ADDED: Not only does Roberts vote with the liberals, Thomas breaks away from the conservatives for part of the opinion (Part II-C). The main opinion is by Gorsuch, who is joined by Alito, Kavanaugh, and Barrett for the entire opinion. The Roberts group concurs in part and dissents in part.
Thomas dissents in part because of sovereign immunity — the idea that a citizen can't sue a state. There's a device used to get around this limitation, accepted in the 1908 case Ex Parte Young, where there is a suit for an injunction against the state official charged with enforcing a law alleged to violate the federal constitution. Thomas observes that the named defendants don't have that role because the Texas statute "explicitly denies enforcement authority to any governmental official."
Gorsuch says that Thomas is the only one on the Court who doesn't accept that certain defendants fall within the Ex Parte Young idea. They are licensing officials obligated to enforce the Texas’s Health and Safety Code, so the Texas statute tried but didn't succeed in excluding all state officials from enforcement authority. And because of the old Ex Parte Young trick — a legal fiction necessary to vindicate the supremacy of federal law — sovereign immunity is overcome.
Posts
40 comments:
Argue the vote for Dobbs will be different.
This ought to be good...
I oppose the use of lawfare as a political weapon, in general, but have to laugh a bit when those who have used lawfare for decades are faced with having the same thing done to them.
How about we return legislative issues to the legislative branch, by force of a Supreme Court decision?
A right without a responsibility is corrosive to society.
I did an eye roll over the claim that Mississippi's 15 weeks was a burden, but 6 weeks does seem kind of short. Is that measured from conception?
"bitterly divided". Mind-reading.
When the money supply grows faster than the total productivity of the economy the cost of goods goes up.
Paying people not to work has costs.
This is all baked in and will play out over the next several years.
It doesn't matter how obvious the truth is or how many times you repeat it. There will always be people stupid enough to vote for people like Joe Biden.
Punt... punt... punt...
The decision in the Texas case came less than two weeks after the court heard a direct challenge to the right to abortion established in 1973 in Roe v. Wade, in a case about a Mississippi law that bans most abortions after 15 weeks. Roe prohibits states from banning abortion before fetal viability, the point at which fetuses can sustain life outside the womb, or about 23 to 24 weeks into a pregnancy....
The only people those 8-9 weeks are important to between 15 and 24-24 are the planned parenthood baby part sellers.
A woman can make a decision in 15 weeks. Really a month is more than enough.
But there are people who derive political power from telling women they don't need to be responsible for anything. They also make a lot of money selling baby parts.
Some Women refuse to take responsibility. Then they wonder why all the male leaders in their tribe are kinda rapey.
Shit is a mystery.
Abortion rights are rights to murder your child. Period. NOBODY should get such rights. You have the right to LIFE, Liberty and the pursue of happiness. No right to murder an innocent baby.
"Roe prohibits states from banning abortion before fetal viability, the point at which fetuses can sustain life outside the womb, or about 23 to 24 weeks into a pregnancy."
Learn something new every day.
John Roberts went with the biased liberals?? AGAIN?? SHOCKER...NOT!!! I don't wonder anymore what they have on him.....I know they have something big. Abortion is murder. It is not healthcare. It's repugnant, and it is time for women (yes I said it) to pay attention to their bodies and do what they can NOT to become pregnant if they aren't ready to have a child. If you are too dumb, ignorant, or just don't care. Too bad. Actions have consequences. Grow up.
"the old Ex Parte Young trick — a legal fiction necessary to vindicate the supremacy of federal law"
In this case, a trick creating a fiction to sustain the supremacy of the Roe fiction created by the Court itself. Some dare call it "law."
On what basis are reproductive rites denied in the second and third trimesters? The Twilight Amendment has been the source of diverse mischief, not limited to the wicked solution.
That said, functional viability (e.g. heart beat, coherent nervous system, "big bang" of human consciousness) from six weeks. A woman and man have four choices: abstention, prevention, adoption, and compassion, and a right of self-defense (e.g. involuntary exploitation) through reconciliation (i.e. not Capitol Hill "heroics"). A human life should not be aborted for social, redistributive, and fair weather causes.
Roe, Roe, Roe your baby, down the river Styx. #HateLovesAbortion
The NYT said…"with Chief Justice John G. Roberts Jr. joining the court’s three more liberal members in dissent." (emphasis added)
In the view of the NYTs they're not liberal, just "more liberal" than those far-right wing justices.
They've always got to get their editorializing in. Reading that rag would wear me out (not criticizing you for doing so).
Consider abortion and transgender sports. Abortion is permissible (only in the U.S. among civilized nations) until the 23 or 24th week. By then, many of these babies can survive with proper prenatal care, which is available to everyone, as all pregnant women qualify for Medicaid, including non-citizens. Late abortions require two days: one to stretch the cervix, the next to cut up and take the baby out. It’s far safer just to induce the baby whole, but too many were being “aborted alive” ie. breathing, at which point the law says you have to try to save the baby’s life. Which did not always happen, obviously.
