The Texas Heartbeat Act, SCOTUS, and confusion

The dust continues to fly from a recent action (or inaction) by the Supreme Court of the United States. Shortly before midnight on 1 September 2021, the Court declined to stop the Texas Heartbeat Act from going into force and effect. Five Justices carried the day against the other four. Since then, scarcely anyone, commenting on the ruling, has “gotten it right,” likely because they haven’t read the law itself. CNAV has read the law, and its text will likely surprise everyone.

What the Texas Heartbeat Act actually says

The Texas Heartbeat Act (SB 8) passed the Texas Legislature on May 19, during the regular session. By default, the law took effect on 1 September. But this did not happen before abortion activists tried to block it in federal court.

The law makes a simple prohibition. No physician or other practitioner may perform or induce an abortion:

1. Without first trying to find a fetal heartbeat by a recognized test, usually ultrasound, and especially
2. If, having performed such a test, they find a heartbeat.

Not, that is, unless the pregnant woman is in a medical emergency that will not admit of delay. Anyone performing or inducing an abortion in such an emergency must document the emergency – thoroughly.

Why “perform or induce abortion”? Because this law covers both surgical and medication abortions, including mifepristone (RU-486, Roussel-UCLAF).

But the Texas Heartbeat Act does not order or even allow State or county or other prosecutors to enforce it directly. In fact this law does not let a government prosecutor even threaten such action. Instead, any private citizen may sue either:

• The abortion provider who did the procedure,
• Any insurance provider who covered the cost, or
• Anyone else having a hand in an abortion after either finding a heartbeat or failing to test for one.

A citizen winning such a lawsuit may win:

• An injunction against the defendants, and
• At least $10,000 each instance, plus court costs and attorneys’ fees.

How the abortion lobby tried to stop it

In response, several groups of abortion providers, including Whole Woman’s Health, sued:

• A Texas judge (Austin Reeve Jackson, District Judge in Tyler, Smith County, Texas),
• His clerk or clerks,
• At least named anti-abortion activist, and
• The Attorney General of Texas,

seeking to stop any of them from trying, docketing, or bringing any such private-citizen lawsuit. Why they sued the Attorney General of Texas, CNAV will not speculate. Lawyers seem to have a habit of naming any defendant(s) they can. Better to name a defendant now and perhaps have a judge disallow their claim against that defendant, than not name him and then have to amend their complaint later.

The plaintiffs did not pick Judge Jackson by accident. He came to the District judgeship with the endorsements of Texas Right to Life and the Texas Homeschool Coalition. The other defendants (other than his clerk) seem to be prominent Texas pro-life activists. None of these people had ever said they already had ginned up operations to look for abortion providers to sue. One in fact signed an affidavit saying he would do no such thing.

The plaintiffs sought a federal injunction against this law, claiming an “undue burden on pregnant women.” Specifically they said most women don’t even realize they are pregnant until a fetal heartbeat is detectable. (Typically this occurs six weeks after the last menstrual period.)

What the courts have done thus far

Judge Jackson and his co-defendants first tried to get the federal district court to throw the case out. The court said no. So they went to the Fifth Circuit Court of Appeals, which:

• Granted their request to put all proceedings on hold, and
• Denied the plaintiffs’ request for an expedited judgment on the appeal.

That’s when the plaintiffs applied to the Supreme Court for an emergency injunction against the Texas Heartbeat Act. Justice Samuel J. Alito, who supervises the Fifth Circuit, refused to grant an injunction on his own authority. So the case came before the full Court. Nearly everyone, including radio commentator Erick-Woods Erickson, expected the Court to grant the injunction.

And the Court refused. In a one-paragraph opinion, they basically said, “Call us when you actually have a case pending under this new law.” But, as is usual in abortion cases, the court divided itself almost halfway. Alito, Barrett, Gorsuch, Kavanaugh, and Thomas JJ voted to deny the application. Roberts CJ and Breyer, Kagan, and Sotomayor JJ each wrote their own dissents.

Now that the Court has denied the application, the Texas Heartbeat Act is in full force and effect. As a result, at least one abortion provider has stopped doing abortions after six weeks. The case, and the defendants’ motion to dismiss, are still in the Fifth Circuit Court of Appeals.

