Evil Genius…

Justice Samuel Alito’s ruling against an injunction in the Texas anti-abortion case:


“The application for injunctive relief or, in the alternative, to vacate stays of the district court proceedings presented to JUSTICE ALITO and by him referred to the Court is denied. To prevail in an application for a stay or an injunction, an applicant must carry the burden of making a “strong showing” that it is “likely to succeed on the merits,” that it will be “irreparably injured absent a stay,” that the balance of the equities favors it, and that a stay is consistent with the public interest. Nken v. Holder, 556 U. S. 418, 434 (2009); Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 66 (2020) (citing Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 20 (2008).”

The elements needed for injunctive relief, as stated, are:
·      A strong showing
·      Likely to succeed on the merits
·      The plaintiff(s) will be irreparably injured absent a stay
·      The balance of the equities favors it
·      The stay is consistent with the public interest.

So… what’s missing in the appeal? Justice Alito admits the plaintiffs have “raised serious questions regarding constitutionality of the Texas law,” but denies relief because the law presents “complex and novel antecedent procedural questions.” Really? The Supreme Court denies relief because the issue is complex and novel? Isn’t that its job?

The law is clear. Roe v. Wade is the law of the land, and the Texas law is in violation by denying women the right to an abortion. The Supreme Court has said in ruling after ruling that the right exists though it is subject to limitations. 

8 Women and 100+ White Men Celebrating Passage of the Law Ending Abortion in Texas

I loved law school – the issues and the arguments – but not the work at a big Los Angeles firm. I wanted to wrestle with constitutional issues not unlawful detainer actions or 80-page real estate documents. Unfortunately, the daily grind at the firm dealt mostly with the latter, and I quit after nine months.

Nevertheless, my interest in constitutional law stayed with me, and I have continued to follow the issues, justices, decision-making processes, and the ramifications of important cases as well as I can. Two of my law school classmates clerked on the Court. One for Justice Douglas and one for Justice Brennan. I would love to have shadowed them.

Yesterday, the Court gob-smacked me by denying injunctive relief and rejecting the plaintiff’s request to review of the constitutionality of the Texas law. By rejecting the plea, the Court prohibits a woman from aborting a pregnancy after six weeks if an ultrasound detects a “fetal heartbeat.” There is no exception for rape or incest.

The bill was ingeniously crafted to get around the traditional objection to “state action” enforcement of a law. Historically, the state is charged with the enforcement of its laws. The novel sidestep in this case, making it harder to block, is that the state is expressly excluded from enforcement, turning that function over to “any citizen” who believes any party may have been involved in violating the law. The classic example of an innocent participant liable for violating the anti-abortion law is an Uber driver who helps the woman get to the clinic or hospital.

I admire creativity but not when it results in the denial of civil, human, or adjudicated rights. The evil genius who drafted this bill was not concerned with equity, fairness, or a woman’s right to privacy. This is a diabolical, mysogynistic, end-run to advance a political/religious objective. A recent NPR/PBS poll showed that three-quarters of Americans say they want to keep Roe v. Wade but favor limitations on the right.

In that 1973 case the Supreme Court held that the Due Process Clause of the U.S. Constitution’s Fourteenth Amendment provides a “right to privacy” that protects a pregnant woman’s right to choose whether or not to have and abortion. Roe has been tested repeatedly and limitations imposed, but it has withstood challenges to the basic holding.

When the constitutionality of a law is challenged, courts test the law by applying one of three levels of judicial scrutiny – strict scrutiny, intermediate scrutiny, or rational basis review. (findlaw.com). Strict scrutiny is applied when the legislation or government action discriminates or violates a constitutionally protected class or a fundamental right is threatened. In these cases, the state must show a “compelling state interest” and that the law is “narrowly tailored” to achieve its result.

In the Texas case, the court abdicated its responsibility. These essential elements were present and a fundamental right, the well-established right to an abortion, was threatened. The “decision,” although there was no decision, was 5-4 with Clarence Thomas and the three Trump appointed justices (Gorsuch, Kavanaugh, and Coney Barrett) joining Alito in denying relief in an unsigned opinion. We shouldn’t be surprised that two conservative Catholics (Kavanaugh and Coney Barrett) on the record as opposing Roe v. Wade allowed the anti-abortion law to remain in force. Nor should we be surprised they were joined by Clarence Thomas whose decisions have, since his confirmation in 1991, been grievance-driven to punish those who challenged his fitness to serve on the court. But, why didn’t the court agree to hear oral arguments on the merits and settle the constitutional issue?

In my opinion, there is only one answer… they wanted to uphold the law without having to expressly take a stand in opposition to Roe. Cases like this one are dealt with summarily and are referred to as being on the “shadow docket,” where an unsigned summary ruling is rendered on an important issue without a formal hearing, oral argument, or filed briefs. Supreme Court law is being made in the shadows.

I’m outraged that the women of Texas are now without reproductive health care because 100+ white men, 8 white women, plus four anti-abortion justices and Clarence Thomas felt entitled to impose their beliefs on an already embattled segment of their fellow Americans. Shame on them. More cowardice. Not unlike the Republicans in Congress who voted against a non-partisan commission to investigate the insurrection on January 6, 2021.

The U.S. Constitution is a document without parallel. It was drafted by men (yes, only men) who saw the dangers of tyranny by the majority. They created a bi-cameral legislature to equalize representation and a judicial system with layers of review. They did not foresee partisan gerrymandering that would deny the majority its voice or a produce court driven by partisan political ideology. The Founders counted on representatives and judges who would govern in good faith for the greater good, even if they supported different ideologies. I believe they would be outraged by the mean-spirited partisanship in evidence today.

Martin Luther King believed “the arc of the moral universe is long, but it bends toward justice.” I no longer believe that. The evil geniuses who drafted the Texas law won’t prevail in the end. The court will hear the case on the merits eventually and most scholars believe it will be overturned. In the meantime, Texas women will suffer.

In 1976 two women, Jennifer Wear and King Holmes, from the University of Washington, wrote a book called How to Have Intercourse Without Getting Screwed. The title gets your attention but the book’s purpose was to assist women navigating reproductive healthcare systems in various states. The fight is not over. Until it is the women of Texas will need an updated version of Wear/Holmes book. Like healthcare writ large, abortion is primarily governed by state not federal law, but it is important to protect and defend those hard won basic rights.

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