Judging Freedom - INSTANT REACTION: The Supreme Court's Texas Abortion Decision

Episode Date: December 11, 2021

Today on Judging Freedom, Judge Napolitano goes in-depth on the Supreme Court's recent decision regarding the Texas abortion case. He gives his instant reaction as he breaks down what it means moving forward. See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Judge Napolitano here with instant reaction to a decision that came down by the United States Supreme Court this morning. As I am speaking to you now, it's about 2.30 in the afternoon Eastern time on Friday, December 10. And the Supreme Court of the United States just a few hours ago issued a blistering opinion on the Texas abortion law. Here's the background. Most of you know that in 1973, the Supreme Court issued an opinion called Roe versus Wade. That decision made abortions lawful under a variety of circumstances throughout the United States. But the most important part of it prevented the states from interfering with abortions during the first trimester of pregnancy, the first three months, roughly until about the 23rd or 24th week of pregnancy. In September, the state of Texas enacted a statute that prohibited abortion after the sixth week of pregnancy, after a fetal heartbeat is detected.

That statute was challenged in federal court, and the Supreme Court said, we're going to look at it, and we're not going to interfere with the statute while we look at it. Now, this presents a host of issues because this constitutes the legislature of the state of Texas nullifying by defying a federal rule. The federal rule is the states cannot interfere with abortions until the 24th week. The Texas rule is all abortions are unlawful after the sixth week. And the Supreme Court, for one of the first times in post-war between the states history, so we're going back to 1865, the Supreme Court allows a legislature of the state of a state to interfere with a federal law or a federal procedure. Well, this, of course, got the Biden Justice Department all up in arms, and they sued to

challenge the constitutionality of the statute. And that suit made its way to the Supreme Court. And this morning at 1030, the Supreme Court issued a blistering five to four decision. I say blistering because it sounded like Justice Sotomayor in her dissent wanted to rip the head off of Justice Neil Gorsuch who wrote the majority opinion. So there's two rulings that come down this morning. One is that the Justice Department and others can challenge the Texas statute in a federal court in Texas. The other rule is the Supreme Court will not interfere with the Texas statute during the pendency of that challenge. Yesterday, in another lawsuit in a state court in Texas. A state judge said the statute is unconstitutional

under the state constitution, and he is going to enjoin its enforcement. So this is what happens when you have a parallel track. You have a federal track, challenges in the federal court. You have a state track, challenges in the state court. Went all the way up to the Supreme Court in the federal court. You have a state track. Challenges in the state court. Went all the way up to the Supreme Court in the federal track, and they said, we're not interfering with the statute. But in the state track, a state trial judge said, this is unconstitutional, and I'm going to enjoin it. That decision will be appealed to the Texas Supreme Court, no doubt, before Christmas. Judge Napolitano, an instant reaction. Thanks for joining us.