Littleman: The importance of a narrow issue in the Texas abortion ban

For many observers, the case concerning the new Texas abortion law that the Supreme Court heard on Monday was a collateral incident, the main incident of Dobbs v. Jackson Women’s Health Organization’s “relatively narrow” and “mere procedural nature”. “Footnote, the event will be in December and may overturn Rowe’s game against Wade once and for all.

But in fact, what happened on Monday is far from Roy’s footnote.

For the record:

November 10, 2021 at 1:45 pmThis article incorrectly states that no one has been prosecuted under SB 8. Two such lawsuits have been filed.

The Texas law, known as SB 8, raises basic questions that go far beyond abortion and involve the core of judicial power and constitutional rules. The justices now have the opportunity—and they seem likely to accept it—to express heartening recognition of citizens’ ability to go to federal courts to challenge the country’s efforts to deprive them of their constitutional rights.

The focus of the hearing on Monday was the singular execution mechanism written in SB 8. Chief Justice John G. Roberts Jr. rightly called the plan “unprecedented” when first encountered in court, and was an invention of dissatisfied anti-abortion advocates trying to eviscerate Roe. They want to prevent women and abortion providers from going to court to fight their clearly unconstitutional legislation-SB 8 prohibits abortion after about 6 weeks of pregnancy, instead of the 20 weeks (up to viability) guaranteed by current laws.

Essentially, the drafters of S​​B 8 found a loophole in the 100-year-old Supreme Court doctrine based on a case involving the state attorney general named Edward Young, that is, Ex parte Young. It provides a way to prohibit unconstitutional state regulations without violating “sovereign immunity.” “Sovereign immunity” usually protects states from prosecution. The solution imposed by the court is a balancing act: challengers can prevent state officials, not the state itself, from enforcing dubious laws until the constitutional issue is resolved.

SB 8 demonically upends unilateral young people. It specifically prohibits state officials from having any relationship with the enforcement of the law. Instead, ordinary citizens sue (and may receive a $10,000 bounty) against anyone they believe has obtained or provided an abortion after the prescribed restrictions.

In other words, SB 8 is designed so that no entity can prohibit it, and there is no way to freeze the law and force it to enter judicial review. Indeed, if a woman (or clinic) is sued under the law, she can defend herself through constitutional arguments, and the law may be challenged as a result. But no such lawsuit has been filed, and the threat of a $10,000 reward and the short period of seeking abortion have almost shut down the state’s procedures.

As long as SB 8 is in effect, anti-abortion fanatics in Texas can sneer at the Supreme Court and Roe. This is the land law: neener neener.

Monday’s hearing is the second hearing of the court at SB 8. It refused to stay in September, but it almost gave up on the novelty of the plan that no one banned. But this week, at least two justices who were at a loss before—Amy Connie Barrett and Brett M. Kavanaugh—seem to remember that they were members of the U.S. Supreme Court and were charged. Have the ultimate responsibility to explain what the law is and to protect the constitutional rights of citizens. Barrett and Kavanaugh’s recognition of the constitutional right to abortion is reluctant at best, and they have no Texas justification.

As Kavanaugh said in the oral argument: “So the question becomes, should we extend the unilateral Yang principle to substantially close [the Texas] Loopholes? … The whole range of unilateral youth”-whose purpose is to provide a way to challenge unconstitutional state laws-“It can be said that this principle should be extended here. “

very true.

The conservative judges appointed by President Trump have begun to dangerously push the courts to the right so that most people can enforce opinions that are seriously inconsistent with the views of the legal profession and the majority of citizens. This is detrimental to both the court and the country.

But the tone of Monday’s questioning is comforting, at least in terms of principles that transcend red and blue politics. Roberts, the three liberal justices, and Cavano and Barrett are likely to do what Yi Fang Yang did in 1908-to create a doctrine that supports the foundations of our system: Federal law is supreme, and the courts can review and order unconstitutional Of the law.

In fact, this result is obviously a correct response to the novelty of Texas, so that it is difficult to see the three most conservative justices-Neil M. Gorsuch, Clarence Thomas, and Samuel A. Alito Jr.-What is the basis for possible opposition.

Regardless of the end result, opinions, not juggling or footnotes, will become the opinions of the book.

@Harry Litman

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