The Real Test to Abortion Rights Hasn’t Happened Yet

Whether a federal court can prohibit a state judge from overseeing a state civil case based on state law is a complex legal issue. States themselves are immune to lawsuits under the 11th Amendment, but in 1908 the Supreme Court ruled that a plaintiff could obtain an injunction against a state enforcement officer for violating the U.S. Constitution. The question to the Supreme Court was: Are State Judges Enforcing Texas Law?

Incidentally, this legal ambiguity was exactly the point. After countless state abortion restrictions were passed for decades only to be passed by federal courts and never come into effect, the legal wing of the anti-abortion movement came up with this idea to get around the problem. The way they thought, if nobody ordered them, they could overcome this first hurdle – further than any so-called heartbeat calculation had ever made it. It was a hypothesis a law student might expect on his final exam in constitutional law – and Texan lawmakers were happy to go along because Republican politicians had been able for years to signal their anti-abortion bona fide claim by making signing these types of laws without any great concern that the law would actually go into effect. They are now the dogs that got the car, which I think explains why so few Republicans in the media are cheering the result.

In the end, in an unsigned opinion, held a majority of the judges that “federal courts have the power to order persons charged with enforcing laws, and not the laws themselves” and did not impose the state judge. However, they also said the ruling was emphatically “not based on any conclusion about the constitutionality of Texas law and in no way restricts any other procedural challenge to Texas law, including in Texas courts.”

The dissenters – John Roberts, Stephen Breyer, Sonia Sotomayor and Elena Kagan – everyone wrote their own opinion. Roberts wanted to prevent the law from coming into force until SCOTUS had more time to decide “whether a state can evade responsibility for its laws in this way”. Breyer would have been content to ban the state judge because such a bottle of proceedings “essentially contained very old and very important legal wine: invasion threatening immediate and serious injury.” Sotomayor was less focused on the means, on the grounds that SCOTUS should issue the injunction because the law was “blatantly unconstitutional”, while Kagan described it as “apparently unconstitutional”. For them, the obvious unconstitutionality of the law was more important than the question of who was allowed to command whom.

So where is the right to abortion in Texas?

Effective immediately, a doctor in Texas may be sued for performing an abortion on a fetus with a detectable heartbeat if the mother’s safety is not compromised. The practical cooling effect of this is obvious. But if someone tries to bring such a lawsuit, the abortion provider can challenge the constitutionality of the law itself. And then this law will finally be challenged in its cause – and repealed under current law.

Roe versus Wade was the first case in which the constitutional right to abortion was recognized. But the current standard for when and how states can restrict this constitutional right was in Casey against planned parenting, what said that it is the “essence” of roe while rejecting his entire frame in 1992. In Casey, The Supreme Court overturned part of a Pennsylvania law that required married women seeking an abortion to notify their husbands, but it upheld the parts that require parenting notifications for minors and a 24-hour waiting period for a woman seeking an abortion. In doing so, the court lowered the test for state restrictions from roeis very high and created a new standard known as “undue burden” that would nullify any state law that “had the purpose or effect of making a woman seeking an abortion of a non-viable fetus a significant obstacle.” to lay the path. “There is no question that Texan law is an unreasonable burden as defined by this definition.

Although Texan law is in serious legal danger, Proponents of reproductive rights are rightly vigilant. First, the majority in the Supreme Court could have said the law was manifestly unconstitutional, but the plaintiffs simply wouldn’t have sued the right party. Instead, the majority of judges just said that they would not comment on the constitutionality. Second, the standard in other parts of the legal world – like the one that applies to lawsuits aimed at changing the rules before an election – puts an emphasis on maintaining the status quo, and the majority would have Roberts’ more dissenting in this case Opinion can be followed for these reasons alone to prevent the law from going into effect. Third, these proponents know that the inappropriate loading standard is very much at risk – just not in this case.

The real challenge for Casey will come this fall when the Supreme Court hears arguments in one case called Women’s health organization Dobbs v. Jackson on the constitutionality of Mississippi’s abortion ban after 15 weeks. Under the Casey By default, an abortion ban at this point is clearly an “obstacle in the path of a woman seeking an abortion of a non-viable fetus,” but all court observers believe there are now at least five votes to change the definition of undue burden. create entirely new standards or reject the constitutional right to abortion and leave it up to states whether and how they want to restrict access to abortion. To date, 22 states have laws that would further restrict access to abortion, though Casey is overturned.

But those anti-abortion advocates who are cheering the results this week should also be careful. Texan lawmakers may have found a creative way to prevent courts from reaching this law before it goes into effect, but the law will likely be repealed soon enough. In the meantime, they have provided a blueprint to any other state that seeks to violate constitutional rights. New York can pass a law that allows its citizens to sue anyone in the state who sells someone a gun. California could do it $ 50,000 in compensation for anyone who sees someone praying on public land.

If history is a guide, abortion law advocates are nervous. In February 2015, the Supreme Court filed an urgent motion to prevent Alabama from issuing marriage certificates to same-sex couples. Just like the dish this week declined the request although – just like here – just a few months later, arguments on the same subject were heard in another case. In June 2015, the court recognized a constitutional right for same-sex couples to marry in any state in the Union.

A decision in Dobbs is expected in 2022.

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