Yet the abortion industry is hell-bent on pushing this 23/24 line even closer to natural birth. Why? They are hell-bent on selling out female athletes by supporting males who say they aren’t male onto girls’ sports teams. Why? What’s the connection? Is the ultimate goal to separate fetal development from female bodies? Aldous Huxley thought of this way back in 1931. Utopian colonies throughout the U.S. experimented with such stirpiculture, a fancy term for eugenics, which was always accompanied by the elimination of the family unit.
I’ve known a lot of pro-choice industry women, including the national leadership of the major organizations. They are broken dolls. Many are tragically obese, mentally fragmented, self-loathing, damaged, alcoholic, abused. Or they are from the major Jewish Women’s organizations, which are hardcore pro-abortion, though the women themselves are rarely personally damaged types. It’s more of a class thing or familiarity with organizing thing for them. They are over-represented in Planned Parenthood leadership and in state organizations. The Unitarians and other leftist Christian dioceses are also weirdly active on a smaller scale. These are just observations, not judgment calls.
We had one clinic in Atlanta closed by the state because, among other things, they were having too many live births. The vast, vast majority of the girls coming in for abortion after the 18th week were young black girls being used by older men, often men dating their mothers, or lotharios who liked to impregnate several women at a time and pit them against each other. Yes. This was a thing.
Forget The Handmaid’s Tale. It’s just fetish for droopy English Majors. We are heading fast towards the Brave New World.
What exactly do the Health and Safety officials enforce in regards to the Texas law in question?
Fraudulent headline and story.
In fact, the Court REJECTED the challenge for all the defendants who really count. The only claim going forward is against the officials with licensing authority. But since the law focuses on civil damages, who cares?
This is a complete win for the Right
1: The one place where the abortion providers can get an injunction? Blocking State officials from pulling their medical licenses for violating SB 8
But if those officials actually did try to pull their licenses, then we'd have a "case or controversy" that a Federal Court could rule on.
So the abortion providers can get an injunction to stop them from doing something they were never going to do in the first place
However, when CA tries to do an anti-gun rights version of SB 8, gun stores will have the clearly established legal right to get a Statewide injunction blocking CA officials from pulling their licenses for violating the unconstitutional law
This is not a win for the Left
2: SCOTUS left everything else in place. If they were going to keep any part of Roe / Casey / the rest of that crap, then they wouldn't be letting Texas effectively ban abortions at 6 weeks, less than 1/2 way through the first trimester
So, once SCOTUS has ruled on Dobbs, and tossed the entirety of SCOTUS's "abortion jurisprudence", those State licensing officials will be able to go after any abortion providers who violated SB 8, and did post-heartbeat abortions.
#1 is only a benefit to businesses who are actually protected by an actual Constitutional right.
Abortion isn't an actual Constitutional right, it's BS pushed by "judges" with no respect for anything other than their own personal political desires.
This was a complete win for the pro-life side
The Texas law strikes me as the kind of thing a left winger would think up. Or the kind of thing a die hard Trump supporter would dream that Trump should have done. "That'll get 'em!"
The similarity between the two groups should be striking -- no adherence to principle and the rule of law, but focused on beating the other side. Literally, that's what this law was -- beating the other side with lawsuits. It had nothing to do with the sanctity of life and the detrimental affect abortion has on society. It's a naked attempt to raise the cost of abortions so high that no one will offer one (legally). Again, that should strike us all as the unprincipled progressive left-wing strategy.
What a terrible path to put the nation on. For all the good that Trump's administration accomplished -- and there was a lot of good; I still maintain that the net effect of his presidency on the nation and its trajectory is decidedly negative.
In other words, there are at least 5 votes to overturn Roe/Casey so no point in enforcing them against this statute as current law of the land pending decision.
They use this type of technical minutae that easily goes both ways as cover for the political verdict to sound strictly judicial. In Blue clubs of old, they called it a Merkin.
“And because of the old Ex Parte Young trick — a legal fiction necessary to vindicate the supremacy of federal law…”
Everyone loves legal magic! The rights invented by divining penumbras formed by emanations of the right to privacy. illusion is a huge hit with the ladies…
Wait!
The SCOTUS allowed the law to stand because there was no injury for them to adjudicate. In other words, they have not ruled upon the constitutionality of the law because the inevitable suits have not reached them yet.
Gorsuch seems to understand that clearly, but the Wise Latina seems somewhat dense.
I suspect that the Texas law will be ruled unconstitutional because it allows parties without standing to sue. However, if a case reaches them in which a party who had a later term abortion in Texas sues, we have a different ball game.
