Abortion

Opponents of the Texas Abortion Ban Are Struggling to Find Defendants They Can Sue To Prevent Its Enforcement

Meanwhile, the threat posed by the lawsuits that S.B. 8 authorizes has dramatically curtailed access to abortion in Texas.

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S.B. 8, the Texas abortion ban that took effect at the beginning of this month, was designed to frustrate pre-enforcement challenges by relying on private lawsuits to deter the conduct it forbids. A recent ruling by the U.S. Court of Appeals for the 5th Circuit shows how effective that strategy is. Because S.B. 8 explicitly bars Texas officials from enforcing its restrictions, the 5th Circuit said on Friday, they cannot be sued to block its implementation—a decision that illustrates the "complex and novel antecedent procedural questions" that the Supreme Court mentioned when it declined to intervene in this case.

The implication is that people who object to the law, which is plainly inconsistent with Supreme Court precedents, cannot challenge its constitutionality until someone is sued for performing or facilitating a newly prohibited abortion. But meanwhile, the law has already had its intended effect, since the threat of litigation has led Texas clinics to stop serving the vast majority of women seeking abortions.

S.B. 8 bans abortions after fetal cardiac activity can be detected, which typically happens around six weeks into a pregnancy, before many women even realize they are pregnant. The abortion providers and abortion rights supporters who challenged the law in Whole Woman's Health v. Jackson estimated that it would affect "at least 85% of Texas abortion patients."

In lieu of enforcement by state officials, S.B. 8 allows "any person" to sue "any person" who performs post-heartbeat abortions or who "aids or abets" them. Prevailing plaintiffs are promised at least $10,000 in "statutory damages" per abortion, plus compensation for their legal expenses. Meanwhile, S.B. 8 limits the defenses available to targets of these lawsuits and specifies that they cannot recover attorney's fees if they nevertheless manage to win. This scheme, which embraces legal tactics that conservatives have long condemned, creates a daunting deterrent even without any actual litigation, as it was designed to do.

The plaintiffs in Whole Woman's Health v. Jackson tried to get around the law's unusual enforcement mechanism by arguing that certain state officials—judges, court clerks, the attorney general, and the heads of various regulatory agencies—would play a role in implementing S.B. 8. Although U.S. District Judge Robert Pitman thought that argument was plausible enough to let the case proceed, the 5th Circuit emphatically disagrees in an opinion that explains the reasoning behind its earlier denial of the plaintiffs' emergency motion for an injunction pending appeal.

The plaintiffs named Smith County District Court Judge Austin Jackson and Smith County District Court Clerk Penny Clarkston as defendants, representing a proposed class of all Texas judges and court clerks. These officials, the complaint argued, would be essential in enforcing S.B. 8 because they would handle the lawsuits authorized by the statute. The 5th Circuit deems that argument "specious," saying the Supreme Court has made it clear that state judges are not proper defendants in cases challenging a law's constitutionality.

In the 1908 case Ex parte Young, the Court said state officials charged with enforcing an allegedly unconstitutional law can be sued in their official capacity. The case involved Minnesota Attorney General Edward T. Young, who sued railroads for violating state rate regulations. While the Court said the railroads could respond by seeking a federal injunction against Young, it added that "the right to enjoin an individual, even though a state official, from commencing suits…does not include the power to restrain a court from acting in any case brought before it, either of a civil or criminal nature." The justices said "an injunction against a state court would be a violation of the whole scheme of our government."

The 5th Circuit also cites several appeals court decisions regarding liability under 42 USC 1983, which authorizes lawsuits against state officials who deprive people of their constitutional or statutory rights under color of law. The plaintiffs in Whole Woman's Health cited that provision in their lawsuit. But "it is well established that judges acting in their adjudicatory capacity are not proper Section 1983 defendants in a challenge to the constitutionality of state law," the 5th Circuit says. It adds that "Plaintiffs' position is antithetical to federalism, violates the Eleventh Amendment and Ex parte Young, and ignores state separation of powers."

The appeals court also notes that "the Declaratory Judgment Act requires an 'actual controversy' between plaintiffs and defendants." But in this case, it says, "no such controversy exists," since "the Plaintiffs are not 'adverse' to the state judges." When "acting in their adjudicatory capacity, judges are disinterested neutrals who lack a personal interest in the outcome of the controversy."

The 5th Circuit says "it is absurd to contend, as Plaintiffs do, that the way to challenge an unfavorable state law is to sue state court judges, who are bound to follow not only state law but the U.S. Constitution and federal law." In other words, Texas judges will be obligated to consider constitutional objections to S.B. 8 when they hear any lawsuits authorized by it.

Or maybe even before then: Earlier this month, Travis County District Court Judge Maya Guerra Gamble issued a temporary restraining order against Texas Right to Life, barring that organization from filing S.B. 8 lawsuits against Planned Parenthood of Greater Texas. Gamble found that the law "creates a probable, irreparable, imminent injury" for which Planned Parenthood and its staff "have no adequate remedy at law." Still, that decision is a far cry from the broad relief sought by the Whole Woman's Health plaintiffs.

In addition to state judges, those plaintiffs argued that Texas Attorney General Ken Paxton was an appropriate defendant because he has the power to seek civil penalties against physicians and physician assistants who violate the Texas Medical Practice Act. The restrictions imposed by S.B. 8, they said, implied new constraints on medical practice under that broader law. For similar reasons, they sued the heads of the state agencies charged with regulating doctors, nurses, pharmacists, abortion clinics, and ambulatory surgical facilities. S.B. 8, they said, authorizes administrative actions against those practitioners and entities for performing or facilitating post-heartbeat abortions.

