Three days prior to the anniversary of the Supreme Court’s infamous 1973 decision in Roe v. Wade, and one day before the annual March for Life in Washington, D.C., the Supreme Court, in yet another 6-3 decision reflecting the current ideological split on the court, turned away a request from Texas abortionists to short-circuit the Texas heartbeat law case and send it back to a pro-abortion district court judge.
Justice Sonia Sotomayor, in a blistering dissent joined by Justices Stephen Breyer and Elena Kagan said, “Today, for the fourth time, this Court declines to protect pregnant Texans from egregious violations of their constitutional rights.” And she was just getting started.
“One month after directing that the petitioners’ suit could proceed in part, the Court countenances yet another violation of its own commands,” Sotomayor wrote. “Instead of stopping a Fifth Circuit panel from indulging Texas’ newest delay tactics, the Court allows the State yet again to extend the deprivation of the federal constitutional rights of its citizens through procedural manipulation. The Court may look the other way, but I cannot.”
“Indeed, the entire [Texas Heartbeat Act] scheme employs technical entanglements specifically to smother the federal right to choose. Because our precedents are clear that Texas cannot directly ban abortion before viability, the state legislature enacted a convoluted law that instills terror in those who assist women exercising their rights between 6 and 24 weeks. State officials knew that the fear and confusion caused by this legal-procedural labyrinth would restrict citizens from accessing constitutionally protected medical care, providers from offering it, and federal courts from restoring it. The dilatory tactics to which this Court accedes today are consistent with, and part of, this scheme.”
And Sotomayor concluded with:
“This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies. I will not stand by silently as a State continues to nullify this constitutional guarantee. I dissent.”
But the legal obstacle that Sotomayor and the abortionists in Texas can’t seem to understand or deal with is that there are few, if any, Texas officials to sue to keep from enforcing the heartbeat law. Enforcement is left up to private individuals in private lawsuits, and abortionists can only raise constitutional defenses after they’re sued. And that’s a risk they are unwilling to take.
That’s why the Supreme Court turned away initial requests from both the abortionists in Texas in one lawsuit, and the U.S. Department of Justice, in another, to block the law while the lawsuit was still in process in the 5th Circuit and a federal district court. Then in November and December, the justices again issued rulings that denied subsequent requests to block the law, even temporarily.
When the 5th Circuit then referred a key state law question in the case to the Texas Supreme Court, the abortionists attempted to block that with its most recent request to the justices, accusing the 5th Circuit of delaying the case unnecessarily. A majority of the high court disagreed with that argument and refused to grant the relief requested.
Sotomayor has dissented from all the denials of requests to block the law the high court has issued in the Texas case. And her anger appears to be growing with each subsequent dissent, as even legal pundits on the Left are beginning to notice. As Dahlia Lithwick, a lawyer and writer at the left-leaning website, Slate.com, suggested, Sotomayor already knows whether Roe v. Wade’s demise is near, since the justices have already taken a vote privately in the Mississippi 15-week abortion ban case, Dobbs v. Jackson Women’s Health Organization, an appeal that was argued in December.
“Much more probable is that Sotomayor knows the end of Roe is near and has given up trying to persuade or placate her anti-abortion colleagues,” Lithwick wrote. “She is, instead, in burn-it-all-down mode, unleashing her opprobrium on the justices poised to extinguish a fundamental liberty, unencumbered by the fear of losing a vote that she could never win.”
We certainly hope that Lithwick is correct, and that Roe will be overturned when the court issues its decision in Dobbs. Then we may see not just heartbeat bills, but complete bans on abortion in many states. On this 49th anniversary of Roe, wouldn’t it be satisfying to witness its relegation to the ranks of other odious Supreme Court decisions such as Dred Scott v. Sanford, Plessy v. Ferguson, and Korematsu v. United States.
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