Texas Abortion Law Freakout Friday Continues: Psaki And Althouse


I. Psaki

The exchange yesterday that Biden White House paid liar Jen Psaki had with reporter Owen Jensen, of the Eternal World Television Network (EWTN), a Catholic news organization, raises this conundrum: if there is persuasive ethical argument for abortion and abortion advocates have been defending Roe v. Wade for half a century, why are they so bad at it?

“Why does the president support abortion when his own Catholic faith teaches abortion is morally wrong?” the reporter asked. It’s a fair question, of course, and one that Joe Biden has (badly) tap-danced around for decades, claiming that he accepts the teachings of his church but refuses to impose his religious beliefs on others. This means, of course, that he believes abortion is murder but advocates it anyway. It is not a serious, honest or ethical position.

Psaki’s answer, as many of her answers do, ducked the question, saying that the President “believes that it’s a woman’s right, it’s a woman’s body and it’s her choice.” It’s a woman’s right to kill a human being? That is what Psaki is saying Biden believes, if he is as faithful as he claims. Typical of her ilk, her answer pretends that the only issue is the woman’s body and rights. Then Jensen asked who Biden thinks “should look out for the unborn child?” That is also a fair question, since Psaki’s answer was a Jumbo: “Unbornd child? What unborn child?”

Her next answer was worse:

“He believes that it’s up to a woman to make those decisions and up to a woman to make those decisions with her doctor. I know you’ve never faced those choices, nor have you ever been pregnant, but for women out there who have faced those choices, this is an incredibly difficult thing.”

An unborn child is either a life, or it isn’t. Biden’s faith states that it is. Despite that, the President believes that a woman can magically make a life a non-life by choosing to do so, along with her doctor How does that work, Jen? Then she stoops to the “men have no right to have a position on abortion” cheat, which would be unnecessary if she had a reasoned, persuasive defense of abortion beyond “Roe v. Wade says it’s a right, so it’s a right.”

No, Jensen’s never been pregnant (but he could be, Biden’s trans constituency should remind her), but he has been a fetus, and so has Psaki. Thus both should recognize the importance of the fetus’s right to exist.

Ah, but the moral and ethical dilemma posed by an unwanted pregnancy is difficult, Jen says. Yes, it’s difficult. Difficulty is not an argument for taking an innocent life. Is this the best a devoted abortion advocate can do under focused questioning? Apparently it is, at least when the advocate is as incompetent as Psaki. Was Sean Spicer really any worse than this hack? I don’t see how, except that he was working for President Trump.

II. Althouse

Althouse has been annoying me a lot lately, but when the self-proclaimed non-partisan focuses on serious matters and applies her keen powers of legal analysis, she is an invaluable commentator. Ann is a Roe v. Wade supporter, but she ruthlessly cuts through the emotion-driven attacks on the SCOTUS minority for refusing to block the Texas abortion law, taking special aim at the dissenters:

The “complex and novel” procedure — empowering random citizens to bring lawsuits against individuals — is a reason why getting early relief from this law is especially important. But it did make it hard to satisfy the traditional requirements for federal courts to act, which is exactly what the legislature meant to do….

There were 4 dissenters — the liberals plus Chief Justice Roberts. How did they get around the procedural problem (other than by sheer outrage at the aggressive attack on a well-established constitutional right)? The defendants in the case are — with one exception — state judges, who may, at some future time, have to deal with cases that may be filed under this new law. 

These judges are obligated (under the Supremacy Clause) to apply federal law, and they ought to dismiss any cases that are brought under the new law, because the law is, under current binding precedent, unconstitutional. For federal courts to enjoin state judges from enforcing the law, they would need to presume the state judges won’t perform their duty as judges. 

The one exception — the defendant who is not a state court judge — is a person who swears he has no intention of filing any enforcement cases. To enjoin that one person wouldn’t do much of anything to relieve the injury plaintiffs face. Other random citizens could still go forward, filing their enforcement cases in state court. 

