Kavanaugh Highlights Texas Abortion Law's Threat to 'Second Amendment Rights, Free Exercise of Religion Rights, Free Speech Rights'

The justice grilled a Texas official over the implications of his state’s abortion law.

Texas law S.B. 8 bans pre-viability abortions, which is something that Texas lawmakers are specifically prohibited from doing under existing U.S. Supreme Court precedent. To dodge legal accountability in federal court, those state lawmakers outsourced S.B. 8's enforcement to private actors. According to the law, "any person" may sue "any person who…aids or abets the performance or inducement of abortion" and win at least a $10,000 bounty plus legal fees if the civil suit is successful. Because no state official is doing the enforcing, Texas maintains, no state official may face a pre-enforcement proceeding in federal court over this obvious denial of a judicially recognized constitutional right.

The U.S. Supreme Court heard oral arguments today in two related cases that question whether Texas' novel legal scheme should be allowed to stand. Justice Brett Kavanaugh cut to the heart of the matter, asking Texas Solicitor General Judd Stone about "the implications of your position for other constitutional rights."

What if a state passed a law that says "everyone who sells an AR-15 is liable for a million dollars to any citizen," Kavanaugh asked the Texas official. "Would that kind of law be exempt from pre-enforcement review in federal court?"

Stone conceded that his theory would shield that gun control law too. "My answers on whether or not federal court review is available does not turn on the nature of the right," he told Kavanaugh.

So "Second Amendment rights, free exercise of religion rights, free speech rights," Kavanaugh emphasized, could all "be targeted by other states" using the Texas abortion law as a model. "And you also said that the amount of the penalty doesn't matter, a million dollars per sale," Kavanaugh added. "A state passes a law [that says] anyone who declines to provide a good or service for use in a same-sex marriage, a million dollars if sued by anyone in the state, that's exempt from pre-enforcement review?"

"Is that a yes?" Kavanaugh pressed the Texas official.

"Yes, your honor," Stone replied.

Later, Justice Sonia Sotomayor picked up on Kavanaugh's line of questioning. "A state dissatisfied with [District of Columbia v.] Heller says anyone who possesses a firearm anywhere is subject to litigation by any private citizen anywhere in the country and gets a million-dollar bounty," Sotomayor said to Stone. "So this is not limited to abortion." This is about any right "that a state is dissatisfied with."

"Your point," Sotomayor told Stone, "is that no matter how much a state intends to chill the exercise of a constitutional right…that does not give anyone a right to a federal forum when the state has deputized every citizen to act on its behalf."

Kavanaugh and Sotomayor are correct. If allowed to stand, the structure of S.B. 8 will be copied by every state legislature that wants to restrict an unpopular right that the Supreme Court has recognized. That outcome should worry Americans of all political stripes.

Comments

[Longtobefree]

Bring back dueling.

[Eeyore]

Agree, and ritual seppuku needs to be incorporated into American culture.

[Alicia Lowe]

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[kevrob]

That solves the problem of finding an abortion provider. Opening one's own guts with a wakizashi will kill any product of conception .

[RachelNelson]

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[Moonrocks]

Oh, so the Supreme Court is going to start caring about those now?

[JesseAz]

Since it isn't the ADA, why not.

[Sometimes a Great Notion]

One of Trumps best works - making Roberts less relevant.

[Sometimes a Great Notion]

Sorry, mis-read as ACA not ADA. Damn acronyms.

[Overt]

"Since it isn't the ADA, why not."

As someone corrected me on previously, the ADA isn't exactly applicable. The ADA defines a certain type of illegal discrimination. And CA law gives those people the power to sue for this discrimination. But- and here is the distinction- in order for me to sue, *I* have to have been discriminated against (e.g. be a person with a disability and go into a restaurant where they fail to meet code for some ADA accommodation).

In the case of this abortion law, I am not a party to the abortion- neither involved, nor harmed- but I am given standing to sue those people. That is a departure from the CA law. (And FWIW, the CA law is also bullshit- but it still requires a "victim" to do the suing).

[JesseAz]

I can point you to how lawyers have made entire livings working with disabled people where the lawyers find and sue and pass on "finders fees" to the disabled cover.

It is entirely the same concept either way. You're arguing that simply because it is limited to one sub group that it makes it suddenly valid. That is a strange assertion. I for one am for no favored rights.

[Overt]

But the fact that lawyers can get ridiculous fees is besides the point. They do the same for any large punitive lawsuits. But the key difference is that in all these cases the lawyers are representing an allege victim who was harmed.

Wherever you stand on the issue of abortion ( you know I am anti-) there is a difference between these cases and it is a mistake to just claim they are the same.

All that said, I wonder if a better way to write this law was to give lawyers the power to sue for wrongful death on behalf of the victim.

[rreally]

Next of kin get to sue for wrongful death on behalf of the estate of the deceased. I think giving the general public (or at least attorneys thereof) power of attorney over dead babies of their choosing is a much messier affair than what Texas actually did.

[raspberrydinners]

Not at all the same thing but thanks for playing there Jesse.

