Said Adam Liptak on the NYT "Daily" podcast this morning, in an episode called "How Texas Banned Almost All Abortions/Legislation banning most terminations has gone into effect in Texas. How did it avoid being immediately struck down like so many previous anti-abortion laws?"
I transcribed that because I'm fascinated by the articulateness of the inarticulateness — you know... sort of....
Liptak knows the majority opinion makes sense as a matter of doctrine — and, believe me, it's a sophisticated area of procedural doctrine — and he can't say why the dissenters' opinion makes sense as a matter of doctrine. He can only express consternation that that something that feels wrong is working. It just seems very odd.
But judicial power is, like other governmental power, limited, and the law that limits judicial power is law too, and it matters. Judges don't get to say it's odd that I don't have power, therefore put the law of judicial power to the side because my need to exercise power must prevail. That is also one of the "fundamental principles of good government and justice," as I am positive Adam Liptak knows.
Missing from that podcast and from all the articles I've seen so far about the Texas law is who thought up this "odd" scheme that has worked thus far to insulate the new abortion ban from getting stricken down summarily before it can go into effect. It was terribly clever! Who is the genius? Will the New York Times do an interview with this person?
AND: Thanks to andy (in the comments) for pointing to a WaPo article that identifies "the genius" for me — "Abortion opponents watch for violations of Texas ban as providers weigh legal options":
The ban was shaped by the writings of Austin-based attorney Jonathan F. Mitchell... His [2018 law review] article laid out steps the legislature can take if it is about to enact a law that is certain to be challenged. He mentioned legislation involving a range of issues, including campaign finance, gun control, “sanctuary cities” — and abortion.
The legislature can “induce compliance with its statutes by providing for private enforcement through civil lawsuits,” Mitchell wrote. “These mechanisms are especially powerful because they enable private litigants to enforce a statute even after a federal district court has enjoined the executive from enforcing it.”
The bill’s lead state Senate sponsor, Bryan Hughes, said he took a page from Mitchell’s playbook when drafting the bill. “I get to be the author of the bill, my name is on it, but we relied on his work,” Hughes said. “We’re thankful for all the help.”
The Texas statute doesn't rely on that idea of private individuals enforcing a statute even after a federal district court has enjoined the state's executive branch. The Texas statute excludes the public officials from enforcement, and then there is no federal court enforcement. I guess Bryan Hughes wants credit for that extra twist.
Notice that Mitchell's idea is premised on "qui tam" actions, which have been around for a long time:
[T]he federal False Claims Act... allows private “whistleblowers” who suspect fraud against the U.S. government to go to court on the government’s behalf. The cases can result in million-dollar paybacks to the government, and whistleblowers can receive a piece of the recovered funds.
But those lawsuits, known as qui tam actions, don’t substitute private citizens for the government. Instead, U.S. officials are still ultimately in charge of enforcing the laws. They assume primary responsibility for the prosecution and can dismiss or settle the matter over the objection of the private individual.
Because the Texas law specifically bars state officials, including the attorney general, from enforcing the ban, there isn’t anyone for abortion providers — or abettors — to sue until they are the target of a lawsuit and can assert their constitutional rights....
The statute Texas has no public accountability. Who gets sued is — as far as I can tell — left to the discretion of whoever feels like bringing a lawsuit.
Posts
64 comments:
"Judges don't get to say it's odd that I don't have power, therefore put the law of judicial power to the side because my need to exercise power must prevail."
Funny, that is precisely what SCOTUS did (repeatedly) with Roe v Wade and PP v Casey to get us to this very situation. And the liberals on the Court - particularly Ginsberg and Sotomayor but not exclusively them - are predictable in that they will regularly put constraints on the judiciary and the Federal Gummint to the side in order to exercise power for the benefit of their liberal Democratical policy goals.
Texas didn't ban a single abortion before 6 weeks. !00% of 'women' can get an abortion within the 6 week time frame.
How is this 'banning almost all abortions'?
I'm sure the answer to your last question will be: Hitler. Or Trump. Take your pick. The person will be described as 'Hitlerian' or a 'Trumpian'.
