Opinion | On Abortion and Covid-19, a Court Goes Rogue – The New York Times

The Fifth Circuits aggressive behavior in the vaccine case almost pales in comparison to what the court has done with abortion. In September the court rejected pleas from abortion providers in Texas to put the vigilante law Senate Bill 8 on hold to enable the clinics to litigate their case against it. The clinics emergency motion came before the same three judges who later ruled in the OSHA vaccine case.

The panels 19-page unsigned opinion in the case, Whole Womans Health v. Jackson, analyzed the obstacles the private plaintiffs faced in finding someone to sue over a law that purports to insulate all state officials from responsibility for administering a flagrantly unconstitutional ban on abortion after only six weeks of pregnancy. In rejecting the clinics motion, the panel declared primly that we must respect the limits of our jurisdiction. The clinics claims against a Texas state court judge and court clerk were specious, the court said.

The federal government then brought its own suit against Texas on the completely different theory that S.B. 8 was an affront to the sovereign interests of the United States and to the supremacy of federal law. A federal district judge, Robert Pitman, granted the preliminary injunction the federal government sought in a 113-page opinion that meticulously dismantled all of the states objections to the courts jurisdiction.

A different Fifth Circuit three-judge panel, by a vote of 2 to 1, promptly blocked Judge Pitmans order, explaining in a single sentence of a single paragraph that it was granting the states request for the stay for the reasons stated in Whole Womans Health v. Jackson. How could this be? The reasons stated in rejecting the private plaintiffs case had nothing to do with the federal governments suit, as the Solicitor Generals Office told the Supreme Court in its application to vacate the Fifth Circuits stay.

Those reasons do not apply to this very different suit, the acting solicitor general, Brian Fletcher, explained to the justices. Sovereign immunity forced the private plaintiffs in Whole Womans Health to sue individual state officers, and this court and the Fifth Circuit questioned whether those officers were proper defendants. This suit does not raise those questions because it was brought against the state of Texas itself, and the state has no immunity from suits by the United States. The Fifth Circuit ignored that distinction, which refutes the courts only justification for the stay. When the justices refused to lift the stay, instead setting the case for the argument that took place on Nov. 1, Justice Sonia Sotomayor echoed the solicitor generals point in a powerful dissenting opinion.

There is no conceivable excuse for the Fifth Circuits failure to explain itself or for the Supreme Courts failure to call the court to account for its dereliction of duty. But so far, the Fifth Circuit is winning. S.B. 8 is still in effect.

Lets not forget that this is the same court that in 2018, in a challenge brought by an abortion provider, June Medical Services, upheld the Louisiana law that required doctors who provide abortions to have admitting privileges at nearby hospitals. It was bad enough that this was a requirement that, in the political and religious climate in Louisiana, doctors could not meet. What was really wrong with the Fifth Circuits decision was that two years earlier, in Whole Womans Health v. Hellerstedt, the Supreme Court invalidated an identical law from Texas. In that case, the Supreme Court overturned a Fifth Circuit decision concluding that the admitting privileges requirement, despite having resulted in the closing of nearly half the abortion clinics in Texas, did not impose an undue burden on womens access to abortion.

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Opinion | On Abortion and Covid-19, a Court Goes Rogue - The New York Times