Justice Gorsuch Gives the Pro-Abort Lobby What They Asked for and They Still Aren't Happy

AP Photo/Andrew Harnik

The US Supreme Court issued a ruling in a critical abortion case called Whole Women’s Health vs. Jackson earlier in the month. This case comes to the Supreme Court from Texas by way of the Fifth Circuit Court of Appeals. The central issue is Texas’ so-called “heartbeat law” that forbids abortion after the baby has a detectable heartbeat. But the case focuses on the enforcement mechanism. To prevent pro-abort judges from summarily striking down the law, the law uses private action via lawsuits as its enforcement mechanism. The abortion industry was trying to find a way to attack the bill, but without an actual case, they couldn’t. As a result, the slaughter of infants has ground to a halt in Texas as abortionists, and their lackeys are afraid of being saddled with massive legal fees even if they avoid being sued into oblivion. Read more about that decision in my post, Supreme Court Humiliates Biden, Refuses to Stop Texas Heartbeat Law, and Gorsuch and the Wise Latina Have a Public Spat.

Usually, the Court waits 25 days before returning a case to a lower court (or so says the Washington Post, so that number might possibly be total bullsh**), here the Supreme Court had remanded the case to the Fifth Circuit.

The abortion industry went nuts. Not only had the Supreme Court case been a devastating defeat for them that seemed to foreshadow the end of abortion as a Constitutional right, but the court that was going to hash out the remaining details was not that of the tame pro-abort federal judge they’d first encountered, it was the very court that had caused the problems for them in the first place. To make matters worse, the 25-day time lag put even more financial pressure on the abortion business in Texas. They were looking a month’s wait before their case was heard in a hostile court. So they appealed. They asked the Supreme Court to send the case back to the lower court immediately, and they wanted it to go to the Obama judge, Roger Pitman, who had initially struck down the Texas heartbeat law. Texas Attorney General asked for the case to be sent back to the Fifth Circuit.

Their calculus seems to have been that they could count on Pitman, whose career highlight, according to Wikipedia, is being the first openly homosexual federal judge in the Fifth Circuit, to strike down the law and give abortion clinics time to have a holiday special or something before the Fifth Circuit hammered them again. This is how the Washington Post describes the strategy.

In October, Pitman, the federal judge in Austin, blocked enforcement of the law, which he characterized as an “unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right.” Less than 48 hours later, the conservative-leaning 5th Circuit reinstated the six-week ban.

A declaration from a federal judge finding the law itself unconstitutional would be an important step and potentially give abortion providers a legal defense to point to in state court if they were sued for performing an abortion after the six-week mark. But it would not be binding on the state courts.

An injunction would prevent state licensing officials from taking disciplinary action against physicians, pharmacists and nurses, but it would not shield them and others from legal liability. Private individuals could still file civil lawsuits seeking at least $10,000 against anyone who helps someone terminate a pregnancy after about six weeks.

On Thursday, they got a response that gave them half of what they’d asked for.

In an order authored by Justice Gorsuch, because John Roberts had made himself irrelevant by voting to protect abortion yet again, Whole Women’s Health was immediately returned to a lower court. The punch line was that the lower court was the Fifth Circuit.

On a side note, it is refreshing to see how a “Thomas” Court goes about doing business as opposed to a “Roberts” Court. Can anyone imagine Roberts not giving the pro-aborts exactly what they’d asked for to protect the “image” of the Supreme Court? Of course not.

The pro-aborts are not happy.

The state’s request means to “indefinitely prevent petitioners from obtaining any effective relief from the district court in the face of a law that is clearly contrary to this Court’s decisions,” wrote Marc Hearron, a lawyer for the Center for Reproductive Rights, which is representing challengers to the law.

With its decision to send the case back to the 5th Circuit and not the district court, he added, the Supreme Court “has let Texas nullify constitutional rights and upend our system of justice.”

“It’s yet another obstacle,” said Brigitte Amiri, deputy director of the American Civil Liberties Union’s Reproductive Freedom Project, who was among the lawyers asking the court to return the case to the district judge. “This case is going to be stuck in limbo. Even the narrow path the Supreme Court initially afforded us is now off the table.”

“The reality of the state court litigation and the reality of the Supreme Court’s devastating decision last week to preclude relief against clerks and judges is that there is not a clear way in which to provide the kind of certainty for abortion providers to go forward without the risk of being sued,” said Julie Murray, a senior attorney with Planned Parenthood, who argued the state case against Texas Right to Life.

The Supreme Court’s decision, she said, “threw out the most promising avenue to relief and full restoration of abortion access in Texas.”

The case will go back to the same panel that rendered the decision before the Supreme Court. Not being a lawyer, I am not an authority on how cases are scheduled for action. However, from the pro-abort comments in the Washington Post article, I am left with the impression that the Fifth Circuit panel that first heard the case has a great deal of control on the timing, and the Molochian faction is afraid it will never be reheard. As a decision from the Supreme Court in Whole Women’s Health is expected in June, I would not be shocked to see the Fifth Circuit wait until that decision before acting.