Although Pitman thought that argument made sense, the 5th Circuit says it is defeated by the plain language of S.B. 8. "Notwithstanding" any other legal provision, S.B. 8 says, "the requirements of this subchapter shall be enforced exclusively through the private civil actions" authorized by the law. It adds that "no enforcement of this subchapter…may be taken or threatened by this state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this state or a political subdivision against any person."

As the 5th Circuit sees it, "This language could not be plainer. Exclusive means exclusive, and notwithstanding any other law means notwithstanding any other law. When the district court imputed 'indirect' S.B. 8 enforcement authority to other agency provisions, it ran the multiple red lights in S.B. 8's text….S.B. 8 emphatically precludes enforcement by any state, local, or agency officials. The defendant officials thus lack any 'enforcement connection' to S.B. 8 and are not amenable to suit under Ex parte Young."

The plaintiffs also sued anti-abortion activist Mark Lee Dickson, based on statements indicating that he intended to file lawsuits under S.B. 8. They argued that Dickson was "a private individual deputized to bring S.B. 8 enforcement actions under color of state law." Notwithstanding his avowed eagerness to take advantage of S.B. 8, Dickson "filed an affidavit stating that he has no present intention to enforce the law."

The 5th Circuit rejected the plaintiffs' motion to dismiss Dickson's appeal, and it agreed with Dickson that Pitman should have stayed the district court proceedings against him pending appeal when he did the same for the state defendants. The "jurisdictional issues presented in the proceedings against Dickson are related to the issues presented in the state officials' collateral-order appeal," it says. And while the appeals court has not yet addressed the merits of Dickson's defenses, it is not hard to predict how it will come down on the propriety of suing him based on speculation that he will file one or more lawsuits under S.B. 8.

South Texas College of Law professor Josh Blackman thinks the 5th Circuit's conclusions in Whole Woman's Health v. Jackson do not bode well for the Justice Department's lawsuit challenging S.B. 8, which was filed in the U.S. District Court for the Western District of Texas. That suit, United States v. Texas, seeks "an order preliminarily and permanently enjoining the State of Texas, including its officers, employees, and agents, including private parties who would bring suit under the law, from implementing or enforcing S.B. 8." But the 5th Circuit, which will hear appeals from the district court in this case, says state judges and other Texas officials "lack any 'enforcement connection' to S.B. 8." If so, they would not be appropriate targets of an injunction in the Justice Department's case either.

As for "private parties," S.B. 8 authorizes lawsuits by "any person." In effect, Blackman says, the Justice Department is suing all Americans based on the prospect that some of them will file lawsuits against people they accuse of performing or facilitating prohibited abortions. "This case really should be captioned United States v. United States," he writes. "Is there any authority to bring such a suit? [The Justice Department] cites none, and I am not aware of any precedent….How can the federal government show that unnamed defendants are likely to bring a lawsuit? The entire case is speculative."

If neither abortion providers nor the Justice Department can identify defendants whom the courts will deem appropriate, the only viable route to broad protection against S.B. 8 is to defy the law and wait for a lawsuit. That prospect is understandably troubling to abortion rights supporters, since the law has already had a dramatic chilling effect. A footnote to the 5th Circuit's ruling claims "these Plaintiffs have no present or imminent injury from the enactment of S.B. 8." That view, which Judge Gamble obviously does not share, ignores the fact that fear of S.B. 8 lawsuits has dramatically reduced the availability of abortions in Texas.

The Supreme Court has said state laws are unconstitutional when they have "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus"—a description that clearly applies to S.B. 8. When it declined to issue an emergency injunction in Whole Woman's Health v. Jackson, the Court acknowledged that the applicants "have raised serious questions regarding the constitutionality of the Texas law." The 5th Circuit quotes that observation, saying "we are mindful that S.B. 8 applies to pre-viability abortions."

Chief Justice John Roberts, no fan of Roe v. Wade, was nevertheless troubled by the idea that S.B. 8 cannot be challenged until someone provokes a lawsuit by violating it. "The statutory scheme before the Court is not only unusual, but unprecedented," he wrote in dissent when the Court decided not to intervene in Whole Woman's Health v. Jackson. "The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large."

The aim, Roberts noted, "appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime." Although "the State defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place," he said, "I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner." The courts are now considering that, and so far it looks like the answer is yes.

NEXT: Burning Man Without the Man

Abortion Reproductive Freedom Regulation Litigation Constitution Texas

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166 responses to “Opponents of the Texas Abortion Ban Are Struggling to Find Defendants They Can Sue To Prevent Its Enforcement

  1. Clump of cells with a heartbeat rights are human rights.

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    2. What are you besides a clump of cells with a heartbeat and the desire to murder?

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      2. Fields, everything is quantum fields.

    3. Abortion, with the exception of a pregnancy due to rape or a situation where giving birth is an ACTUAL harm to the mother is wicked and not needed. There are exactly ZERO women who cannot take the pill to avoid unwanted pregnancy, and exactly ZERO males who can’t wear a condom for the same reason. The idea that this “issue” requires abortion is wicked and absurd.

      1. I really hope you know contraceptives aren’t 100% effective.

        1. Contraception is well over 99% effective went taken consistently and correctly.

  2. Conservatives:

    WE LOVE FREEDOM AS LONG AS YOU LIVE YER LIFE ACCORDING TO CHRISTIAN LAW!

    1. MY BODY MY…

      *checks latest memo*

      …WE’LL GET BACK TO YOU.

      1. It’s now…

        Abortion: MY BODY MY CHOICE!

        Vaccines: YOUR BODY MY CHOICE!

