united-states us-supreme-court abortion texas-sb8
Why can&#39;t the Supreme court overturn Texas abortion law if abortion during the first semester is a constitutional right?
<blockquote>
<p>Texas designed its law in a unique way to allow abortions to be banned
without a court intervening, by authorizing any private citizen to sue
doctors and clinics who perform abortions on women more than
approximately six weeks after a woman’s last period. The Texas law
also allows any private citizen to sue people who assist women in
obtaining an abortion after that time period.</p>
</blockquote>
<p><a href="https://www.nbcnews.com/think/opinion/supreme-court-vote-texas-abortion-law-allows-ban-without-mentioning-ncna1278401" rel="nofollow noreferrer">https://www.nbcnews.com/think/opinion/supreme-court-vote-texas-abortion-law-allows-ban-without-mentioning-ncna1278401</a></p>
<p>A woman has a federal constitutional right to obtain an abortion during the first stage and the Texas law effectively prevents women from obtaining abortion as clinics will be unable to run the  financial and other risks that come from waiting for a private person to sue them under the Texas law depriving them from their constitutional rights.</p>
<p>Why can't the Supreme Court intervene?</p>

<p>A good starting point would be the <a href="https://www.supremecourt.gov/opinions/20pdf/21a24_8759.pdf" rel="nofollow noreferrer">SCOTUS opinion</a>, or everything on <a href="https://www.scotusblog.com/case-files/cases/whole-womans-health-v-austin-reeve-jackson/" rel="nofollow noreferrer">SCOTUSblog</a>, especially the <a href="https://www.supremecourt.gov/DocketPDF/21/21A24/189841/20210830120232143_WWH%20v%20Jackson%20-%20emergency%20application%20with%20appendix.pdf" rel="nofollow noreferrer">application for injunctive relief</a> filed on Aug. 30. There is a long sequence of petitions and orders which ask the courts either to issue an injunction preventing the law from taking force, or to vacate an administrative stay of proceedings by the lower court regarding petitioner's challenge. The lower court denied the petitions, therefore petitioners turn to SCOTUS to get an injunction against the law.</p>
<p>Then you can turn to the SCOTUS opinion to see what the reasons were, for and against the petition. The majority position is that</p>
<blockquote>
<p>an  applicant  must  carry  the  burden  of  making  a “strong
showing” that it is “likely to succeed on the merits,” that it will be
“irreparably injured absent a stay,” that the  balance  of  the
equities  favors  it,  and  that  a  stay  is  consistent with the
public interest.</p>
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<p>The majority concludes that</p>
<blockquote>
<p>The  applicants now before us have raised serious questions regarding
the constitutionality of the Texas law at issue.  But  their
application also presents complex and novel antecedent  procedural
questions  <strong>on  which  they  have  not  carried   their burden</strong>.</p>
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<p>Immediately after this the court comments that</p>
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<p>federal courts enjoy the power  to  enjoin  individuals  tasked  with
enforcing  laws,  not  the   laws  themselves.</p>
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<p>However,</p>
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<p>it is unclear whether the named  defendants  in  this  lawsuit  can
or  will  seek  to  enforce  the   Texas  law  against  the
applicants  in  a  manner  that  might   permit our intervention</p>
</blockquote>
<p>The law states that</p>
<blockquote>
<p>Any person, other than an officer or employee of a state or local
governmental entity in this state, may bring a civil action against
any person who</p>
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<p>and the named respondents (government workers of various sorts) all appear to be precluded from filing an action – thus an injunction against the judge is superfluous since he cannot file a lawsuit anyhow. It is also unclear whether SCOTUS</p>
<blockquote>
<p>can issue an injunction against state judges asked to decide  a
lawsuit under Texas’s law.</p>
</blockquote>
<p>When SCOTUS say &quot;it is unclear&quot; in this context, they mean that petitions did not adequately demonstrate that the court can in fact issue such an injunction.</p>
<p>It's not that SCOTUS cannot decide such matters after extensive consideration of the facts / arguments and discussion, it's that the standards for an emergency action require something that the court found lacking in the petition:</p>
<blockquote>
<p>we  cannot say the applicants have met their burden to prevail  in an
injunction or stay application.  In reaching this conclusion, we
stress that we do not purport to resolve definitively any
jurisdictional or substantive claim in the applicants’ lawsuit.</p>
</blockquote>
