SCOTUS Splits 5-4 on Whole Woman's Health v. Jackson

Chief Justice Roberts dissented, and would have "preclude[d] enforcement of S. B. 8 by the respondents." But it isn't clear how the named respondents could enforce the law.

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For the past 24 hours, I was carefully monitoring the Supreme Court's docket. I awaited an order in Whole Woman's Health v. Jackson. When midnight arrived on Texas Standard time, the Court was silent. It seemed the die was cast, but the Justices were finishing off their dissents. That order would arrive late Wednesday evening, nearly 24 hours after the law went into effect. The Court split 5-4. Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett denied all relief. Chief Justice Roberts dissented, joined by Justices Breyer and Kagan. Justice Breyer wrote a dissent, joined by Justices Sotomayor and Kagan. Justice Sotomayor dissented, joined by Justices Breyer and Kagan. And Justice Kagan dissented, joined by Justices Breyer and Sotomayor. (The last time I recall the Court had four separate dissents was Obergefell, but I may be missing a case).

I'll break down each opinion in turn.

Per Curiam Opinion

The majority understands the writ of erasure fallacy, which played a central role in California v. Texas.

The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. California v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 8).

I'm sure Justices Alito and Gorsuch chuckled with the citation to California. But this proposition is foundational: Courts enjoin individuals, and not laws.

And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention. The State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly.

This appeal was only lodged against a single state court judge and a single court clerk. The District Court had not yet certified a class. Mark Lee Dickson's brief accurately explained the dynamics:

There is no certified class of state-court judges that can be enjoined, and there is no certified class of court clerks either, because the district court did not rule on class certification before the defendants appealed its jurisdictional ruling. The plaintiffs never address this problem, and they pretend as though their requested injunction can somehow extend beyond the named defendants to every other judge and court clerk in Texas—even though none of those individuals have ever been parties to this case.

Even if the Applicants received all of the relief they sought, every other judge in the state could entertain suits under S.B. 8. This case was a terrible vehicle for emergency injunctive relief. The dissenters glossed over this problem.

Chief Justice Roberts's dissent

Chief Justice Roberts would "grant preliminary relief" to maintain the status quo. What is that relief? Roberts does not say.

The State defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place. 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. 

A remedy to preserve the status quo would be impossible in this case, which only concerned one state court judge and one clerk. Roberts seems to recognize that the proposed remedy is impossible.

Defendants argue that existing doctrines preclude judicial intervention, and they may be correct. See California v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 8). 

But he finds the "statutory scheme" to be "unprecedented." And unprecedented laws call for unprecedented remedies.

But the consequences of approving the state action, both in this particular case and as a model for action in other areas, counsel at least preliminary judicial consideration before the program devised by the State takes effect. . . . I would accordingly preclude enforcement of S. B. 8 by the respondents to afford the District Court and the Court ofAppeals the opportunity to consider the propriety of judicial action and preliminary relief pending consideration of the plaintiffs' claims.

But what does it mean to "precluded enforcement" of a statute the named parties do not enforce? Not even the great and powerful Oz can blot out a statute from the books. The Supreme Court has no power to enter relief to parties who are not named in the case. And the named parties have no power to enforce this law.

Roberts did raise one legal question that law professors will study carefully..

These questions are particularly difficult, including for example whether the exception to sovereign immunity recognized in Ex parte Young, 209 U. S. 123 (1908), should extend to state court judges in circumstances such as these.

But now that the law is in effect, there is no need to sue judges.

Justice Breyer's dissent

Justice Breyer, like the Chief, does not explain exactly what relief he would grant.

The procedural posture of this case leads a majority of this Court to deny the applicants' request for provisional relief. In my view, however, we should grant that request.

"Provisional relief" doesn't clarify what the applicants would actually receive. Justice Breyer also recognizes that this unprecedented law calls for an unprecedented remedy:

I recognize that Texas's law delegates the State's power to prevent abortions not to one person (such as a district attorney) or to a few persons (such as a group of government officials or private citizens) but to any person. But I do not see why that fact should make a critical legal difference. That delegation still threatens to invade a constitutional right, and the coming into effect of that delegation still threatens imminent harm.

And he proposes several potential remedies:

It should prove possible to apply procedures adequate to that task here, perhaps by:

  1. permitting lawsuits against a subset of delegatees (say, those particularly likely to exercise the delegated powers)
  2. or perhaps by permitting lawsuits against officials whose actions are necessary to implement the statute's enforcement powers.