[Gandydancer]

It's not all that rare for legislatures to empower private parties to bring suit to enforce public policy or to therwise award rthem bounties when they are not injured parties. So you need to inform yourself about that before bloviating on the subject.

[rreally]

Remember, standing (which includes the injury requirement) is a requirement to sue in federal court. Not all states have identical, or even comparable standing requirements to sue in state court.

The ADA is a prominent example of the bounty-style cause of action, but it's not the only one, even federally.

The equivalent of what Texas did here is some language that is already throughout many if not most state codes: the text "shall have standing to sue."

[Procyon Rotor]

No, of course not. But they will pretend to care if they can use them as an analogy to protect abortion.

[Michael Ejercito]

"Your point," Sotomayor told Stone, "is that no matter how much a state intends to chill the exercise of a constitutional right…that does not give anyone a right to a federal forum when the state has deputized every citizen to act on its behalf."

Imagine if people sued gun manufacturers for shootings committed by gangbangers.

[Rev. Arthur L. Kuckland]

Excuse me cunt rag Sonya, where is abortion mentioned in the constitution

[JFree]

Where is 'shoot arms' mentioned in the Constitution?

[Bubba Jones]

The right to keep and bear nonfunctional arms?

WTF

[JesseAz]

From the same guy who says hospital should deny care to the unvaxxed.

[Vulgar Madman]

“Arms” are mentioned in the constitution. That’s everything from a pointy stick to a nuke.

[JesseAz]

A nuke is ordnance. They had both words back then. And were careful with both.

[NM Dave]

You're an idiot. Also, SCOTUS disagrees with you.

[CannedSaltyHam]

Maybe if we add it the left will finally realize how bad it is.

[Zeb]

Seems like a reasonable question as stated. And the fact is that precedent currently calls abortion a constitutional right. The question before the court is not whether or not abortion is a protected right.

[mad.casual]

That doesn't explain the justices playing stupid about gun manufacturers having been sued for exactly that. Nor the laws establishing the analogous practices (straw purchases, transfers across state lines) as explicitly criminal.

I'm not saying the law should stand or that the argument is entirely specious, the justices arepresumably considering many sides, but teh idea that it's some sort of deathblow or threat never before seen by gun manufacturers or publishers is retarded.

[Zeb]

Fair point. I'm more interested in the right answer than these inconsistencies, so that's what I focus on. It's still a good question even if the person asking it is full of shit.

[Social Justice is neither]

And the fact that they will selectively apply that logic totally isn't worth considering. Sorry, this hypocracy that you're entertaining is precisely why we get travesties like this. You're supporting two tracks of legal analysis depending on the political winner.

[ThomasD]

"You're supporting two tracks of legal analysis depending on the political winner."

Pretty much every Reason 'legal analysis' ever.

Or at least within the last two decades.

[Overt]

"That doesn't explain the justices playing stupid about gun manufacturers having been sued for exactly that. "

Is that really true?

I have seen DAs attempt to sue gun manufacturers for making a "defective product" hurting its citizenry. And I have seen people HARMED by a gun attempt to sue a gun manufacturer for their culpability in the harm they have received. But I have not heard of private citizens being given the power to sue a gun manufacturer despite not being specifically harmed by the gun they sold.

This really does seem to me like a more extreme case. It is essentially giving "standing" to any 3rd party that doesn't like the good or service you are selling/buying. That seems very new to me.

[Bubba Jones]

> It is essentially giving "standing" to any 3rd party that doesn't like the good or service you are selling/buying.

No. It gives standing to a 3rd party to sue someone who knowingly aids and abets an illegal activity.

The equivalent would be gun manufacturers who knowingly sell guns to murderers.

But all firearms are initially sold by licensed dealers to a buyer who passes a federal background check.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

No. It gives standing to a 3rd party to sue someone who knowingly aids and abets an illegal activity.

Your wishes do not make it illegal. The Supreme Court says it's legal, and that's what it is, from a legal point of view.

[Gandydancer]

An SB8 complaint cannot succeed unless the abortion is unprotected by Casey. Do you deny this?

[NOVA Lawyer]

Bubba,

The lawsuits against gun manufacturers have always been pursued by a party claiming they, specifically, were harmed. States suing on behalf of their citizens or individual citizens who were personally harmed by gun violence. What is new here is that anyone can claim the bounty without having any individualized harm and without having any connection to the "disfavored" (I'll call it) act. It would be like if anyone and everyone could file a lawsuit against Colt for every gun they manufactured that was involved in an unlawful or accidental shooting. That is different from what has gone before.

And, if guns were treated like Texas is treating abortion, bounty hunters could sue, in addition to the Colt company, the dealer, the purchaser, Colt's accountants, bankers, salespeople, all in their individual capacity as well. Anyone who was in any way involved in the production or sale of a gun would be subject to lawsuit by bounty hunters. That is not what the law has ever been before on guns or anything else. That is why this law is so chilling on what is, currently, a constitutional right. (And it purports to apply retroactively, prohibits attorneys fees to prevailing defendants but awards them to prevailing bounty hunters, provides that a prevailing defendant cannot use a win in one case to defend another case involving the same abortion, etc.....just a parade of due process violations, it would seem to me.)

