Thursday, September 02, 2021

Legal Wine

We have permitted those whom a law threatens with constitutional harm to bring pre-enforcement challenges to the law where the harm is less serious and the threat of enforcement less certain than the harm (and the threat) here. 

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.  Normally, where a legal right is "invaded," the law provides "a legal remedy by suit or action at law." Marbury v. Madison (1803).  It should prove possible to apply procedures adequate to that task here. ...  There may be other not-very-new procedural bottles that can also adequately hold what is, in essence, very old and very important legal wine: The ability to ask the Judiciary to protect an individual from the invasion of a constitutional right -- an invasion that threatens immediate and serious injury.

-- Justice Stephen Breyer, joining the dissent of Chief Justice John Roberts, and Associate Justices Elena Kagan, and Sonia Sotomayor in Whole Woman's Health v. Jackson, 1 September 2021

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