Litigation Update: SCOTUS and the Texas Heartbeat Bill

Civil Rights Practice Group and Religious Liberties Practice Group Teleforum

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On September 1, 2021, the Texas Heartbeat bill went into effect, banning abortions as soon as cardiac activity is present in an unborn child—around six weeks gestation.  The bill also allows private citizens to sue and enforce the new law.  Opponents of the bill appealed to the Supreme Court for an emergency stay and the Court denied relief, allowing the Texas law to go into effect.  Joining us to discuss the Supreme Court’s decision and its implications is Ethics and Public Policy Distinguished Senior Fellow Ed Whelan.  Read additional comment from Mr. Whelan on National Review. 


  • Edward Whelan, Distinguished Senior Fellow and Antonin Scalia Chair in Constitutional Studies, Ethics and Public Policy Center  

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript



Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at



Evelyn Hildebrand:  Welcome to The Federalist Society’s virtual event. This afternoon, September 3rd, we discuss a litigation update, the Supreme Court and the Texas Heartbeat bill. My name is Evelyn Hildebrand, and I’m an Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today’s call.


Today, we are very fortunate to have with us Mr. Ed Whelan. Ed is a distinguished Senior Fellow at the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. We’re very pleased that he can join us this afternoon.


      After our speaker gives his opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q and A feature at the bottom of your screen, and we will handle questions as we can towards the end of this afternoon’s program. With that, thank you for being with us today. Mr. Whelan, the floor is yours.


Edward Whelan:  Thank you very much, Evelyn. Thanks for all of you taking part. I’m going to be discussing the developments this week in the Texas Heartbeat Act litigation and explain why the Supreme Court majority was right to rule as it did in its order the other night. I want to emphasize that this is a matter of federal civil procedure, not a matter of substantive abortion precedent. It involves, specifically, limitations on the ability of the courts to engage in pre-enforcement review when the case doesn’t involve the right defendants or defendants who actually have enforcement power.


      Before I run through the week’s developments though, let me offer some disclaimers. First of all, nothing I say should be mistaken as expressing the view that the Texas Heartbeat Act is likely to be broadly enforceable in court. There are post-enforcement challenges that will be available if anyone tries to enforce this law. I also am not taking any position -- certainly not endorsing the Act’s private civil enforcement provisions as a model of pro-life legislation. On the contrary, I’m strongly inclined to believe that in a post-Roe world, private civil enforcement of abortion laws would play little or no role, except, I suppose, in the circumstances in which prosecutors fail to do their duty.


This case, as the Supreme Court majority pointed out the other night, raises complex and novel procedural questions. I have not had time to get deep into those questions this week. I don’t claim expertise on them, so if you have some very sophisticated questions, my answer is probably going to be, “That’s interesting. I don’t know.”


I’m also not an -- don’t claim to be an expert on the intricacies of the Texas Heartbeat Act, though, unlike many folks who are commenting on it, I have undertaken to read it. I actually first read it four days ago, not quite anticipating how quickly things would move here.


Okay. So let’s start with the Texas Heartbeat Act, also known as SB8. This was a law that was signed into law by Governor Greg Abbott in mid-May. It prohibits a physician from performing an abortion other than in a medical emergency if the physician detected a fetal heartbeat for the unborn child. It also requires physicians performing abortions to perform those -- to try to detect the fetal heartbeats. A fetal heartbeat is usually detectable at six weeks of gestation, so this operates as a bar on abortion, ordinarily, from six weeks on. And the effective date of the Act––and this is important to explain why there was this flurry of activity this past week––was September 1st, Wednesday. So, although the Act was enacted in May, its provisions did not become effective until Wednesday.


Now, beyond the substantive provision that I identified––that is, barring physicians from performing abortions if they detect a fetal heartbeat––what’s really important here are the enforcement provisions, which are quite clearly designed to prevent pre-enforcement injunctive relief. The provisions are twofold. First, the Act prohibits State officials from enforcing the Act in any way. Now, what that means is that the usual path to an injunction isn’t available. You can’t go to court and say, “These officials are charged with enforcing this law. Enforcement would infringe my rights, therefore, I want a preliminary injunction now before the law takes effect.” You can’t say that because these defendants have no role in enforcing it and, indeed, are barred from doing so. Secondly, the Act, instead, authorizes any private person to bring a civil action in state court against anyone who performs a post-heartbeat abortion or who knowingly aids or abets a post-heartbeat abortion. And there’s a $10,000 statutory damages per violator, per violation, also injunctive relief, and attorney’s fees available.


