Abortion

Supreme Court Agrees to Fast Track Review of Texas Abortion Law

The justices will hear United States v. Texas and Whole Woman’s Health v. Jackson on November 1.

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Last month, the U.S. Supreme Court declined to block Senate Bill 8, the Texas law that bans all abortions after the sixth week of pregnancy, from going into effect. "The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue," said the unsigned 5-4 majority opinion in Whole Woman's Health v. Jackson. But because of the "complex and novel antecedent procedural questions also presented," that majority said, it would not take any action at that time.

Today, the Supreme Court agreed to tackle those procedural questions head on. What is more, the Court agreed to do so on an unusually fast track. The justices will hear oral arguments in two related cases about the Texas abortion law on November 1, just 10 days from now.

The legal dispute centers on the law's unique structure. Normally, when a state regulates a particular activity, a state official handles the enforcement and then answers for the law in federal court if a constitutional challenge is filed. The Texas law was structured to avoid all of that. It says that the abortion ban "shall be enforced exclusively through…private civil actions." Specifically, "any person" may sue "any person who…aids or abets the performance or inducement of abortion" and win a $10,000 award plus legal fees if the civil suit is successful. The whole idea behind the Texas law was to let state officials dodge legal accountability in federal court.

The Supreme Court today agreed to hear two cases, Whole Woman's Health v. Jackson and United States v. Texas, both of which deal with aspects of S.B. 8's unique structure. In Whole Woman's Health, the Court will consider "whether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions." In U.S. v. Texas, the Court will consider whether the federal government "may bring a suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced."

In other words, the Supreme Court will not be considering abortion itself on November 1; rather, it will be considering the legality of the Texas scheme and asking what sort of parties may challenge that scheme in court.

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  1. It will be interesting to see how they keep baby killing legal while not gutting ADA enforcement by civil suit.

    1. Is that the latest argument in defense of this law? That the ADA did it first?

      1. No. But most of the good arguments against SB 8 would have the (probably unintended) effect of undercutting all private-enforcement laws (of which the ADA is neither the first nor the largest but might be the best known).

        1. Might possibly carry over into civil suits that undermine a fundamental enumerated right, like suing gun manufacturers into oblivion.

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    2. Roberts bringing home the mental gymnastics gold?

      1. He's absolutely terrified of touching anything that will earn him a negative write-up in the WaPo, which makes him a bigger DNC asset than Stephen Breyer, Sonia Sotomayor and Elena Kagan.

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    3. I'm no lawyer, but I'm not 100% sure that those are legally the same. I'm not saying they're NOT, because I'll agree that the ADA situation sure as hell seems similar to me, but when you go down the "narrowest possible grounds"... who knows.

      1. ADA enforcement requires some sort of direct action.

        For instance, when an ADA troll wants to sue they'll visit a business. Usually get a receipt to prove they were there. Then they ask to use the bathroom searching for a violation. Or maybe they'll ask the hostess of a restaurant for help over a step that their wheelchair has trouble with, etc.

        They can't just look at a business and say "It doesn't have a ramp, so I can sue." They have to have been patronized and somehow inconvenienced (Harmed in legalese) personally to bring a suit.

        Texas allows anyone, anywhere to sue anyone who might have anything to do with the offense. So someone who has zero association with any of the parties involved, who has never visited Texas, is given standing to sue the doctor, the receptionist, the billing agent at the clinic, the person who gave the woman a ride.

        It's much broader.

        That said, the ADA scheme is a goddamned scam and has been abused endlessly. But that's the reason it still exists and why these cases will be interesting.

  2. The legal dispute centers on the law's unique structure.

    Uh, huh. Now do that qualified immunity identical precedent BS.

  3. I have a lot of internal conflict on the abortion issue itself, but regardless of where I lean on that I am horrified by the implications of the way this law is structured.
    If this clears SCOTUS without a firm benchslap, the precedent will put all of our less-ambiguous Constitutional rights at risk when states like CA and NY take this and run with it.

    1. We've been assured by others on this board that there are tons of laws out there that are similarly structured, and besides that the end justifies the means.

