In a rare midnight ruling, the Supreme Court of the United States refused to stop the nation’s most restrictive abortion ban from going into effect in Texas. The left and pro-choice folk, in general, are outraged, but the High Court has spoken – and few things can change that. President Joe Biden has promised a “whole-of-government” response to this decision. So with the awesome might of the federal government behind him, what can Biden do? Well, he can waste a whole lot of tax dollars on investigations and make a bunch of noise. That’s about it.
They Call it Supreme for a Reason
In the good old U.S. of A, each state legislature gets to establish its own law. Once this happens, there are a very limited number of ways to undo it:
- The state legislature passes a new law that counters the old.
- The U.S. Congress passes – and the president signs – a national law that overrides the state law.
- The courts shut it down.
Option one, of course, is only included as a technicality – what legislature would pass a law only to immediately repeal it? For the vast majority of abortion restrictions that have been passed into law at the state level, the immediate court challenges are what most often spell doom. Thanks largely to the precedent set in the 1973 Supreme Court ruling in Roe v. Wade, most comprehensive abortion bans have withered in the face of judicial review.
But that’s not what happened this time.
Biden can complain all he wants, but, as Liberty Nation Legal Affairs Editor Scott D. Cosenza, Esq. explained, “the federal courts have not agreed with him.” Now that the Supreme Court has weighed in, the argument – from the judicial angle, in any case – may be over. Chief Justice John Roberts was clear in stating the refusal to grant an emergency injunction against the law “is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.” However, the SCOTUS ruling may prove a bad omen for those wishing to further challenge the abortion ban.
An Act of Congress
There’s an old saying about things that are nigh impossible to accomplish: It would take an act of Congress. Sadly, acts of Congress aren’t as rare as that expression makes it seem – but there’s some truth in it, nonetheless. The only other option for the “federal government” to overpower the Texas lawmakers would be for Congress to pass a federal law granting nationwide abortion rights. Speaker of the House Nancy Pelosi (D-CA) has pledged to bring such legislation, and the president would surely sign it should it ever hit his desk, but it’s all for show. There just aren’t enough pro-abortion senators for such a bill to clear the upper chamber – and it’s unlikely to inspire unity in the Democrat ranks to bust the filibuster. Sen. Joe Manchin (D-WV), for example, may get a pass in 2022, but he’ll have to face the voters again in 2024. There isn’t a single Democrat in national or state constitutional office in West Virginia other than Manchin, and he didn’t get where he is by siding with progressives. In fact, he ran as a Democrat for Life of America candidate – which means he is, or at least that he claims to be, anti-abortion.
Let’s call the legislative route dead-end number two. Even an attempt at court packing seems unlikely to succeed, though that may be the closest Biden can expect to get.
Sound and Fury – and Waste
So what’s left for Biden and his “whole-of-government” response? Not a lot. He can do precisely what he has promised: Task executive branch agencies with investigating options. What can those federal agencies do? Again, very little. It may be that Biden can create some federal program to help those desiring abortions to relocate out of the Lone Star State – or maybe he can put some federal funding at risk. Short of that, there’s precious little power the U.S. executive branch has over the state of Texas. For all his bluster, he’ll come up with bupkis in the end – and we the people will have borne the expense of it all.
Read more from James Fite.