Now, there was quite a delay before abortion providers first filed their complaint in this action. Again, the law was enacted in mid-May and it wasn’t until nearly two months later that a lawsuit was filed. The lawsuit named eight individual defendantsState Attorney General Paxton and four other executive officials, one state judge, one state court clerk, and one pro-life activist. The plaintiffs also proposed to certify – wanted the district court to certify defendant classes of all state judges and all state clerks, but as I’ll discuss––and it’s important––the district court never got around to that. And actually, it wasn’t until a month ago, on August 3rd, I believe­­, that the plaintiffs actually got around to filing a motion for preliminary injunction. And there’s, maybe -- I think there’s some interesting questions about why they waited so long. And it’s also interesting then that they’ve -- I think they really tried to gain the courts, but we’ll turn to that in a bit.


Okay. So, what happened this past week? Well, the first thing that happened is that the district judge denied a motion to dismiss that the defendants had filed on jurisdictional grounds. And among those jurisdictional grounds were sovereign immunity defenses advanced by the seven governmental defendants. And I think, unbeknownst to the district court––which seems to have a disposition strongly in favor of the plaintiffs––and probably unbeknownst to the plaintiffs themselves, that denial of the sovereign immunity defenses gave those defendants the right to immediately appeal. The logic is, “Look, if you have a substantial claim that you’re entitled to sovereign immunity, you shouldn’t have to go through the entire burden of litigation defense before you get that sovereign immunity defense vindicated.” And furthermore, once they filed their notice of appeal, which they did immediately, the district court was divested of jurisdiction over the proceedings, at least with respect to those defendants. The district court itself ultimately recognized that, and last Friday, I believe, it issued an order canceling the preliminary injunction hearing that would have taken place this Monday with respect to all of those governmental defendants. Again, the district court did this.


There’s a myth out there that tries to slam the Fifth Circuit Panel by saying that it canceled the hearing. It did indeed issue a largely redundant order that did that, but the district court itself had recognized that, at least that’s the governmental defendantsseven of the eight defendants––it could not go forward with the preliminary injunction hearing. And it would have been a strange hearing to go forward against a single pro-life activist defendant who had affirmatively disavowed any intention to enforce the Act against these particular individuals.


Well, what happened then is that the plaintiffs realized that they had driven their case into a ditch, that the September 1st deadline, I guess, that they were trying to stop was imminent, and suddenly they had created this appeal in the Fifth Circuit on jurisdictional issues, that they’re probably going to lose, and it would certainly take some time. And so they first filed some petitions to the Fifth Circuit saying, “Undo all this.” They even asked that the Fifth Circuit vacate the victory that -- in favor of plaintiffs on the motion to dismiss. They wanted that undone so that jurisdiction would be restored to the district court.


And when the Fifth Circuit Panel properly denied relief on Monday this week, they ran to the Supreme Court with an audacious request, basically saying, “Look, you, Supreme Court, need to jump in and give us preliminary injunctive relief. Never mind that the lower courts haven’t addressed this. Never mind that we waited two-and-a-half months to file our motion for a preliminary injunction in the first place. Never mind that we can’t really explain what sort of injunctive relief would actually eliminate the harms we’re complaining about. You need to act.”


And of course, what the Court did on -- I’m losing track of the days now -- I guess it was midnight between Wednesday and Thursday -- the Court majority properly recognized that the plaintiffs hadn’t met their burden of showing that they were likely to prevail, in particular, that there were these antecedent procedural questions. And this really ties into the particular named defendants who were before the court, especially given that the district court had not gotten around to deciding whether to certify classes of state court judges and state court clerks.


So, have in mind you have these eight defendants. Five of them are affirmatively barred from enforcing the Act, one is a single state court judge who has, I think, pretty clear, pretty strong sovereign immunity defenses -- but in any event, it’s just one judge -- the other is one county clerk, and then there’s the one pro-life activist. So the question I’d like to focus on is, “How could the court possibly have granted relief that would have eliminated the harms that the abortion providers alleged?” Have in mind that there are millions of other individuals who could have potentially filed enforcement cases in hundreds of state courts around Texas. None of these were named defendants, nor were they within certified classes, and injunctive relief couldn’t possibly have extended to them.


As the per curiam majority explained, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. You can’t simply say, “We’re going to block this law.” Obviously, we use that sort of shorthand all the time, but what we really mean is that the court tells certain individuals––typically governmental officers­­––that they are barred from taking certain actions with respect to certain defendants. And the essential point here is that the plaintiffs completely failed to show that they were -- first of all, that they were entitled to relief against most or all of these defendants but, secondly, that such relief would have eliminated the harms they were complaining about.