A woman can make a decision in 15 weeks. Really a month is more than enough.
This is true. It's not very human, or humane, but it is true.
Two things about it: the dichotomy between the two arguments of the pro-choice side - that it's only a ball of cells, and simultaneously that it's a hard decision that a woman can't be expected to make in a month or in a quarter - doesn't make much sense to me. Either "it" is or "it" isn't something valuable that a woman should agonize over.
And, sometimes you have to do terribly hard things, and you have to do them on a deadline. That's life. If I had been in an adopt-keep-abort situation as a young woman, I would have hated having to make that choice - it could have arisen, in college, and I (unlike the used and abused girls and young women Tina Trent talks about above) would have faced that decision knowing that I actually loved the guy and hoped to spend my life with him - just not yet.
Basically I have compassion for any girl or woman faced with that decision, including the abused girl who is tempted to keep a baby conceived in pseudo-incestuous rape just to have someone in her life who will love her, and the club chick who just can never quite remember to take her pill on time each day and is looking at her third abortion. But my compassion makes me believe that a shorter decision window is kinder to them: less time to get attached, less bodily trauma.
I suspect the Five have pretty much known how they are going to overrule Roe since they granted certiorari for Dobbs in May. The Texas law is a bit awkward for them, as an honest opinion would show their hand. But they need to pretend that they are going through the usual process of reading briefs, listening to oral arguments, holding conferences, and writing opinions. We can see that Roberts is holding out for a different outcome from the Five, but he needs at least one of them to join him in some fashion.
the point at which fetuses can sustain life outside the womb
A fetus exists as a technical term of art and social construct to distance technicians and abortionists. In even the most liberal sense, a fetus outside her mother's womb is a baby. A human life is functionally viable from the first heart beat, the development of a coherent nervous system (i.e. emergent consciousness). The Constitution does not recognize a right to elect abortion of a viable human life for social, redistributive, and fair weather causes. The Constitution does recognize a right of self-defense through reconciliation (her Choice).
A human life ends with the last heart beat, the loss of consciousness, which is typically Her Choice. The court needs to be careful when creating amendments to The Constitution or redefining the terms of reality through playful construction of a political congruence ("=") with democratic appeal.
6 weeks does seem kind of short. Is that measured from conception?
Yes, it is an estimate correlated with functional viability: pumping heart, nervous system development, which are objective metric of observable and reproducible processes in human evolution, of human viability.
Tina Trent said...
Abortion is permissible (only in the U.S. among civilized nations) until the 23 or 24th week.
That spot on the pregnancy is the Bullseye target that our Ruling Class women insist on, and they will mount a hideous storm upon us all if that has to be renegotiated. Our Ruling Class women really only care that they and their daughters don't bear Down Syndrome babies. Even though such a birth is rare, that is the insurance they want with society, and they can't know about that kind of situation until after the fifth month, right?
They never talk about it, it will always be about "poor young black women", but that's their good woman ruse, that they are fighting for abortion rights for others. I've known some wonderful American women closely enough to know they were quietly expecting, but kept it quiet, waited for that late amnio before publicly announcing they were pregnant at all.
I can understand that preoccupation and perspective and therefore their great discretion, but the nation would be better off if we described that rare late term motivation plainly.
It seems simple. If some stooge’s splooge has been near your vag and you don’t want a baby, pee on a stick. Heck, make it monthly event. Just pee on a stick. If the argument is that women shouldn’t have the bear the burden of 12 (or 24 if you want to do it twice monthly just to be extra safe) then maybe the fight should be for free or subsidized pee sticks.
Or maybe, instead of flowers, just have your date/stooge show up with a pee stick. That’ll make clear where his head is at.
Viability is now 21 weeks and being pushed back about 1/2 week per year. Saying 23 or 24 is misinformation. My neonatologist daughter has several "21 weekers" in her NICU every week.
Karnak of the Charles said...
I suspect the Five have pretty much known how they are going to overrule Roe since they granted certiorari for Dobbs in May. The Texas law is a bit awkward for them, as an honest opinion would show their hand. But they need to pretend that they are going through the usual process of reading briefs, listening to oral arguments, holding conferences, and writing opinions. We can see that Roberts is holding out for a different outcome from the Five, but he needs at least one of them to join him in some fashion.
*****************
Great Mind Reading!!
The question not being asked here is why, as the Mississippi law with a 15 week ban made its way up the federal court system, did Texas and other states including Mississippi start talking about enacting 6 week bans. Could it be that someone connected with the Supreme Court leaked that there was some leaning among some of the Republican members towards reducing the line from viability to 15 weeks without outright overruling Roe v. Wade and Planned Parenthood v. Casey? I think the pro-life lobby got wind of that and decided to double down and up the stakes. Why else would they do that?