      1. No, there are not "tons" of laws that are similarly structured. This one is unique. There are lots of private-enforcement laws (including some federal ones dating back to the Civil War and beyond) but none using this specific structure that allows it to evade review.

        1. It doesn't evade review.

          It evades prior injunction.

      2. One could convincingly argue that progressives themselves opened the door to this with civil actions on sexual harassment and the "sexually charged environment"/"hostile workplace" pseudo-exceptions to questions of standing, and on some environmental laws of the same ilk, but this one goes a bit farther.

  4. If SCOTUS strikes down Roe v Wade before next year's election, the GOP may not regain control of the US House or Senate.

    The best solution is for Congress to enact legislation that codifies women's abortion rights in Roe v Wade into federal statute (and preempts/strikes down more restrictive clauses in state laws).

    To obtain the needed 10+ GOP votes in the Senate, the number of weeks would likely have to be reduced from 24 to 18-20 weeks (which would still keep the vast majority of abortions legal).

    1. "If SCOTUS strikes down Roe v Wade before next year’s election, the GOP may not regain control of the US House or Senate."

      What makes you believe overruling Roe and Casey would hurt the Republicans' chances in the midterms? It may hurt, help, or neither.

      1. Because the vast majority in this country favors keeping abortion legal.

        1. I think you are right regarding the first trimester. For the second, it's about 50-50. For the third, overwhelmingly against.

        2. The vast majority favors legal early, and illegal late.

          They also want various exceptions for any scenario they imagine themselves in.

          And they believe that RvW is required for all this.

          So, overturning RvW would not change practice, but it would not be explained that way in Vox.

          1. They also want various exceptions for any scenario they imagine themselves in.

            ^

        3. >>vast majority

          lol no

    2. They won't, but they also can't do this in a meaningful way. If there's no constitutional right, then it's a state thing and not a federal thing, and the law would simply get struck down.

    3. Why on earth would SCOTUS overturn Roe? Even in the nightmares of your most ardent lesbian feminist activist... I can't think of a situation where SCOTUS would overturn Roe.

  5. the Court will consider "whether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right nullify decisions of the Supreme Court by delegating to the general public the authority to enforce that prohibition through civil actions.

    FIFY

    1. I see no problem with that. The various states could do with some nullification.

    2. nullify decisions of the Supreme Court by delegating to the general public the authority to enforce that prohibition through civil actions

      Like Dred Scott tried to do?

    3. OMG states are acting independently! Someone call jfree so he can get dictator Brandon to stop them!

  6. And of course Damon misses an important possibility that by arguing Mississippi's abortion law (earlier in this term), they could moot the whole question by simply deciding that states can set what the viability of a fetus is in law.

    1. States do set limitations on abortion, and the supreme court acknowledged when Roe V Wade was passed that a right to an abortion was not unlimited. So in my mind, this Texas law merely forces the question about what those limitations are.

  7. Whether we're talking abortion or guns, expect penaltax decisions while the progressives are in control of Congress.

    1. You think progressive Hollywood actors will be exempt from the gun penaltax?

      1. I wonder if they filled out a 4473 before transferring that firearm?

  8. >>The whole idea behind the Texas law was to let

    people be born and live a life.

  9. There's nothing novel about the law. It's such a fucking joke. It's doesn't matter that the fascist Republicans aren't putting prertty costumes and shiny little gold stars on their enforcers. It's the not costumes or the names that matter. It's their actions and who empowered them and in who's name they are so empowered. Fucking scum mfers. I told you stupid mfers this would happen by the way. These mfers will be kidnapping pregnant women to prevent them from leaving the great fascist state of Texas. They'll empower fascist men to sue women to force pregnancies. Once you're pregnant in Texas you're a slave to these delusional scumbags.

    1. dude if you're going full-caricature write out motherfucker

      1. I'm genuinely pissed off. You just don't understand or care where this is all going. If they allow Texas to get away with criminalizing pregnancy by pretending the fetus is a separate person it's literally will open pandora's box. It would mean a woman couldn't leave Texas to get an abortion because that would be conspiracy to murder and kidnapping. Y'all dialed this up. I'm just aware enough to know the water is boiling.

