Posted on 11/01/2021 5:12:06 PM PDT by semimojo
The Supreme Court heard oral argument on Monday in two challenges to S.B. 8, the Texas law that bans almost all abortions in the state. After nearly three hours of argument by four different lawyers, the justices appeared likely to allow the case brought by a group of Texas abortion providers to go forward, even if they did not necessarily appear to agree on the rationale for that lawsuit. The justices were more skeptical about the lawsuit filed by the Biden administration, and they did not give any hint as to whether the law will continue to remain in effect.
...Monday’s argument focused primarily on the law’s unusual enforcement mechanism, which distinguishes it from similar abortion bans that have been enacted by other states (and that have been consistently struck down by federal courts). S.B. 8 delegates the sole power to enforce the law to private individuals, rather than state officials. In particular, the law allows anyone, including people who do not live in Texas, to bring a lawsuit in state court against anyone who performs an abortion or helps to make one possible. A plaintiff in a successful lawsuit can receive at least $10,000 in damages, along with costs and attorney’s fees...
By taking away any role for the state in enforcing the law, S.B. 8’s drafters hoped to make it harder for opponents of the law to challenge its constitutionality in court, especially before the law went into effect on Sept. 1. They also hoped that the potential expansive liability and significant damages created by the law would deter abortion providers from performing any abortions, including those that would occur before the sixth week of pregnancy. Evidence from the past two months suggests the law is having its desired effect: Clinics have reported turning away many patients seeking abortions, and the number of abortions performed in the state has plummeted.
A majority of the justices appeared skeptical that, despite Texas’ arguments to the contrary, no one can bring a lawsuit to challenge S.B. 8 before it is enforced. Justice Elena Kagan seemed to summarize the problem before the court, as well as the sentiment of several of her colleagues, when she observed that the “entire point of” S.B. 8 is to “find the chink in the armor” of Ex parte Young, a 1908 Supreme Court case allowing lawsuits in federal courts against state officials to bar them from enforcing unconstitutional laws, but prohibiting injunctions against state courts. She dismissed the idea that the court’s hands are tied merely because “some geniuses came up with a way to evade the commands of that decision, as well as … the broader principle that states are not to nullify federal constitutional rights.” The court, she suggested, should not simply resign itself to the idea that “we’ve never seen this before, so we can’t do anything about it.”...
Justice Brett Kavanaugh echoed Kagan’s point a few minutes later. He told Stone that Ex parte Young “sets out this principle that you can get pre-enforcement review in federal court against state enforcement of laws that are assertedly unconstitutional” – normally, by suing a state official. This case, he explained, involved a “loophole that’s been exploited here, which is the private suits … enforced by state court clerks or judges.”
But other members of the court’s conservative wing openly worried about the prospect that S.B. 8’s enforcement scheme could be used to negate other constitutional rights. Kavanaugh cited a “friend of the court” brief by the Firearms Policy Coalition, a gun-rights advocacy group, arguing that the scheme could, as Kavanaugh put it, “easily be replicated in other states” to target gun rights, free speech rights, or religious rights.
Abortion isn’t a constitutional right.
I hate abortion. But I fully understand the concern of how letting the mechanisms of this law to stand pose a threat to other rights.
We can argue that abortion is not found in the Constitution. It isn’t, but unfortunately that is not what SCOTUS decided in Roe or Doe. We have to deal with how things are not how we wish they were.
It is a very bad idea to establish a precedent in order to accomplish a good thing when that very same precedent can very well be used to accomplish a bad thing.
They were demonstrably WRONG in their Constitutional rationale for the Roe v Wade decision.
As the Constitution, ABOVE ALL ELSE protects life (most especially innocent life), any Constitutional interpretation that supersedes that must be inherently misguided and therefor necessarily overturned on Constitutional grounds.
I will bet that amy and brett along john bou are the ones leaning to the left.
The court seems determined to treat the case as a legal process issue, and not discuss abortion at all.
That’s what I think as well. Ugh!!!
That’s probably because placing 2 Catholics on the SC was a bad idea. They seem intent on going out of their way to try to prove that they are “unbiased” or something. Catholics in name only apparently...
Let the junta try to send in the army to enforce it.
Typical of this court’s spinelessness under Robert’s pathetic attempts to protect “comity” among its members. You can’t have “comity” with an entity like Sotomayor for whom the Constitution is just a means for her to make law without the bothersome need of passing a bill in Congress and obtaining a Presidential signature. She manifests contempt for the Constitution and an absurd self-regard every time she open her fat, ignorant Latina mouth.
But when the SCOTUS consistently gives evidence of malign intent with the purpose of seizing un-Constitutional powers decade after decade, there has to be a moment when someone just says "no."
The Constitution says "We the People." The US is supposed to be a democratic republic, not an oligarchy of judicial libertines.
Mississippi has already done this and SCOTUS has accepted the case. We'll have arguments on the merits soon.
It has become that, for the most part. Sadly I see it increasing.
Re: 8 - Well, you need to include Alito as well, as even he expressed concern that S.B. 8 was written to discourage / evade Federal judicial review.
At this point I don’t think the question before the court is the legality of abortion under Roe. This link has a good discussion on just what is before the court.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.