That said, again, I'm a layman when it comes to the details of law, but from what I've read, this will run into issues when a suit is actually brought. Is that correct. And until an actual suit is brought, it is a threat of action, but nothing is actually happening. The legislation created a threat, which will still need to be played out and is expected to be slammed down once it is brought to action.
Is this correct?
It's a principle of Law School 101. Does a court have jurisdiction?
The Constitution and its separation of powers is not a clean division of labor, but what scholar Edward S. Corwin dubbed an “invitation to struggle,” where elected officials protect their branches – and themselves – by meddling, being alert and, where necessary, confrontational.
In other words, what’s supposed turn the Constitution into what poet James Russell Lowell called “a machine that would go of itself,” is a set of rules and organizations fueled by certain kinds of behavior among those in power to make that system work.
The separation of powers is more like a guidebook for running an effective poker tournament rather than a set of instructions for a specific piece of Ikea furniture.
quote from, https://theconversation.com/separation-of-powers-an-invitation-to-struggle-110476
Roberts is the only justice who needs to explain his view. The Chief Justice of Politics.
Basically it’s a reverse standing case. The plaintiffs have standing but the defendants do not. The defendants can’t enforce either the Texas law or the right to an abortion. Suing the Texas state court system is a huge problem, as Roberts knows.
Companies would love to file a suit against the state court system enjoining them from hearing certain product liability suits or certain consumer suits as barred by federal law.
And Roberts loves pointing out that The Court presumes that state courts adhere to federal law and enforce federal rights.
Liberals do not presume this for rights like abortion. If this were an anti-gun rights law, Breyer would happily chime that We Presume State Courts Adhere to Federal Law and that Defendants Can Fully Vindicate Their Federal Rights in California State Court Proceedings.
Roberts would agree because The Integrity of The Court is at stake.
Whoever thought it up had best stay anonymous. Or they will get some of that sweet, sweet “mostly peaceful” attention at their home from the Democrat BLM front group.
All this will take is one doctor to perform an abortion and someone to sue them. With some decent forum shopping, you could get this law declared unconstitutional in a matter of months. They don't even need to get to the SCOTUS, this will die in the circuit courts.
The caveat is that the law could stay alive if the court rules that the law is fine, but the timeframe is unreasonable. It could end up cementing a viability standard. Or it could blow up the laws that create private civil actions for other issues like the Environmental Protection Act or the ADA.
Texas found a Loop hole way to craft the legislation that makes judicial review harder but doesn’t escape it.
Someone will eventually bring a suit under this law, there will be a federal court that issues an injunction, and the process will go from there.
This was a brilliant legal move by Texas - basically, remove the government and create a swarm of potential lawsuits. The court had to play out all the impacts of saying yes to the injunction and it’s not worth turning judicial review on its head to simply block this law. This law will eventually be challenged when it’s invoked and that’s where the process should begin.
I rather doubt the NYT times will reveal who is or who are the "geniuses" who came up with the scheme. I doubt even more if that person or persons were to be revealed that they would be so dumb as to get interviewed by the NYT.
Geez, six weeks is rather unreasonable. That's not enough time to sober up and realize that you're way, way late.
Texas blew a good chance to set a more reasonable 20 week limit. Even a pro-abort can be disgusted when a friend hides her head in the sand for three months before deciding to act and comes begging for a ride.
Some group or some one in Texas had a good legislative draftsman.
First thing I've done online this morning. Maybe a first post, post-moderation, too!
IANAL but it seems to me that this is a logical consequence of jurisprudence by the doctrine of emanations and penumbras.
"Judges don't get to say it's odd that I don't have power, therefore put the law of judicial power to the side because my need to exercise power must prevail."
WTF? Roe itself was a blatant power grab unjustified by any actual "law." Large swaths of jurisprudence depend on "my need to exercise power must prevail." SCOTUS is entirely unconstrained by any "law of judicial power." Yes, and that also implies that I'm cynical when it gets invoked for purposes I support.
This is a really stupid way to run a country.
I am a regular reader of Slate.com to learn about what the other side is thinking, worrying about, and, more recently, panicking over. They also have hilarious advice columns- their entire population seems to be non-binary, BIPOC, or extremely ashamed that they are not. Their coverage is pretty much what you would expect from MSM.
The Texas abortion decision has them absolutely crazed- this is the END of the WORLD.