        1. by pretending the fetus is a separate person

          Hey ghoul, explain to me how it biologically isn't. You claim to be part of the "party of science". You must have some scientific basis outside of the Birth Canal Fairy, as to why one only becomes a human post partum.

        2. "I’m just aware enough to know the water is boiling."

          LOL that coming from you is golden. It actually suits you. Being the boring, cranky kid that sits in the corner and keeps telling themselves "I'm just too smart for y'all". Meanwhile, the reality is that nobody wants to talk to you because you are a self-unaware, antisocial dweeb that grossly overestimates themselves while underestimating everyone around them.

          "I'm just aware enough to know the water is boiling"... Man you're sad.

      2. The fact of the matter is that it would still be crime to be gay in Texas it wasn't for liberals. If it were up to "conservatives" women would be second class citizens and gay people would be criminals. The only thing keeping that from happening again is Supreme Court precedent and that precedent is hanging by a thread.

        1. "The fact of the matter is that it would still be crime to be gay in Texas it wasn’t for liberals."

          "I'll make up a "fact" about my favorite paraphilia and the social group I hate the most, and let's see if anyone calls me on it."

        2. You should really hate Islam then.

      3. And the cherry on top is that these forced birthers are lunatics. They hold their beliefs because they're brainwashed into believing nonsense.

        1. >>I’m genuinely pissed off.

          try to remember nobody aborted you and smile because you're alive. the rest is nonsense.

        2. these forced birthers are lunatics. They hold their beliefs because they’re brainwashed into believing nonsense.

          The projection just keeps on coming.

        3. "forced birthers are Lunatics"
          That's right, the people who don't want to murder children are the lunatics.

          I'll just leave this here for Stroozle to explain:

          Black, female DC police officers say they were given ultimatum: Have an abortion or be fired

          1. I am shocked that the stazi would do this. There is no historic precedence for fascists forcing abortions!

            1. Especially on nonwhites.

    2. LOL! Rage away you insufferable twat.

      Here is Larp of Stasi yesterday calling people he disagrees with trash and defending it as a judgement of their character.

      https://reason.com/2021/10/21/democrats-still-want-to-spend-trillions-but-they-dont-want-to-raise-taxes-to-do-it/#comment-9169942

  10. LOL! Rage away you insufferable twat.

    Here is Larp of Stasi yesterday calling people he disagrees with trash and defending it as a judgement of their character.

    https://reason.com/2021/10/21/democrats-still-want-to-spend-trillions-but-they-dont-want-to-raise-taxes-to-do-it/#comment-9169942

  11. "Look over here. We gave a black kid an aspirin! Our commercials are diversified!! "

  12. Jonathan Mitchell is one very, very smart lawyer. He wrote SB-8 knowing all the legal twists and turns in state, and constitutional law. I would love to hear more about how Mr. Mitchell systematically thought through how to write this law in a manner that defied immediate injunction, and made it to the Rocket Docket.

    When you really think about SB-8, a lot of different kinds of legal questions need to be addressed: law of equity, federalism, etc. Only an exceptional lawyer could have drafted a law like this. I want to hear from Mr. Mitchell.

  13. "In other words, the Supreme Court will not be considering abortion itself on November 1"

    O FFS, quit Pilating around and spare the unborn babies. Or are you too afraid of the mob?

  14. The Supreme Court today agreed to hear two cases, Whole Woman's Health v. Jackson and United States v. Texas, both of which deal with aspects of S.B. 8's unique structure. In Whole Woman's Health, the Court will consider "whether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions." In U.S. v. Texas, the Court will consider whether the federal government "may bring a suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced."

    Uncritically quoting the petition for cert that was granted is shit reporting. The Supreme Court will decide the the direct appeal of each case, answering the dispositive question(s) *they* choose, if they didn't say otherwise already.

    In contrast, if the Supreme Court is really going to consider "whether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right" as Whole Women's Health (absurdly contorted) the question, then the validity of Roe IS at issue in the case - that's the constitutional right they claim.

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