Cite as: 594 U. S. (2021)
SOTOMAYOR, J., dissenting
WHOLE WOMAN’S HEALTH ET AL. v. AUSTIN REEVE JACKSON, JUDGE, ET AL.
ON APPLICATION FOR INJUNCTIVE RELIEF
[September 1, 2021]
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.
In May 2021, the Texas Legislature enacted S. B. 8 (the Act). The Act, which took effect statewide at midnight on September 1, makes it unlawful for physicians to perform abortions if they either detect cardiac activity in an embryo or fail to perform a test to detect such activity. §3 (to be codified at Tex. Health & Safety Code Ann. §§171.201(1), 171.204(a) (West 2021)). This equates to a near-categorical ban on abortions beginning six weeks after a woman’s last menstrual period, before many women realize they are pregnant, and months before fetal viability. According to the applicants, who are abortion providers and advocates in Texas, the Act immediately prohibits care for at least 85% of Texas abortion patients and will force many abortion clinics to close.
The Act is clearly unconstitutional under existing precedents. See, e.g., June Medical Servs. L. L. C. v. Russo, 591 U. S. ___, ___ (2020) (ROBERTS, C. J., concurring in judgment) (slip op., at 5) (explaining that “the State may not impose an undue burden on the woman’s ability to obtain an abortion” of a “nonviable fetus” (citing Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992); internal quotation marks omitted)). The respondents do not even try to argue otherwise. Nor could they: No federal appellate court has upheld such a comprehensive prohibition on abortions before viability under current law.
The Texas Legislature was well aware of this binding precedent. To circumvent it, the Legislature took the extraordinary step of enlisting private citizens to do what the State could not. The Act authorizes any private citizen to file a lawsuit against any person who provides an abortion in violation of the Act, “aids or abets” such an abortion (including by paying for it) regardless of whether they know the abortion is prohibited under the Act, or even intends to engage in such conduct. §3 (to be codified at Tex. Health & Safety Code Ann. §171.208). Courts are required to enjoin the defendant from engaging in these actions in the future and to award the private-citizen plaintiff at least $10,000 in “statutory damages” for each forbidden abortion performed or aided by the defendant. Ibid. In effect, the Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.
The Legislature fashioned this scheme because federal constitutional challenges to state laws ordinarily are brought against state officers who are in charge of enforcing the law. See, e.g., Virginia Office for Protection and Advocacy v. Stewart, 563 U. S. 247, 254 (2011) (citing Ex parte Young, 209 U. S. 123 (1908)). By prohibiting state officers from enforcing the Act directly and relying instead on citizen bounty hunters, the Legislature sought to make it more complicated for federal courts to enjoin the Act on a statewide basis.
Taken together, the Act is a breathtaking act of defiance—of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas. But over six weeks after the applicants filed suit to prevent the Act from taking effect, a Fifth Circuit panel abruptly stayed all proceedings before the District Court and vacated a preliminary injunction hearing that was scheduled to begin on Monday. The applicants requested emergency relief from this Court, but the Court said nothing. The Act took effect at midnight last night.
Today, the Court finally tells the Nation that it declined to act because, in short, the State’s gambit worked. The structure of the State’s scheme, the Court reasons, raises “complex and novel antecedent procedural questions” that counsel against granting the application, ante, at 1, just as the State intended. This is untenable. It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry. Moreover, the District Court held this case justiciable in a thorough and well-reasoned opinion after weeks of briefing and consideration. At a minimum, this Court should have stayed implementation of the Act to allow the lower courts to evaluate these issues in the normal course. Instead, 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.
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.
I dissent. * * *
Libertariantranslator: Certiorari was denied largely because the “defendants” are shills overtly offering to test a law contrived to baffle scrutiny while violating individual rights. Such law-testing is common and many bad laws have collapsed under scrutiny of test cases. Yet what we are seeing today is the National Socialist males, the ones mostly packing the court on behalf of Positive Christianity, blocking the freedom of female Associate Justices to speak without interruption.
The looter media struggle to hammer all controversy into a contest between “conservative” (christian national socialist) and “liberal” (something they do not even know existed in 1931). Here are some examples of what the Liberal Party of America published in its 1931 platform under Comstock Law censorship.
On the WCTU voting to publicly shame women: Surely these cruel, meddling women are neither Christian nor temperate; rather are they controlled by a prompting of sadism—the joy that comes from inflicting pain on others.
On Opinions and Social Pressure: Now, after five years, a man can speak on these topics without being burnt at the stake–not because there is more tolerance, but because so many people have adopted his views and are not afraid to say so.
On entrenched Soft Machines: We urged the men and women of our State to throw party loyaoty to the winds and vote on a principle which the older parties consistently ignored.
On coercive redistribution: Men and women who get on the dole system will never get off it. It kills independence and respect and permanently pauperizes the citizens whose immediate needs it means to alleviate.
On “vice” entrapment: Innocent men and women are every day molested, arrested, shot, or killed in their homes, or on the public highways, by the agents who, spending the people’s money in debauchery, register under false names at hotels, purchase liquor from irresponsible persons, and drink it; gamble at night clubs, where they pay decoy money to women; and at nightfall roost on fire escapes, like foul vultures, peering into the windows of hotel bedrooms for a clue that will lead to the arrest of unwary travelers. They establish saloons and gambling dens, where they arrest their patrons with a gleeful boast of successful enforcement. They employ young girls of high-school age to get drunk and pass their nights with men under suspicion, who are to be trapped.
On national Prohibition: With murder in their hearts they put poison in alcohol to kill the people who convert it into beverage, and with the glee of a modern Borgia they have killed thousands in that way. On the high seas they shoot their fleeing prey without giving them a chance, and twenty of them at one time get drunk on confiscated liquor. And all this with the inconceivable connivance of the Government at Washington, with money appropriated by Congress for that purpose. Every week they send one thousand men and women to the penitentiary through a law which has outraged the science of jurisprudence; and under that law virtually every citizen in this land is trailed by hired spies in every step that he takes in the pursuance of his daily work, and put in danger of arrest on the mere suspicion and strong hope of his doing that which men have followed with temperate pleasure from the ancient dawn of time.
On the Supreme Court: We shall ask from them a hearing upon every question that opens the way for the examination of the subject by that body, with the hope of leading to the rejection of the Eighteenth Amendment by judicial decision as being in itself, in its statutory form, where the power to legislate has been frozen, a violation of the constitutional rights of the people.
The correction of this deplorable experiment in fanatical tyranny through an ignoble law will restore the personal liberty which has been taken away, reduce general taxation through the revenues which will accrue to the Government, provide a market for the farmer’s surplus grain, furnish employment in harvesting, handling, and transportation to a million men, put an end to the most lucrative method of political graft, destroy the foremost incentive to crime, and end the national hypocrisy which has brought upon us the contempt of the world.
The only party today that is even remotely liberal is the Libertarian Party of America.
Find out the juicy details behind the mother of all economic collapses. Prohibition and The Crash–Cause and Effect in 1929 is available in two languages on Amazon Kindle, each at the cost of a pint of craft beer.
Brazilian Sci-fi from 1926 featuring the usual beautiful daughter of a scientist touting prohibition and racial collectivism in America’s Black President 2228 by Monteiro Lobato, translated by J Henry Phillips (link)
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