The SC just MANSPLAINED to women everywhere! that they no longer get health care. The comments are worse (or better).
Question for our law prof:
As I understand the case, what the SC did was decline to treat this as an EMERGENCY that requires IMMEDIATE relief. They did not say that the TX law was A-OK with them, or that the usual legal channels can not be followed. Are they lefties therefore way over-reacting, or are they justified in believing that there can be no further activity in this matter?
Joe Smith said...
Texas didn't ban a single abortion before 6 weeks. !00% of 'women' can get an abortion within the 6 week time frame.
How is this 'banning almost all abortions'?
If you are talking about the aborted fetus industry that would be "almost all." Those fetuses aren't worth much for the first few weeks you know. They need to age a little bit.
Just follow the money.
"But judicial power is, like other governmental power, limited, and the law that limits judicial power is law too, and it matters."
What a strange coincidence that judicial power is limited in such a specific instance, aligned with five decades of conservative legal advocacy and mobilization to eliminate Roe v. Wade, while judicial power is so immense everywhere else.
It's not the farce I mind. It's the pretending it isn't what it is.
This article in the Washington Post says the strategy was inspired by Jonathan Mitchell, who has written about the limits of federal court authority to invalidate laws: https://www.washingtonpost.com/politics/courts_law/texas-abortion-ban-jonathan-mitchell/2021/09/02/ecbd1124-0c17-11ec-aea1-42a8138f132a_story.html
Excerpt:
The ban was shaped by the writings of Austin-based attorney Jonathan F. Mitchell, who guided state lawmakers based on an approach he first outlined in a 2018 Virginia Law Review article.
Mitchell, who in addition to clerking for Scalia spent five years as Texas solicitor general, declined an interview on Thursday.
But Mitchell, who has appeared four times before the Supreme Court, devised the approach outlined in the law review article after defending Texas laws in court.
Mitchell, a graduate of the University of Chicago Law School and member of the conservative Federalist Society, was a visiting professor at Stanford Law School and at the Hoover Institution when he suggested strategies for making legislation more immune to court challenges.
His article laid out steps the legislature can take if it is about to enact a law that is certain to be challenged. He mentioned legislation involving a range of issues, including campaign finance, gun control, “sanctuary cities” — and abortion.
The legislature can “induce compliance with its statutes by providing for private enforcement through civil lawsuits,” Mitchell wrote. “These mechanisms are especially powerful because they enable private litigants to enforce a statute even after a federal district court has enjoined the executive from enforcing it.”
The bill’s lead state Senate sponsor, Bryan Hughes, said he took a page from Mitchell’s playbook when drafting the bill.
“I get to be the author of the bill, my name is on it, but we relied on his work,” Hughes said. “We’re thankful for all the help.”
Everyone is assuming that providers will go ahead with post six week abortions and test the law -- risking bankruptcy in the hopes that an Appellate Court and a Supreme Court that are very clearly opposed to abortion will rule in their favor. Meanwhile clinics have immediately changed practices to be in line with the law, because they know their if they ignore it they will have to close.
Everyone is assuming that uber drivers will actually take people to clinics (anytime at all -- you can't tell if someone is 6 or 7 or 5 or 4 weeks pregnant when looking at them). They won't. A $14 fare is not worth risking a $10,000 lawsuit.
So what's happening here is that the refusal to stay a law that is PLAINLY unconstitutional in its impact is resulting in the desired effect of the law. Which is of course the intention.
Why does everyone accept without analysis that the banning of abortions once a fetal heartbeat can be detected is unconsitutionaL? My understanding of Roe was that it acknowledged a privacy right to chose, but that this right is not absolute - rather, it is balanced against the government's legitimate interest in protecting women's health and prenatal life. While the court initially set forth a trimester standard in which no restrictions could be put in place during the first trimester, this was based on the then-existing science that pegged the end of the first trimester with viability. Further, in Casey, the Court abandoned Roe's trimester framework in favor of a standard based on fetal viability, and the Texas statute uses the fetal heartbeat as a stand-in for viability, as the two are reported to be closely tied. Finally, the case of
Dobbs v. Jackson Women’s Health Organization is presently pending, on the question of
"whether all pre-viability prohibitions on elective abortions are unconstitutional." It seems premature at best to say that the Texas law would be unconstitutional if it were set up to be enforced by the government.
