All The Best Sh*tty, Dishonest Parts Of SCOTUS's Texas Abortion Decision To Bang Your Head Into A Wall To
Texas's SB 8 has been in effect for more than three months, essentially banning abortion by deputizing private abortion bounty hunters. Because why not?!
Women and pregnant people across the state of nearly 30 million are being systematically denied constitutionally protected medical care. Some go to other states to terminate their pregnancies. Some go to Mexico. Others are forced to remain pregnant against their will. In America. In 2021.
And the Supreme Court has no intention of stopping it.
Yesterday, the Court released an opinion about SB 8 in Whole Woman's Health v. Jackson, and, well ... it went about as well for women as one might expect, from a Court where a third of the members were appointed by a man who bragged on tape about sexually assaulting women by grabbing them by the pussy.
Blessed be the fruit.
It should be clear you're too far gone when you've even lost John Roberts.
The psychopaths behind SB 8 didn't just write a law that doomed millions of women; they also crafted it in a way they hoped would get the blessing of our 6-3
fascist Republican high court.
The extremists' ploy is working. Yesterday's opinion makes it eminently clear that a majority of the Court is more than happy to twist themselves into knots to uphold this bullshit, any semblance of legitimacy be damned.
Neil Gorsuch, joined by fellow rightwingers Brett Kavanaugh, Amy Coney Barrett, Samuel Alito, and Clarence Thomas, wrote an opinion that not only keeps SB 8 in effect, but makes it even harder to challenge the law going forward.
This was a bridge too far for even George W. Bush appointee Chief Justice John Motherfucking Roberts, who is himself a conservative Republican. Dissenting, Roberts warns the majority of how dangerous its opinion is. He straight-up tells the lower court to enjoin the law, writing, "Given the ongoing chilling effect of the state law, the District Court should resolve this litigation and enter appropriate relief without delay." And, quoting Marbury v. Madison, the seminal case every American law student reads on their first day of Con Law which says courts get to tell the other branches when to fuck off, Roberts tries to remind his colleagues that what they're doing is incredibly fucking dangerous.
The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings. It is, however, a basic principle that the Constitution is the “fundamental and paramount law of the nation,” and “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). Indeed, “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” United States v. Peters, 5 Cranch 115, 136 (1809). The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.
You know the rest of the Court has officially gone off the deep end when they are too fascist for the man who literally wrote the opinion gutting the Voting Rights Act.
Like Georgia State law prof Eric Segall puts it,
In the history of SCOTUS, there has never been the equivalent of a liberal Court with, say 5 Justices to the left of a Marshall Or Ginsburg. We now have 5 Justices to the right of Roberts, a deeply conservative man.— Eric Segall (@Eric Segall) 1639247397
These people are psychopaths.
It's no secret that SB 8 was written specifically to give cover to any forced birth extremists on the Supreme Court willing to hide behind illogical procedural nonsense in order to control women's bodies. Roberts and #bestjustice Sonia Sotomayor attempt to remind the other justices of what they're actually doing, to no avail.
As Sotomayor summarizes,
In open defiance of this Court’s precedents, Texas enacted Senate Bill 8 (S. B. 8), which bans abortion starting approximately six weeks after a woman’s last menstrual period, well before the point of fetal viability. Since S. B. 8 went into effect on September 1, 2021, the law has threatened abortion care providers with the prospect of essentially unlimited suits for damages, brought anywhere in Texas by private bounty hunters, for taking any action to assist women in exercising their constitutional right to choose. The chilling effect has been near total, depriving pregnant women in Texas of virtually all opportunity to seek abortion care within their home State after their sixth week of pregnancy. Some women have vindicated their rights by traveling out of State. For the many women who are unable to do so, their only alternatives are to carry unwanted pregnancies to term or attempt self-induced abortions outside of the medical system.
The Court should have put an end to this madness months ago, before S. B. 8 first went into effect. It failed to do so then, and it fails again today.
It's all bullshit.
The majority would say they have no animus against pregnant people or even their right to choose — they are just simply confounded by the unbelievably brilliant way the anti-woman extremists in Texas wrote their fun new law!
This, of course, is complete and utter bullshit, but it will be more than a sufficient excuse for anyone seeking to defend the indefensible.
SB 8 was very specifically written for this Court. After Trump and McConnell forced Amy Coat Hanger onto the Court and into Ruth Bader Ginsburg's seat, men who want the state to control womens' bodies knew they had their chance. There is already plenty of litigation worming its way through the court system about Roe itself and at what point the state can ban pregnant people from having medical procedures, but the SB 8 authors were going for something else. They wanted a law that this Court would say can't even be reviewed. And the forced birthers appear to have gotten exactly what they hoped for.
In essence, a majority of the Supreme Court ruled yesterday that a state can ban abortion by deputizing private abortion bounty hunters. Although they allowed the case to continue in an 8-1 decision — the part of the case in which a number of abortion providers are suing state health department officials — they dismissed most of the parts of the case that would have actually allowed the abortion providers to stop SB 8 suits from proceeding.
The Court also reversed course yesterday in the Department of Justice’s challenge to SB 8. It had agreed to hear an appeal in US v. Texas, but now says the writ of certiorari was “improvidently granted.” This keeps in place a Fifth Circuit decision that overruled a district court and kept SB 8 in place. Wouldn't they generally agree to hear the Department of Justice challenging a state law? Yes, and if it were a Trump admin challenge they would have done whatever he asked. But this is about abortion so they were just like “lol we aren’t going to help you” and it looked like this:
Back to Whole Woman's Health, using private actors to decimate other people's rights is, of course, nothing new. As Sotomayor very clearly explains, SB 8 is far from the first time a state has tried to subvert the US Constitution by playing these kinds of games.
