Josh Hammer analyzes the Supreme Court’s decision not to enjoin any enforcement of the Texas Heartbeat Act, arguing that the decision, though a partial victory for pro-lifers, does not extend far enough.
“The Court was, of course, correct to rule as it did. As a basic legal norm, when a plaintiff seeks a stay or an injunction, the plaintiff must overcome a strong rebuttable presumption against such relief. The abortionist plaintiffs plainly failed to do so in the Texas litigation, due in part to the fact that, as the Court’s unsigned per curiam opinion noted, ‘it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law…in a manner that might permit [judicial] intervention.’ To cut through the legalese a bit: The abortion providers sued the wrong people.”
“[T]he Texas law makes no attempt to shift the constitutional playing field on the substantive abortion jurisprudence of Roe, Casey, and Whole Woman’s Health v. Hellerstedt. The inclusion of the Roe compliance provision gives away the game, in that respect, and the per curiam opinion says as much too: ‘[W]e stress that we do not purport to resolve definitively any…substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.’ So a definitive judgment about the fate of Roe and Casey will wait for another day—most likely when the Court hears Dobbs v. Jackson Women’s Health Organization, the Mississippi case.”
“By the time procedurally adequate litigation is launched under S.B. 8, many unborn Texan lives will have been spared. That is a beautiful thing, and pro-lifers around the nation should be pleased. But cable news-induced hysteria notwithstanding, the Texas abortion law amounts to a dilatory tactic. It does not take direct aim at Roe and Casey. An anxious pro-life movement awaits clarity on that front.”
Read the full piece here.