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Texas Archives – Concerned Women for America

Supreme Court Releases Opinions in Texas Abortion Law Cases

By | CWA of Texas, Dobbs, LBB, Legal, News and Events, Sanctity of Life, SCOTUS | No Comments

As we discussed recently, the state of Texas presented a novel problem to the United States Supreme Court by enacting a law prohibiting abortions after a heartbeat is detected, but giving the right of enforcement to private citizens and not to any state official. Today, the Court handed down its opinion dismissing most of the claims but preserving the challenge going forward. Here is a short summary.

When abortionists sought to challenge S. B. 8, the Texas Heartbeat Act, they really had no one to sue because no state official is charged with its enforcement and no private citizen had sued. Still, they tried to push the legal envelope by suing a whole host of people, including state judges or state law clerks, the attorney general, some licensing officials, and even a potential private citizen defendant in an effort to enjoin the law and prevent it from going into effect.

The United States also tried to intervene, given its radical pro-abortion stance under President Joe Biden. That was the easy part (United States v. Texas). Its claim was summarily dismissed by the Court (8-1), as expected, with only Justice Sotomayor dissenting. The United States simply has no business interfering with this state law and basically seeking an unprecedented injunction against all persons in the country. Their effort would break with the most fundamental principles of federalism in our Constitution.

The more interesting challenge (Whole Woman’s Health v. Jackson) is a bit more complicated. In its opinion, the Court wanted to stress first what it was not deciding. “In this preliminary posture, the ultimate merits question, whether S. B. 8 is consistent with the Federal Constitution, is not before the Court,” said Justice Neil Gorsuch who wrote the majority opinion.

He summarized, “The Court concludes that the petitioners may pursue a pre-enforcement challenge against certain of the named defendants but not others.” So, who can be sued? Well, not court officials: “Under the doctrine of sovereign immunity, named defendants Penny Clarkston (a state-court clerk) and Austin Jackson (a state court judge) should be dismissed.” Not the attorney general: “Texas Attorney General Paxton should be dismissed.” And not a private citizen prematurely (an affidavit showed he had no intention to sue): “The sole private defendant, Mr. Dickson, should be dismissed.”

But the Court leaves open “other defendants (Stephen Carlton, Katherine Thomas, Allison Benz, and Cecile Young), each of whom is an executive licensing official who may or must take enforcement actions against the petitioners if the petitioners violate the terms of Texas’s Health and Safety Code, including S. B. 8. Eight Members of the Court hold that sovereign immunity does not bar a pre-enforcement challenge to S. B. 8 against these defendants.”

Justice Clarence Thomas dissented from this last pronouncement, saying he would have dismissed the case against “all respondents, including the four licensing officials.”

It also declared “petitioners may bring a pre-enforcement challenge in federal court as one means to test S. B. 8’s compliance with the Federal Constitution. Other pre-enforcement challenges are possible too; one such case is ongoing in state court in which the plaintiffs have raised both federal and state constitutional claims against S. B. 8. Any individual sued under S. B. 8 may raise state and federal constitutional arguments in his or her defense without limitation.”

So, the bottom line is that the challenge to this law will continue as to the allowed defendants.

It is important to note that Chief Justice Roberts, joined by Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor, expressed considerable frustration with the law in concurring in part and dissenting in part. He wrote, “Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review.”

It seems clear the Chief views the law as an attack on the Court itself. “The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings … Indeed, ‘[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.’[] The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake,” he wrote.

We will have to wait for a further challenge to see where the more conservative justices land on the issue.

As I mentioned before, this problem is of the Court’s own making, by injecting itself into the political abortion debate. Texas is simply trying to protect life, which most of its citizens demand, and trying to work within the arbitrary and dubious parameters the Supreme Court has set up. The best way for the Court to guard its legitimacy would be to reverse Roe and Casey in the Dobbs case, and then states like Texas would be free to protect life, without having to come up with innovative ideas to appease the Supreme Court’s personal preferences.

Texas Abortion Law Cases at the Supreme Court—What was it All About?

By | Case Vault, Legal, News and Events, Texas | No Comments

On Monday (November 1, 2021), the Supreme Court of the United States (SCOTUS) heard oral arguments in two cases (Whole Woman’s Health v. Jackson, and United States v. Texas) challenging the Texas Heartbeat Act (S.B. 8). The law prohibits most abortions after a heartbeat can be detected through an ultrasound.

