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Tue Sep 14, 2021, 02:22 PM

Will the DOJ manage to protect our constitutional rights now that the Supreme Court refuses to?

Simona Grossi, opinion contributor

In May, Texas Gov. Greg Abbott signed into law the Texas Fetal Heartbeat Act, which seeks to overrule Roe v. Wade by prohibiting abortion after six weeks of pregnancy. The law became effective on Sept. 1. In July, a group of healthcare service providers - Whole Woman's Health and others - challenged the law before a federal court in Texas, suing those who would enforce it, that is, judges, clerks, and a private individual, Mr. Dickson. The defendants managed to stop the litigation, and the plaintiffs filed an emergency application to the U.S. Supreme Court seeking to continue their litigation in trial court to have the Texas law declared unconstitutional. On Sept. 1, at 11:58 p.m. Eastern time, in a one-paragraph, unsigned order, the Supreme Court denied the application through an astute gambit.

Chief Justice Roberts and Justices Breyer, Sotomayor, and Kagan filed separate dissenting opinions. In her dissent, Justice Sotomayor described the Court's order as "stunning," one in which the justices in the majority "have opted to bury their heads in the sand." Justice Sotomayor viewed the court's failure to act as a dangerous approval of "a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny."

To me, though, the court's order does more than that. It shows that the court will not protect our constitutional system when five of its members prefer to advance their own political agenda, allowing a flagrantly unconstitutional law to stand.

Typically, the individuals would sue the state officials who are responsible to enforce the law, to enjoin the enforcement and prevent or stop the violation of their constitutional rights. But here, Texas has excluded public enforcement and created a bounty system to encourage private enforcement. Under the law, only private individuals can sue - and they will be rewarded for doing so if they win by getting attorney's fees and no less than $10,000 in statutory damages for each abortion that the defendant performs, induces, aides or abets in violation of the law. Thus, it seems, someone challenging the Texas law as unconstitutional must sue a private individual who has sued or threatened to sue a doctor, healthcare provider, or anyone else who has violated the law. Hence, for such a suit to happen, someone must be willing to violate the Texas law and face the risk of innumerable lawsuits filed by all those individuals in Texas (and outside Texas) ready to sue to get their reward, a quite appealing opportunity for plaintiffs' class action firms.

https://www.msn.com/en-us/news/politics/will-the-doj-manage-to-protect-our-constitutional-rights-now-that-the-supreme-court-refuses-to/ar-AAOr9ip

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