    2. Leftist like buttplug:

      WE HATE ALL LIFE PROMOTE EVIL AND WISH ALL YOU FUCKERS WOULD DIE OFF

      1. He likes to fuck children too.

    3. your Quixotic approach to conservatives is Quixotic

    4. Pedophilic clumps of cells should be aborted.

    5. To be fair, I don’t see Christian Law calling for murder. Well, except for Nardz and Sevo who are fond of murder.

      Never mind.

      1. “…Well, except for Nardz and Sevo who are fond of murder…”

        Lying piece of lefty shit sarc is lying piece of lefty shit. Cite ONCE when I was “fond of murder” asshole.
        Or STFU.

        1. Sarc was shitfaced posting all afternoon.

      2. Drunk again?

    6. WE LOVE FREEDOM AS LONG AS YOU LIVE YER LIFE ACCORDING TO CHRISTIAN LAW!

      LOL! Are Muslims big on abortions?

      Muslims regard abortion as wrong and haram (forbidden), but many accept that it may be permitted in certain cases.

      All schools of Muslim law accept that abortion is permitted if continuing the pregnancy would put the mother’s life in real danger. This is the only reason accepted for abortion after 120 days of the pregnancy.

      How about the Hindu?

      Hinduism is therefore generally opposed to abortion except where it is necessary to save the mother’s life.

      Classical Hindu texts are strongly opposed to abortion:
      one text compares abortion to the killing of a priest
      another text considers abortion a worse sin than killing one’s parents
      another text says that a woman who aborts her child will lose her caste

      Together with Christians, that accounts for about 70% of the population of the world. What about the rest?

      The communists have never been pro-abortion. During the collectivization stage, they needed the bodies. In the modern era, they have preempted the topic by adopting a pro-sterilization agenda.

      1. You’re omitting worshipers of the Greek Pantheon, as immortalized by the Hippocratic Oath, sworn to Apollo the physician, and Asclepius, and Hygieia and Panacea and all the gods and goddesses

        …I will not give a lethal drug to anyone if I am asked, nor will I advise such a plan; and similarly I will not give a woman a pessary to cause an abortion…

    7. That’s National Socialist Positive Christian common law to you, non-gnosse! National Socialists pledge to relentlessly struggle for the implementation of girl-bullying laws, if necessary at the cost of their lives! May they keep their pledge, the sooner the better!

      1. And this is why people cross the street to avoid interacting with you. I suspect you mumble this garbage to yourself wherever you go, while giggling.

        1. 100%
          Hank Ferrous is the good Hank. This one is just a worthless loon.

    8. Seems like you have a brain plug. Abortion has zip to do with Christianity, instead it has to do with erasing life that wouldn’t have been there if easy, free, contraception had been used by one or both of the sexual participants. Try thinking before you put your idiotic comments online.

      1. Hank is a raving an idiot and also an anti Christian bigot.

    9. Didn’t think “Christian law” was the only ethic with a presumption against killing undesirables, but okay.

  3. Oh for gosh sake, just do an abortion and goad them on.
    As the saying goes, they can send a man into orbit with a private space company, but they can’t bankroll a defendant in a $10,000 abortion case?

    1. The pro-life movement is not one of wealthy donors.

      1. Unborn kids can’t afford a Happy Meal much less legal assistance to help stop mommy from killing them.

      2. But it wouldn’t be the pro-lifers bankrolling in this case, it would be a pro-choice doctor who performs an abortion and gets sued, and pro-choice individuals and organizations backing them up. Is there no one willing to defend them pro-bono, or put 10k or so in a trust to cover judgements pending appeal? Did Michael Bloomberg go broke recently or something? Did all the lawyers quit the ACLU?

        1. Of course the real reason is they don’t want the law struck down by the courts, they want it to stand so they use it as a midterm issue, both in Texas and in the Senate at large

          1. Of course the real reason is they don’t want the law struck down by the courts, they want it to stand so they use it as a midterm issue, both in Texas and in the Senate at large

            Yep. A TX judge has already shielded abortion providers, but this doesn’t really seem to have been heard over the din of “American Christian Taliban Rogue Radical Supreme Court Just Outlawed Abortion!1!!”

        2. Sorry Kevin, but with free and easily available contraception for both men and women, only the fairly rare abortion that is needed to literally save the life of the mothers hould be allowed.

          1. I don’t know about “free” – but certainly easily available – otherwise I agree.

        3. I got it backwards, I meant the pro-choice movement. it was snark that fell flat because I screwed the punchline. Which was the whole joke.

      3. Ghaw’d’s Own girl-bullying Prohibitionists are anti-life. It sez so right there in Atlas Shrugged.

        1. Wait, do you think the GOP were the prohibition party?

          1. The GOP has been “a” Prohibition party since 1928 when the Klan and the original infiltrated it. Soon after the Libertarian Party plank got copied into Roe v Wade, the 1976 Prohibition party began demanding another prohibition amendment–this one to bully women and doctors at gunpoint. Republicans parroted this and have been floundering ever since. For timeline Search “Canadian Liberals and American Libertarians”

            1. Stop making things up, Hank. The “KLAN” was 100% Democrat, as Republicans were as rare black people in the KKK and the south.

              1. He’s also raving about ‘spoiler votes’ amd stolen ‘party planks’ all the time too. He’s just some deranged idiot who can’t have a real discussion. He’s certainly not capable of debate.

                He’s really more like a less manic Mike Hihn. Just a senile old troll. Kind of like Joe Biden.

        2. Fuck off, Hank. You’re an embarrassment to humanity in general. Seriously, pull a Hihn; fuck off and die.

          1. Sometimes he gives me a giggle.

            1. Imagine listening to him rant and rave like this at thanksgiving dinner. You know he does.

        3. You really are a worthless idiot. Trotting out the same tired, discredited strawman every time this subject comes up. You aren’t remotely capable of a real discussion. So GTFO you dumb bitch.