There may be other not-very new procedural bottles that can also adequately hold what is, in essence, very old and very important legal wine: The ability to ask the Judiciary to protect an individual from the invasion of a constitutional right—an invasion that threatens immediate and serious injury.

In short, there must be some way to mount a pre-enforcement challenge to a law. Breyer ever cites Marbury!?

Normally, where a legal right is "'invaded,'" the law provides "'a legal remedy by suit or action at law.'" Marbury v. Madison, 1 Cranch 137, 163 (1803) (quoting 3 W. Blackstone Commentaries *23). 

Contra Marbury, not every right has a remedy. As I recall, William Marbury did not receive a remedy because the Court lacked jurisdiction.

Finally, Justice Breyer writes that the law runs afoul of Roe and Casey. S.B. 8 expressly incorporates the Roe and Casey standards. Defendants are expressly permitted to raise as an affirmative defense that the law, as enforced in a particular case, violates Roe and Casey. And that affirmative defense remains available until the Court overrules Roe and Casey. The six-week ban would only become operational if those precedents are overruled. At present, a suit against Whole Woman's Health premised on a six-week abortion would be barred. Thus, it is not technically accurate to say, as Justice Breyer does, that Texas's law runs afoul of Roe and Casey. Virtually every media outlet, and three Supreme Court Justices, have botched this distinction.

Justice Sotomayor's dissent

Justice Sotomayor makes no effort to recognize the writ of erasure fallacy. She writes that the law itself can be enjoined!

The Court's order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. 

Courts cannot enjoin laws, no matter how unconstitutional they are. Justice Sotomayor also misstates the nature of relief sough:

At a minimum, this Court should have stayed implementation of the Act to allow the lower courts to evaluate these issues in the normal course. Ante, at 2 (ROBERTS, C. J., dissenting).

The applicants did not seek a stay of the "implementation of the Act." That remedy would be impossible. Instead, they sought a stay of the Fifth Circuit's stay of the District Court's proceedings. Again, courts cannot stay the implementation of an act. Courts can only enjoin specific named parties from enforcing the law. If the progressives want a fifth vote, they should learn to speak the lingo. No fortune cookies or paper bags are needed.

Justice Sotomayor also faulted the Court for not ruling on Tuesday before midnight.

Last night, the Court silently acquiesced in a State's enactment of a law that flouts nearly 50 years of federal precedents. . . . The applicants requested emergency relief from this Court, but the Court said nothing. The Act took effect at midnight last night.

If I had to guess, the majority's per curiam order was ready before midnight yesterday. The delay was needed to give the dissenters time to polish their separate writings. Indeed, Justice Sotomayor's dissent cites news articles published after midnight. This "silence" criticism rings hollow.

Justice Kagan's dissent

Justice Kagan uses the phrase "shadow docket" for the first time in Supreme Court history. (Justice Breyer used the phrase "shadow docket" in an interview last week). And, she is not a fan.

Today's ruling illustrates just how far the Court's "shadow-docket" decisions may depart from the usual principles of appellate process. That ruling, as everyone must agree, is of great consequence . . . . In all these ways, the majority's decision is emblematic of too much of this Court's shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend.

Now the focus returns to the Fifth Circuit. This case may get back to the Supreme Court in the next week or so.

I did several TV interviews on Wednesday about the Texas case, including Special Report on Fox News. I will embed them after the jump.

You can see the difference between my hair at 10:00 a.m and 7:00 p.m.

NEXT: Don Blankenship's Libel Lawsuit Against Donald Trump, Jr. Can Go Forward

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  1. I don’t know if Sotomayor truly believes that laws themselves can be enjoined or not, and I also don’t know which of the two possibilities is worse.

    1. This decision supports an innovative legal concept, legal vigilantism. The taxpayer should receive full standing. The consumer, who pays for all litigation, should get full standing.

      It should be applied to all kinds of other scumbag operations, like tort litigation. Anyone from anywhere may sue the scumbag lawyer for filing a frivolous lawsuit, or one that is against policy, or one that will cost money to the consumer. Swarm the scumbag with hundreds of claims. To deter.