Other laws around the country have tried to do this only to run afoul of SCOTUS’ arbitrary viability line which makes a law unconstitutional in the Court’s view.

The Texas Heartbeat Act is unique because it explicitly prohibits any state law enforcement from enforcing the law. Instead, it allows any private citizen to bring a civil suit against anyone who performs or helps someone obtain an illegal abortion.

Because of this, abortionists cannot simply sue state officials, as they usually do to prevent the implementation of this law. And that is the question before the Court in Whole Woman’s Health v. Jackson, “whether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.”

This has confused many people because popular media outlets love to fixate on the “war on women” and the abortion narrative. But I hope you can see by the question presented how the issue before the Court is not really about abortion. We have a fundamental disagreement about abortion being a “constitutional right,” obviously. It is not. Still, the legal question, as presented, could be about any other constitutional right.

This is why even some of the more constitutionally faithful justices expressed concerns about the law. Justice Brett Kavanaugh asked about an amicus brief filed by the Firearms Policy Coalition that argued that a similar law would be used against Second Amendment rights in liberal states. He said, “[I]t could be free speech rights. It could be free exercise of religion rights.  It could be Second Amendment rights. If this position is accepted here, the theory of the amicus brief is that it can be easily replicated in other states that disfavor other constitutional rights.”

Justice Clarence Thomas asked about the concern that those bringing the suit have apparently suffered no injury, even though they will be awarded monetary relief. “[U]sually, when you think of traditional torts, there is a duty, there’s an injury to the individual. It’s a private matter. There is no requirement here that there be an injury to the plaintiff.”  To this, the Texas Solicitor General Judd Stone rightfully answered that the Texas Supreme Court does, in fact, require an injury in fact, even if none is explicitly asserted in the text of the law. But Justice Thomas struggled to find the injury, “So what would that injury be in this — under S.B. 8, if it’s an injury in fact?”

Those attacking the law had serious difficulty making their case, too. SCOTUS has strong precedent which restricts a federal court’s power to enjoin state judges. That is why the pro-abortion side sought to enjoin state law clerks. However, this seemed artificial and unenforceable ultimately. Justice Samuel Alito expressed the skepticism this way:

“[A] clerk performs a ministerial function. Somebody shows up with a complaint, wants to file a complaint, and assuming the formal requirements are met, the clerk files the complaint. The clerk doesn’t have the authority to say, you can’t file this complaint because it’s a bad complaint. I mean, what if the judge, the presiding judge in a particular jurisdiction, said, okay, fine, you don’t want the clerks filing these things, if anybody shows up with an S.B. 8 complaint, call me and I’ll docket it myself? Then what?”

In United States v. Texas, the question was related, but it had to do with the federal government’s power to obtain injunctive or declaratory relief against state officials to stop the enforcement of a law, like the Texas Heartbeat Act. And if the effort of the Texas abortionists to obtain such a relief is difficult, this one seems even more problematic under the federalism principles embodied in the U.S. Constitution.

Justice Neil Gorsuch stressed the unprecedented nature of the United States’ request by pointing out it would be the first time in the nation’s history that the Court would grant such a request:

Justice Gorsuch: “General, are you aware of a precedent that permits an injunction against all persons in the country or the world, the cosmos, who bring suit?

U.S. Solicitor General Elizabeth Prelogar: No, Justice Gorsuch.

There are novel legal concepts to consider in both these cases for sure, but ultimately this is a problem of SCOTUS’ own making by its underlying, unconstitutional overreach when it comes to abortion. Texas and other states simply continue to try to find ways to save babies within the limits imposed by law. The Texas Heartbeat Act is said to have been saving 150 babies a day, thousands by now. And that is a good thing, no matter how you look at it.

That is why Concerned Women for America (CWA) stood with the people of Texas and Attorney General Ken Paxton, who has been a champion for life, on the steps of the Supreme Court on the day of oral arguments. And we will continue to do so until the day the Court acknowledges the error of its ways and restores justice for the unborn. We are praying that day is very close.