          You’re not even really a libertarian. Just a raving crank.

    2. They could short circuit it and have the person getting the abortion sue the person who drove them to the clinic or some such.

    3. Yeah, how is there not a GIANT pool of money already collected for this? You’d think the pro-lifers would have gotten right on top of raising money to fight lawsuits and pay fines.

      Unless they’re trying to milk the LITERAL HANDMAIDS TALE aspect of it for the midterms. Can’t use it as a wedge if you win in court.

    4. Better yet, do one as secretly as possible and have the patient file the lawsuit in a particularly leftist area of the state (Austin or Houston, maybe).

      Get the jury to nullify the law in the course of the trial, then watch the state or any anti-abortion group try to claim standing for filing an appeal to undo the nullification if they weren’t party to the case in which it happened.

      1. “Get the jury to nullify the law in the course of the trial”

        That wouldn’t really accomplish anything. A jury nullification isn’t precedent. It has zero impact beyond that one case.

        No, in the scenario you describe, the defendant would challenge the constitutionality of SB8 as a defense.

  4. The Supreme Court has said state laws are unconstitutional when they have “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus”

    Asking for a friend… did the Supreme Court define “nonviable”?

    1. Anticipating no one knows or wants to answer, I’ve just done some digging.

      (e) Nonviable neonate means a neonate after delivery that, although living, is not viable.

      So, highly unsatisfactory when we’re discussing abortion.

      It seems to me that there is more than one part to this whole kerfuffle. The obvious one that journalists like to write about are the legal intricacies of how this will be enforced etc.

      The less obvious one is that Texas, for better or worse, seems to have created a more concrete definition of “nonviable”. They didn’t ban abortion. They banned abortions of “viable” (per their definition) fetuses.

      It seems to me that the fight is not who we sue, how we adjudicate the complex legal contortions around enforcement, but perhaps we might engage in a fight about whether or not a fetus is still nonviable after six weeks or a heartbeat is detected.

      Or is this a debate the pro-life movement wants to avoid like an unwanted pregnancy?

      1. >>engage in a fight about whether or not a fetus is still nonviable after six weeks

        you want to leave one on a table and see what happens?

        1. you want to leave one on a table and see what happens?

          Do the same with a newborn that came to full term.

          1. neither proves a point. I don’t see what your fight is

            1. Perhaps I misunderstood your comment.

          2. Do that with a newborn and it will be taken by the state to be raised by others. Wait…

        2. Do the same with a paraplegic or someone in a coma.

      2. I was curious if a state would ever try the regulatory approach where you can evict, but not kill a fetus. You can take it out, but it has to be whole. Then you have to attempt to provide it accommodations.

      3. Hitler’s motto is still cast into Christian church bells all over Germany, and Positive Christianity is regarded as pro–life, rather than Jew-exterminating. So who does that convince?

        1. “Hitler’s motto is still cast into Christian church bells all over Germany, and Positive Christianity is regarded as pro–life, rather than Jew-exterminating…”

          I guess there must be some idiotic comment which would cause Hank embarrassment, but we’ve yet to plumb those depths.

  5. Gonna be some interesting court cases this fall. I hear some whiny conservatives are worried this will have a negative effect on the 2022 election. Right OK RINOs whatever stick to your blue blood country club mentality with you rlittle pinky in the air and your martini glass. I guess they all love GWB again too, they pretended to hate him and Cheney and now they don’t.

    1. Wait until anti-firearm laws mirror this one, allowing civil lawsuits against anyone involved in the sale or transfer of firearms.

      1. That doesn’t make any sense, unless the person selling the firearm is also the one pulling the trigger

        1. Possession of a legally owned firearm is so scary to the left, they’ll say it’s causing fright

          Anyone assisting in this fright could be sued, if anti-firearms laws existed in the same vein as this pro-life law. Just for causing fright.

          Remember, this pro-life law doesn’t ban abortion. It gives permission to sue over the emotional toll that abortion causes to Texas’ civilians.

  6. >>which is plainly inconsistent with Supreme Court precedents

    which were nonsense in the first place.

  7. I am told it is very easy for poor criminals to cross state lines in order to evade gun control restrictions – hence why places like Chicago have such a hard time getting their crime rates under control.

    I wonder why poor people who can easily cross state lines to traffic in illegal firearms can’t get their abortions while they’re buying guns illegally in the next state over?

    1. Same reason poor people can be expected to produce identification to work their jobs but can’t be expected to produce identification to cast their ballots.

      1. No one has ever asked for ID at an abortion clinic. Ever.

        1. No matter soon they’ll be asking for a vaccination passport for the fetus.

        2. Of course they take ID and insurance information.

          Abortionists are a for-profit business, not a charity.

      2. Hell poor people can be expected to produce photo ID to apply for aid programs intended to assist poor people

      3. Because Democrats are racists?

    2. The way the law is written, even if you go out of state to have the abortion, if you are a Texas citizen, then some one can still sue you.

    3. Actually, the entire Mexican border with Texas just went pro-individual rights for women. The Catholic province of Quebec saw to it that all of Canada bought into the 1972 LP plank on pregnancy, and then some within 4 years. There are NO girl-bullying laws in Canada anymore. No Mounties shoot brown kids over plant leaves either.

  8. My assumption is that all abortions happen behind closed doors. If that is so then how does someone prove there was an abortion performed unless “snitches get stitches”. Or someone goes rummaging through the trash bin looking for the coat hanger for signs of DNA!

    1. how does someone prove there was an abortion performed

      I would suspect the pregnant woman’s testimony might be sufficient.

