Abortion
My Law 360 Article on the Texas SB 8 Case and Prospects for the Future
The article explains why SB 8 potentially poses a threat to constitutional rights far beyond the abortion context, and how future court decisions could potentially mitigate it.
Texas' 6-Week Abortion Ban Threatens Every Constitutional Right
If it is upheld, state legislators easily could use the strategy embodied in S.B. 8 to attack other rights the Supreme Court has recognized.
The Year's Highlights in Blame Shifting
Politicians and cops found creative ways to dodge responsibility in 2021.
Who's Voting with their Feet for Texas and Why
Recent articles in the Texas Monthy and the New York Times provide some useful insight on why Texas has been gaining migrants at such a high rate.
Mail-Order Abortion Pills, Now Officially Authorized by the FDA, Pose an Insoluble Problem for Legislators Who Want To Ban the Procedure
Federal regulators have permanently lifted a requirement that mifepristone be dispensed in person.
Taking a Page From the Texas Abortion Ban, California's Governor Threatens To Attack Gun Rights With Private Lawsuits
Gavin Newsom is exploring legislation to authorize private civil actions against people who sell "assault weapons" or gun kits.
California Governor Calls for S.B. 8-Style Legislation Targeting Firearms
In response to the Supreme Court's ruling largely precluding pre-enforcement challenge of the Texas abortion law, Governor Newsom calls for similar action on guns.
How Narrow is the Pathway the Supreme Court Left for Suits Challenging SB 8 and Other Similar State Laws?
Things are far from completely clear. But Justice Gorsuch's opinion may give preenforcement challenges to SB 8 and other similar laws a good deal more wiggle room than many think.
SCOTUS Says State Judges and Court Clerks Can't Be Sued To Block Enforcement of the Texas Abortion Ban
The Court allowed claims against health care regulators to proceed, but that will not prevent the private civil actions authorized by the law.
Here Is Why a Texas Judge Concluded That the State's Abortion Ban Is Unconstitutional
District Court Judge David Peeples focused on the law's "unique and unprecedented" enforcement mechanism rather than abortion rights.
A Murky Decision in the Texas SB 8 Case
The Court rules that the lawsuit against SB 8 can proceed by targeting state licensing officials. But the implications for future cases are far from completely clear.
Pre-Enforcement Constitutional Challenges
There's no general federal right to them; they are often available when a law is enforced by government officials, but generally not as to laws in which private citizens sue (whether over abortion, speech, religious exercise, gun ownership or sales, or anything else).
Breaking: Supreme Court Allows Slim Pathway to Challenge Texas S.B. 8
The private litigation against some defendants may proceed, but the federal lawsuit is gone.
Texas State Court Rules SB 8 Enforcement Mechanism is Unconstitutional
The ruling is mostly based on the Texas state constitution and probably will not affect the federal case challenging SB 8, currently before the Supreme Court. But it makes some notable points, nonetheless.
Horizontal Federalism and Abortion after Dobbs
Flagging some interesting blog posts on the question.
A New Opportunity for the Government To Screw Up Abortion Law
Plus: A reminder to Bill de Blasio of what "incentive" really means
If Roe Gets Overruled, Abortion Policy may not be "Left to the States"
Absent Roe, current Supreme Court precedent likely gives the federal government considerable power to either restrict or protect abortion rights. But that precedent could potentially be limited in ways advocated by Supreme Court Justice Clarence Thomas, an unlikely potential savior of abortion rights!
The Laissez Faire Origins of the Supreme Court's Abortion Precedents
“All of those…just come out of Lochner.”
Republicans Mull Shutting Down the Government Over Vaccine Mandate Funding
Plus: SCOTUS hears oral arguments in landmark abortion case, supply chain bottlenecks and labor shortages are holding back economic growth, and more...
Without Promising Alternatives to the 'Viability' Rule, the Supreme Court Seems Inclined to Ditch Its Abortion Precedents
The justices may find it difficult to uphold Mississippi's abortion ban without overturning Roe v. Wade.
Abortion, Marbury v. Madison, and What's "Written in the Constitution"
The oft-heard argument that something isn't "written in the Constitution" is not as compelling as it might seem. Sometimes, it's outright false.
Can SCOTUS Draw a New Line on Abortion?
The "viability" rule is arbitrary. So are the alternatives.
Why the 14th Amendment Does Not Prohibit Abortion
The argument made by Finnis, George, Hammer and others, that abortion is unconstitutional is not supported by text or history.
A (Belated) Final Word on Principles and Texas SB 8
A delayed, but hopefully still helpful final rejoinder to Stephen Sachs.
Originalism and the Result in Dobbs
Would the outcome in Dobbs put originalism in doubt?
More on SB 8, Reasons, and Limiting Principles - A Rejoinder to Stephen Sachs
The slippery slope risks created by upholding SB 8 threaten a vital constitutional principle - one far more important than any considerations on the other side. That is sufficient reason to rule against Texas in this case.
The Texas Abortion Ban Is a Roadmap to Privatized Oppression
Even justices who take a dim view of Roe v. Wade recognize the law’s chilling implications.
Limiting Principles and the Texas SB 8 Case - Why Texas' Law is a Greater Slippery Slope Menace than a Ruling Against it Would be
If Texas' SB 8 subterfuge works, it would be a dangerous road map for attacking other constitutional rights. The slippery slope risks on the other side are minor by comparison.
Abortion Providers Seem Likely to Prevail in Texas SB 8 Case
Today's Supreme Court oral argument suggests they will get the votes of six or more justices. If so, it will be a crucial victory for judicial protection of all constitutional rights, not just abortion rights.
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.
The Firearms Policy Coalition Offers a Simple Way to Resolve the Texas SB 8 Case
The Firearms Policy Coalition amicus brief offers a simple and effective way to neuter the threat to judicial review posed by SB 8.
Which Genie Will the Supreme Court Let Out of the Bottle?
However the Supreme Court handles the S.B. 8 litigation, it may unleash mischief in other policy areas.
The Firearms Policy Coalition Targets S.B. 8 on the Merits
An amicus brief in Whole Women's Health v. Jackson warns of how S.B. 8's structure could be used to target other constitutional rights.
Last Month's Drop in Texas Abortions Was Far Smaller Than Supporters of the State's Ban Claimed
The actual number of abortions that S.B. 8 prevented by the end of September may be closer to 500 than 3,000.
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.
Supreme Court Grants Certiorari in Texas S.B. 8 Cases (Updated)
The Court will hear oral argument in the two cases on November 1.
Gun Rights Activists Join Abortion Rights Activists To Fight Texas Abortion Law
The Texas law “could just as easily be used by other States to restrict First or Second Amendment rights,” the Firearms Policy Coalition tells SCOTUS.
The Firearms Policy Coalition Targets Texas S.B. 8
The gun rights group has filed a brief supporting the petition for certiorari in one of the cases challenging the controversial Texas abortion law.
John Hart Ely on Planned Parenthood v. Casey
Despite his criticisms of Roe, he also believed in stare decisis
No Heckler's Veto: Georgia Court's Decision Rejecting $1.5M Nuisance Verdict Against Abortion Clinic Stands
The verdict was chiefly based on the actions of protesters and arsonists; the Georgia Court of Appeals rejected it, and the Georgia Supreme Court has just refused to rehear the case.
Woman Convicted of Manslaughter, Sentenced to 4 Years in Prison for Having a Miscarriage
Whatever this system is, it is not pro-life.
Without Roe v. Wade, Abortion Will Remain Legal in Most States
The experience with the Texas Heartbeat Act offers a preview of what that means.
