You can always count on Jonathan Turley to bring clarity to a messy legal question. He’s not a conservative, but he offers great legal analysis, even if you don’t agree with the conclusions. He might trend more to the Left, but he’s not insane like these other legal commentators who are swimming neck deep in ‘woke’ waters. His latest op-ed in The Hill is a good review of the abortion wars that have renewed over Texas’ abortion law. The Lone Star State now bans most abortions after six weeks. It’s a heartbeat bill that the Supreme Court refused to block. Now, we have a crisis in the judiciary according to liberal America. Now, it’s time to pack the court. It’s nonsense. Turley notes the double-standard in his piece as well. When abortion laws are upheld by liberal majorities in the courts, it’s “pure constitutionalism.” When conservatives threaten that, it’s judicial chaos. In fact, Texas isn’t where the final showdown will occur, and Turley cites that in the piece. He also says that the failure to block Texas’ law isn’t the end of Roe v. Wade. He does note that Democrats are the party that could the most damage to abortion rights right now as they are primed to overreach big league over Texas (via The Hill):
The Texas law was enacted in May — but challengers waited until shortly before it was to take effect on Sept. 1 to demand emergency court intervention. It was a gamble that backfired when the court refused to intervene. However, the decision neither upheld Texas’s law nor reversed Roe.
Not only was the court’s order removed from the actual merits of the law, but the majority expressly acknowledged that “the applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue.” The rejection of the injunction was because the challengers are suing a state judge and clerk who are not actually tasked with enforcing the law. They were virtually randomly selected in a challenge that seemed more improvisational than procedural. The majority stated that “federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.” Even in his dissent, Chief Justice John Roberts admitted it is unclear “whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law.”
It also is untrue that the court’s decision prevents the law from being challenged. The law can — and will — be challenged in both state and federal courts. (Indeed, it has already been enjoined by a state judge). If anyone seeks to use this law, it will be challenged and likely expedited on review. (Indeed, a pro-choice litigant could immediately force such a challenge in a test case by invoking the law against a willing doctor or clinic.) Moreover, lower courts are likely to find the law unconstitutional under existing law.
The law’s drafters knew that setting the cutoff date before “viability” would conflict with the case law building on Roe v. Wade and Planned Parenthood v. Casey. It was designed to force a new review by the Supreme Court, the only body that can set aside or reverse its prior rulings.
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So, there’s the crux of battleground Texas. As with any pro-life law, it’s usually aimed at getting the high court to review. It’s nothing new, yet MSNBC decided to go into total insane mode by suggesting that Robert Mueller should investigate whether SCOTUS and Republican governor colluded on abortion laws. Turley notes where the real legal judgment will be rendered. The case is already on the docket and he offers a fair warning to Democrats who are at full froth over some lawmakers working to curb their baby-killing tendencies:
Future abortion rights do not run through Texas or Congress. Challenges to the Texas law will take months. But the most immediate threat to Roe is already on the docket. When Texas was enacting its law in May, the Supreme Court accepted a Mississippi case with a fundamental challenge in Dobbs v. Jackson Women’s Health Organization. The case was accepted for one unambiguous question: “whether all pre-viability prohibitions on elective abortions are unconstitutional.” That case will allow the court a direct, clear case to reconsider the basis for abortion. The final decision in Dobbs will likely long precede any final decision on Texas’s law.
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That brings us to the pledge by Speaker Nancy Pelosi (D-Calif.) to codify Roe. Pelosi denounced the “Supreme Court’s cowardly, dark-of-night decision to uphold a flagrantly unconstitutional assault on women’s rights and health.” Putting aside that there was no vote on the merits of the law, Pelosi could be creating an opportunity for pro-life advocates in such a move. The House already has moved to federalize elections. This move could effectively federalize abortions if it mandated a single standard for abortions.
Roe affirmed a federal constitutional right to an abortion. Yet the court has always recognized that states continue to exercise authority over abortion services subject to that constitutional standard. If the House just affirms the constitutional standard, it would be a meaningless exercise. Presumably, the House would federally enforce that standard, which could create a new basis for challenge. It could create additional federalism issues that might alienate some on the court, including Chief Justice Roberts, and improve the strategic position of pro-life litigators.
Following a poorly crafted federal lawsuit with a poorly crafted federal law is hardly an improvement for pro-choice voters.
Biden may magnify those problems by pledging a “whole-of-government response” to the court’s order. There is a real possibility that Democrats could lose ground in Dobbs. Moreover, the civil abortion provision may indeed be replicated in other states. However, the range of permissible state action is likely to be decided not by Congress but by the court, based not on a Texas law but on a Mississippi statute.
I know Turley mentioned abortion being a constitutional right. I’ll let you argue about that below. While the late Antonin Scalia was faithful to stare decisis on matters and not keen at all with regards to reinventing the legal wheel, he did make a notable exception when it came to Roe v. Wade which he viewed as an abysmal decision. This is another debate that’s loaded with nuance. Yes, there is no majority to overturn Roe v. Wade, but there are sizable majorities to limit abortion. The 20-week ban is popular as is partial-birth abortion. Liberals tend to miss the polls on curbing what is arguably infanticide and instead harp on just the ‘support for overturning Roe v. Wade’ polls and expanding that to form a false narrative that this nation is pro-choice and loves abortion. It’s evenly divided. It has been for years—and making this practice taxpayer-funded and not wanting to impose any restrictions is not the way to build a convincing consensus on the issue. Then again, modern progressivism isn’t about consensus. It’s about obedience to the government.
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