No case in recent months has created more news than the Mississippi abortion case, Dobbs v. Jackson Women’s Health Organizationwhose arguments the Supreme Court recently heard.
Commentators from all sides of the inherently contentious issue of abortion have, often with great smugness, expressed how, at least in their views, each of the judges will decide the case and how that decision will affect the two main opinions of the Yard in the area: Roe vs. Wade and Planned Parenthood of Southeastern Pa. c. Casey. We will probably have to wait months to know the result of Dobbsin which the State maintains that the quarterly scheme of deer must be cancelled.
I would argue that whatever the specific outcome of the case is, it is more likely to depend on how, if at all, Casey could be affected than it is when reversing Deer. But that’s for another time.
Today, however, the Court ruled on the case of Whole Woman’s Health v. Jacksonitself a subject of great controversy.
jackson stems from the court’s unusual grant of prejudgment certiorari to decide whether multiple abortion providers can sue pre-trial challenges to the application of Texas abortion law that prohibits physicians from knowingly performing abortions if they “detect a fetal heartbeat for the unborn child”, unless there has been a medical emergency occurring.
As any consumer of information probably knows, in addition to constructively banning abortions as early as six weeks after conception, Texas law had the unusual feature of not allowing state officials to enforce it, but rather to allow private civil actions to do so. (A lesser known fact is that the law follows Casey by allowing defendants in such lawsuits to defeat them by showing that holding them accountable would place an “undue burden” on women seeking abortions.)
The Court rejected cert. as short-sighted as the Biden administration’s petition challenging the Texas law. However, while diverging considerably in their opinions on the merits (essentially a conservative-liberal split with the Chief Justice somewhat in the middle), the Court dismissed various defendants against whom relief could not be obtained for various reasons. , but was unanimous in holding that petitioners may file a pre-enforcement challenge in federal court as a way, among other things, to test Texas law for compliance with the federal Constitution. Anyone sued under Texas law may raise state and federal constitutional arguments in their defense without limitation. Whether or not a state law says about a defense, applicable federal constitutional defenses are always available when properly asserted, citing U.S. Const., Art. VI.
What is the net of all this? Given the divided views revealed in the case, pessimists about the continued survival of deer and Casewill find little reason to alter their predictions. We probably won’t know until next year.
For now, we have a useful precedent for those who challenge certain types of laws as a pre-enforcement issue, an unusual remedy that may echo in other future constitutional cases. Justice Kavanaugh, in particular, noted during the oral argument of the jackson case that the Texas enforcement mechanism was an apparent evasion to circumvent typical enforcement methods and scrutiny.
Thus, the case presents itself at least as a realistic note that the Court will reject the artifice designed to prevent an orderly examination.