Regarding the cleverness of the law... Perhaps it was as clever as realizing that what the federal govt could accomplish against free speech by outsourcing robust content modification to private companies, the states could accomplish by outsourcing enforcement to private citizens concerning abortion?
"This is a really stupid way to run a country."
Still not sure what other way is better.
"It was terribly clever! Who is the genius?"
It's terrible but not that clever.
If the Texas law is going to be struck down when the first person tries to collect the $10,000 bounty, it just delays the inevitable. If the Texas law is going to be upheld and Roe v. Wade is going to be overruled, it delays that result too.
There was an alternative basis for the decision, that the opponents of the Texas law are not likely to succeed on the merits - but that would be telling. There is at least one Justice who knows whether the votes are there to overturn Roe v. Wade. Or perhaps that Justice is wavering. Maybe the message of this decision is that a different case to overturn Roe v. Wade is wanted, without the procedural novelty.
I remember reading that Ted Cruz may have been the most brilliant advocate ever to address the Supreme Court. Texas? Abortion law? Constitutional issues?
As McCullough implies above, the three liberals on this court would be perfectly ok with it if this law were targeting the manufacturing, selling, and buying of guns rather than the selling, buying, and performance of abortion. We all know this, right? It is also very likely the majority in this particular case would be on the other side and would grant the injunction in that hypothetical law against guns.
The only justice whose decision in the hypothetical I have doubt about is Roberts- I can see him swinging either way in the hypothetical. What I got from his dissent was that he is not going to vote to overturn Roe when the next on-point case gets to a decision. As for Kavanaugh, I also don't think he will vote to overturn Roe, but I can't infer this from his position on the Texas law (same for Barrett and Gorsuch, when I ponder it). At least the majority in this case is standing on firm ground even though I find this practice of enforcing the law through private civil lawsuits to be abhorrent- in short, I don't think the remedy is a judicial review to overturn such practices- it has all the same problems for me as the original Roe case has- no grounding in what is in the Constitution.
Up to a certain point, what happens from here is pretty clear. Someone will bring a lawsuit against an abortion provider under the new Texas law, and the defendant in that case will become the plaintiff in a federal lawsuit if the state case goes against him. The abortion provider will probably even sue before the state court rules. A proper federal judge will grant the individual injunction almost immediately shutting down the state case because Roe is still the de facto federal law until SCOTUS says otherwise. Now, the question for me is this- what happens then? The plaintiff in the original state case can appeal if he/she is the defendent in the federal case, but it might be the Texas judiciary that is the defendant in the federal case, so who would appeal to a higher federal court in that case? Probably no one, and the district court's order would stand without challenge (I am assuming the abortion supporters would properly forum shop to make sure they have the right district court judge).
Liptak's question may not be legally sound, but it's not frivolous. It is a problem in the system that legislators wanted to pass a law whose essence is clearly unconstitutional and, instead of limiting it so that it would fall within the constitution, they got jiggy with enforcement to bring it outside review.
This wasn't an intentional exception to judicial power--essentially suspend one of the bedrock principles of standing--it's a loophole being exploited. A loophole that needs to be closed before it becomes a common tactic to undermine people's rights.
it just seems very odd that a legislature can set out to evade judicial review in order to do something unconstitutional.
Gosh, you mean like "banning all sale of guns"?
"Some of the parents of the Sandy Hook victims have been suing the weapons manufacturer {Remington] since 2014, alleging that the gun manufacturer advertised its line of semi-automatic weapons to civilians."
The horror! The manufacturer of a perfectly legal product, whose possession is a Constitutional right, actually advertised that perfectly legal weapon to citizens of the United States!
/sarc
Let me know when Sotomayor, Kagan, and Breyer all vote to ban these kind of lawsuits. Let me know when Liptak condemns that lawsuit, and praises every State that passes laws to stop such suits.
Until then? I'm going to laugh at them when they whine about it coming their way
Subheadline to AP story, front page of our local rag: "Biden Blasts High Court Failure to Block Curb to Abortion Rights"
"Fail" is another of those nasty four letter "F" words - another on the list being "Fair."