Pro-Abortion Judge Undermines Law to Protect “the Precious”

By | News and Events, Press Releases, Sanctity of Life | No Comments

For Immediate Release
October 7, 2021

Contact: Jacklyn Washington
[email protected]

Washington, D.C. – Penny Nance, President and CEO of Concerned Women for America (CWA), the largest public policy organization for women in the nation, had this to say after U.S. District Court Judge Robert Pitman granted the Biden Administration’s request for a preliminary injunction blocking the Texas Heartbeat Act (S.B. 8):

“Pro-abortion judicial activists cannot help themselves. You can almost hear Gollum’s voice protecting his “precious” as Judge Pitman called this law, duly enacted by the democratic process with the support of the overwhelming majority of Texans, an ‘offensive deprivation of such an important right.’ So, he does what even the United States Supreme Court refused to do and frustrates the will of ‘we the people’ to force his preferred policy views unto the people of Texas.

“What is lost in all the legal jargon is that Judge Pitman’s blinding hubris will result in the death of the more than 100 babies a day that were being saved by this law. We think of the thousands of women who will experience that “grief more anguished and sorrow more profound,” which Justice Kennedy acknowledges in Carhart is experienced by women who regret their abortion.

“That is what motivates CWA activists and the greater pro-life community. It is hard for pro-abortion radicals to comprehend, but we are fighting to save lives and protect women from a great evil. We will not be deterred.

“The days of callous, unrestricted abortion promotion in America are over. The millions that supported the Texas Heartbeat bill, from both sides of the aisle, will continue to fight. Most Americans want to ban late-term abortions and place considerable restrictions on them during the first trimester.

“The science is on our side, and no pro-abortion judicial activist can stand in the way of it. The future is pro-life.”

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Concerned Women for America is the nation’s largest public policy women’s organization with a rich history of over 40 years.

Penny Nance Defends Texas Abortion Bill to Fox News

By | Media, News and Events | No Comments

Concerned Women for America’s CEO and President, Penny Nance, was quoted in Fox News today defending Texas’ heartbeat bill. “The dramatic, angry, and partisan coverage of Texas’ new heartbeat law is very telling and unfortunately, not at all surprising,” she said. “This law was properly debated and passed with bi-partisan support by democratically elected lawmakers in the state of Texas. Texans want this law.”

“Leftists and media outlets are angered by the Supreme Court’s refusal to play interference and act as judicial activists. We are very thankful to have a Supreme Court that understands its role and refuses to be manipulated by charged emotional public pressure.”

To read the full article, click here.

Conservative Women Celebrate Saving Babies in Texas

By | News and Events, Sanctity of Life | No Comments

FOR IMMEDIATE RELEASE
September 2, 2021

Contact: Jacklyn Washington
202-748-3501
[email protected]

Conservative Women Celebrate Saving Babies in Texas

Washington, D.C. – Penny Nance, CEO and President of Concerned Women for America (CWA), the largest public policy organization for women in the nation, had this to say on the news of the United States Supreme Court’s denial of attempts to stop the Texas Heartbeat Law:

“It is telling to see the abortion industry’s angry reaction to the Supreme Court’s refusal to play interference between the Left’s radical ideas and the American people. Texas’ heartbeat law was properly debated and passed with bi-partisan support. Texas women want this law.

“CWA of Texas worked hard to see it passed. The other side had ample opportunity to convince the public of their views. But they lost. It is as simple as that.

“Now, as usual, they seek for judicial activists to do for them what they couldn’t do through the proper legislative process. Since 1973 the militant left has used the courts to impose their fringe views of abortion at any time, for any reason, any number, and all paid for by the taxpayers of America. Those days are over. We are thankful for a Supreme Court that knows its role and refuses to be manipulated in this way, letting the democratic process continue instead.

“Bottom line, babies are being saved in Texas today. We know that makes for a rainy day for the Left, but most Americans rejoice. That’s the headline.”

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Concerned Women for America is the nation’s largest public policy women’s organization with a rich history of over 40 years.

What did the Supreme Court Do in the Challenge Against Texas Heartbeat Law?