[Gandydancer]

"provides that a prevailing defendant cannot use a win in one case to defend another case involving the same abortion"

Sincerely, where?
https://legiscan.com/TX/text/SB8/id/2395961

[Rev. Arthur L. Kuckland]

Unless you want a ghost gun, then just hang outside hunter bides apartment and wait for his brothers widow to get pissed off at him

[Social Justice is neither]

Now do the harms incurred by those reporting under red flag laws.

[Kords]

Except that it's not just aimed at gun manufacturers, but at anyone who keeps arms. According to Texas, a state could create a bounty against anyone who owns a firearm, not just anyone who manufactures or sells one.

Also, no state has ever passed a law that creates liability based purely on the manufacture of guns. Rather, they deal with imposing liability when those guns are used in ways that harm others. There are more elements to those claims than just the exercising of the constitutional right. That stands in sharp contrast to the Texas law that creates liability solely for the exercise of the right.

[Gandydancer]

There is no liability as long as the abortion remains a right.
https://legiscan.com/TX/text/SB8/id/2395961

To be equivalent your imagined law would have to say that there is no liability unless SCOTUS overturns Heller. For the forseeable future such a law would be a nothingburger. As is SB8. Cretainly no cause fora pre-enforement injunction.

[Jerry B.]

Of course, Congress passed laws preventing gun manufacturers from being sued for illegal use of their products.

[nicmart]

Since the Lockean basis of rights has been abandoned, it’s fine to use guns — which often kill others — but not fine to use drugs — which kill only the user.

One the most telling criticisms of the constitution was that it would later be claimed that rights are defined and limited by the constitution. Now, most people think that, and you can find that view in the comments.

[Bubba Jones]

There is nothing preventing the federal courts from expediting a hearing on the merits of the law, including the chosen deadline of 6 weeks.

In fact the law anticipates that the federal courts will issue a ruling specifying a different timeframe.

In fact, a federal court could rule pretty quickly that the law is unconstitutional as applied to a fetus prior to viability, if that is indeed what the precedent says.

What they can't figure out how to do is block the law indefinitely without a trial.

[Gandydancer]

The question is whether TX courts ought to be prevented from proceeding to interpret TX State law on the assumption that they will misinterpret it. As it stands no abortionist can be compelled to pay any damages, costs or suffer injunctive relief for performing a Casey-compliant abortion. That's what SB8 says, plain as day. SCOTUS should stay out until or unless TX courts drop the ball.

[not guilty]

Whether abortion jurisprudence should be modified is pending before SCOTUS in another case. The cases before the Court today are about whether a state is free to nullify controlling federal precedents and to shield its determination from federal courts´ review.

[Gandydancer]

You sare being a determined jackass, as usual. SB8 does not purport to "nullify controlling federal precedents", as you already know. But you can't help yourself. You lie, and lie, and lie, and lie, and lie....

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Where is marriage mentioned? Eating ice cream if you're not the President? Swimming in Lake Superior?

[raspberrydinners]

You have a right to bear arms. Do you have a right to shoot someone with it? Nope.

Could easily be sued for it. Thanks for playing dumbass.

[Bubba Jones]

>Texas law S.B. 8 bans pre-viability abortions, which is something that Texas lawmakers are specifically prohibited from doing under existing U.S. Supreme Court precedent.

Now do the right to bear arms in NYC.

[Chumby]

They won’t because killing an unborn baby is in the BoR and the right to bear arms shall not be infringed is not.

[Gandydancer]

Texas law S.B. 8 does not ban pre-viability abortions. It makes them illegal, but EXPLICITLY acknowledges TX's inability to penalize Casey-compliant abortions unless SCOTUS overturns Casey.

The only reason it is not for theforseeable future a total nothingburger is that fetuses will soon reach a stage of development where aborting them isn't Casey-compliant, and SB8 can then be used against an abotionist performing such an abortion.

[Ken Shultz]

"Kavanaugh Highlights Texas Abortion Law's Threat to 'Second Amendment Rights, Free Exercise of Religion Rights, Free Speech Rights"

I'm so glad to hear that Kavanaugh intends to protect my Second Amendment rights, free exercise of religion rights, and my free speech rights from the state of California. When is he getting started?

[JesseAz]

Well he just turned down the option to force states to allow a religious exemption to vaccines. So he has that consistency going for him.

[sCuLLeRcRUsHEr]

Wednesday.

[Full Of Buckminster]

When California legislators pass a law allowing third parties to sue you for exercising these rights. You should try understanding what Kavanaugh was talking about.

[Gandydancer]

Hard to understand a voice so muffled by his head being so deeply embedded in his butt.

[sarcasmic]

Some people are so hyped up about the a-word they don't don't give a fuck about the ramifications of this law being used as a model to bypass judicial review and go after them. As long as they get their way they don't care.

[Bubba Jones]

It doesn't bypass judicial review. It prevents a preliminary injunction prior to the review.

[sarcasmic]

Sorry, I misread.

[Gandydancer]

SB8 can't "go after" Casey-compliant abortions unless SCOTUS overturns Casey. A similar law couldn't go after Heller-compliant guns unless SCOTUS overturned Heller. Etc. Do you not know this?