"Fail" strongly suggests existence of INTENT to do something. A goal or objective was not met. Did the High Court INTEND to "block the curb to abortion rights?" Did it try desperately to do so and somehow fall short? I think not.
But, you know, crappy writing. It's [take your pick: it is | it has | it was | of it ] the Associated Press.
Did Texas actually state that the time limit was six weeks? I thought they said that it was when a heartbeat could be detected. That may essentially be the 6-week mark, but I think the developmental milestone is a better way to state it.
Isn't it weird how a lack of standing is a bad reason now for a court to not hear a case but when courts were rejecting cases from Republicans/Trump's team for the same thing it was an example of how justice should work?
@andy
Thanks!
Will read
"As McCullough implies above, the three liberals on this court would be perfectly ok with it if this law were targeting the manufacturing, selling, and buying of guns rather than the selling, buying, and performance of abortion."
This hypothetical is raised by Adam Liptak in the podcast. If this "genius" device is allowed to work, anti-abortionists had better worry that it will be turned against them, and places like California will be deputizing every random citizen to sue their neighbor — and maybe collect a bounty — perhaps about guns or something environmental.
Chaos lies ahead!
"All this will take is one doctor to perform an abortion and someone to sue them. With some decent forum shopping, you could get this law declared unconstitutional in a matter of months. They don't even need to get to the SCOTUS, this will die in the circuit courts."
You're forgetting the federalism point. All it will take is the enforcement action the state statute provides for *in state court.* The state court should strike it down, following the US Supreme Court precedent, according to the Supremacy Clause. Whatever the outcome, It will then be appealed through the state court system, and then the U.S. Supreme Court can grant cert. if it wants.
I wouldn't assume it will "die" at any particular level. Either party can appeal.
"Liptak's question may not be legally sound, but it's not frivolous...."
What's significant to me is that he, like all the dissenters, just looks at the problem at frets but doesn't want to talk about how the actual law could be interpreted. I think that suggests knowledge that the needed doctrinal interpretation is not close at hand, and they'd prefer not to talk about it. The majority talked about their doctrine!
Xmas said...
All this will take is one doctor to perform an abortion and someone to sue them. With some decent forum shopping, you could get this law declared unconstitutional in a matter of months. They don't even need to get to the SCOTUS, this will die in the circuit courts.
Nope. Because the forum shopping will be done by the people doing the suing.
Now, as with the Scopes Monkey Trial, you could get a bunch of lefties colluding to file a lawsuit with a friendly judge. But there will be plenty of conservatives filing lawsuits in places where there will be conservative judges to hear the case, and rule the right way.
After which it goes to the 5th Circuit, which has already ruled against the pro-abortion people once (it's why it went to SCOTUS in the first place)
Daniel12 said...
So what's happening here is that the refusal to stay a law that is PLAINLY unconstitutional in its impact is resulting in the desired effect of the law. Which is of course the intention.
Gee, you mean like the lawsuit against Remington by the "Sandy Hook parents"? The kind of lawsuit designed to drive all gun manufacturers out of business?
A lawsuit whose sole purpose is to block people's Constitutional right to keep and bear arms?
That case has been going on since 2014, and I'm pretty sure that none of the people complaining about this Texas law have complained at all about that lawsuit. And I'm quite positive that SCOTUS hasn't banned the lawsuit as an unconstitutional assault on our 2nd Amendment rights.
What goes around, comes around
There was a law in Texas going back to frontier days that carrying a firearm "while travelling" loaded and ready for use was legal, due to the potential need for self defense against whatever one might encounter.
As automobiles came to common use, this law was allowed to remain in place without amendment, and people commonly carried a loaded handgun in the glove compartment or on the back seat of their cars, ready for use if needed.
The Houston DA decided to impose his own version of gun control by arresting anyone found with a loaded gun in their car, even if the driver was from out of town (obviously travelling), thus forcing the use of the "while travelling" law only as an affirmative defense in trial. Those arrested had to post bond, get a lawyer, go to court and get the case dismissed at a huge cost in time and money and lost jobs and public ignominy for the arrest. And courts decided that the "while travelling" affirmative defense might just not apply to anyone going to the local gas station or to and from work.