      Then again, I have already made the assumption that only ‘women’ need abortions, which means I should be dismissed as a racist idiot.

    2. Turns out, not everyone who works in every abortion clinic believes that a woman has a right to kill a baby right up until full term; that there are people who aren’t members of the Christian Taliban (medical experts even) who think that a clump of cells with a heartbeat and a brainwaves is definitively definitively a living human and/or that, even if it were just a clump of cells, it’s still killing them.

  9. FYI, per my comment above, it needs to be stated more clearly and loudly, Texas didn’t ban abortion. They created a concrete definition of ‘nonviable fetus’. We may agree or disagree with that definition, but they didn’t ban abortion.

    1. Correct. And they established a designation that relies on a testable and repeatable method.

    2. As I pointed out elsewhere, the ‘heartbeat/6 weeks’ argument is exceptionally retarded and really getting into the weeds of the right to abort psyche. To the point that it’s not clear whether they’re having trouble finding defendants because the law rules them out or if they’re having trouble finding a doctor to go around ultrasounding women they definitively impregnated 6 weeks ago so that they can perform an abortion.

      1. We need a constitutionally-guaranteed right to abort before the sperm reaches the egg!

      2. I’m not following your statement. Can you clarify?

        1. They make the argument that what is being detected by a *sono*gram is just electrical impulses:

          Here’s notable brain-dead parrot Liz Wolfe quoting ENB:
          “Fetal heartbeat” is a somewhat fraught term, notes Reason’s Elizabeth Nolan Brown, since it “refer[s] to any embryonic cardiac activity—an electrical pulse that mimics a heartbeat even before an embryo has a heart—and can generally be detected about two weeks after pregnancy registers on a typical home test.”

          “Since this orchestrated network of cardiac muscles cells don’t have elected leaders and card-carrying members, they’re really just more of an idea.”

          1. TX: I present a heartbeat as objective proof of life.
            Reason: My nihilism refutes your evidence.

          2. As someone currently going through IVF I always find these kinds of bizarre ethical pretzel definitions of human life really weird. People use these words “human life!” and start assigning or trying to remove lots of weird metaphysical baggage to it but I just want to talk about how I view it for a bit, based on my own experience trying to create it.

            Humans are, essentially, a clump of cells. They start out as one cell and they become big clumps of cells, and then at some point they get ejected from a uterus and exist on their own for 0-100 years, but always as a clump of cells. Political hacks really would like to say there’s a point at which that clump of cells stops being an ethically neutral piece of the mother, subject to her own discretion, and when it suddenly miraculously transforms into A Person. This just isn’t how it works though. It would be convenient for our politics if it were so, but it is not. It doesn’t matter what you believe, or how you think it ought to be, but the simple raw biology of the matter is that humans are created gradually over the course of months inside of a woman’s uterus and the road to full personhood isn’t complete even when the mother cradles her newborn in her arms; but just because it’s not complete doesn’t mean it hasn’t started. That’s what I hate most about heartbeat laws and related things. They try to zero in on this one point and define “This is a person” but as soon as you do that you obliterate all nuance when the reality is that isn’t a full person and it’s not fair to count it as one. Is a woman guilty of murder for miscarrying? Can you count her as criminally negligent for not doing whatever pro-health measures you care to mandate? Is aborting a rape baby okay? What about fetuses with incurable genetic disorders which may drastically reduce the quality of their lives and the lives of the people who are forced to care for them?

            I think abortion should be fully legal because I don’t think that choices like “should I abort this pregnancy?” come with easy answers. This weird sort of fantasy where immoral monsters are having tons of unprotected sex and aborting any pregnancies that happen to occur is just that, a fantasy. It does not exist; and the choices and situations that bring women to the doors of abortion clinics are so varied and painful that a one-size-fits-all approach doesn’t do them or society at large any good.

            You might say it’s a slippery slope to start defining down human existence and splitting hairs over what and who is considered “fully human” but it IS in fact, to borrow some overused terminology at this point, a spectrum. There are things which are people, there are things which are not people, and then there is a grey area of “things which are in the process of becoming people, not fully people, but partially” and I would hope that the laws we create for ourselves would be as tolerant as possible and to give people the benefit of the doubt in their choices.

  10. Meanwhile, the threat posed by the lawsuits that S.B. 8 authorizes has dramatically curtailed access to abortion in Texas.

    Not a lot of bravery on display from the group that considers a developing human child to be just a lump of cells?

    This is my shocked face.

  11. The same way I believe getting a vaccine should be left up to choice I also believe abortions should be the same way.

    If you want to get the vaccine that’s fine, that’s your right to do but trying to enforce it or stop someone from getting theirs is what I take issue with, same with abortions.

    If a woman/couple wants to get an abortion that’s fine and their right to do so and no law should force them or impede them from doing so.

    1. >>should be left up to choice

      anyone ask the kid its preference?

      1. you may believe that a 6 week group of cells is a child, but it is also completely reasonable to believe it is not. If there was a definitive scientific answer to this question, then there would not be a problem

        1. I’m happy with the heartbeat – you can’t tell me it’s not a heartbeat.

          1. humans are way more complex than just a circulatory system.

            1. indeed.

              >>also completely reasonable to believe it is not

              I’m an optimist.

          2. I’ve said it before and I’ll say it again; human life isn’t that hard to determine at the end of life. Heartbeat and brainwaves is pretty definitive.

        2. You can keep calling it a lump of cells all you want, but the only scientifically viable conclusion is that from the moment that the nucleus of the sperm cell fuses with the nucleus of the egg, it is a separate and genetically distinct organism from the mother.