[markm23]

"It prevents a preliminary injunction" - ensuring that at least the first person sued has to bear the costs of defending the case in state court and appealing it to federal court, and have a huge fine hanging over them while the federal courts chew on the case for years. The aim of laws constructed like this isn't to win at the Supreme Court, but to enable several years of harassment and hundreds of thousands of costs over the exercise of a right even though the SC has recognized it as protected by the constitution - and it would work the same against a right that actually is written clearly in the constitution.

[Michael Ejercito]

Please explain how this bypasses judicial review.

To the contrary, any court that hears a suit arising from S.B. 8 can judicially review the law, just as courts that hear lawsuits arising from libel or slander laws are perfectly capable of judicially reviewing laws against libel and slander. See e.g. New York Times v. Sullivan, 376 U.S. 254 (1964), Snyder v. Phelps, 562 U.S. 443 (2011)

[sarcasmic]

I've never met a lawyer that I didn't immediately despise.

[Claptrap]

It's the inevitable correction that seals it: "Fuck you, I'm an attorney."

[De Oppresso Liber]

"As long as they get their way they don't care."

Also see the 2020 election. "Stop the count." "Count the ballots!"

These people are willing to get rid of elections as long as the get their guy for the next couple years. They are shortsighted, emotional, and not about to little things like reality or the constitution get in their way.

[Vulgar Madman]

Yeah, and if a hundred percent of those newly found ballots go fo the republicans, then what?

[Gandydancer]

Why should it be any different than the newly-found all-Democrat "already verified" "absentee ballots" trucked into Cobo hall at 3AM?

Then what? Then you count them as many times as necessary for the right side to win, of course!

[JesseAz]

Would you call it blood libel to criticize the government?

[raspberrydinners]

You're being all too kind to people who I would simply describe as "fascist." They want power any which way they can get it and won't stop til they do.

[Hank Phillips]

True. The n-word, not the Constitution, was the deciding factor in Dred, decided by white male judges appointed by a half-slaver, half-protectionist looter Kleptocracy. TheirOnners ruled that white males could coerce black males and females without hindrance or limitation. Today's George Wallace, Ted Cruz, Mitt Romney and Trump faction assert males may legally coerce females, spoiler votes to the contrary notwithstanding. Since both Reason and the LNC have abandoned the Libertarian defense of individual rights for women, the alternative left standing for women voters is further alliance with Chinese communism.

[Bubba Jones]

What if a state passed a law that says "everyone who sells an AR-15 is liable for a million dollars to any citizen," Kavanaugh asked the Texas official. "Would that kind of law be exempt from pre-enforcement review in federal court?"

How does the 2nd amendment work?

[mad.casual]

How does basic contracting and precedence/standing work?

Doctor, patient: first, second parties. (Pseudo)Random person suing doctor: third party.

Shooter, victim: first, second party. Gun manufacturer, (Pseudo)random person suing manufacturer: third, fourth party.

[Social Justice is neither]

The issue there is those related to victims of gun violence get standing as 3rd parties, fathers & grandparents of the aborted will not.

[markm23]

The issue is that a law like this would give standing to sue to people who were never injured by a gun. Congress blocked actual victims of a criminal with a gun from suing gun manufacturers who followed the law and reasonable safe practices - but if the courts let this pass, next year _non-victims_ will be suing gun manufacturers, gun stores, and perhaps even gun owners in states with a heavily anti-gun legislature.

[Gandydancer]

Why do you need pre-enforcement review if the law can't be enforced against Casey-compliant abortionists unless/until SCOTUS overturns Casey?

[AaronBonn]

At some point - even if it goes all the way down to the agency that is tasked with enforcing the collection of the judgment - the state will be enforcing this. They may have outsourced the choice of who gets targeted with this law, but - assuming my impression is correct - they haven't really outsourced the enforcement of it. If they had, then Planned Parenthood could simply ignore the suits and decline to pay the judgments.

[Michael Ejercito]

The judgments can only be collected if a judgment is entered, which requires a lawsuit heard by a court.

[AaronBonn]

If they could preemptively sue the Attorney General to enjoin him from enforcing an unconstitutional law, why couldn't they preemptively sue the agency responsible for collecting the judgment on the same grounds?

[Michael Ejercito]

There is no threat of a concrete, particularized injury.

[Hank Phillips]

See? This selective blindness is the same evasion with which La Suprema Corte decided that forcing young males into foreign poison gas trenches was permitted by the 13th Amendment. Blinding and killing men and women by adding methanol to ethanol is to this day sanctioned by Organized Mysticism as the "Rendering unto Caesar" their unborn, nonexistent Invisible Friend reportedly abided as OK. Girl-bulliers cannot define an individual or a right without both becoming non-mystical. So much the worse for individual rights.

[JesseAz]

Standing. The same idea that liberals cheered to reject pre-election lawsuits. What harm are you claiming has occurred prior to a judicial ruling?

[Michael Ejercito]

Correct.

Neither the New York Times mor the Westboro Baptist Church have standing to sue to enjoin an agency from collecting a hypothetical libel or slander judgment that might be levied against them in a possible lawsuit.