In his dissenting opinion, the Chief Justice said the procedural problem was too difficult to resolve “without ordinary merits briefing and without oral argument”: “I would accordingly preclude enforcement of S. B. 8 by the respondents to afford the District Court and the Court of Appeals the opportunity to consider the propriety of judicial action and preliminary relief pending consideration of the plaintiffs’ claims.”  Roberts avoids discussing the requirements for an injunction — notably the requirement of an irreparable injury that the stay will avoid — that were crucial to the majority. 

There is also a dissenting opinion written by Justice Breyer, which the Chief Justice does not join, and this opinion doesn’t take the procedural problem seriously:

“‘I recognize that Texas’s law delegates the State’s power to prevent abortions not to one person (such as a district attorney) or to a few persons (such as a group of government officials or private citizens) but to any person. But I do not see why that fact should make a critical legal difference. That delegation still threatens to invade a constitutional right, and the coming into effect of that delegation still threatens imminent harm.

  “Harm is threatened, but it must be threatened by these people that have been named defendants, and the relief requested must redress that harm.  To say “I do not see why that fact should make a critical legal difference” is to say I don’t like these procedural requirements. You don’t like the procedural requirements in the precedent and lots of people don’t like the abortion right in the precedent.  There are many, many cases where there are rights at stake and rights seem so much more important than procedure, but the procedural requirement is upheld — notably, Marbury v. Madison.

Breyer cites Marbury v. Madison, but for the point that rights require remedies (though Marbury had a right but no remedy):

“‘Normally, where a legal right is “ ‘invaded,’ ” the law provides “ ‘a legal remedy by suit or action at law.’ ” Marbury v. Madison, 1 Cranch 137, 163 (1803) (quoting 3 W. Blackstone Commentaries *23). It should prove possible to apply procedures adequate to that task here….’

It should… but he doesn’t say how this lawsuit works that way. There’s also a dissenting opinion by Justice Sotomayor, also not joined by the Chief Justice:

“‘[T]he State’s gambit worked. The structure of the State’s scheme, the Court reasons, raises “complex and novel antecedent procedural questions” that counsel against granting the application, ante, at 1, just as the State intended. This is untenable. It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.’

“I agree with that sentiment but don’t see the legal analysis of the requirements. Sotomayor does refer us to the District Court opinion, which she calls “thorough and well-reasoned opinion”: 2021 WL 3821062, *8–*26 (WD Tex., Aug. 25, 2021). I haven’t read that opinion, but if it is so well-reasoned, why didn’t any of the dissenters tell us what the reasoning was? Just cut and paste the best paragraphs, why don’t you?

This is great stuff. In a subsequent post, she tackles Times legal reporter Adam Liptak’s statement that “So, you know, under existing Court doctrine, the majority’s point of view has some force, but under, you know, sort of fundamental principles of good government and justice, it just seems very odd that a legislature can set out to evade judicial review in order to do something unconstitutional.”

Ann writes,

“Liptak knows the majority opinion makes sense as a matter of doctrine — and, believe me, it’s a sophisticated area of procedural doctrine — and he can’t say why the dissenters’ opinion makes sense as a matter of doctrine. He can only express consternation that that something that feels wrong is working. It just seems very odd.  But judicial power is, like other governmental power, limited, and the law that limits judicial power is law too, and it matters. Judges don’t get to say it’s odd that I don’t have power, therefore put the law of judicial power to the side because my need to exercise power must prevail. That is also one of the “fundamental principles of good government and justice,” as I am positive Adam Liptak knows…”

12 thoughts on “Texas Abortion Law Freakout Friday Continues: Psaki And Althouse

  1. I loathe Jensen’s questions. They aren’t good. We shouldn’t encourage them.

    Those questions directly fly in the fact of the conservative narrative when Amy Coney Barrett was being confirmed following attacks like “The dogma flows strongly in this one”. People of faith should be able to take up office and govern or judge according to the law, and while their faith might cause pangs of guilt inside them, it should not actually effect the way they do their job.