    2. Sotomayor believes that “Constitutional” is defined by “whatever i want”.

      Because she’s a “wise Latina”

  2. Chief Justice Roberts would preclude enforcement of S.B. 8 “by the respondents.” This wualification clearly addresses the “writ of erasure” concern Professor Blackman raises. It also provides extremely limited relief. By enjoining only the named respondents, it leaves anyone else in Texas free to act.

    1. Josh was referring to Sotomayor not recognizing writ of erasure, not the Chief.

  3. Assuming that it really is unprecedented, why did it take this long for some state to delegate enforcement of law exclusively to the entire populace at large through low risk civil actions?

    Should this be the new standard for law making? The criminal justice system is slow and messy. Making everyone in the country a private attorney general chasing statutory damages seems like a pure free market approach to law enforcement. Even if the defendants don’t have any money, make the judgments nondischargeable in bankruptcy, and stop the defendant from voting and driving until the judgment is satisfied.

    Which other laws should be converted to this type of enforcement first?

    1. Further bonuses of making more law enforcement civil are the replacement of the fifth amendment with full discovery, and the reasonable doubt standard with preponderance, as well as a huge growth in the judgment enforcement industry. And less need for prosecutors and traditional investigators (police, FBI, etc).

      It all can be privatized. All the courts might be needed for is to enforce the judgments. Win-win-win.

      1. How can you really think that it is a good idea for any person to be able to sue any other person like that? A plaintiff should only be able to file a law suit then they are alleging specific harm to them by the defendant. Period. It has to be up to the government to enforce laws meant to protect society more broadly.

        And doing away with Fifth Amendment protections is equally absurd, as is doing away with the reasonable doubt standard (which is for criminal trials, by the way, where the defendant could have their basic freedom taken).

        You only think that your ideas are “Win-win-win” because you don’t expect that they would ever be turned on you.

        1. Do you recognize financial harm to taxpayers or to consumers? The court does not give either standing, despite clear harms.

        2. I’d say that odds are 100 to 1 that Prof. Josh had a hand in crafting the Texas legislation, so I’m not surprised that he thinks well of it.

          1. If so, he should be shunned by all decent people.

            I can’t believe that so many commenters here, the including some of those on the right, are defending this monstrosity, and the SCOTUS ruling.

            The only word to describe the whole thing is odious.

            1. I’m as pro-choice as you, but that doesn’t change the fact that it’s clever lawyering. I don’t mind admiring the craft.

              1. It took clever lawyering to make it colorable.

                It took a partisan Supreme Court to make it legal.

                1. It took an out of control Supreme Court to make it necessary.

                  Not this one. The Roe and Casey ones, etc.

            2. No, bernard11, the only word to describe Roe and Casey is “odious”.

              The best word to describe this is “justice”

            3. The only word to describe you is “mental”.

              SCOTUS has not of course “ruled” on anything substantive, merely rightly declined to instantiate an injunction. Blackman has said why, and you are apparently to dim to come up with any counterargument.

              Point and sputter is not a counterargument.

          2. I’m only mildly surprised that you are pretending to know what you are talking about without, obviously, having watched the videos.

            Now, remove your shoe from your mouth and go watch the second video where Blackman talks about California possibly empowering its citizens to sue gun stores.

        3. I guess that I didn’t make my posts expressly dripping with the sarcasm which I intended to convey. The posts were an attempt at reductio ad absurdum of what it might be like to deploy the Texas method to other forms of law enforcement.

          But the blackman kid seems to be of the view that there is no way to stop more of these types of state laws, no one to sue.

          Although his focus seems to be on the narrow issue of abortion. Now is the time to contemplate the universalizability of this method of law enforcement. Because if this one weird trick works for abortion regulation, why wouldn’t it work more broadly, and won’t there be state legislators pretty quickly wanting to try their hand at it?

          1. You mean, suing businesses who don’t meet ADA requirements?

            Suing gun dealers / manufacturers because they made / sold a gun that harmed someone?

            Been there, done that.

            The Left made this bed, now they get to lie in it.

            The fundamental stupidity of people who trash every rule / standard / principle that gets in the way of what they want, then are shocked when their smashing comes back to bite them in the ass, is really quite shocking.

            It’s like you have to have an actual mental impediment in order to be on the Left.

            1. You mean, suing businesses who don’t meet ADA requirements?

              Suing gun dealers / manufacturers because they made / sold a gun that harmed someone?

              When has someone sued a business that didn’t meet ADA requirements when they were unaffected by that fact?