[AaronBonn]

Why, might I ask, if they would have standing to preemptively sue to enjoin the Attorney General from enforcing it, would they not have standing to sue the agency that, under the Texas setup, is the one that is ultimately enforcing these judgments once they are rendered?

I'm not being argumentative, I am honestly asking here. It seems to me that if standing is the issue, it ought to be the issue regardless of whether the enforcement of the law is straightforward or set up in the convoluted way that Texas has arranged. If this is not the case, why is it not?

[Gandydancer]

You're not getting the feedback you deserve. It's a good question. The answer, I think, is that pre-enforcement banning of the TX AG from enforcing a law ought not take place unless such enforcement would create an immediate injury. But SB8 does not do so, IMHO, at least not to any substantial degree. See the explicit immunity from damages in Casey-undue-burden situations explicitly stated in SB8. Meanwhile, it has uncontested Constitutional application as soon as cases of abortion of viable fetuses start showing up.

[Bubba Jones]

Sure, but a federal court can't ban a state court from hearing a case.

[Gandydancer]

Banning a state court from hearing a case, or, before that, banning court clerks from accepting SB8 cases for filing, are precisely the remedies being demanded here.

[Gandydancer]

Planned Parenthood can't simply ignore the suits, but it has an unbreakable defense against them as long as Casey is unreversed. Unless TX courts fail to follow the plain words of the statute there can be no judgments to pay.

[markm23]

But PP could spend millions defending itself against multiple lawsuits.

[AaronBonn]

At some point - even if you have to go all the way down to the agency that is tasked with enforcing the collection of the judgment to get there - the state will be enforcing this law. They may have outsourced the choice of who gets targeted with this law, but - assuming my impression is correct - they haven't really outsourced the enforcement of it. If they had, then Planned Parenthood could simply ignore the suits and decline to pay the judgments.

If I am missing something here, please let me know. But it doesn't seem to me that this mechanism actually renders this law immune to review.

[Gandydancer]

It wuill be ripe for review if and when the TX courts reach a final judgement awarding damages in the case of a Casey-compliant abortion, Casey not having meanwhile been modified to unprotect that abortion.

[Think It Through]

Kavanaugh simply providing himself conservative bona fides cover for his upcoming vote against Texas.

That doesn't mean he'll vote against Mississippi, in the more direct case.

[CannedSaltyHam]

"Justice Brett Kavanaugh cut to the heart of the matter, asking Texas Solicitor General Judd Stone about "the implications of your position for other constitutional rights."

I'm more concerned about the implications of Supreme Court Justices deciding that constitutional rights are whatever the hell they want them to be at any given moment.

[CannedSaltyHam]

grr, wasn't supposed to be a reply

[Gandydancer]

The actual heart of the matter is that SB8 has no implications for any abortion recognized by SCOTUS as unpunishable.

[Diane Reynolds (Paul.)]

What if a state passed a law that says "everyone who sells an AR-15 is liable for a million dollars to any citizen," Kavanaugh asked the Texas official. "Would that kind of law be exempt from pre-enforcement review in federal court?"

I'm in total agreement with this... conceptually.

But as others have pointed out, we already have a situation with the ADA laws where any private entity which "fails" to meet the standards can be sued by private parties. Ie, the laws are enforced by private parties.

Is that a faulty legal analysis? Is there something unique or different about ADA laws that make it so it's not "the same" as the Texas Abortion Limit Law?

[Zeb]

Well, the ADA sucks too. That's my answer. Any law artificially enabling people not directly harmed by anything to sue other private individuals or corporations seems like a bad idea.

[Overt]

"ADA laws where any private entity which "fails" to meet the standards can be sued by private parties."

As I noted above, there still has to be harmed. The way the law works is that, say, George the quadriplegic goes to the restaurant, and goes into the bathroom, and there isn't a handicap accessible stall (or in even more egregious cases, the support bars are 3 inches lower than code). George then sues the restaurant for $10,000 per infraction.

Note that while the penalty is egregious, in the case of these laws, George still has to be discriminated against in order to be a plaintiff. I- a person without disabilities- don't have standing to sue the restaurant on behalf of all the Georges out there.

[JesseAz]

They are harmed by having to go to a different store?

[Diane Reynolds (Paul.)]

It would seem that in a perfect world, there would be harm, but there are well-documented cases where no obvious harm was done, but a person was sent in my an entrepreneurial law firm who just measured door frames and hallway widths and when they found a 1/2" breech of the rules, sued for a large cash sum. So I would argue that there are cases where someone sued on the potential for harm where a technical breach of protocol was found.

[Overt]

The harm was the discrimination not some actual injury they experienced.

Note I am not defending the law. I am just pointing out that the law is functionally different in that it defines a harm (discrimination) and a penalty that can be recouped by the “victim” and only the victim (and his greedy fucking lawyer). And it is for something that is actually against the law.

The TX law doesn’t even try to bridge that gap. Living in CA I can sue an abortion doctor even though I don’t even have the thinnest connection to the abortion they performed- an abortion that is actually legal.

That is a broad departure.