By | LBB, Legal, News and Events, Sanctity of Life, SCOTUS, Texas | No Comments

The radical left and its media enablers are going berserk over the United States Supreme Court’s denial of an application for injunctive relief to stop Texas’s Heartbeat Law from going into effect. The Court simply refused to act in an activist manner and allowed the process to work as it was constitutionally envisioned.

Anyone seeking the Court to take such an extreme action that would frustrate the democratic process in this manner needs a “strong showing” that they are “likely to succeed on the merits” of the case. The pro-abortion side failed to meet that heavy burden.

Though they are fixated on Roe v. Wade, this case presents “complex and novel antecedent procedural questions on which they have not carried their burden.”

To put it simply, the Texas law is not being enforced by state officials, which the pro-abortion side is used to suing in their official capacity, given the fact that they are usually charged with enforcing the law. Not here. This law does not charge any agency or official with its enforcement. Instead, it gives private citizens the right to sue if the law is violated in the future.

The Court then, making no judgment on merits of the case, has refused to enjoin the law (meaning stopping it from going into effect) until there is an actual case or controversy with a proper defendant in order for the courts to assess it in the proper context.

The Court concluded: “This order 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.”

Such limited action shows the Court is acting under the sort of judicial restraint envisioned by the constitutional structure, instead of as a super legislature constantly interfering and frustrating the democratic process.

It is discouraging that Chief Justice Roberts joined Justices Breyer, Sotomayor, and Kagan to dissent from the decision. The Chief Justice recognizes the complex nature of the procedural question presented, saying, “We are at this point asked to resolve these novel questions—at least preliminarily—in the first instance, in the course of two days, without the benefit of consideration by the District Court or Court of Appeals.” But he would actually enjoin the law, frustrating the will of the millions of Texans who helped enact it.  This fits a pattern we have seen from the Chief Justice before, where he seems to worry about public opinion in an unhealthy way, taking steps in every major case to protect what he perceives as the “legitimacy” and independence of the Court.

Not surprisingly, the liberal side of the Court, Justices Breyer, Sotomayor, and Kagan, wrote separately, eager to project that they are ready to act on behalf of the pro-abortion side. No need for them to worry about the legitimacy of the Court. That seems to always cut one way.

We are thankful for Justices Thomas, Alito, Gorsuch, Kavanaugh and Barrett for their unwavering commitment to the law and showing the proper judicial restraint in such a politically charged area of law. That’s where it counts.

Calls Needed on Texas End-of-Life Directive Bill

By | Texas | No Comments

SB-2089, a bill relating to advance directives, has been placed on the intent calendar and is expected to be debated in the Texas Senate in the next few days. This pro-life bill respects the wishes of the patient and patient’s family when advanced directives for end of life care have been made.  Currently, if a dispute arises between the hospital, the doctors, and the family about life-sustaining measures, the hospital and doctors convene an ethics committee. If the committee decides in opposition to the family, the family has ten days to seek medical care for the patient in another facility before the hospital and doctors can remove life-sustaining care.  This bill expands the transfer time until another facility can be arranged.  Here is a portion of the bill:

SECTION 2.The purpose of this Act is to protect the right of patients and their families to decide whether and under what circumstances to choose or reject life-sustaining treatment. This Act amends the applicable provisions of the Advance Directives Act

(Chapter 166, Health and Safety Code) to ensure that, when an attending physician is unwilling to respect a patient’s advance directive or a patient’s or family’s decision to choose the treatment necessary to prevent the patient’s death, life-sustaining medical treatment will be provided until the patient can be transferred to a health care provider willing to honor the directive or treatment decision.

Take Action!

  1. Please call your state Senator and ask him or her to vote FOR SB 2089.  Your Senator’s telephone number is 512-463-01xx. The two x’s are your Texas Senate District’s number.  For example:  Sen. Hughes number is:  512-463-0101. Click here to locate your state senator. Type in your address, press Find, and then look for Texas Senate District in the left panel. Be sure to let them know you are a member of Concerned Women for America of Texas.
  2. Please send this alert to family and friends.

Pray that those who care for our citizens in end-of-life situations will recognize the sanctity of life and honor the plans and wishes of the patient as they face their eternal home.  Psalm 116:15 says, “Precious in the sight of the Lord is the death of His Godly ones.”

Ann Hettinger
State Director
CWA of Texas
[email protected]
tx.cwfa.org