So Texas passed another law stating that guns in cars were legal, and that stopped the Houston DA from his infringements of the rights of lawful gun owners. Democrat's dire predictions of shootouts at the OK Corral, and blood running in the streets every day, once again failed to come true, just as such predictions have always failed to come true.
So now Texas Republicans are simply using the Houston DA's method to prevent abortions. You can have an abortion, but if you do, you'll be at risk of having to go to civil court and use "Roe v Wade" as an affirmative defense against your accusers. Sucks to have your own methods used against your ideology, doesn't it?
What I suggest is that the federal legislative branch conduct itself as it should have back 50 years ago, and pass a clear national law about abortion. While settling the issue via representative legislative action might be a more sound method of resolution than a court ruling, the legislature's clowns would lose a huge voter turnout and fundraising issue. Which to my way of thinking is right and proper behavior for those clowns.
On a results oriented basis, I would love to see the Texas law overturned on the grounds that that the various levels of government can't outsource the enforcement of its laws to third parties in civil suits, and that civil suits can't be used to infringe on my personal rights. I would love to see this if I didn't care about how such an outcome was reached. Sure, the pro-lifers may come to rue using this "genius mechanism", but the truth is this mechanism is already in use, this is just the first time someone thought to use it against abortion. I suspect we are going to find the judiciary is full of hypocrites- this case will reveal them.
Ann Althouse said...
This hypothetical is raised by Adam Liptak in the podcast. If this "genius" device is allowed to work, anti-abortionists had better worry that it will be turned against them, and places like California will be deputizing every random citizen to sue their neighbor — and maybe collect a bounty — perhaps about guns or something environmental.
CA already does that: Prop 65 enforcement lawsuits
https://oag.ca.gov/prop65
Connecticut is doing that: the Sandy Hook Parent's lawsuit against Remington
The problem with the Left saying "you don't want to do that, because it will come back to haunt you" is twofold:
1: they're probably already doing it
2: If they're not, they will the second they think it's in their interest, no matter what the Right previously did (see "the Nuclear Option". With a 55-45 majority in 2006, the Senate GOP did not nuke the filibuster. With a 55-45 majority in 2013, the Democrats did)
These are the same people who are happy that Twitter has banned Donald Trump and gleefully tell you how OK it is "because the government didn't take away his right to free speech".
It's all about "winning", the cost of winning be damned.
Daniel12 said...
What a strange coincidence that judicial power is limited in such a specific instance, aligned with five decades of conservative legal advocacy and mobilization to eliminate Roe v. Wade, while judicial power is so immense everywhere else.
You don't know much about the law, do you?
The issue here is "standing", as in "do you have standing to sue in this case". ObamaCare has not been nuked, because SCOTUS ruled that the people and States suing to get it tossed don't have standing to sue.
It is the general go-to for the Left to try to keep their unconstitutional power-grabs going: to get the left wing "judges" to rule that the plaintiffs don't have standing, so there's nothing the court can do about it.
So what happened here is some smart lawyers looked at the rules, and said "how can we make them work for us?"
Which you would know, if you had a clue
"[I]t's odd that I don't have power, therefore put the law of judicial power to the side because my need to exercise power must prevail."
That'a pretty good paraphrase of Breyer's opinion.
"That'a pretty good paraphrase of Breyer's opinion."
Yes. I meant to do that.
It felt pretty strange that nobody had standing to at least take a look at the elections too, but liberals laughed and laughed about that one.
"What I suggest is that the federal legislative branch conduct itself as it should have back 50 years ago, and pass a clear national law about abortion."
That law would still be subject to a judicial review of its constitutionality.
I spent 15 minutes trying to find the definition of the obscure legal term "problem at frets" and failed.
I appreciated Andy's explanation of where this drafting approach came from.
It's sort of like the thing that a very sophisticated tax lawyer would do preparing to drive his client's business plan through a complicated tax "loophole". It does show that good lawyering still exists in this country.
There are those who fervently believe that abortion is a hallowed constitutional right and do so in all good faith. There are others who absolutely disagree-also in good faith. Certainly the Texas law will have a chilling effect upon the willingness of some abortion providers and consultants--do I dare go ahead and do it, or am I going to wind up like some cake baker harassed by those who disagree?