          Of course, the issue of whether or not it is (or should be) a person with rights in the eyes of the law is an entirely unrelated question.

        3. It is an organism of unique DNA that has human life.

        4. The science is pretty clear. The people who don’t understand the science are the pro-choicers who refuse to believe a fetus is either “alive” or “human” (failing biology 101) and the pro-lifers who can’t distinguish between fertilization, conception, and pregnancy (failing biology 102). Sexual reproduction has already occurred: biologically, the woman is a parent, and the fetus is her child.

          The metaphysics of personhood and the ethics of conflicting rights are open questions about which reasonable, well informed people can disagree in good faith. Medical ethics, personal identity theory, and philosophy of law are the domains where pro-choicers and pro-lifers need to focus their debate. The medical science just is what it is. It isn’t mysteriously opaque, but it also doesn’t settle anything.

        5. A fertilized egg from a human is a human being. It is in a very early stage of development. It seems like your issue is not whether or not that baby is indeed a human baby, but is it sentient in such a way to be recognized as a legal person.

          There is a lot of science on the development of the human both in the womb and after. However, none of us can say at what point does the baby have a soul. Perhaps some do not even believe in the concept of a soul.

          Science cannot resolve the concern of abortion because it is a moral issue, not a factual or legal issue. If a woman does not want to be pregnant, she will find a way to not be pregnant. Some women want desperately to be pregnant, yet miscarry.

          Unborn babies are like sprouted seedlings, fragile, tender and in need of special environments to thrive.

      2. The same way I believe a landlord should be able to kick out someone who rents at any time a place I also believe a pregnant mother should be able to kick her baby out at any time.

        1. This is where science comes into play. If a woman gets pregnant, she, in effect, created the opportunity for that baby to come into being. Her duty to not be pregnant occurred before she had sex. She has a great array of birth control methods that are highly successful in preventing a pregnancy.

          I think it is hideous to be so cavalier and irresponsible to get pregnant when you do not want to be.

  12. Even an unwanted fetus is not a murder victim until the woman chooses to have an abortion and kill it.

    She acted irresponsibly and became pregnant. Nobody is a victim yet, the fetus just has a fuck up for a biological mother. It will probably be better off adopted.

    But the woman wants to kill the fetus instead. There is no inalienable right to murder.

    The baby has an inalienable right to life.

    1. I often defend anti abortion people to my friends by pointing out that many just believe that an early stage fetus is a human, and I will say to you, that almost all pro-choice people honestly believe it is not.
      Your confidence in your position is unwarranted based on the science, and so your judgemental attitude is off putting. It doesn’t help that many pro-life advocates seem so concerned with what happens to a fetus, and so unconcerned about what happens to them after they are born.

      1. “Your confidence in your position is unwarranted based on the science, “

        What science are you referring to?

        I know that DNA fingerprinting science proves that from conception another individual person lives in the mother whose voluntary action put it there whether by accident or not is irrelevant.

        I am aware of no constitutional amendment that denies a baby the inalienable right to life.

        1. “…I know that DNA fingerprinting science proves that from conception another individual person lives in the mother whose voluntary action put it there whether by accident or not is irrelevant…”
          You.
          Are.
          STILL.
          Full.
          Of.
          Shit.

          1. If you think that you have ever refuted anything I’ve said here, provide a link to prove it.

            I’ve challenged you to do so every time you troll here and without fail, every time you choke and I rub your nose in it. Fuck off troll.

      2. Theres a name for those people who deny science and think they know better, it starts with an “f”. Fuckwits or flat earthers.

      3. and I will say to you, that almost all pro-choice people honestly believe it is not.

        I’m not convinced of that. I believe a percentage of them do honestly believe the fetus is not “human”, but I believe a portion of them don’t care. I can’t say what percentage, but I believe there is an identifiable, measurable percentage.

        I believe there is a pro-choice argument that states as long as the “fetus/child/baby/pre-natal clump of cells” is connected by the umbilical cord to the woman person who identifies as a woman, the woman person who identifies as a woman has a choice in its continued existence.

        1. FYI, I admit I was not clear in my response. You said “almost all” which means my point technically doesn’t refute yours. My point was to say that based on my assumed interpretation of “almost all”, I suggest that the percentage is higher than that.

        2. Do you care to make that argument here?

          Or are you just going to dump it and walk away?

          1. I’m not sure what your disagreement with my comment is, but if you want me to support my suspicions…

            But in that room, I was overcome with a strong urge not to tell her what I’d observed, because I feared where that discussion might lead. I am an American ob-gyn. In most states in my native country, third-trimester abortions are illegal or nearly inaccessible. In practice, only a handful of facilities in the entire United States perform abortions after 26 weeks for nonlethal anomalies. But here in Israel, abortion is widely available and can be offered until delivery. A subtle abnormality, such as the one I saw in that ultrasound room outside Tel Aviv, can prompt a discussion of pregnancy termination. Even at 35 weeks.<

            Yes, I know we’re focused on the US, and in this particular case, a law in Texas, but if the above can be The Law of the Land in a modern, western liberal democracy, then there can be little doubt that there is a significant number of western, liberal people who believe that “up until delivery, it is the sole domain of the woman’s choice”.

            has this issue ever been polled? I don’t know. But as I state reasonably clearly, I don’t know what the percentage is, but given my own estimation of what “almost everyone” means, I strongly suspect it it could be an alarming percentage of people. If you want a number, I’d say maybe 30% of pro-choice people don’t care about fetus “viability”. If I’m wrong (way too high), I’d be pleasantly surprised.

            1. Your argument then is that the right to life isn’t inalienable but subject to the whims of the mob?

              Is that the Israeli perspective also?

