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The Supreme Court ruled late Wednesday not to issue an injunction against the enforcement of a controversial Texas law that bans abortion when there is a fetal heartbeat – typically six weeks into a pregnancy – but despite making clear it was not making any constitutional judgments, progressives, such as Rep. Alexandria Ocasio-Cortez, D-N.Y., are claiming it overturned Roe v. Wade.
The issue before the court was not whether the Texas law is constitutional but whether it should temporarily block the law’s enforcement while the case is litigated. Nevertheless, the congresswoman from New York indicated that the court scrapped established court precedent on the constitutionality of abortion and that court- packing is the only remedy.
“Republicans promised to overturn Roe v Wade, and they have,” Ocasio-Cortez tweeted Wednesday night. “Democrats can either abolish the filibuster and expand the court, or do nothing as millions of peoples’ bodies, rights, and lives are sacrificed for far-right minority rule. This shouldn’t be a difficult decision.”
In response to the court’s ruling, Ocasio-Cortez repeated a long-running call from the left to increase the number of justices on the Supreme Court so that President Biden could add liberal justices and take away the conservative majority.
The unusual law puts enforcement in the hands of the public and not government officials, so the court’s majority questioned whether an injunction against the officials who were sued would be an appropriate remedy. The court also noted that the one private citizen who was sued swore that he does not intend to bring any claims under the law.
In reaching its determination, the majority specifically stated its decision is not a judgment on whether the law itself should stand after the case is fully litigated.
“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,” the court said.
Fox News asked Ocasio-Cortez’s office if the congresswoman had a clarification of her tweet but it did not immediately respond.
The congresswoman is far from the only one to share false conclusions about the court’s decision. Ocasio-Cortez’s fellow left-wing congresswoman Rep. Cori Bush, D-Mo., made similar statements about the decision and court-packing.
“In the span of one week the Supreme Court forced 11 million households to face eviction and effectively overturned Roe v. Wade in the middle of the night,” Bush tweeted. “This is what far-right extremism looks like. We need to expand the court.”
Bush’s tweet was slightly different in that she only claimed that Roe v. Wade was “effectively” scrapped instead of actually overturned. Similarly, Slate’s Mark Joseph Stern was retweeted by Ocasio-Cortez after claiming that “Roe v. Wade is, functionally, overturned.” Stern, however, later tweeted that “Roe is no longer good law,” which is false.
Barb McQuade, former Obama-appointed U.S. attorney for the Eastern District of Michigan and current NBC legal analyst, tweeted that the court’s ruling was a “[b]latant disregard of 48 years of precedent under Roe,” despite the court’s decision noting that the abortion providers who are challenging the law have “raised serious questions regarding the constitutionality of the Texas law at issue.”
Elsewhere on Twitter one could find more nuanced examinations of the ruling. Rick Hasen, law professor at UC-Irvine, was highly skeptical of the conservative majority’s motivation behind denying the injunction request, calling it a “sleight of hand,” yet he stopped short of saying they changed the law of the land.
“No, Roe v. Wade was not overruled tonight,” Hasen said. “But the ease with which Texas purported to bulldoze the Court’s abortion jurisprudence tells you all you need to know about the right to choose before this Court.”
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