As for me I look at the "six week standard" or fetal heartbeat as problematic. A woman might not realize she's pregnant for a couple of months--and by that time it's too late to make an abortion decision in Texas.
Daniel12 said...Everyone is assuming that providers will go ahead with post six week abortions and test the law -- risking bankruptcy in the hopes that an Appellate Court and a Supreme Court that are very clearly opposed to abortion will rule in their favor.
I have no doubt that liberal rights groups will bankroll a test case, but in the meantime, the chilling effect will be real for hundreds of people.
My concern is, as some have pointed out here, now that the technique has survived initial review, we will see it become a common tool for statists pushing unconstitutional laws.
mikee said...
What I suggest is that the federal legislative branch conduct itself as it should have back 50 years ago, and pass a clear national law about abortion.
They can't.
Because there's no legitimate grounds for the Federal government to intervene in that area that's always been the domain of the States. (The Federal Government does not have a general police power). It's why the lefties on SCOTUS have led the way: because they can lie about "emanations and penumbras" and the 14th Amendment blocking States from "violating" them.
Skeptical Voter said...
As for me I look at the "six week standard" or fetal heartbeat as problematic. A woman might not realize she's pregnant for a couple of months--and by that time it's too late to make an abortion decision in Texas.
You can get 3 EPTs from Amazon, through the Althouse portal, for $9.43
https://www.amazon.com/First-Response-Result-Pregnancy-Packaging/dp/B000052XHI/ref=sr_1_4?crid=1492YJU4QSV1E&dchild=1&keywords=early+pregnancy+test&qid=1630693277&s=hpc&sprefix=early%2Caps%2C297&sr=1-4
Which means you can get a year's supply for less than $38, with free shipping even if you don't have Amazon Prime.
I'm going to gently suggest that if you can't afford $38/year for EPTs, you most certainly can't afford the cost of an abortion. So in that case you should avoid having unprotected sex.
But if you are going to have unprotected sex, and you will abort any child you create, I suggest you use Althouse's Amazon Portal to get a bunch of EPTs, and use one a month to make sure you haven't gotten pregnant
tim maguire said...
My concern is, as some have pointed out here, now that the technique has survived initial review, we will see it become a common tool for statists pushing unconstitutional laws.
As others have pointed out here, the Left's been doing this for a while. This is just the Right catching up
(It's like when the Dems were filibustering Bush's nominees, and it never made the news. But when the GOP started filibustering Obama nominees, then it was a "danger to society that had to be extirpated1")
How much sympathy do lefties think they are going to get in the wake of Hiden Biden issuing an executive order that he admitted in advance is unconstitutional?
It seems to be lost on the conservatives complaining about this tactic that the left is going to do this kind of thing whether or not the right hits them back with it. You can complain all you want about this being the wrong way to go about it, but the left is going to jam this tactic down your throat to get their way whether or not conservatives use it.
I'm not student of game theory, but my understanding is that in a situation like this, game theory suggests there are only two alternatives. Roll over and get run over, or adopt the scorched earth tactics used by your opponent in the hope that your opponent will come to see that the tactics create an unstable and unsustainable environment.
This gives everybody another reason to hate lawyers. We've hardly put the Toobin episode behind us. . .
Rabal and Greg: If the Commerce Clause can reach into my propoerty and my rights as far as the Court says it can, surely it reaches into the wombs of America as well. And if not - fine, let's trim back the old Commerce Clause and let freedom ring.
Greg says:
"So what happened here is some smart lawyers looked at the rules, and said "how can we make them work for us?"
Which you would know, if you had a clue"
Sorry I didn't say this. It's so plainly obvious, even to us legal ignoramuses, and especially to the SC justices, that I neglected to mention it.
This is not about the law or procedure. It's about politics and the justices' stances on abortion. The Supreme Court is a political body. Nobody believes that balls and strikes crap (you don't, do you Greg???).
And by the way, even legal morons like me can differentiate between a LAWSUIT and a LAW and between a LAWSUIT and a SUPREME COURT DECISION. Which is why I'm confused about your example of the Sandy hook LAWSUIT.
People don't hate Lawyers, they hate other people's Lawyers.