There is an entire fucking doctrine based on a 1907 case called Ex parte Young that lets you sue state officials to stop the enforcement of unconstitutional bullshit. There is also Shelley v. Kraemer, the 1948 case cited by Sotomayor, which held that courts can't enforce racially discriminatory contracts, because that would violate the Equal Protection Clause. In these cases, plaintiffs sue the state officials who would be in charge of enforcing the unconstitutional bullshit and courts issue orders telling those state officials to stop.
So what happened in the actual decision though?
Here, abortion providers sued a state court judge and the clerk of a state court, to prevent the clerk from docketing the case and the judge from hearing it. But Gorsuch and company dismissed almost all of the defendants from the suit, pretending to care deeply about the precedent and procedural issues involved.
The majority did allow the case to continue against some state health officials, who have an incredibly minor role to play in enforcing the law. But by dismissing the state court employees, the Court, in Sotomayor's words, “leaves all manner of constitutional rights more vulnerable than ever before.”
I concur in the Court’s judgment that the petitioners’ suit may proceed against certain executive licensing officials who retain enforcement authority under Texas law, and I trust the District Court will act expeditiously to enter much -needed relief. I dissent, however, from the Court’s dangerous departure from its precedents, which establish that federal courts can and should issue relief when a State enacts a law that chills the exercise of a constitutional right and aims to evade judicial review. By foreclosing suit against state-court officials and the state attorney general, the Court effectively invites other States to refine S. B. 8’s model for nullifying federal rights. The Court thus betrays not only the citizens of Texas, but also our constitutional system of government.
Sotomayor also points out that the majority "hides behind a wooden reading" of its earlier precedent, "stitching out-of-context quotations into a cover for its failure to act decisively."
The psychopaths in the majority, meanwhile, can't even bring themselves to respond to the other justices' arguments in good faith. Ignoring the substance of the dissents, Gorsuch writes, for example, that Sotomayor referred to the earlier cases as wooden, rather than her colleagues' petrified brains. ("Justice Sotomayor seems to admit at least part of the problem. She concedes that older “wooden” authorities like Ex parte Young appear to prohibit suits against state-court clerks.")
Listen to Justice Sotomayor. She is smart.
My disagreement with the Court runs far deeper than a quibble over how many defendants these petitioners may sue. The dispute is over whether States may nullify federal constitutional rights by employing schemes like the one at hand. The Court indicates that they can, so long as they write their laws to more thoroughly disclaim all enforcement by state officials, including licensing officials. This choice to shrink from Texas’ challenge to federal supremacy will have far-reaching repercussions. I doubt the Court, let alone the country, is prepared for them.
lol Clarence Thomas
Clarence Thomas, being Clarence Thomas, wrote separately to go farther than the majority and say that the abortion providers shouldn't be able to bring any lawsuit at all.
Because of course he did.
It's not really worth discussing any more than that.
This is only the beginning.
If this Court has its way, things are going to get much, much worse before they get better.
First, things will get worse in the obvious way: for pregnant people. As we already know, abortion bans don't stop abortion; they stop safe abortion. Whether it's because of a medical issue or just because someone doesn't want to be pregnant anymore, they shouldn't have to risk their lives to control their own bodies.
Abortion bans don't only make abortion dangerous; they also make pregnancy more dangerous than it already is. In September, a 30-year-old woman named Izabela died in a Polish hospital when doctors refused to induce a miscarriage to save her life as she died of septic shock. When abortion is illegal, women die — even when the pregnancy is wanted.
The United States already has the worst maternal mortality rate of any industrialized nation. We were one of just two countries, worldwide, to increase our maternal mortality rate between 2000 and 2017. The racial disparity in maternal mortality between Black and white women is worse now than it was during slavery.
Pregnancy will only continue to get more and more dangerous as abortion bans and laws like SB 8 proliferate.
But, less obviously, the Supreme Court is setting us up for things to get worse in many, many different ways. Like Roberts writes, letting states subvert the Constitution by appointing private bounty hunters could affect all manner of constitutional rights. "The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake." (Jesus H. Roosevelt Christ, I just affirmatively quoted John Roberts, that's how bad things are.)
As Sotomayor points out, the strategy behind SB 8 — and the precedent that goes with it — are shockingly reminiscent of the Jim Crow South. And, "by foreclosing suit against state-court officials and the state attorney general, the Court clears the way for States to reprise and perfect Texas’ scheme in the future to target the exercise of any right recognized by this Court with which they disagree."
This is a brazen challenge to our federal structure. It echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to “veto” or “nullif[y]” any federal law with which they disagreed. Lest the parallel be lost on the Court, analogous sentiments were expressed in this case’s companion: “The Supreme Court’s interpretations of the Constitution are not the Constitution itself — they are, after all, called opinions.”
This is far from the end.
This is no hypothetical. New permutations of S. B. 8 are coming. In the months since this Court failed to enjoin the law, legislators in several States have discussed or introduced legislation that replicates its scheme to target locally disfavored rights. What are federal courts to do if, for example, a State effectively prohibits worship by a disfavored religious minority through crushing “private” litigation burdens amplified by skewed court procedures, but does a better job than Texas of disclaiming all enforcement by state officials? Perhaps nothing at all, says this Court. Although some path to relief not recognized today may yet exist, the Court has now foreclosed the most straightforward route under its precedents. I fear the Court, and the country, will come to regret that choice.
The country will certainly come to regret this.
Whether the forced birthers on the Court have the self-awareness to regret any of their actions remains to be seen.
At what point can Americans with uteruses claim political asylum in Canada? #AskingForAFriend.
Here's the opinion. It's garbage. Justice Sotomayor's dissent starts on page 36.
[ SCOTUS ]
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