              When has someone sued a gun dealer or manufacturer because a person that they had no connection to was harmed?

              I’m genuinely curious to know if either of those things has ever happened.

              1. When has someone sued a business that didn’t meet ADA requirements when they were unaffected by that fact?

                Any time someone’s gone to a restaurant once, measured to find something wrong, and then sued.

                They’d never been there before, they’ll never be there again. That’s “unaffected by that fact” to any reasonable degree.

                Besides, I want to be able to collect my Social Security. To do that, i need kids working and paying in to it.

                Every time you kill your kid via an abortion, you’re harming my Social Security benefits.

                So, the “one weird trick” of people suing to enforce laws has been out there for decades.

                The “one weird trick” of people suing to deprive people of an actual Constitutional right (lawsuits against gun companies for legally selling legal guns (see “Sandy Hook parents” v Remington) has been out there for years.

                When Sotomayor, Kagan, and Breyer all side with Remington, and vote to summarily toss out any lawsuit against them for selling guns / ammo legally, then I’ll listen to them about the horror of this method.

                Until then? They can FOAD

          2. In the instant case judges and clerks were not certified to be a class. I’m not sure that Blackman has anywhere asserted that that cannot be remedied.

            And, no, Blackman has already agreed that this cannot be limited to abortion and that its application elsewhere may have problematic results. Watch the second video.

            (Oddly, though he appears in the thumbnail for the first video, he seems to have been edited out of it.)

    2. It’s not obvious to me that this is quite as unprecedented as claimed.

      Thus when a State, or the Feds, create an anti-discrimination law in respect of the provision of goods or services, they create a right of action against the supplier, enforced by a private lawsuit. (They may also create a Commission, as in Colorado, to assist plaintiffs, but they don’t need to.) The effect is analagous to the Texas law – the State forbids discrimination of various kinds, but outsources enforcement to the public.

      In the Texas law, the plaintiffs don’t need to have any connection with the service provided. But in this sort of case, the natural plaintiff is not in a good position to plead his or her own case.

      Again – I assume – that in a discrimination case involving a seriously disabled person, unable to plead his or her own case, the court would not object to somebody else making the case on their behalf. Also in cases involving children, the court, or the State, can appoint people to argue “the child’s case” if the court doesn’t like what it’s hearing from the parents.

      So it’s different, but not revolutionarily so.

      Which is not to say that it’s a good idea, of course.

      1. I think the main difference is that with antidiscrimination statutes, private attorney general provisions exist to supplement governmental prosecution at the primary enforcement vehicle, out of recognition that governments may not be the most efficient or willing enforcers. Here, the private AG provision *supplants* state enforcement, and it plainly does so only to muddy the waters about how the law can be invalidated. Given that there’s no lack of political will in the TX AG’s office to enforce an anti-abortion law, the only reason to muddy the waters like this is because they know that there’s no way SB8 and Roe/Casey can coexist.

        1. Sure, but all that tells us is the Texas Legislature’s motive for empowering private attorneys general. It doesn’t tell us that empowering private attorneys general is a new thing.

          The “Shock Horror Unprececedented Scandal ! ” reaction seems to focus on the empowerment of private attorneys general in the context of abortion being shocking, horrifying, unprecedented and scandalous – when, given the precedents, we can doubt whether the fact of the empowerment of private attorneys general is as shocking, horryifying unprecedented and scandalous as all that.

          1. I personally haven’t seen that being the source of the “shock,” and I agree that private AG provisions aren’t new. But I don’t think there’s any denying that this is a novel way to evade judicial review.

            1. https://www.whitehouse.gov/briefing-room/statements-releases/2021/09/02/statement-by-president-joe-biden-on-supreme-court-ruling-on-texas-law-sb8/

              By allowing a law to go into effect that empowers private citizens in Texas to sue health care providers, family members supporting a woman exercising her right to choose after six weeks, or even a friend who drives her to a hospital or clinic, it unleashes unconstitutional chaos and empowers self-anointed enforcers to have devastating impacts. Complete strangers will now be empowered to inject themselves in the most private and personal health decisions faced by women.

              The defense rests.

              1. Lol no one cares. Arc of history baby.

                1. Arc of history’s going our way, chum

                  Which is why your side lost

      2. One difference is that anti-discrimination law does not sweep in anyone as a potential defendant. If I supply food to a restaurant that is then sued under anti-discrimination laws I have no liability.