Details of the Supreme Court’s opinion

The Court specifically found that:

1. Under the Texas Heartbeat Act, no State or lower-level employee may enforce the Act. (In fact the Act specifically forbids any “officer or employee of a state or local government entity” to bring an action under it. That would suggest that even someone who swings a pick-ax at a road work site may not file such a lawsuit in his capacity as a private citizen. The Act makes no distinction between law-enforcement and other agencies of government.)
2. No clear precedent exists to let the Supreme Court enjoin a State judge from deciding such a lawsuit.
3. The one private-citizen respondent (Mark Lee Dickson) filed an affidavit saying he was not ready to file such a lawsuit.

Therefore, said the Court, the plaintiff/applicants haven’t met their burden for getting such an injunction.

Chief Justice Roberts accused the Texas legislature of “avoid[ing] responsibility for its laws.” In other words, he does not like private citizen prosecutors.

Justice Breyer said it makes no difference to him whether the authority for enforcement of the law rests with one person, a small group, or the whole adult population. Here is the difference: without a lawsuit, the Court has nothing to enjoin.

Justice Kagan criticized the Court majority for its “hasty” review of “cursory party submissions.” But she gave no persuasive argument for why granting the injunction would be any more proper than denying it.

Sotomayor almost forgets she is a Justice

And then we come to Justice Sotomayor. Who might as well have stood up, taken a righteous deep breath, and ranted and raved and screamed at the top of her lungs. “Stunning!” “Flagrantly unconstitutional law!” “Bury their heads in the sand!” CNAV would not care to meet this woman in a dark alley, given her use of such language. Let it suffice that the language of her dissent is scarcely “Justicial.” And let no one speak again of disqualifying a Justicial candidate for lack of gravitas!

Lay commentary on the Texas Heartbeat Act

The commentaries CNAV has seen on social media echo the vituperation of Sotomayor J. One commenter speaks of encouraging people’s neighbors to “turn them in.” That might apply if they were going to State or local executive officers or staff. They’re not. Instead they are applying to a court – in other words, to a judicial, not an executive, officer.

Dick Morris gave the most shocking commentary thus far. He said the Supreme Court just let Nancy Pelosi keep her place as Speaker of the House and protected Democratic control of the Senate. In his “Lunch Alert” yesterday he foresaw legions of enraged women voting for pro-abortion candidates, nearly all of them Democrats.

Dr. Stephen Turley, with his usual humor, disagrees.

In public and private statements he said Dick Morris has (in this context) not moved beyond his 1990s perspective. He worked for Bill Clinton, who ran as a Democrat and governed, per Morris’ own advice, as a neutral. What Morris missed, according to Turley, is that today the people are against abortion, unlike in Clinton’s day. Furthermore, Turley cites new laws and executive actions in Hungary and elsewhere. Not only do these new laws curtail abortion, but they also directly facilitate marriage and childrearing. Last, and possibly most important, he observes that conservatives, not liberals, have almost all the children.

What should happen next

To repeat: the Texas Heartbeat Act relies on private actors, not State agents, to enforce it. CNAV earlier this year described certain ancillary commands in a hypothetical American Patriotic Militia.

One of these is the JAG Corps – the legal eagles. In this context, organizations like the National Pro-Life Alliance and Operation Rescue would carry out the “lawfare” operations. The responsibility, and the opportunity, to build cases against abortion industry actors, now falls to them. With a potential reward of ten thousand dollars each instance, plus attorney fees and court costs, they could run a self-funding campaign. The revenues would come from the bad actors themselves, not the Texas taxpayer.

Contrary to the objections of the Chief Justice and the Three Liberals, this Act does have a precedent. But one must look to the Bible, and specifically to the edict by King Ahasuerus that any Jew in his realm, coming under homicidal attack by another (even a Royal agent!), may defend himself with deadly force. Jews worldwide celebrate the anniversary of this edict, which they call Purim.

Inevitably another case will come to the Supreme Court, on appeal from the Texas judiciary. Therefore these “militia judge advocates for life” must prepare to argue their first few cases, not only before Texas judges but also before the Supreme Court of the United States. But this constitutes, not a hazard, but an opportunity. The time for hand-wringing has passed, at least in Texas. The time for action is at hand.