws and the reality that legally segregated schools had been proven to be unequal.
Is Justice Sotomayor's rhetoric hyperbole? Is the decision a "disaster for the rule of law"?
Such a charge coming from a member of a collegial high court demands to be examined carefully. The speaker has placed her own reputation on the line, risking the loss of credibility if the stark charge cannot be sustained. Judiciousness is a virtue to be carefully guarded as it reflects the character of the speaker, a key element of the ability to persuade. As Aristotle recognized 2,500 years ago, persuasion depends on the character of the speaker, the audience, and the proof provided by the words spoken.
Sotomayor has made a plain case: the United States Supreme Court, by concurring with the 5th Circuit, has silently rendered unenforceable the constitutional right to choose abortion which the high court itself declared in Roe v. Wade in 1973, and affirmed in Planned Parenthood v. Casey (1993). Abortion is a personal choice. The moral choice one makes is deeply private. American women have exercised that choice for fifty years each consulting her own conscience, family, and physicians. The de facto nullification by a state of a federal constitutional right violates a basic principle of federal supremacy and equal protection of rights. To take that right away without explanation, without acknowledgement of the fact of change violates the principle of jurisprudence that change must be made both by those with a right to change the law and by explanation of why the change is made.
Justices Breyer and Sotomayor noted that the Supreme Court had issued an expedited order to remand the Whole Women's Health case to the Fifth Circuit. Four justices in the December 10, 2021 Whole Women's Health decision upholding the stay of Pitman's preliminary injunction said that the narrowed challenge should return without delay to the District Judge. The Supreme Court majority had so narrowed the challenge that only Texas medical licensing officials remained defendants.
Now the entirely Republican Texas Supreme Court will rule on whether SB 8 is consistent with State law. The Circuit Court has certified to the Texas Supreme Court SB 8's legality under the State's law. The state's courts can handle that in due course. Rather the urgency is that the structure and intent of the Texas law is to nullify federal constitutional law. Justice Stephen Breyer, a careful voice, at oral argument in Whole Women's Health compared Texas defiance of precedent to the nullification doctrine of John C. Calhoun in the pre-civil war Senate. That idea was effectively repudiated by Justice Joseph Story who held in Prigg v. Pennsylvania (1842) that federal law as set forth in the Constitution- the Fugitive Slave clause - preempted a law that criminalized the recapture of a slave in Pennsylvania. Today Texas with the Supreme Court majority's consent has nullified a right still embedded in our law.
-- GWC 1/21/22
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