There were, as many of you know, four separate dissents including, I think, a very unfortunate one by Chief Justice Roberts who ordinarily presents himself as very serious about limitations on federal judicial power. The Chief basically said that even though the defendants might be correct that existing doctrines preclude judicial intervention, we ought to have more time for the lower courts to figure this out. And somehow, we’re going to issue injunctive relief even though plaintiffs haven’t shown they’re entitled to it so that they can have time to show that they might be entitled to it. Again, he nowhere explains how, with these named defendants, you could possibly have injunctive relief that would be effective. The same flaw infects the three other dissents.


Indeed, I think it’s most striking that Justice Kagan––who would come up with an ingenious solution if anyone would––didn’t offer any solution at all, instead complained about a shadow docket as though somehow the Supreme Court majority were at fault that the plaintiffs came rushing to it with an emergency application. I mean, they were the one’s trying to invoke the shadow docket to get relief. And it’s certainly not a complaint against the, so-called, shadow docket that the Court decided that relief wasn’t warranted.


What will happen going forward? It’s an interesting question. We’ll see whether there are, in the first place, any civil enforcement actions. If there are, there’s the prospect that a court will rule that the Act cannot be applied against abortion providers under the rule of Roe and Casey. One complication there is that the Act itself provides as an affirmative defense that the abortion providers could invoke in such a case -- that it doesn’t apply if, indeed, it would impose an undue burden. So we’ll see. It could be a messy situation. Again, I’m not wild about this as the ideal way to address this issue, but in the current state of things, it’s understandable.


Lessons to draw. Well, again, I would emphasize that this is all about federal procedure, not abortion. You see lots of crazy claims from the left that this is a repudiation of Roe v. Wade. The per curiam opinion is crystal clear that this order is not based on any conclusion about the constitutionality of Texas law. That said, the ruling does give hope about the fortitude and clarity that five of the justices showed in the context where they could expect to take a political beating, and that is encouraging for those of us who hope that in the pending case of Dobbs the Court will, indeed, vote to overturn Roe and Casey.


So with that, let me check your questions here and address some of them, and please submit others. Pardon me if I’m a little slow in navigating this. Let’s see. One question, “Do I think that the Democrats will be successful in packing the Court?” No, I don’t. I don’t think this ruling changes anything. Obviously, the same people who wanted to pack the Court before are talking about it again now, but you would need to overcome the filibuster in the Senate to do that. I don’t think that’s going to happen. I think there’s a strong public consensus against packing the Court, and I think that the more people focus on what Roe entails, the more they look at the issue in Dobbs, the more they’ll understand that the Court has usurped the democratic processes for 50 years, and I don’t think the overturn of Roe itself would lead to Court-packing.


Let’s see. Someone making a comment that the judge and clerk are also seen as representatives of putative classes. I thought I made that clear––emphasis on the word putative–– the classes hadn’t been certified. The point about potential relief that I made would be more complicated if they had been.


Let’s see. Okay. So, there’s a question here about an effort by Nancy Pelosi to enact a federal law that would, I gather, enshrine Roe. “Can congress overrule the Supreme Court’s ruling?” I gather this would be the prospective ruling in Dobbs. “And can this Court then override the laws decided?” Well, look, the question the Supreme Court would face with respect to this federal bill if, indeed, it were enacted––and I see no reason to think it will be––would be whether that’s a proper exercise of the commerce clause power or some other federal power. So it’s not so much a matter of Congress overruling the Supreme Court, it’s a matter of whether Congress is exercising a lawful power.


Evelyn Hildebrand:  If you want to take a look at the Q and A tab, as well, there are a bunch of questions that are coming in.


Edward Whelan:  Oh, okay. I’m trying to look at them both. Thank you. I see it’s a bigger list than I realize. Let’s see. Okay. There’s a question here about standing, and the question really concerns the standing of the private individuals under the Texas law to pursue these civil enforcement actions. And as the questioner notes, it’s Texas standing law, not federal standing law, that would apply. I don’t purport to be an expert in Texas standing law. Someone I spoke with, who is much more knowledgeable, seemed to think that it is permissible for Texas to authorize individuals to bring these sorts of lawsuits but, obviously, that will be litigated.


Does the law prohibit aiding a pregnant woman to travel to another state to get an abortion? I believe the answer to that is, no. I believe that the substantive prohibition in the Act applies to abortions in Texas and that the aiding and abetting feature would also apply to that.


