Legal experts say the Supreme Court acted on “political motives” in favor of Texas’s abortion ban


Supreme Court Judges Brett Kavanaugh and Amy Coney Barrett

Supreme Court Judges Brett Kavanaugh and Amy Coney Barrett arrive at the 59th Presidential Inauguration Ceremony on January 20, 2021. Pool photo via Jonathan Ernst / AP

  • Critics are digging into the Supreme Court’s recent decision to uphold Texas abortion law.

  • Legal experts said the criticism was justified. Some called the court’s actions “lawless.”

  • The court will consider the constitutionality of abortion in major cases this term.

  • See other articles on Insider’s business page..

The Supreme Court opened the door to a fierce backlash after a majority upheld last week’s ruling on strict Texas law prohibiting abortions after six weeks of gestation.

Critics, from President Joe Biden to advocacy leaders, have denied the court’s decision, claiming that they are ignoring the constitutional right to abortion established under the Roe v. Wade case nearly 50 years ago. ing. The Supreme Court’s decision, along with other major abortion decisions since then, protects the right to abortion before pregnancy or until the time when the foetation can survive outside the womb. This is what most experts say occurs about 24 weeks of pregnancy.

Court’s refusal to block Texas law “unleashes unconstitutional turmoil,” Biden Said last thursday,After several hours The decision was inherited. The Justice Department filed a proceeding this week Trying to prevent an abortion ban for six weeks.

“This is the biggest warning ever that the right to abortion in Texas and across the country is in serious danger,” said Alexis McGill Johnson, chairman and chief executive officer of the American Association of Planning and Parents. Says. Said in response to the ruling.

Some legal experts have also criticized it. They claim that the Supreme Court judge, who was intended to act as an interpreter and applicator of the law, instead acted as a party member in a Texas decision.

“Our court is bankrupt, that is, it’s a political system rather than a legal system,” Barry McDonald, a professor of law at Pepperdine University’s Graduate School of Law, told insiders, adding that Texas law is “significantly unconstitutional.” rice field. “”

The Texas decision was made through a lesser-known process called “shadow docket.”

At midnight on September 1, Texas law was enforced banning abortion after a six-week pregnancy, when many do not know they are still pregnant. The law does not initiate rape or incest cases and recommends that civilians, not state officials, be forced into a ban.

It was 24 hours later that the Supreme Court responded to a request to block the law from abortion providers in the state. NS Court dismissed appeal, And conveyed its 5-4 opinions through a lesser-known process called “shadow docket”.

Shadow docket, term Built by William Baude, a law professor at the University of Chicago In 2015, it refers to the scope of decisions made by the Supreme Court and does not match the usual routine. Unlike the long process that courts use to determine 60-70 major proceedings per semester, these shadow docket decisions are usually short, unsigned, and in the case of Texas decisions. As such, it may be held before oral proceedings are held in court.

Supreme Court Building

The US Supreme Court Building in Washington, DC can be seen at sunset. Associated Press Photo / ManuelBalce Ceneta, File

Traditionally, courts use shadow dockets for procedural purposes Approve or reject the application for emergency measures It’s usually a small, indisputable case. However, in recent years, the use of shadow dockets by courts has sparked anger at what critics have described as increasingly partisan and insubstantial decisions, including the current Texas abortion case.

“In an abortion case, it’s not just short, it’s just a jumble of nonsense,” said Richard Pierce, a professor at George Washington University Law School. “It’s inconsistent. Reasoning doesn’t make any sense.”

The majority of the court, In an unsigned opinion, He argued that the ruling was technical and not yet based on the substance of Texas law that could be legally challenged.

“In particular, this order is not based on the constitutional conclusions of Texas law and does not limit other procedurally appropriate objections to Texas law, including Texas courts,” the majority wrote.

However, experts disagree with the court’s decision. “It’s an illegal act,” Pierce said.

“It’s very worrisome to me,” he added. “For me, the court must not take action without giving all the reasons, and must not tell us why it acted that way, and the court must not tell us the shadow docket. We have not done this in these cases called. “

“That’s great,” McDonald’s said of the court’s ruling. “It only adds to this perception that courts are acting from political motives, as opposed to the impartial and objective application of the principles of law.”

“I’m surprised” if the Supreme Court chooses to overthrow Law

It is unlikely that the Supreme Court will immediately consider the benefits of Texas law. However, nine judges will consider the constitutionality of this term’s abortion in a major case that could threaten the Roe v. Wade case. In this case, Dobbs vs. Jackson Women’s Health Organization is involved in Mississippi law prohibiting almost all abortions after 15 weeks of gestation.

According to experts, it is unpredictable how the judge will decide the case. Conservative judges Samuel Alito and Clarence Thomas, along with three presidents of President Donald Trump, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, ban Texas for six weeks. I voted to support it.

Neil Gorsuch

Judge Neil Gorsuch will speak in the East Room of the White House in Washington on Tuesday, January 31, 2017, after President Donald Trump announces Gorsuch as a candidate for the Supreme Court. Associated Press Photo / Carolyn Kaster

Still, it is difficult to determine whether these judges will go to the point of destroying the Supreme Court’s case dating back to 1973.

“I would be surprised if even the five hardcore conservatives in court would be willing to overthrow Law and Casey in the Mississippi proceedings,” McDonald said in a 1992 Supreme Court decision, plan. Said referring to the parent-child relationship vs. Casey. ..

“But they may shift goalpost viability early in pregnancy,” he continued.

“There is no doubt that six of these judges, six conservatives, did not sign the Roe v. Wade opinion and opposed the Roe v. Wade opinion,” Pierce said. “But that’s not the same as saying they’re ready to dismiss it. Courts are reluctant to dismiss a long-standing precedent of that height for a number of good reasons. “

The court’s decision will be made next summer. However, in the meantime Many Republican-led states Working to enact its own version of Texas’ six-week ban to limit access to abortion across the country.Texans In search of abortion I’m already trying to book an out-of-state procedure.

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