              1. Ah, I see what’s happening here, you’re trying to pick a fight before you know what my position is, based on my assessment of other people’s positions.

                1. On the contrary, you posited an argument as someone else’s and left it like a bad smell.

                  I asked if you intended to see through what you started. You complied, lost and are now backing out once again.

                  That just about sums it up.

                  1. Once again claiming “VICTORY” where you’ve been handed your hat.
                    At one time, it occurred to me that you might be stupid but ‘clever’; now it’s obvious you are simply abysmally stupid to the extent that some of your stupidity might be confused with ‘clever’. Not so.
                    You.
                    Are.
                    STILL.
                    Full.
                    Of.
                    Shit.

                    1. If you think that you have ever refuted anything I’ve said here, provide a link to prove it.

                      I’ve challenged you to do so every time you troll here and without fail, every time you choke and I rub your nose in it. Fuck off troll.

                  2. No, you’re arguing with the retard in your head.

                    1. You presented an argument that was untenable and lost.

                      Get over it. I have.

        3. that has not been my experience, but I can’t really know. I guess it would be about the same percentage as that of conservatives that the left claims “don’t care about immigrant children.”

          1. It’s one thing to not invite illegal immigration and quite another to advocate murder.

      4. No offense. By they don’t honestly believe it. They just rationalize it.

      5. Sorry, it’s not pro choice but pro abortion. These are the types of semantic word games people justifying their actions to themselves and others use to deflect from the truth of their actions or beliefs. The fact that the pro abortion groups and individuals justify the actions of Kermit Gosnel and the failures of the inspection regime to report him plus their recent introduction of post birth abortion Bill’s puts the lie to any semantic games they/you use.

        1. Can you cite to anyone justifying the conduct pf Kermit Gosnel? Please be specific.

          1. Fuck off, leftist clump of cells.

    2. In that case, women who abort their pregnancies are murderers. But you cowards refuse to follow the logic of your belief, because you know a majority of Americans would go hard against you, and that would be the end of your advocacy.

      1. I’ve demonstrated that abortion is murder with irrefutable logic and science and you advocates of abortion irrationally deny what you can’t refute.

        Your position is obviously untenable.

        What else would you have me do?

        1. “I’ve demonstrated that abortion is murder with irrefutable logic…”

          Translation:
          Misek has again posted bullshit which fucking ignoramuses like him might confuse with “logic”. If they were drunk or stoned…

          1. If you think that you have ever refuted anything I’ve said here, provide a link to prove it.

            I’ve challenged you to do so every time you troll here and without fail, every time you choke and I rub your nose in it. Fuck off troll.

      2. What penalty would you impose on a woman who arranges for her own abortion?

        1. When you admit that you can’t refute that abortion violates the inalienable right to life of the baby, we can discuss logical punishment for attempted abortion.

  13. With luck the whole sous vide artificial womb will make this all moot in a few years. Of course then the left will be crying that surrogates will be out of work.

    1. the whole sous vide artificial womb will make this all moot in a few years

      At that point, they can just remove the eggs and give everyone a penis. That and mandated spray tans and we will have equality at last!

      1. >>mandated spray tans

        I tan like a mo’fo. I’d fight that mandate too.

    2. With luck the whole sous vide artificial womb will make this all moot in a few years.

      IDK, the critical argument pro-choice side seems to be making here is that a woman is unduly burdened by carrying clump of cells she may not even be aware she had.

  14. I think that it is easier to create a test case than Mr Sullum’s article concludes. Were I interested in challenging this in court, I would solicit a sham plaintiff to bring a suit. That would get the ball rolling.

    1. We don’t need a sham plaintiff to know that abortions have been chilled. CHILLED! Burning hot were the fires of abortion until this law was passed.

    2. Not necessarily. In Huckleberry Finn a believer in rights defies an angry mob, explaining how their masked ku-kluxers hunt down and murder jurors who vote to convict ku-klux murderers. The upshot is intimidation not unlike this Texas conspiracy to grant immunity to the grifters wielding the violence of law Adam Smith warned against. Their heroes are Positive Christians like Robert L Dear, Michael F Griffin, Paul J Hill, Scott Roeder, John Salvi, James Kopp, Eric Rudolph and similar jihadists. SLAPP barratry is the comparatively more cowardly form of perverting the courts into instruments of mystical torture.

      1. More Hank drug-induced bullshit!

      2. That isn’t relevant because the jury trial is irrelevant. In fact, the defendants would probably just stipulate that the facts that the plaintiff claim are correct and therefore there is no need for a jury. The whole point is to put the case in the hands of judges as quickly as possible, so they can establish precedent.

    3. This. Through the entire article (and the entire yammering since the Supreme Court ruled), I have been wondering why the ACLU didn’t sue Planned Parenthood and just let that be the test case. It would actually be even better than sueing random people who might bring a case for declaratory relief because the ACLU lawyers would expedite the case (not ask for discovery, reply the day requests were made, waive notice periods, etc.), whereas an abortion critic would throw up as many procedural hurdles as possible, take as long as possible on replies, etc. to keep the chilling effect around longer.

  15. Libertarians and abortion…fun to watch the fireworks..

    1. Libertarians came out against girl-bullying rednecks in 1972. In the Young Americans For “Freedom” newsletter “The New Guard” it was decided back in 1979-80 that benighted creatures who believe female individuals actually have rights are “mere Libertarians.” Girl-bullying superstitious rednecks with green teeth, on the other hand, are (reverently) Conservatives. So why do the rednecks alluva sudden feel Ghawd has Commanded them to invade the LP as infiltraitors? What’s wrong with their own nazi party?

      1. Hank, quit making a public ass of yourself. Your family already knows and the rest of us don’t care.
        Fuck off and die.