    • First of all, the Supreme Court cannot enjoin a law. It can only enjoin enforcement of a law. In the instant case, there is no enforcement mechanism that can be enjoined, and no harmed party that must obtain redress. The Supreme Court needs an object for an injunction, and they cannot enjoin a state population that has not acted in any way to deprive anyone of their rights, whatever the law says.

      Now, they may well (and I expect they will, by a wide margin) find this law unconstitutional. A cause of action must have an object to redress, and in this case there just is no such object, no harm, that can rationally be articulated for redress by the state cause of action. Unless the person filing the suit is, I guess, the father of the child or at least immediate family, it would be well-nigh impossible to state a claim under the cause of action that makes any legal sense.

      There would be no end of rights that could be placed in jeopardy by laws like this. Further, given that the clear object of the Texas legislature is to interfere with a constitutional right under current precedent, it is not all that different from enlisting businesses to violate the First Amendment rights of Americans. Intent matters, and the Texas legislature has made its intent clear.

      That this will not survive is not really in much doubt, but the case brought before the the Supreme Court seems non-justicable and premature. In effect, they have not stated a claim. That may not be the fault of the plaintiff, but it is nonetheless a fact. The shocking thing is, four justices would’ve enjoined the law in contravention of hundreds of years of precedents. Their justification is utterly irrelevant — it would be just as lawless regardless.

    • Too bad you weren’t there to feed Jen an answer.

      I can’t help thinking this is why the head chaplain at Harvard is an atheist humanist. Organized religion has been reduced to, I don’t know what, a hobby? For better and worse? I don’t know.

    • I think it’s fair game when Biden is one who present his Catholic identity to the public. If when he ran for office questions about faith were answered with “I have my beliefs but those are not relevant to the office I’m running for” it would be one thing. When he presents himself as a devout Catholic (or Muslim, Buddhist, Scientologist, etc.) he is effectively saying “this is a core part of my identity, consider that when voting for me.”

    • Wait, HT: that’s a really bad analogy. Judges are pledged to follow the law. Their beliefs may be biases, but ruling against one’s personal beliefs is the mark of a good judge. Not so elected officials. “I believe abortion is murder, but I support the right of a woman to commit murder so I can get the women’s vote” is NOT admirable. Biden could choose to say that he will remain neutral on abortion and leave it to the Congress, Courts and public, but he may not get away with saying that he actively supports that which he believes is murder.

      It’s a fair question.

      • It’s different with elected officials, but in order to be in the Texas Congress, legislators do absolutely take a pledge that does includes following the law. This is the exact wording of the Texas congressional Oath of Office;

        “I, (name), do solemnly swear (or affirm) that I will faithfully execute the duties of the office of a member of the House of Representatives of the (xth) Legislature of the State of Texas, and will to the best of my ability preserve, protect and defend the Constitution and laws of the United States and of this state, so help me God”

  2. The best way to slow abortions is for pro life people to advocate that certain groups who impose potentially higher social cost burdens should have their fetuses aborted. Then watch how fast the pro choice people shift gears.

    • I suspect the majority of the unclaimed foster kids are damaged, mostly from in utero exposure to nasty drugs. The drug legalization lobby would have a fit if drug damaged fetuses were killed as a matter of public policy. But it sure would reduce the number of kids in foster care.

      Mrs. OB’s brother and his wife spent most of their working career fostering really drug damaged kids for the Commonwealth of Massachusetts. Those kids, then teenagers and young adults, were, as Jonathan Turley might say, really “problematic.”

      • I’m not sure anyone who actually took the time to try to understand the Pro-Choice lobby would actually think that this hypothetical would accomplish anything. Of course it wouldn’t, they’d only have to repeat what they’ve been saying up to now to be fully consistent and on brand: “My Body, My Choice”.

        It’s funny, I dealt with the inverse of this about a week ago. There was this meme that was circulating….

        And my answer to the ether of Twitter was:

        “If we agreed to it, would you change your position on abortion? […] There’s things on this list that at least some conservatives would absolutely consider if it meant movement on the abortion issue… But question isn’t being asked in good faith. I think that the way they think this is a gotcha demonstrates that they don’t understand their opponents. They really think this is about control over women’s bodies.”

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