Let’s see. Do I see any constitutional issues with the civil enforcement mechanism? An interesting question. I think this really ties into the standing question that I just addressed. Well, actually, a number of issues involved here. One, obviously, is the whole Roe and Casey issue. So, sure, so long as Roe and Casey exist, I think there are, to put it mildly, serious doubts about whether the civil enforcement mechanism can be used, whether it’s constitutionally permissible. As I said, there’s arguably a statutory answer that the statute itself says, “It shouldn’t be applied if there’s an undue burden.” So that might avoid reaching the constitutional question. But again, I’m only addressing the constitutional aspect of that, not whether or not this is a desirable feature, which leads me to the next question.


“Are you worried that New York and other liberal states would do this for gun control, etc., just to create chaos?” Well, look, they probably do it already, but it’s a good question. It’s one the of the reasons I’m not wild about this approach. One would have to look carefully and think about whether, say, in the gun control context, the law would really operate similarly. For now, at least from what I hear, abortion providers in Texas are saying, “We’re not going to take the risk of violating a law.” If a law like this were applied against -- I’m sorry, if there were laws saying that, notwithstanding the 2nd amendment, no one can own rifles, I doubt very much that those who owned rifles would comply quite so readily. So I think you’d get test cases pretty quickly, and I would think you’d get injunctive relief from the state courts.


“Is one way for this law to be tested on the merits if a private enforcement action is filed?” Yes, I think so. Would it necessarily be in Texas state court? I think that a possibility of a diversity case in federal court -- obviously, that would require that you have diversity of citizenship, but I don’t think there’s anything in the law that restricts the individuals who enforce it by civil means from being -- I don’t think there’s anything that requires that they be citizens of Texas, and, obviously, violators could also not be citizens of Texas. So that is one way that a federal court might decide, but I don’t know why any private enforcer would choose to file in federal court.


Let’s see. Another question here -- and I hope I’m going to get in through the list here -- the senate judiciary committee announced today that it wanted to hold a hearing on the Court’s shadow docket, and it also referred -- somehow it would also have -- the same hearing would address the Court’s action in this case, although, as I explained, I don’t think any complaints about the shadow docket can be directed against the Court in this case. So, we’ll see. I could see where senate democrats may try to make some political hay. I don’t quite really know how much they could make. I think everyone believes––and we certainly recognize this in the death penalty context––that there are situations in which seeking emergency relief is necessary. That’s happened a lot more in the recent years, in part, because of COVID, in part, because of contested elections. So I don’t think this signifies any deeper defect in the so-called shadow docket. And perhaps, that term itself is unnecessarily pejorative.


Let’s see. “Will the decision trigger a flurry of state legislation designed to ground abortion “rights” on something other than the US Constitution?” Well, I don’t know. I think a lot of courts have -- a lot of states, rather -- have already decided that they are going to offer statutory protection for abortion. Other states have -- obviously, have decided otherwise. No one could -- I don’t think it’s possible for anyone to like all the conflicting laws that are being enacted, but that is our system of federalism and, presumably -- what ought to be our system of federalism, rather. And presumably, that’s -- makes -- the people in each state are deciding the laws that are best for them and are free to revisit them.


Do I think that the fact that the Texas law has gone into effect will help with the pro-life argument against the reliance interest, that would be necessary to overturn Roe? Sure, it might help. And indeed, all the arguments by the left, that Roe has already been effectively overturned, ought to also make this reliance interest argument, which I think is defective on other grounds, even weaker than it is.


Let’s see. “Is there a rightness issue?” I think this is a question seeking preliminary injunctive relief. You have to show that you’re threatened with imminent enforcement. And so I think this rightness question would be subsidiary to the problem these defendants themselves aren’t threatening to enforce it. So I think that would be a hurdle you get to if you got past this first hurdle.


Let’s see. “Is there a danger of the Biden DOJ pursuing 1983 actions against Texas officials and/or private individuals who initiate private enforcement actions?” That is an interesting question which I haven’t thought about at all and, therefore, will not begin to opine.


“Why did everybody––Congress, the Administration, and media news commentators––get this ruling so wrong?” Well, I don’t think everybody did, but a lot of people did, that’s for sure. Yeah. Well, look, I think it’s a complicated procedural question and, certainly earlier in the week, you had even sophisticated legal commentators not recognizing at all the procedural questions that were logically precedent to the substantive abortion question.