[rreally]

It's a broad departure from the ADA specifically, which has an explicit injury requirement. It's not a broad departure from other private causes of action conferred by statutes. Did a quick google for a primer on the current state of federal standing law:

https://www.stu.edu/Portals/law/docs/academics/student-orgs/jcl/volumes/2/Moore-Article-Final.pdf

Here are some plaintiffs' lawyers whining about the Supreme Court's then-impending smackdown of the Ninth Circuit's standing analysis in Spokeo (a 2016 case). Basically, the Fair Credit Reporting Act granted a generic statutory cause of action against regulated entities who "willfully" fail to comply with any provision of the FCRA. So, in a fair reading, the statute didn't require the plaintiff to have a concrete injury to make a claim. The Ninth Circuit was fine with that - letting uninjured people sue for the prescribed, statutory damages. The Supreme Court vacated, saying plaintiffs have to have concrete injury because of the Constitution's Article III requirement.

The key point is, the U.S. Constitution's Article III requirements have nothing to do with state causes of action, except to the extent a particular state has adopted those requirements. Unless the applicable state constitution has a concrete injury requirement for standing to sue, any number of state statutes can and do grant statutory causes of action, irrespective of concrete injury. Maybe you can't bring such claims in federal court (although you probably can if you have other federally-valid claims against the defendant). But you absolutely can bring such claims in state courts, where a state law authorizes them - like the Texas law at issue - and isn't otherwise barred by a state constitutional requirement, like concrete injury at the federal level.

[Gandydancer]

Forget the ADA. There are, e.g., environmental suits authorized where the suing party has no particularized damages.

[Brandybuck]

Don't you get it Reason? If Republicans do it then it's good. If Democrats do the exact same thing then it's evil. Simple. Get with it.

[JesseAz]

This is just as stupid as when Sarcasmic tries it.

[Chumby]

Brandy occasionally gets it correct. This is not one of those times.

[Bubba Jones]

People keep using the example of gun manufacturers.

So, let's use that example. Every firearm in the US is initially sold through a federally licensed dealer who performs a background check on the buyer. In many cities and states, you need prior approval from the government in a process that takes months if you do receive it.

Before buying an abortion, you need a background check and a permit.

[Dillinger]

>>under existing U.S. Supreme Court precedent

good thing gun rights and your fucking job are protected by something stronger.

[Gandydancer]

Apparently your fucking job isn't protected by anything if you decline to let poorly-understood substances be injected into you on a regular basis.

[WPHDM]

Question Presented: Will the Sky Fall and Slide Down the Slippery Slope into the Netherworld?

Or on "the implications of his state’s abortion law."

The gun loving, same-sex, and hetro-race hookup liability scenarios are all bad analogies and the copy-catting concerns are overblown.

First, you have to get a legislative majority to support passage of the objected-to bounty laws. How are you going to find the requisite votes against jungle fever and more enduring cross-race attachments? Second, even there were sufficient Lege support, and even if a federal injunction is not immediately available, the constitutionality could be litigated in state court. Where is the constitutional right to bring constitutional pre-emptive challenges in federal court? Third:
On pain of being trite:

Filing/docketing original petition =/= 1 million dollar judgment

The mere e-filing of a lawsuit (called Original Petition in Texas, rather than Complaint) does not trigger any damages, and if the novel law is clearly unconstitutional, there will be no judgment on liability, and no award of statutory damages because judges will adjudicate accordingly.

The specter of massive financial liability thus goes poof. To ratchet it up to 1 million dollars per violation -- by way of hypothetical or for shock value only -- doesn't  change anything, except perhaps for public consumption of SCOTUS drama that might otherwise be lacking in the erudite oral exposition of the finer components of the ex-parts of Young. Ex what?  

And yet more in the manner of trite: Guns don't gestate

Back to the badness of the analogy with guns: With abortions, there is urgency because of the natural gestational progression. If live births are a bad thing - and the pro-abortion folks espouse that dubious mantra even though a large proportion of them once duly slithered down a birth canal -- there is urgency to kill the fetus earlier rather than later because even the extant SCOTUS regimes attaches significance to the temporary proximity to projected birth day. Not to mention that earlier is easier and cheaper as far as the extraction and/or expulsion of the human remains of the product of conception and convenience of disposal thereof.

Not so with civil liability with gun ownership.

Guns don't gestate and reach full term. So, why would a pre-enforcement remedy be needed in that scenario to protect gun ownership from the existence of a newly enacted civil-liability keep-your-neighbor-disarmed bounty law, or some variant thereof? And also consider that law enforcement would not be involved in the quest to impose civil liability -- not to mention confiscation. No guns would be taken from homes or holsters pursuant to a novel constitutionally-suspect SB8-type anti-gun civil liability statute. So why would there be a rush to injunctive pre-judgment? Whether federal or otherwise.

Bottom line: The SB8 - 2nd Amendment abortion - gun analogy fails. 

[Bubba Jones]

"Bottom line: The SB8 - 2nd Amendment abortion - gun analogy fails."

You skipped the part where it's already harder to buy a gun than to get an abortion.