Left Bank of the Charles: "I suspect the Five have pretty much known how they are going to overrule Roe since they granted certiorari for Dobbs in May. The Texas law is a bit awkward for them, as an honest opinion would show their hand. But they need to pretend that they are going through the usual process of reading briefs, listening to oral arguments, holding conferences, and writing opinions. We can see that Roberts is holding out for a different outcome from the Five, but he needs at least one of them to join him in some fashion."
Left Bank's Bizarro World makes another appearance.
Btw, Left Bank was a big Jussie-Was-Nearly-Lynched fanboy.
Worse, Left Bank STILL believes Trump was laundering billions for Putins Pals.
Hey Left Bank, you might to dial up an increase in your O2 supply.
Left Bank of the Charles said...
I think the pro-life lobby got wind of that and decided to double down and up the stakes. Why else would they do that?
Are you really that stupid Lefty?
RGB got replaced by ACB. Then the election was stolen from Trump. SCOTUS will not be more favorable for the Right any time in the next three years than it is right now.
So they decided to push a test right now.
What part of that is a surprise to you?
Readering said...
In other words, there are at least 5 votes to overturn Roe/Casey so no point in enforcing them against this statute as current law of the land pending decision.
You are correct, Readering.
Left Bank of the Charles said...
I suspect the Five have pretty much known how they are going to overrule Roe since they granted certiorari for Dobbs in May. The Texas law is a bit awkward for them, as an honest opinion would show their hand. But they need to pretend that they are going through the usual process of reading briefs, listening to oral arguments, holding conferences, and writing opinions.
I suspect that, too.
OTOH, I know that the Three are going to vote against the Mississippi law, and that they knew that in May, and that nothing in the usual process of reading briefs, listening to oral arguments, holding conferences, and writing opinions matters to them.
Karnak of the Charles said...
The question not being asked here is why, as the Mississippi law with a 15 week ban made its way up the federal court system, did Texas and other states including Mississippi start talking about enacting 6 week bans. Could it be that someone connected with the Supreme Court leaked that there was some leaning among some of the Republican members towards reducing the line from viability to 15 weeks without outright overruling Roe v. Wade and Planned Parenthood v. Casey? I think the pro-life lobby got wind of that and decided to double down and up the stakes. Why else would they do that?
*********************
"Why else would they do that"?
Well, maybe those other states analyzed the Mississippi case and saw some chance for Roe to be at least weakened, if not overturned.
Your unfounded speculation---that someone at the Supremes leaked info--remains unfounded speculation...
...as well as an example of "The Fallacy of Ignorance". ("what else COULD it be"?)
James you make an interesting point: late term abortions are more physically and mentally traumatic, and a large majority of late-termers are very young minority and poor white girls. They are children (and the abortion industry also avoids contacting police when their clients are too young to even be consenting to sex).
When a parental notice bill came up, a black male physician who performs abortions in Alabama surprised everyone by vocally supporting it. He said that his youngest patients would wait as long as they could before telling a mother or aunt or grandmother. If the legal limit was 8 weeks, they would come in then. If it was 22 weeks, that was just 14 more weeks to hide their pregnancy and keep being used, or rejected by the father, a situation that often resulted in violence. He said it was safer for everyone for underage girls to have to tell their mothers or guardians and much cheaper and much easier on their young bodies and minds.
I don't have much to add legally, but let's keep the human faces in this picture: the mother, the father (enough with this it takes one to tango), and the baby. Of course there are rare exceptions: mentally ill women in denial and women who discover catastrophic problems with the baby at 20 weeks, such as discovering it has no brain. But the face of late term abortion is a girl in her teens or early twenties, in a brutally underclass world, who often has one or more children already, as does her older male partner.
#be-careful-what-you-wish-for
Republicans have been garnering anti-abortion votes for decades. Now, the Supreme Court might actually overturn Roe/Casey, which would be an electoral disaster for them.
#be-careful-what-you-wish-for
Also, be careful about cheering on a ruling that allows a statute that's blatantly unconstitutional under the Supreme Court's case law to largely evade judicial review. If that's allowed, then courts will be equally powerless to strike down laws that take away any other constitutional rights, like the right to free speech, the right to bear arms, or the right to free exercise of religion. (And it won't do any good to say "but I don't think abortion is a constitutional right!")
Gerda Sprinchorn said...
#be-careful-what-you-wish-for
Republicans have been garnering anti-abortion votes for decades. Now, the Supreme Court might actually overturn Roe/Casey, which would be an electoral disaster for them.
That is a hypothesis that is about to be tested.
But, since most Americans are actually opposed to Roe / Casey (if you ask Americans "when should States be able to outlaw abortions", more than 50% favor times that Roe / Casey don't allow), I believe the more likely result is the Democrats, who have been garnering "pro-choice" votes for decades, are going to lose those votes when the people discover the Dems have been dishonestly panicking them for those decades
Post a Comment