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By Josh Hammer, First Things 9 . 9 . 21
Josh Hammer is Newsweek opinion editor, a research fellow at the Edmund Burke Foundation, and a contributing editor of Anchoring Truths.
We have seen a tremendous amount of misinformation, disingenuousness, and unjustified hysteria this week in response to S.B. 8, Texas’s novel new heartbeat law, which bans abortions after a fetal heartbeat can be detected. The Supreme Court, by a narrow 5-4 margin, denied various Texas abortion provider plaintiffs’ emergency request for the Court to enjoin any enforcement of the Texas Heartbeat Act.
The Court was, of course, correct to rule as it did. As a basic legal norm, when a plaintiff seeks a stay or an injunction, the plaintiff must overcome a strong rebuttable presumption against such relief. The abortionist plaintiffs plainly failed to do so in the Texas litigation, due in part to the fact that, as the Court’s unsigned per curiam opinion noted, “it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law…in a manner that might permit [judicial] intervention.” To cut through the legalese a bit: The abortion providers sued the wrong people. …