[Gandydancer]

You omit the part where the equivalent gun regulation would say IN SO MANY WORDS that no damages can be awarded as long as the defendant points out that doing so would violate Heller, so long as Heller isn't overturned.

[Hank Phillips]

The KKKAbbreviation sockpuppet demonstrates, as clearly as Martin Luther and National Socialism, that there is no point to arguing with mysticism. It relies on unverifiable assertions as basic premises. In George Orwell's thinly-disguised historical novel, as among today's George Wallace Republicans, sex is "Our Duty to The Party." Sending tax-subsidized bounty-hunters out to catch and coerce female deserters is therefore "our" duty to the Presumptuous Assumption of the Blinding Light. That, by their lights, settles everything and justifies all the deadly force in the world.

[Michael Ejercito]

S.B. 8 has the same enforcement remedy as libel and slander laws 9which are enforced by private parties filing lawsuits)

[not guilty]

Uh, libel and slander require a plaintiff who has sustained an injury.

[Cal Cetín]

Solve the problem by saying the 1st and 2nd Amendments mean what they say and anyone who says otherwise is filing a frivolous lawsuit.

[Gandydancer]

I can't recall whether abortion is a first or second amendment "right". Please clarify.

[Hank Phillips]

There is a photo of the gander sockpuppet unmasked over at landoverbaptist.org
Look for Brother Harry, who has no clue about the 13th or 14th Amendments

[Cal Cetín]

OK, here's a better answer.

For a *real* constitutional right, appeal the case through the state system and the plaintiff gets slapped down in a precedential opinion which declares the law unconstitutional - not because private enforcement is per se unconstitutional but because as applied to a *real* constitutional right, such laws have a chilling effect. Striking down the law will stop court enforcement.

[WPHDM]

As applied, yes, and that will depend on what type of violation is alleged or proven in a particular state-court SB8 suit, such as pre- vs. post-viablity (assuming Roe and Casey remain good law).

Additionally, as was brought up in oral argument, the Texas Supreme Court may apply standing requirements analogous to Article III (even though state courts are not limited thereby), which precludes SB8 suits from being viable in federal courts even if the aggregate amount of statutory damages sought were to exceeds 75K for diversity jurisdiction purposes. Such a SCOTX holding (namely, that statutory standing created by SB8 alone is insufficient in state courts) would reduce the population of viable would-be plaintiffs drastically, and would provide a basis for prompt dismissal if SB8 claims are filed by plaintiff with no stake in the matter of a particular abortion.

What the abortion-rights protagonists are aiming at in federal court, however, and in the 14 pre-enforcement challenges in state court, too, is to have SB8 declared unconstitutional categorically - in its entirety, not as applied -- which is the equivalent of abstract judicial review in countries that have a Kelsen-inspired constitutional court or constitutional council that and allow for direct challenges of new legislation (to determine conformity with the constitution), rather than requiring a case or controversy, or use some hybrid mechanism that also allows for constitutional complaints by citizens, whether they are personally affected or not.

[Gandydancer]

SB8 has unquestionably Constitutional application to post-viability abortions, so, no.

Also, it exempts Casey-undue-burden abortions. So, no, the as-applied violations are all imaginary.

The pro-abortion bloc has to go for a pre-enforcement injunction because there aren't likely to be any post-enforcement cases that are can be claimed to be unconstitutional.

[rreally]

You're right about the chronology but not the cause of death.

The law isn't struck down as unconstitutional because it has a "chilling effect." The law is struck down if it violates the Constitution.

The argument that the various pissed off Democrats would make against the constitutionality of the Texas law is that it "imposes an undue burden" on the right to abortion under Casey.

The issue is when they get to make that challenge. The answer is after the law is enforced, not before, because there is no valid state officer they can sue for a successful pre-enforcement challenge.

[Cal Cetín]

As for the million dollar fine (which is what it would be despite the private plaintiff), meet the excessive fines clause. Though even a 1-dollar fine would be unconstitutional for constitutionally-protected activities (which don't include killing humans).

[Gandydancer]

8A: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

How many $millions was Kyle Rittenhouse's bail?

For obvious self-defense, of course.

Anyway... are statutory damages "fines"?

[Cal Cetín]

This litigation is about an exception to an exception to the 11th Amendment.

Wisely or not (unwisely I think) the 11th Amendment protects the states from suit in federal court. The court made an exception for certain cases in Ex Parte Young, but if that exception doesn't apply here, it just means that we face the same 11A problem as any other potential suer of the state.

[Cal Cetín]

Suit by *individuals* not other states or the US

[Cal Cetín]

So to use a favorite line *whatever you think about the 11th amendment,* it's the law of the land and doesn't let individuals sue a state. Even under the (dubious) exception of Ex Parte Young.

And I speak as someone who thinks the 11A is a bad idea. Why should a state be protected from being sued when it does something wrong, when Joe Average can get sued?

[rreally]

Because suing a state in the courts it provides is an insult to its dignity. And the feds seizing the identical power for themselves to sue states in federal courts doubles down on that.

Really, that's the original theory of sovereign immunity, as adopted in a panic via the Eleventh Amendment after the Supreme Court waffled on state sovereign immunity in federal court in Chrisholm v. Georgia.

