This essay first appeared in the September 10, 2021 Epoch Times.
This column examines the Supreme Court’s recent ruling in Whole Woman’s Health v. Jackson (pdf) and why the left is so upset about it. In Whole Woman’s Health, the court opted not to suspend the Texas Heartbeat Act immediately, but to wait for a hearing on the merits.
In addition to agitating the liberal media, the decision has annoyed “progressive” academics. If they teach in law schools, they often belong to an outfit called the American Constitution Society (ACS), a group that is positively beside itself over the court’s order in Whole Woman’s Health. The ACS’s reaction illustrates the absurdity of the left’s response.
To be sure, ACS has a record of uttering exceptionally stupid things. Last year, the head of the organization claimed repeatedly that President Donald Trump’s nomination of Amy Coney Barrett was “illegitimate” and would “steal” a Supreme Court seat because Trump nominated Barrett in an election year. In fact, as I pointed out at the time, the Constitution requires the president to make nominations in a timely manner, and contains no exceptions for election years.
And so, in a recent circular email, ACS proclaimed that “the Right” is trying to “undercut our democracy” by urging the “packed” and “stolen” Supreme Court to reverse the 1973 abortion case of Roe v. Wade (pdf). A follow-up email announced that the court’s order in Whole Woman’s Health “effectively overturned Roe v. Wade overnight.”
To understand how ridiculous these statements are, let’s examine the relevant facts.
First, Roe v. Wade has nothing to do with democracy. It was an autocratic diktat that effectively voided democratically adopted abortion laws in all 50 states. Reversing it would return the abortion issue to the democratic process.
Second, the Texas Heartbeat Act does not resurrect the law as it existed before Roe v. Wade. Before Roe, Texas—like many other states—made abortion a criminal offense unless necessary to preserve the life of the mother. By contrast, the Texas Heartbeat Act—
- permits all abortions before detection of a fetal heartbeat—that is to say, roughly until the sixth week of pregnancy;
- permits abortion after that time if a physician believes that “medical emergency” requires it; experience shows that health exceptions like this operate expansively;
- permits any abortion where prohibiting it “will impose an undue burden on that woman or that group of women seeking an abortion”—a concept derived from the Supreme Court’s Roe line of cases;
- prohibits enforcement by any state or local official, but instead
- permits only civil (not criminal) suit by private parties—and only against the provider, never against the woman.
Thus, upholding this law would require the Supreme Court merely to constrain, not abandon, its right to abortion.
Third, the court’s order in Whole Woman’s Health did not “overturn” anything. Although three of the dissenting justices wanted to declare the Texas Heartbeat Act unconstitutional—effectively “overturning” it, the majority merely abstained from ruling on the subject:
“[W]e stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”
Courts often refuse to suspend a challenged law before a final decision. Obamacare, for example, remained in place for years while cases against it were litigated.
Fourth, in Whole Woman’s Heath, the plaintiffs hadn’t even sued the correct parties. In lawsuits, you are not allowed to make demands until you bring your true opponents into the suit. For the court to suspend a democratically adopted statute where the proper parties are not there to defend themselves would have been an abuse of judicial power.
So why are “progressives” so upset by such a narrow, tentative—and entirely justified—order? I think there are at least three reasons.
One reason is that abortion is very important to them. It’s the blood-sacrifice rite in their pagan religion. Legalized abortion was once defended on the grounds that the procedure should be “safe, legal, and rare.” Today it seems like the more the better.
In addition, the Texas Heartbeat Act rips a page from the “progressives’” own playbook. For years, they have pushed Congress and state legislatures to pass statutes allowing private parties—also called “private attorneys-general”—to sue to promote leftist causes. Such statutes typically award victorious (nor even non-victorious) plaintiffs attorneys’ fees and costs from their victims. Awards of costs and fees have been a bonanza for some left-leaning organizations.
Now, pro-life plaintiffs will be able to collect costs and fees in a similar manner. “Progressives” must find this very disturbing.
Finally, ever since Roe v. Wade, the courts have privileged pro-abortion litigants in various ways. One way is by putting pro-life laws on hold before the challengers have proved their case.
In Whole Woman’s Health, the Supreme Court finally declined to privilege a pro-abortion litigant. Instead, it applied the sort of common-sense standard it would apply to any other legal dispute. That the court did so may be the true significance of this decision.