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Supreme Court upholds Texas' abortion ban for the time being

Andrew C. McCarthy, Senior Fellow at the National Review Institute and Associate Editor of the National Review, has a keen eye for political humbug. He brings this talent to the current abortion news.

Every Supreme Court judge appointed to President Trump has just voted for the Texas ban on abortion https://t.co/jC1OAozUd6 pic.twitter.com/nhvGEYWyYe

– LifeNews.com (@LifeNewsHQ) September 3, 2021

McCarthy ends

McCarthy: When Shakespeare once wrote a story about comic intrigue, he called it "Much Ado About Nothing". The title would be just as apt for the Supreme Court's late-night INACTION on Wednesday in what can best be understood as a no-case about the Texas Fetal Heartbeat Act.

Because it is about the most sacred cow on the left, abortion, there is the now well-known hysteria. However, nothing really happened. All the court did because it couldn't help but bring Texas law into effect.

Of course, there were high-pitched disagreements among four judges – Chief Justice John Roberts and the three progressives of the Tribunal, Judges Stephen Breyer, Sonia Sotomayor, and Elena Kagan. We are talking about abortion here, and since the Constitution says nothing about abortion and certainly no RIGHT to end the life of unborn children, the left has replaced justice with simplicity for half a century.

Related: New Texas Abortion Law Calls Pelosi and Biden to seek federal action

It's just noise

But it's just noise. Contrary to the complex demagoguery of the media Democrats, the court did not approve abortion restrictions, which is good Roe vs Wade. In fact, the five-judge majority emphasized that they would not make a decision on the validity of the contested provision: "(We emphasize that we are not purporting to finally resolve any judicial or substantive claim in the complainants' claim. In particular, this order is not based on a conclusion on the constitutionality of Texas law (.) "

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The law prohibits abortions, except in the event of a medical emergency "if the doctor has detected a fetal heartbeat in the unborn child … or has not performed a fetal heartbeat test".

Of course, Texas law would make it illegal for providers to perform voluntary abortions – the kind that Roe v. Wade (1973) as suggested by Casey v. Planned Parenthood of Pennsylvania (1992) specified. The Supreme Court must inevitably decide on the validity of such a prohibition. As we shall see, in this case, however, probably not.

An interesting twist is that Texas law is not a criminal provision and may not be enforced by state officials. Instead, a private, civil right of action arises: If a doctor performs an abortion in violation of the legal requirements, he or she could be sued for $ 10,000, although a plaintiff would have to establish legal standing to bring the lawsuit.

Related: Biden, Liberals blow up "extreme" Texas abortion law after the Supreme Court puts it into effect

Supreme Court opinion

The brief statement from the Supreme Court on Wednesday night concerned a lawsuit – Whole Women’s Health v Jackson – in which abortion providers were trying to sue state officials, judges and a pro-life activist. But there is no trial against these defendants: state officials have no powers to enforce the law and enjoy sovereign immunity. The attached law prevents state courts from bringing lawsuits. And the pro-life activist filed an affidavit stating that he was not bringing lawsuits for violations of the law.

The abortion providers knew that. They tried to outsmart the system: they dawdled over two months after the law was passed and waited for it to take effect. They then filed for an injunction against the operation in hopes that a federal court would block the law without dealing with inconveniences such as the fact that there is no legal basis to sue people who cannot or have no action, to which they are not obliged to take.

Of course, the abortion providers found a friendly, Obama-appointed judge who tried to accommodate them by absurdly ruling that state officials did not have sovereign immunity and who was willing to hold a hearing on the injunction. But the Fifth Circle put an end to that. This set the stage for the Supreme Court to act – or rather, not to act … because there is nothing to act right now.

This piece was written by David Kamioner on September 3rd, 2021. It originally appeared in LifeZette and is used with permission.

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