The Supreme Court has finally bestirred itself to issue a ruling on the Texas anti-abortion law that went into effect last night, and long story short, they allowed it to take effect. The vote was 5-4, with John Roberts plus the three liberals dissenting.
A bit of background: The intent of the Texas law is to prohibit abortions after six weeks. However, it's obviously contrary to law for a state to do this, so instead the legislature delegated enforcement of the law to private citizens, who can file lawsuits against anyone who performs or "abets" an abortion after six weeks. In a way, this is not a new approach: many laws have "citizen attorney general" provisions that allow private attorneys to sue for enforcement. However, these laws are constitutional in the first place and the state can enforce them whenever it wishes to; allowing citizen lawsuits is merely a convenient way of expanding enforcement activities. By contrast, delegating this power entirely to citizens solely because the state is forbidden to enforce the law itself is a playground level gambit: "Ha ha, you can't sue us because we're not the ones enforcing the law." As Justice Sonia Sotomayor wrote in her blistering dissent, this is little more than half-witted game playing by the state of Texas:
The Act is clearly unconstitutional under existing precedents....The respondents do not even try to argue otherwise. Nor could they: No federal appellate court has upheld such a comprehensive prohibition on abortions before viability under current law. The Texas Legislature was well aware of this binding precedent. To circumvent it, the Legislature took the extraordinary step of enlisting private citizens to do what the State could not.
....Today, the Court finally tells the Nation that it declined to act because, in short, the State’s gambit worked. The structure of the State’s scheme, the Court reasons, raises “complex and novel antecedent procedural questions” that counsel against granting the application, just as the State intended. This is untenable. It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.
In essence, the Texas legislature threw up a bunch of chaff that made the law complex and novel for no real reason, and the Supreme Court then rewarded them by saying that it had to withhold judgment because there were so many complex and novel provisions to consider.
All of this was done on the Court's infamous "shadow docket," which permits brief, unsigned rulings without normal hearings. Justice Elena Kagan had this to say:
Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process. That ruling, as everyone must agree, is of great consequence. Yet the majority has acted without any guidance from the Court of Appeals—which is right now considering the same issues. It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion—that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail. In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend. I respectfully dissent.
Needless to say, this law will eventually wend its way through the court system and end up in the Supreme Court for a traditional hearing, possibly joined with other similar laws. At that point, the Court will have an opportunity to reconsider Roe v. Wade and either confirm or overturn it. In the meantime, no one is performing abortions in Texas and there's nothing anyone can do about it.
Yes, the law under review is about making all abortions illegal, but it is way more than that.
This conservative work-around is too cute; for all intents and purposes, it obliterates constitutional review. IOW, the shadow docket ruling is specifically about making the Constitution irrelevant.
It's so farcical, you expect conservative justices to figure it out that they can't make abortions illegal by proxy, saying, "Well, we can't review this, so that's that."
This conservative work-around is too cute; for all intents and purposes, it obliterates constitutional review.
I don't see how you could possibly think this is true. The right wingers on the court will very easily come up with plausible-sounding reasons to make determinations as to constitutionality when the decision in question is designed to further a conservative priority. They won't do so otherwise. If, say, some blue state legislature were to place onerous restrictions on gun ownership, the five Federalist Society Hacks (possibly joined by Roberts) would get involved tout suite.
Comment section definitely needs an edit button. 😀
But anyway, if they uphold the part of the TX law that is an end-run around judicial review, that's the end of it all. There are no backsies; no one shows up for court; the Court is moot and everyone ignores it.
Fait accompli.
Glibertaria unlocked.
Finally... Rand Paul's neighbor can finish the job without possibility of manslaughter or murder charge.
This conservative work-around is too cute; for all intents and purposes, it obliterates constitutional review.
I don't see how you could possibly think this is true. The right wingers on the court will very easily come up with plausible-sounding reasons to make determinations as to constitutionality when the decision in question is designed to further a conservative priority. They won't do so otherwise. If, say, some blue state legislature were to place onerous restrictions on gun ownership, the five Federalist Society Hacks (possibly joined by Roberts) would get involved tout suite.