The States didn't join the Union so some fucking foreigner could sue them in a court they control, let alone in a court they didn't.

I'm not sure I'm persuaded, but I prefer to think of the injustice of myriad liabilities imposed on Joe Average by the courts, rather than the inequity of states not being treated equivalent to Joe Average.

[Jeff Mason]

Before I comment, let me say I am pro-choice with sane limitations. However, the comment ‘no state official may face a pre-enforcement proceeding in federal court over this obvious denial of a judicially recognized constitutional right’ is more than a little dubious. Yes, the Supreme Court did declare in Roe v. Wade, that there was a nebulous Constitutional right to privacy that covers abortion but doesn’t seem to apply to my internet search history or my cell phone. Could someone please show me anywhere in the Constitution where any of this is delineated? Just asking.

[Cal Cetín]

Penumbras and emanations.

If you smoked enough marijuana and took LSD you'd know this already.

I've heard.

[Gandydancer]

The question is moot. SB8 does not deny any judicially recognized constitutional right. It was explicitly written so that it defers to Casey as long as Casey is "good" (though bad) law.

[Jerry B.]

Reading comments in the Washington Post about this, apparently a lot of Democrats would give up abortion if they could use the same type of legislation to ban firearms.

[Gandydancer]

Like Somin, they haven't a clue. The "same type of legislation" would defer to Heller as long as Heller was not overturned and would consequently no more ban firearms than SB8 bans abortions.

[TJJ2000]

13th Amendment
Neither slavery nor !!-involuntary servitude-!!, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

FORCED Reproduction isn't "limited" Government.

[Cal Cetín]

Interestingly, the postwar era which included the 13th Amendment also included strengthened anti-abortion laws, so I guess they didn't realize they'd just legalized abortion and moved in the other direction.

[Gandydancer]

Getting knocked up produces pregnancy, not involuntary servitude.

Did that conflation really look clever to you when you thought of it?

[TJJ2000]

...Getting the cold from working outside produces illness. Surely; there should be a Gov-Gun-Forced LAW preventing any medical cure for the cold - I mean who heard of such a thing; The Nosy [WE] mob has spoken! Anyone who works outside is denied treatment for their illness...

Get your FAT NOSE out of everyone's personal life.

[Hank Phillips]

Billy Graham, Jim Bakker, Robert Tilton, Creflo Dollar, Lyin' Ted Cruz, Rand Paul and Mitt Romney assure us that wanking stops a wriggling tail. It therefore follows, as Dark Ages follow mystical bigotry, that The Kleptocracy ought to pass a law authorizing deadly force to stop the hecatomb by these Assassins of Youth, with bounties and qualified immunity for any sockpuppet catchers of Satan's Onanists should they chance to snuff a few pagans here and there while Fighting For The Lord.

[WPHDM]

The mysterious causes of pregnancy and "forced" parenthood

What about involuntary paternity and 18 years of child support, typically by direct deduction from wages? It accounts for a good chunk of the state's businessk over at the Office of the Attorney General.
https://www.texasattorneygeneral.gov/child-support

So this is hardly a "pregnant-person"-only concern.

Also of note: All talk about abortion rights (not wrongs) and no mention of pregnancy prevention/contraception or adoption - for that matter - at the only-lawyers-get-to-talk public Q&A session in the supreme commission on national abortion policy.

[Gandydancer]

I believe that picture of Kavanaugh is from an official SCOTUS group portrait. I believe I recognize the curtains.

He sure looks like a dork, though.

[Hank Phillips]

The Fugitive Slave Act of 1850 provided: "And be it further enacted, That the Circuit Courts of the United States shall from time to time enlarge the number of the commissioners, with a view to afford reasonable facilities to reclaim fugitives from labor, and to the prompt discharge of the duties imposed by this act." The 13th Amendment changed the Constitution that enslaved Dred. The LP in 1972 defended fugitives from labor by: "repeal of all laws restricting... voluntary termination of pregnancies during their first hundred days." The hurt feelings of superstitious meddlers do not justify sending men with guns to coerce doctors and women.

[I, Woodchipper]

I will laugh my ass off if Kavanaugh and Coney rule to preserve abortion in Texas.

[BlackCat13th]

Article doesnt touch it but the highest court in the land is not the supreme court but rather the people's court. If people vote to demand abortion illegal it is not the supreme court's jurisdiction to over rule it. If it was put on the ballot for the people's vote, the supreme court must abide. Exception, failure to first vote on if men have a right to have a vote on it. The actual female constituents have the final say if it's counted that men to not. Anything short of this recipy would be unconstitutional. Abortion isnt just about rights. It also plays a major part in prostitution. Should a trick get to knock up a hoe and force her to give birth? Abortion vastly enables hoes to be hoes. Hoes transform societies into cesspools. Theres just some things that only belong to males and things that only belong to females. Females shouldnt be able to vote on male things and males shouldnt be allowed to vote female things. It's up to the voters if they have a say in it, not just some douche bag.

[ThomasD]

Kavanaugh just rhetorically placed killing the unborn on the same level as the First and Second Amendments to the BoR.