This questioner also asked, “Why does Congress,” -- and I think also -- “why does Congress constantly pass the buck to the Supreme Court? Why do state legislators do so?” Well, I don’t think here you have -- talk about the buck being passed to the Supreme Court. It’s the Supreme Court that has usurped the field and state legislators are trying to act where they can. Sometimes that ends up with legislation that no one would enact but for Roe and Casey. It’s a real challenge that legislators have, in the Roe-Casey environment, to figure out how they can advance things.


Here’s a question, I think, related to my point that there could be lawsuits in federal court. “How would the diversity limit -- diversity threshold of $75,000,” as I understand it, “be satisfied?” Well, it’s pretty easy, really. You could -- again, it’s at least $10,000 per violator per violation. So, I don’t think you’re limited to seeking $10,000 per violation. So I suppose you could seek $75,000 for a single violation. But, in any event, if you’re suing an abortion clinic -- if an abortion clinic were violating this law, it wouldn’t be very long before they would get past eight violations, and there certainly would be, presumably, lots of different individuals involved in each of those violations. So I would think you could get to the million-dollar or higher level pretty quickly.


Okay. Let’s see. As a matter of the political strategy necessary to garner support to accept a Roe reversal, do I think the Texas legislature drew the line too early in the pregnancy and would have been better off banning the procedure a bit later? I’m no political expert. I mean, this is -- obviously the Heartbeat Bill is designed to emphasize that the unborn human being has a heart beating much earlier than most people know. I think any other line, it would seem to be very arbitrary. People in different states have very different views on what proper abortion regulation ought to be. It’s going to be up to the legislators in those states, in the event that Roe is overturned, to figure that out and adapt quickly. I would think that the absence of a rape and incest exception—one that, if it existed, should be tightly drawn—is probably a greater political vulnerability regarding the Act.


Let’s see. “Why aren’t the abortion providers just ignoring the law, and what stops them from having a friendly collusive suit brought by a sympathetic person to get into court to raise the law’s constitutionality?” Those are good questions. Why aren’t they just ignoring the law? I don’t whether there’s posturing going on here and they’re going to start just ignoring it or whether they have to worry about medical licenses or insurance. There are complicated questions here. In terms of a friendly collusive lawsuit, you’d have to -- a lawsuit that could be shown to be collusive might be dumb. But yeah, I wonder whether they could try to gain something like that, especially if they were to be able to find a court -- a judge that thought it would be favorable.


Let’s see, question about the Dobb’s case. Do I think the Court can and will find a way to uphold the Mississippi law without abrogating an abortion right in the first trimester? So, the Mississippi law, as you may know, bars abortion after 15 weeks. So I don’t think there’s any way for the Court to rule that that law is permissible without overturning the viability line of the Roe-Casey regime. Viability, after all, appears to be 20 to 22 weeks, at the very earliest. And the threshold question that the Court is going to face is this -- “What is the standard of review to be applied to this law?” And as part of that, they’ll have to decide whether to overturn Roe and Casey. And once you do that, I don’t see how you can slice and dice things in a way that would preserve some sort of first trimester constitutional right. I mean, it would simply be just making it up to say, “Okay, we’re going to move the line from viability to the first trimester.” And it would take an awful lot of dancing to somehow to say, “We don’t need to address what the constitutional standard is or how it applies before 15 weeks, we can simply say that this 15-week law is constitutionally permissible.” I don’t see how that gets done but, obviously, when there’s a will, there’s a way. I’ve certainly seen different justices find their way to do things that we might not be able to understand.


Let’s see. “So what happens next with respect to this law? Is this a stalemate until Dobbs is decided?” Well, I don’t think it’s a stalemate. The big question is, “What happens now with enforcement actions? What happens -- will abortion providers in Texas continue not to provide abortions? Will other states look to enact copycat laws, and what will happen with such laws? What will the Fifth Circuit do with the pending appeals, and when will the case get back to the district court?” That’s probably going to be a while, I would think. I don’t think there’s any particular reason for the Fifth Circuit to race to decide these difficult sovereign immunity questions.


And the Fifth Circuit, actually, right now is -- pardon me if I get too arcane here, but it has requested briefing on the question whether the district court’s jurisdiction over the single private defendant who had no claim of sovereign immunity continues to exist or whether that individual’s appeal also deprives -- basically, it’s pendent to the sovereign immunity appeals and ought to be decided by the court––by the Fifth Circuit, that is––at the same time that it decides the other questions and ought to bar the district court from proceeding in the meantime.