Am I wrong that VA hospitals in Texas could perform abortions with impunity? You can't sue the federal government without its consent, right? How about opening up the VA hospitals and clinics to all comers as an emergency solution?
Another "fun" thought just occurred to me.
Being kind to strangers in Texas is suddenly financially risky, if they're women. Seems like it would only be prudent to demand a pregnancy test before helping them change their flat tire, lest you be rendering abortive assistance.
All sorts of neighborly things seem like they could needlessly involve you in an expensive court case, if offered to women in Texas.
I doubt this concern is valid. No way could you sue someone who was simply being nice and unknowingly helping them break a law.
Even with things like aiding and abetting a serious felony like murder, they have to prove they knew they were aiding the crime.
Is there some reason to think that Texas couldn’t enact a similar law criminalizing criticism Republicans?
I have looked at some explanations from legal sites and this is what I think I get here.
1) this does not get around a constitutional review of the issue. What it does is make it hard for a court to issue an injunction to stop enforcement while the case is in court without a judgment. Normally a court will issue an injunction when it think the law will fall on final review. Does not look like the court indicates it will or will not likely fail. But there is nobody to whom they can issue an injunction to.
This is because the courts have been strict re standing and to whom you can issue an injunction against. This has created exploitable strategies and they are using one.
And this sort of thing has been used for liberal priorities too. Sometimes something clearly not legal ends up surviving because nobody has standing to challenge it .
2) the issue of it being a " vigilante " law by itself has been overblown . These have been used many places and usually to enforce liberal priorities such as environmental rules. And just because you can sue for something does not make that illegal. People sue about all sorts of things that are not illegal. Someone is not really doing something illegal by getting an abortion after six weeks but this law still lets them get sued for it ( or actually the doctor ) . Which is intended I suppose to have the same effect.
Being able to sue someone for an abortion itself if that person could claim damages ( like the father who wants the child) might be one thing. And if it was limited that way it would have a better chance of surviving legal challenge.
But what strikes me is the ability to collect 10,000 with no damages to yourself. That makes it a law that more clearly violates roe v wade and hard to see that surviving
3) by analogy ( and i bet this will be tried), say new york allows anyone to sue a gun owner for simply owning a gun and collect 10,000. That clearly makes gun ownership impossible and thus violate 2nd amendment and courts would strike down. But in meantime nobody to issue injunction against.
But if such a law only allowed someone to sue a gun owner of they could show some harm from their ownership itself, like their neighbor who it scares, that is probably also unconstitutional but it will not be as easy a decision.
If this law only allowed those who had damages to sue, it would have been more potntsisliy effective in stopping abortions
4) I get the feeling that, to the real people behind this , the point might have less to do with abortion. I just fail to see it in the end accomplishing much. Too easy to counteract and plus liberals will follow up by trying the same thing re guns.
And note that the creative way it avoids injunctions whole legal review is pending will only do any good until it is struck down. And the legal flaws seem to evident for that to take too long.
And it just does not seem crafted in a way that would be really effective in stopping abortions. For example, allowing someone to even possibly be sued for aiding the abortion by even just driving them is just silly . Why would you even sue them when you can sue the doctor? Just do not see it happening. And makes zero sense if you cannot sue the mother. How can the mother' s sister who drives her be liable and the mother herself not?
This seems drafted as an " in your face" law designed to troll liberals and get them all hot and bothered and less to really work.
5) I just have a suspicion that this really is more about the concept of using legal tricks to get around the rules, like vigilante lawsuits with no damages, restrictions on standing and issuing injunctions, etc.
This might be more of a stalking horse to give the courts a vehicle to change the rules on procedures to stop this nonsense, because liberals have been using things to their advantage.
Maybe the real purpose of this law is for it to be struck down, not survive. And take some tactics liberals have used down in the process.
6) to the extent that the injunction trick works to stop abortions, it is not much different in intent from biden extending the eviction moratorium while saying this will likely buy us more time before it is struck down.
