The media are making a big fuss about how the Supreme Court just overturned Roe vs Wade and made abortions impossible in Texas. They did no such thing. They simply refused to issue an emergency stay on a defective application, which is exactly what they should have done.
Actually, the Texas law is pretty inventive, deliberately crafted to make it difficult to challenge it before it goes into effect. It expressly forbids any state official from enforcing the law, which means there is no state official who can be enjoined by a court. Instead, it empowers any private citizen to sue anyone involved in an abortion beyond six weeks. So there really was no one for the Supreme Court to enjoin yet, which is why they were correct to deny the emergency request.
The emergency appeal to the Supreme Court proposed to enjoin
one randomly-selected Texas state judge from hearing any such case. But of
course there is no such case before that judge at the moment, so there is
nothing to enjoin, which is why the appeal was defective. And in any case, it is not clear there is any legal basis for forbidding a judge to hear a case., and certainly not for a federal court to control whether or not a state court hears a case. The Supreme Court can certainly overturn a ruling, but I don't see that a federal court can forbid a judge from making a ruling.
The four liberal judges were outraged, because they thought the Supreme Court should stop an obvious injustice. The problem is that is not the purpose of a court. The purpose of a United States court is to administer the law as it is written, not to solve social issues. Social issues are to be solved by elected legislatures writing fair laws. I’m frankly disappointed that the liberal justices don’t understand that.
The Supreme Court may yet overturn Roe vs Wade someday, and they have a test case coming up next year, Dobbs v Jackson Women’s Health Organization, which will be properly argued in normal court proceedings. I actually think it unlikely they will overturn Roe vs Wade, but in fact the reasoning behind that ruling has always been a stretch, as even Justice Ginsburg, a staunch liberal, pointed out.
I personally think there should be a strong legislative protection for women’s right to control their own reproductive processes, based on something stronger than Roe vs Wade’s imputed “right to privacy” (which has no real constitutional foundation) stretched even further to encompass abortion. Imposing abortion restrictions on women is really an imposition of the religious views of a minority on the majority, and ought to be banned. People who are opposed to abortion are free to avoid terminating pregnancies themselves, but they should not be able to impose their beliefs on others, any more than religions that forbid eating pork should be able to deny the rest of us the joys of eating barbecued baby back ribs.
No doubt someone soon will sue someone else under this law (perhaps abortion providers themselves will even arrange for such an action, to test the law), and then it will get a proper argument, first in lower courts and finally, no doubt, in the Supreme Court, which is the way the system is supposed to work. I have little doubt that the law will be found to be defective, failing the Supreme Court’s “undue burden” test installed by the 2016 ruling in Whole Woman's Health v. Hellersted.
But the hysterical claim by some media that the court has somehow overturned Roe vs Wade is simply misinformation, of which we already have too much from the media.
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