Rally outside the U.S.
Supreme Court, October 2, 2021
On September 1,
the same day the Texas law banning any abortions after six weeks came
into effect, the Supreme Court ruled 5-4 that it would not act to block
the law. It did not rule as to whether the law is Constitutional, which
is now being litigated in the lower courts. Many lawsuits have been
filed against the Texas law, but this one was brought by President
Biden and the U.S. Justice Department. Biden's action is an indication
that, while commonly the Supreme Court acts as an arm of the Executive,
defending its powers, the conflict among the ruling circles and
dysfunction of existing institutions is such that the Court at times is
also acting in favour of ruling factions not in power. It also shows
the increasing conflict between state and federal government.
The decision by the Supreme Court was done through what is
known as its "shadow docket." This is the practice of undermining its
own rules. In this case it meant deciding important issues in a rushed
decision without full briefing or oral argument, including guidance
from lower court rulings, that had not yet occurred. As Justice Elena
Kagan, in dissenting put it, "Today's ruling illustrates just how far
the court's 'shadow-docket' decisions may depart from the usual
principles of appellate process." She added such a ruling "is of great
consequence." She said the decision was taken hastily and only with the
"most cursory" review of the submissions by the parties involved. The
conclusion not to act on an "obviously unconstitutional abortion
regulation backed by a wholly unprecedented enforcement scheme," was
not explained or justified by the majority ruling. She concluded, "In
all these ways the majority's decision is emblematic of too much of
this court's shadow-docket decision making -- which every day becomes
more unreasoned, inconsistent and impossible to defend."
Clearly the
justices themselves are concerned that the Court is undermining its own
rules and setting precedent to make such "cursory" and "unreasoned"
decisions the norm. Many people already consider that the Court has
become so politicized that, like Congress and the Presidency, it has
lost credibility in the eyes of the public. It is not a defender of
rule of law but of undermining it, including undermining its own rules
and norms.
Additional comments by the dissenting
justices further confirm this. Justice Sonia Sotomayor wrote in her
dissent, "Presented with an application to enjoin a flagrantly
unconstitutional law engineered to prohibit women from exercising their
constitutional rights and evade judicial scrutiny, a majority of
justices have opted to bury their heads in the sand." She said, "The
court should not be so content to ignore its constitutional obligations
to protect not only the rights of women, but also the sanctity of its
precedents and of the rule of law."
Chief Justice
Roberts wrote that he would have blocked the law while appeals moved
forward. He said the Texas "legislature has imposed a prohibition on
abortions after roughly six weeks, and then essentially delegated
enforcement of that prohibition to the populace at large. The desired
consequence appears to be to insulate the state from responsibility for
implementing and enforcing the regulatory regime."
The Texas law is
designed to inflame passions and pit people against each other while
letting the state off the hook. The law bars state officials from
enforcing it and instead deputizes private individuals to sue anyone
who performs the procedure or "aids and abets" it. The patient may not
be sued, but doctors, staff members at clinics, counselors, people or
organizations who help pay for the procedure, and even the driver
taking a patient to an abortion clinic can all be sued. Individuals
bringing such lawsuits do not need to live in Texas, or have any
connection to the abortion or show any injury from it. In this way the
state has no responsibility and those instigating the lawsuits have a
free hand to more broadly and arbitrarily attack women and health care
workers.
On October 6, a federal judge ruled that
the Texas law (S.B. 8) was unconstitutional and blocked state court
judges and court clerks from accepting any lawsuits stemming from it.
Judge Pitman also ordered the state to publish his order on all
"public-facing court websites with a visible, easy-to-understand
instruction to the public that S.B. 8 lawsuits will not be accepted by
Texas courts." He ruled the state and "any other persons or entities
acting on its behalf" were blocked from enforcing the statute, saying
"this Court will not sanction one more day of this offensive
deprivation of such an important right."
Texas
immediately appealed to the 5th Circuit Court of Appeals, known for its
reactionary rulings. As the many demonstrating and fighting state and
federal attacks on the right to health care bring out, the fight for
rights will carry on and is far from over. What is also coming to the
fore is that existing Supreme Court rulings and its own norms and rules
are being undermined. There is not a rule of law or a rules-based order
when rules and laws are so readily violated.
This article was published in
Volume 51 Number 10 - October 10, 2021
Article Link:
https://cpcml.ca/Tmlm2021/Articles/M510108.HTM
Website: www.cpcml.ca
Email: editor@cpcml.ca
