The Morning Dispatch: SCOTUS Lets Texas Heartbeat Law Take Effect

Happy Thursday! Finally! It’s about time the Federal Trade Commission looked into … why McDonalds’ McFlurry machines are always broken?

Quick Hits: Today’s Top Stories

• Shortly before midnight last night, the Supreme Court issued a brief statement saying it would not block Texas’s new abortion law from going into effect while legal challenges against it work through the courts. The unsigned opinion was the work of five of the Court’s six GOP-appointed justices; Chief Justice John Roberts and the three Democrat-appointed justices each penned their own dissent.

• State Department spokesman Ned Price said on Wednesday that nearly 24,000 “Afghans at risk” have arrived in the United States since the outset of the Kabul airlift, defining that group to include Special Immigrant Visa applicants, P-1/P-2 referrals, and “perhaps others as well.” A senior State Department official, however, told multiple news outlets yesterday that the Biden administration believes it left behind “the majority” of Afghan interpreters and allies who applied for visas in an effort to escape the Taliban.

• The Biden administration has struggled in recent days to clarify how it views the United States’ relationship with the Taliban going forward. White House Chief of Staff Ron Klain said Tuesday he didn’t “know if we will ever recognize [the Taliban’s] government,” while Gen. Mark Milley, chairman of the Joint Chiefs of Staff, told reporters in a press briefing that “it’s possible” the U.S. will work with the Taliban to fight ISIS-K. Defense Secretary Lloyd Austin jumped in shortly after Milley’s remarks to say he “would not want to make any predictions.”

• The Navy said on Wednesday that five helicopter crew members are missing and five sailors aboard the USS Abraham Lincoln are injured after an MH-60S helicopter crashed into the Pacific Ocean 60 nautical miles off the San Diego coast Tuesday. An additional sailor aboard the helicopter was rescued and is in stable condition.

• A Colorado grand jury on Wednesday indicted three police officers and two paramedics on charges of manslaughter and criminally negligent homicide for their role in the August 2019 death of 23-year-old Elijah McClain. Despite having committed no crime—police approached him after receiving a report that he looked suspicious—McClain was placed in a carotid control hold, rendered unconscious, and injected with 500 milligrams of ketamine, according to the indictment.

• Four Dallas Fire Department employees have had their paramedic licenses placed on probation after a state investigation into three separate incidents, including the death of Tony Timpa. The 32-year-old Timpa died in August 2016 after calling 911 while suffering a schizophrenic episode; body camera footage shows officers kneeling on Timpa’s back for 14 minutes and first responders waiting at least four minutes after Timpa became unresponsive to begin CPR.

• About 1 million Louisiana households remained without power as of Wednesday night in the wake of Hurricane Ida. Dozens of people have been hospitalized with carbon monoxide poisoning due to improperly operated generators.

SCOTUS Declines to Stay Texas Abortion Law

When the sun came up yesterday, it rose on a country that had just seen its most radical change to state abortion policy in decades. Back in May, Texas Gov. Greg Abbott had signed a sweeping new anti-abortion bill into law, banning abortions when a fetal heartbeat can be detected (generally from about the sixth week of pregnancy) except in cases of medical emergency. A coalition of abortion providers had petitioned the Supreme Court to block its implementation this week, arguing it would “immediately and catastrophically reduce abortion access in Texas.” But as the Tuesday deadline came and went, the court did not respond. The law went into effect Wednesday morning after midnight.

Exactly one day later, just before midnight last night, the court broke its silence. The providers who sued had “raised serious questions regarding the constitutionality of the Texas law at issue,” a majority of the court wrote. But “their application also presents complex and novel antecedent procedural questions on which they have not carried their burden.” The opinion did not endorse the constitutionality of Texas’s law, but decreed that, pending a final judicial judgment, it would be permitted to stand.

The unsigned opinion was the work of five of the court’s six Republican-appointed justices; the three Democratic appointees and Chief Justice John Roberts each penned their own dissents.

“The Court’s order is stunning,” wrote Justice Sonia Sotomayor. “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.”

Roberts said he would have granted a temporary stay because “the statutory scheme before the Court is not only unusual, but unprecedented.”

Whether it will last remains to be seen. For liberals waking up to the news Wednesday, the takeaway seemed obvious: Here was a state law identical in effect to numerous similar “heartbeat laws” that had been summarily struck down in the past, and here was the new conservative-majority court blithely standing by as it went into effect. The Supreme Court might as well have put up a billboard forecasting its intent to overturn Roe v. Wade outside the courthouse.

Pro-life advocates certainly hope that’s the endgame here (or for one of a number of other legal challenges to Roe currently wending their way through the courts). But experts say the court’s inaction Tuesday may have had less to do with latent Roe hostility at SCOTUS than with the particular construction of Texas’s new law.

Perhaps the best way to characterize that construction is that the law is built specifically to make it as difficult as possible for the courts to temporarily stop its implementation while they ponder its constitutionality. In other words, the law was designed specifically to bring about the situation Texas now finds itself in.

When a state passes controversial legislation whose constitutionality is in question and its opponents bring a lawsuit to challenge it, they don’t necessarily need to wait for the extensive process of judicial deliberation to play itself out to get relief. If they can demonstrate they will suffer irreversible harm in the meantime, they can ask a court to offer an injunction against the official charged with implementing the law to temporarily prevent it from taking effect.

