Apocalypse not yet

Last night the Supreme Court denied an application for stay of the strange new Texas abortion law by a 5-4 vote. The Court’s order came in Whole Woman’s Health v. Jackson with dissenting opinions by each of the four dissenting justices, Chief Justice Roberts foremost among them.

The AP story by Jessica Gresko provides useful background on the statute. Politico Playbook includes a set of comments by Court-watcher Josh Gerstein here.

The weeping and wailing among abortion supporters in the media and elsewhere is premature. Now’s not the time for their tears, though the time may come. In the interest of letting readers take a look with their own eyes I have posted the Court’s one-paragraph order below the break (all citations omitted).

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The application for injunctive relief or, in the alternative, to vacate stays of the district court proceedings presented to JUSTICE ALITO and by him referred to the Court is denied. To prevail in an application for a stay or an injunction, 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. 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 on which they have not carried their burden. For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. 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. Nor is it clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law. Finally, the sole private-citizen respondent before us has filed an affidavit stating that he has no present intention to enforce the law. In light of such issues, 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. In particular, 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.

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