7) seems one counter tactic could be if liberal cities in Texas pass a law allowing anyone to sue someone for the act of suing someone about abortion or threatening to do so. Being able to sue someone for suing will never pass legal review either. But the point again is there is no injunction to issue against anybody in the meantime.
If the Court is saying that it has no one to enjoin, then, by virtue of the Texas law's framework, no unconstitutional law can be effectively blocked.
Have you read the court summary of the opinion. It does indicate that, once there is someone to enjoin who has taken an action, they can enjoin that person. There was one person who was named to enjoin but they had done nothing and signed an affidavit that they are not going to be suing anyone.
I have to think somewhere in Texas some doctor ( or actually a good number ) will go ahead and do an after heartbeat abortion and then, if someone does try to sue, the defendant will petition for an injunction and that someone will be enjoined .
And , once that happens, the scare factor will dissipate.
And , if no pro life activists actually do sue if an abortion is performed, then the bluff will be called and again scare factor gone.
Read what the court majority said. They clearly are not indicating that they will block an actual injunction for anyone who actually tried to enforce this by suing.
This may be " whack a mole" for a while as injunction after injunction is issued against actual people trying to sue . But I bet not one person will ever be able to collect .
Or maybe the court will realize this nonsense cannot continue as each side passes stupider and stupider stuff and changes the rules for standing and issuing injunctions, allowing more people to sue without being blocked by standing and allowing blanket injunctions against any potential individual rather than specific people.
And they might go further and change other rules to prevent stupid stuff like limiting the nationwide injunctions that ideologues get by judge shopping.
I think the Supreme Court as an institution might be getting tired of all the game playing on both sides that you might get some consensus decisions stopping it on both sides.
There just seems something fishy in the whole thing. The part of the law re avoiding injunctions seems more designed as a test case to overturn court procedural precedents than to actually effectively prevent abortions. And the more meaty part of the law ( i.e. the issues if the law actually survived court review not the difficulty of injunctions while in review) seems designed more to get a ruling not allowing vigilante lawsuit laws than something really designed to stop abortions and survive court review. The Mississippi law seems like a more serious attempt to restrict abortions.
This law seems like what would be produced if you were designing something to illustrate how some of the court procedures rules can be abused to show how they need to be changed.
I wonder whether abortion is just being used as a vehicle to inflame passions to get a groundswell to stop this sort of legal manipulation. Maybe the pro life movement is just being used and are going to be disappointed when this ends up doing nothing much re abortion.
And all the passion stirred up re this Texas law distracts from the Mississippi law which is a more serious test case that the court might use a tweak the roe v wade rules. I think the chance that the roe v wade decision will be flatly overturned is remote ( although legally I think it should be) but the court may chip away at it.
(Actually, there were 8 defendants -- the first name + et al.)
If the only means to block the enforcement of an unconstitutional law is to file hundreds of thousands of petitions to seek injunctions against hundreds of thousands of lawsuits (despite anti-SLAPP law) filed by private citizens, the constitutionality of that law is irrelevant.
I'd bring up Ex Parte Young as was referred to in the Alito5 decision, but it gets way into the weeds only to bring us back to the point that the Alito5 seems to be saying that the only people it will ever be able to enjoin, because of the way the TX law was written, are private citizens.
Oh yeah, I forgot to bring up the "private citizen" cited in this case: Mark Lee Dickson.
He's been going across Texas getting towns to pass ordinances making abortion illegal, allowing citizens to sue just like SB8. Seems to conflict with state law, right? Well, that's where SB8 has a dedicated section making towns' more restrictive laws the rule, if the "fetal heartbeat" section of SB8 is struck down.
They coordinated to create a network of jurisdictions to do an end run around SCOTUS. One injunction is not going to resolve this, even if the Texas "fetal heartbeat" portion of the law is ruled unconstitutional.
I guess you'll have to see it in practice to understand the ramifications.
For reference, here's Wascom's ordinance: https://is.gd/tdIi25
Dozens of towns in TX with this same ordinance. Sections mirror SB8's, including the right of anyone to sue.
Hackers take on the anonymous tip website.
https://prolifewhistleblower.com/
Greg abbot’s wife had an abortion I hear.