Texas’s bill attempts to forestall this possibility. It does not contain criminal penalties for people who perform abortions after a heartbeat can be detected, which would give Texas’s attorney general the task of enforcing the law—thus opening him to the possibility of injunction. Instead, the law empowers anyone living in Texas to bring a civil suit against abortionists or anyone “aiding and abetting” abortion after the cutoff.

“The reason this is significant is, injunctions only apply to individuals,” Gabriel Malor, an appellate litigator and writer based in Virginia, told The Dispatch. “We have this thing, especially in legal commentary, where we say, ‘Oh, the law was enjoined.’ What we really mean was that an official was enjoined from implementing the law. And here it’s impossible—literally impossible—to enjoin all the citizens of the state of Texas from filing these civil suits. … So we get this weird procedural circumstance where the normal tools that are applied in abortion cases don’t really work here.”

The court’s unsigned opinion explained its injunctive denial in similar terms. 

“Federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves,” it wrote. “And 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. The State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly.”

That may change once these civil challenges enabled by the new law start to appear in Texas courts. Opponents of the law “will do much better on a post-enforcement challenge, because at that point they no longer have to worry about showing standing,” Malor said. “They’ll no longer have to worry about showing injury, because they’ll have been sued, and they can jump right to the meat of it, which is what we all actually care about: Is the Supreme Court going to overturn Casey and June Medical?”

As all this plays out in the courts, the reality on the ground—for the time being—is the biggest disruption to legal abortion in decades.

“No freedom is more precious than life itself,” Abbott tweeted Wednesday. “Starting today, every unborn child with a heartbeat will be protected from the ravages of abortion.”

“This extreme Texas law blatantly violates the constitutional right established under Roe v. Wade and upheld as precedent for nearly half a century,” President Biden said in a Wednesday statement. “My administration is deeply committed to the constitutional right established in Roe v. Wade nearly five decades ago and will protect and defend that right.”

Worth Your Time

• A February 2021 Gallup poll found that more Americans than ever were frustrated with the two-party system and seeking a third option, but political scientist Alexander Cohen tries to dampen expectations that one will arise in this essay for Persuasion. “The dynamics of the American political system are stacked against the emergence of viable third parties, and no such party would have any real power,” he writes. “It’s true that some third parties have historically broken the mold, notably in the pre-Civil War era. The Republican Party itself began as an insurgent, anti-slavery third party. But the rules have changed. The Republican and Democratic parties have been in power so long that they have consciously designed a system that protects their dominance and discourages the organization of new third parties.”

• We weren’t sure whether to put this in “Worth Your Time” or “Toeing the Company Line,” but David joined Jane Coaston and Elizabeth Bruenig on “The Argument” podcast this week to discuss the ethics of the death penalty. “David and Liz … occupy different sides of the death penalty debate, and have each spent years thinking about the morality of this punishment,” Coaston says to kick off the conversation. “They both approach the death penalty from a religious standpoint, but even if you’re not religious or spiritual, I think you’ll still find our conversation thought-provoking.”

• For the New York Times, Dan Brooks writes about our increasingly videotaped existence—and the impact it’s having on today’s youth. “In the same way that the invention of the cellphone created the loud call in a restaurant, the smartphone has made public videography a mild but pervasive nuisance. We are still the protagonists of our own lives, but we are also now at risk of becoming supporting characters in other people’s Instagram stories,” he writes. “As a middle-aged man, I think of such technology as belonging to the kids, but it doesn’t. Smartphones, YouTube, TikTok and the like were brought to market by adults and then inflicted on a generation that has had little choice in the matter. Internet video belongs to Zoomers the way heroin belongs to junkies.”

Presented Without Comment

Also Presented Without Comment

Toeing the Company Line

• On this week’s Dispatch Podcast, Sarah, Steve, Jonah, and David discuss and debate the latest in Afghanistan, whether we should be concerned about increasing political violence, and the latest happenings at the Supreme Court.

• Jonah took a buzzsaw to President Biden’s Afghanistan withdrawal speech in Wednesday’s G-File (🔒). “In his address yesterday, Biden wasn’t just arguing with strawmen hovering around him like Banquo’s ghost,” Jonah writes. “He deployed a now-familiar tactic. He would try to rebut criticisms of the execution of his policy by defending the policy in the abstract. If I use a makeshift aerosol flamethrower to kill an ant in my kitchen, I won’t get far with my wife if I respond to criticism about the fire damage by saying: ‘Oh, I suppose you want ants to take over our kitchen?’”

• In Wednesday’s Capitolism (🔒), Scott Lincicome dives into the regulatory barriers behind the United States’ dearth of at-home COVID-19 testing kits. “The FDA’s restrictions on the domestic supply of at-home rapid tests has had unsurprising (albeit still depressing) results,” he writes. “Home test kits are not ubiquitous; prices are relatively high (at least $20 for a two-pack); and, given the first and second issues, they’re not very widely used. Back in Germany, by contrast, they’re available basically everywhere and cost less than a buck per test.”

Let Us Know

Dan Brooks’s piece on our increasingly pervasive virality culture has us wondering: If you’re old enough to remember it, what do you miss most about the time before cell phones were ubiquitous?

Reporting by Declan Garvey (@declanpgarvey), Andrew Egger (@EggerDC), Charlotte Lawson (@charlotteUVA), Ryan Brown (@RyanP_Brown), Harvest Prude (@HarvestPrude), and Steve Hayes (@stephenfhayes).