        1. Oh look, an auth right shitbag being a shitbag, I’m shocked. Cry harder we’re not yet the fascist dictatorship of your dreams.

    2. I find it interesting the loudness of the fight between “its murder anytime after conception!” and the “any restriction at all is an attack on women!” crowds when i suspec the majority of people’s feeling is “1st trimester ok, 3rd trimester not ok, 2nd trimester gray area”

      1. Last I heard, polling bears this out. I actually wonder if this law will backfire when it poisons the well by the time the ban after 15 weeks law is looked at.

      2. Both “extreme” positions are arguably more coherent than the “moderate” position based on trimester markers. Developmentally, those divisions are arbitrary.

  16. Sullum does provide an overview of how zealots are manipulated to further some other agenda beyond their ken, just as Yankees unable to understand tariff rates were fanned into boiling wrath at Confederate quadroon balls and sexual exploitation of slave girls. Any bets on how long before unequal yet apposite reaction puts an extrajudicial price on the heads of the drafters of the usurpation?

    1. Fuck off and die, Hank.

  17. “But meanwhile, the law has already had its intended effect, since the threat of litigation has led Texas clinics to stop serving the vast majority of women seeking abortions.”

    Ooh, that’s really too bad.

    https://www.youtube.com/watch?v=Tu6yiS1Q3dA

  18. The left puts so much effort into attacking the right they hate, the right to keep and bear arms, it’s kinda fun to watch their frustration and rage when the shoe’s on the other foot.

    Of course, the right will be equally outraged when the left passes anti-gun versions of this law.

    Politics is nothing more than forcing your views on everyone else and getting even with people who do it to you.

    1. That is fine for them to do in their own pathetic rags. But neither the Libertarian party nor Reason is socialist. Christian National Socialists in shame call themselves “right” just as genocidal communists use the “left” euphemism on a one-dementional line. Libertarians map these in a 2-D Nolan Chart representation of the 3-D world. There any child can see that the single-dementia socialists are separated only by the intensity of their superstitious brainwashing yet united by their worship of aggression.

  19. All they need to do is wait for some junkie to file suit in the hopes of getting $10,000 to pay for his crack habit.

  20. “This language could not be plainer. Exclusive means exclusive, and notwithstanding any other law means notwithstanding any other law. When the district court imputed ‘indirect’ S.B. 8 enforcement authority to other agency provisions, it ran the multiple red lights in S.B. 8’s text….S.B. 8 emphatically precludes enforcement by any state, local, or agency officials. The defendant officials thus lack any ‘enforcement connection’ to S.B. 8 and are not amenable to suit under Ex parte Young.”

    So the law says he can enforce it, but another part says he can’t enforce it, so we can’t order him not to enforce it. Are they saying that the provision allowing Paxton and the state to implement penalties against providers are null and void, or that the statute’s language permits him to be a state official enforcing the law while simultaneously not being a state official enforcing the law, because they’re playing games?

    The 5th Circuit is an embarrassment. Don Willett is the only reasonable conservative there, the rest are complete partisan hacks.

    1. Whatever happened to “shall not be infringed” meaning “shall not be infringed”? God’s own prohibitionists were the first to water that one down to less than one-half of one percent of an individual right. Garfield, McKinley, Lincoln and Reagan evidently weigh more in their casualty balance than Kennedy and George Wallace.

  21. “[The Spartans] should not make war often, or long, with the same enemy, lest that they should train and instruct them in war, by habituating them to defend themselves.” – Plutarch

    The left kept waging lawfare. They should have read Plutarch.

  22. I have a suspicion that it was not supposed to pass the courts.

  23. Sad how we call a drop of water “life” on Mars while destroying human life so callously on Earth.

    1. Somebody fetch apilesqueaking a fresh nappie, a crying towel and and a jar of Dr Trump’s Butthurt Salve on the double!

  24. How can a person who has suffered no harm sue the abortionist?

    1. The same way that able-bodied lawyers are able to sue in California for ADA violations: the law says they can, because the legislature wants to deputize every bored attorney into their cause, rather than use state resources to do so.

  25. Seems like the question is at the state level, not the federal level. Texas defines who has standing in it’s constitution and there are state level rulings on the issue of standing. This law blows those precedents up by stating that virtually anyone in Texas, save for the rapist or a government official has standing to bring a lawsuit against anyone who has any nexus with an abortion procedure.

    Likewise, the nexus is so broad that if a woman used an Uber to go to the medical clinic, the Uber driver could be sued.

    Is this being challenged at the state level yet, and if not, why not?

  26. I think the S.B. 8 is flawed to say the least. But what I hadn’t read until this piece is the statement that, “Meanwhile, S.B. 8 limits the defenses available to targets of these lawsuits and specifies that they cannot recover attorney’s fees if they nevertheless manage to win.”
    Boy that makes me angry. Am I understanding this correctly? That anyone can be maliciously sued under this statute — falsely accused of prohibited acts — and they have no recourse to recovering the costs to defend themselves? Like you idiot neighbor who’s always nursed a grudge because she doesn’t like your backyard plantings will have the right to file a suit against you under S.B. 8 and you will have to pay to defend yourself?

  27. This just in: A San Antonio doctor has volunteered to test the mystical usurpation. Roe began in 1970, before the 1972 LP plank calling for repeal of girl-bullying laws hit the stands. Those laws became history in January 1973 once the electoral votes were all counted and GOP Tricky Dick was signing peace promises to split and quit bombing Asian children to death. We are in 2021, a year out from elections in which the LP has time to re-adopt that original law-repealing plank and again defeat cruel laws while defending individual women’s rights.

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