Let’s see. I think I’ve answered all the questions that are lined up for me here, but I may not be adept enough at handling this, so let me take a look. Evelyn, have I been missing something? I’ve tried go back and forth between the Q and A and the chat.


Evelyn Hildebrand:  There’s one more question that’s in the chat, actually. “Why aren’t the abortion providers…” -- oh, okay. Actually, that was re-presented in the Q and A, so I think you’ve answered that as well.


Edward Whelan:  Okay. Well, look, I’m happy to stay on if there are any further questions here. So let’s give it a minute or two. But obviously, an interesting interplay between -- politically, at least, between this case and Dobbs, even though the legal issues are very different.


Well, here’s a “what’s next” question. Well, that’s a big one. Look, we’re going to be seeing the briefing from the respondents in Dobbs very soon. As you know, the State of Mississippi has already filed its merits petition, as have the various amici, in support of Mississippi. Let’s see. On Monday, the 13th, the abortion providers in Dobbs will file their brief, and I believe that the deadline for the amicus briefs is a week later, September 20th. So there’ll be, probably, lots of attention the media gives at that time to those briefs, and we’ll hear a lot more argument around that. And soon we’ll probably hear from the Supreme Court on when it’s actually going to hear argument in this case. It hasn’t scheduled for argument yet or, at least, hadn’t when I last checked. It looks like it will likely be scheduled for argument in December. The calendars for October-November have already been announced.


Let’s see. Okay. Well, there was one question I didn’t answer. “Will this cause Justice Breyer to hang on even longer?” Who knows? I think he’s already -- well, it seems quite clear, he intends to hang on through the next term, beyond that, who knows? I wonder whether he even knows.


Let’s see if another one just came in. Okay. Well, I think that wraps it up in terms of what wanted to say on this. Let me just -- but, again, happy to wait a little further if there are any other questions. Evelyn, help monitor for me, please, and let me know and I’ll…


Evelyn Hildebrand:  And, actually, if you want to -- you certainly don’t have to. I’m putting you on the spot a bit, but if you wanted to comment on the Citizen’s United and your predictions? I know that you wrote recently about how that might affect, at least, the Chief’s decision for when Dobbs comes up.


Edward Whelan:  Yeah. More precisely, I did a post that examined what the Chief Justice had to say about stare decisis in this Citizens United concurrence, and there’s a lot there that’s very -- that applies pretty directly in a favorable way in terms of overturning Roe and Casey in the Dobbs case. Now, others might see the Chief’s action and his concurring opinion in June Medical and his concurring opinion here and think that this suggests that he won’t be ready to overturn. On the other hand, maybe he’s building up the capital and the credibility in a way that will make it even easier for him to do so. Who knows?


One thing that is, I think, very encouraging to me about the result this week is that despite the Chief’s apparent effort to carve out some sort of middle ground, this sort of temporary, let’s-buy-some-time-and-let-people-look-at-these-issues, Justice Kavanaugh and Justice Barrett did not go with that. Some people think that the Chief holds extraordinary sway over them but, in this case, they certainly show that that wasn’t so. And it raises an interesting dynamic in Dobbs. We’ll see how that plays out. We’re talking here about federal civil procedure, not substantive abortion cases, so I won’t offer any further guess on that.


Okay. Let’s see. Maybe a couple of other questions have just come in. Oh, no, just -- okay. No, I guess that’s on -- okay.


Evelyn Hildebrand:  Great. Thank you so much for all of your insight into this. Obviously, our audience is very, very interested, as well. If you have any closing comments, please feel free to leave us with a closing comment.


Edward Whelan:  Well, let me just say that I hope many of you know that I write extensively on issues like this at National Review Online’s Bench Memos. And indeed, this past week I think I was the first one who really -- to spell out what this case involved and why the emergency petition should fail. And I even proposed the order that the Court should adopt, which bears more than a fair resemblance to the order that the Court actually issued. So I’d invite you, if you’re interested, to follow me at Bench Memos, sign up for my email list. Alert me if there are issues that you’re interested in. I’ll acknowledge, I hadn’t read the Texas Heartbeat Act before Monday. I was completely unfamiliar with this litigation until Monday, but I had the opportunity to get up to speed very, very quickly, and you’ve got to do that as other important issues arise. So I encourage you to follow my work if you’re so inclined.


Evelyn Hildebrand:  Great. Well, thank you very much to our expert this afternoon and to our audience for participating, for sending in your great questions. We welcome listener feedback by email at info@ Keep an eye on your email for announcements about upcoming Teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.




Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at