Richard Epstein weighs in
https://www.hoover.org/research/did-texas-just-find-new-way-ban-abortion
saying that a facial challenge ought to have been allowed without regard to the abortion details.
You know, it occurs to me that the constituency in favor of a six week abortion deadline in the US is basically zero. This isn't a policy goal, it's a step towards making abortion illegal. So stop defending six weeks like it's valid and what you want and makes sense.
Daniel12,
You know, it occurs to me that the constituency in favor of a six week abortion deadline in the US is basically zero.
I am not so sure. "Abortion stops a beating heart" was a pro-life slogan literally decades before anyone thought to make the onset of fetal heartbeat a "bright line." It's a cognizable point in fetal development, and one that (unlike viability) is unlikely to move for technological reasons.
I forced my way through most of this:
https://reason.com/volokh/2021/09/03/challenging-unconstitutional-civil-liability-schemes-as-to-abortion-speech-guns-etc/?amp&__twitter_impression=true
I just can't believe the absurdity. Angels dancing on the head of a pin.
A woman is 8 weeks pregnant and had an abortion scheduled for today. She has the absolute right to do this. Like any other right we hold. A law is passed by a lower level government announcing that anyone can sue anyone involved in this (except her). All clinics in the state immediately comply out of fear of instantly being sued into oblivion. She cannot exercise her right. And she has no one to sue herself because the state does not enforce and no one even needed to sue to get the clinics to stop.
If the law needs to spend time figuring out innovative procedure while allowing her rights to be denied, the law is wrong. And if you doubt that, replace her with you and a right you would fight for.
Let the Supreme Court decide to take away her right. Not look away while someone snatches it.
"If the law needs to spend time figuring out innovative procedure while allowing her rights to be denied, the law is wrong. And if you doubt that, replace her with you and a right you would fight for."
Have you read the comments above, Daniel? It is almost like you haven't read them.
If anyone is interested in the details of the procedural arguments, the following blog post, and especially the exchanges in the comments with Hashim, are very informative:
http://www.dorfonlaw.org/2021/09/the-cloud-cast-by-scotus-conservatives.html
Daniel12 said...
Dan: "What a strange coincidence that judicial power is limited in such a specific instance, aligned with five decades of conservative legal advocacy and mobilization to eliminate Roe v. Wade, while judicial power is so immense everywhere else"
Me: "So what happened here is some smart lawyers looked at the rules, and said "how can we make them work for us?"
Which you would know, if you had a clue"
Dan: Sorry I didn't say this. It's so plainly obvious, even to us legal ignoramuses, and especially to the SC justices, that I neglected to mention it.
Your current claim is in contradiction to the claim you made that I was responding to.
Pick one, and stick to it.
This is not about the law or procedure. It's about politics and the justices' stances on abortion. The Supreme Court is a political body. Nobody believes that balls and strikes crap (you don't, do you Greg???).
No Leftists believes that the Supreme Court is a judicial body, not a political one. but that's because no Left wing "Justice" acts as an honest judge. They all act solely as politicians
And since the Left always projects their sins on the Right, you of course thing that "everyone does it".
Which is easier for you that admitting that your side is entirely illegitimate, pretty much all teh time.
And by the way, even legal morons like me can differentiate between a LAWSUIT and a LAW and between a LAWSUIT and a SUPREME COURT DECISION. Which is why I'm confused about your example of the Sandy hook LAWSUIT.
This law allows lawsuits. The Supreme Court refused to block those lawsuits.
Connecticut law apparently allows the Sandy hook parents to sue Remington for legally selling a legal product that is protected by the 2nd Amendment.
The Supreme Court has yet to stop that lawsuit 9which is in the discovery stage. Which means there's been multiple appeals by Remington to get the suit thrown out, and they've all failed).
You're right, you're a legal ignoramus. So, do yourself a favor, and stop pretending you understand what you don't in fact understand
Daniel12 said...
A woman is 8 weeks pregnant and had an abortion scheduled for today. She has the absolute right to do this
No, she has not "right" to do this.
She has power given to her by that "political body" called teh "Supreme Court".
Isn't that what your'e saying Daniel12?
Because if the Supreme Court is nothing but politics, then every ruling you like is "just politics", and quite properly tossed whenever the other side gets the "political" edge.
No?
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