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Did Texas Hand Biden a Lifeline?

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President Joe Biden delivers remarks on the August Jobs Report at the White House in Washington, D.C., September 3, 2021. (Kevin Lamarque/Reuters) The unpredictable politics of abortion in 2022 and 2024

President Biden’s approval rating is sinking. Independent voters are against him. Republicans are gaining on Democrats in the congressional generic ballot. GOP candidate Glenn Youngkin is within striking distance in the Virginia governor’s race. There’s even a dwindling chance that California’s Democratic governor Gavin Newsom might be replaced by a conservative Republican in September’s recall election. And Democrats are already worried about next year’s midterms. “The ’22 midterms are going to be tough,” Representative Jake Auchincloss (D., Mass.) told the Washington Post last week. “We’ve got the historical precedent of midterms for a first-term president provoking a backlash.”

Right now, the backlash looks harsh. This first-term (one-term?) president hasn’t exactly inspired confidence with his handling of the coronavirus pandemic, inflation, illegal immigration, crime, and withdrawal from Afghanistan. To the contrary: President Biden is remote, inept, out-of-touch, and out-of-step. He’s on a downward political trajectory. His best chance of recovery is a break from the onslaught of bad news. He needs the media to shift topics.

And the state of Texas is ready to assist him.

Late in the evening of September 1, the Supreme Court decided 5–4 not to enjoin a Texas law that bans abortions after a fetal heartbeat is detected at about six weeks of pregnancy. The Court found that the law, Senate Bill 8, “presents complex and novel antecedent procedural questions on which they [the abortion providers appealing to the Court] have not carried their burden.” The most basic “complex and novel antecedent procedural” question is this: When the Court issues an injunction, it doesn’t unilaterally put a law on pause. It tells officials not to enforce a law.

But Texas officials don’t enforce the abortion restrictions in Senate Bill 8. Private citizens do. The law authorizes them to sue abortion providers or individuals promoting abortions in Texas after the six-week limit. How, then, can the Court enjoin a law that no one has enforced? And how can the Court judge the constitutionality

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