        The global reach of these lawsuits, along with the complete lack of recourse by the defendant, no matter how frivolous the suit, is another outrageous aspect of the TX law.

        1. Not sure I understand “the complete lack of recourse by the defendant.”

          What prevents the defendant defending him or herself ?

        2. SB8 doesn’t “sweep in anyone as a potential defendant.”

          I, for example, am in no risk of being swept in as a defendant.

          You need to control your exaggerations.

      3. I think one of the biggest differences is that most of the anti-discrimination laws and private attorneys general laws usually have a requirement that the plaintiff be an aggrieved individual. For example, California has a PAGA law for employment practices. But the named plaintiff must have been affected by the complained of inappropriate practices. This statute goes further and says that anyone, regardless of connection to the situation can bring the suit.

        1. Well, the mother killed the most “aggrieved individual”, so she / he isn’t able to sue.

          And that requirement is mostly BS anyway. There’s plenty of “discrimination” cases where the plaintiffs would never actually want the person being sued to supply the cake / flowers / etc for their “wedding”, they’re just the ones suing because they’re horrid little weasels who do not think anyone should ever be allowed to disagree with them. (Note: you can get another caterer. You can’t get another mother to carry you to term)

          Same goes for ADA lawsuits, which are often brought by people who’ve only ever gone into a store in order to be able to sue them.

        2. “I think one of the biggest differences is that most of the anti-discrimination laws and private attorneys general laws usually have a requirement that the plaintiff be an aggrieved individual.”

          Straw-man applications for purchase or rental routinely use individuals with no actual interest in purchasing or rental to “demonstrate” discriminatory behavior. Maybe actually allegedly aggrieved individuals are always required as well, but that’s not my impression.

    3. Didn’t the Americans with Disabilities Act allow law firms to run around looking for violations, each one worth $8,000 to $10,000? This was declared a good and desirable thing.

      1. That’s true. It’s something of a cottage industry.

        1. Actions under Section 16(b) of the Securities Exchange Act of 1934 to recover “short swing” profits work much in the same way.

      2. But they still have to have a plaintiff that is actually disabled and went to the defendant’s establishment. With that said, you are correct that it has turned into a cottage industry with a small handful of plaintiffs going all over the state with rulers, tape measures, levels, etc. looking for miniscule variations from the standard (e.g., the counter is one inch higher than the regulated mandatory maximum height, so pay up).

    4. It took this long to get a court so partisan to allow it. And this would not work with liberal favored laws because the court would block them.

      1. They probably would block them, even under the pain of inconsistency. Maybe the inconsistency would appear less rank if they could do most of it in the shadow docket.

      2. You have an amazing ability to ignore reality. Heck, you’re here ignoring people pointing out multiple left wing favored laws that have been doing this for decades

        Thanks for confirming your side has no real case

      3. “…to allow it.”

        To allow what?

    5. Antitrust law has had the next best thing since 1914:

      any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.

    6. I advocated doing something similar for immigration law, allowing people to sue private employers for hiring illegal aliens. With a safe harbor provision for using e-verify. In that case someone who wants a job, or current employees, has been injured if the employer hires illegal labor, both by reducing employment opportunities, and driving down wages.

  4. It’s a good thing there’s a mask mandate in the District, because the spit is literally exploding from [at least three] of the dissents’ lips.

    Breyer, Kagan, Sotomayor and Roberts might as well get used to living in a world where the federal judiciary is limited to operating as a real court of law and not, as John O. McGinnis wrote, “a political court, in which the justices play the aristocratic element in a mixed political regime.”

    If it turns out that these Justices previously too clever by half opinions finally put a check on their previously unlimited powers, most of the country will just chuckle along with Justices Alito and Gorsuch.

    1. If it turns out that these Justices previously too clever by half opinions finally put a check on their previously unlimited powers, most of the country will just chuckle along with Justices Alito and Gorsuch.

      S.B. 8 is what is “two clever by half”. Passing a law that allows any private individual to sue other private individuals without the plaintiff being the least bit harmed by the defendant is already a huge problem. But to set it up that way entirely in an effort to keep it out of the jurisdiction of the courts is beyond the pale for a legislature as well.

      1. It doesn’t keep it out of the jurisdiction of the courts, it contemplates lawsuits in state courts. Or did you mean federal courts?

        The law contemplates cases going up the state-court ladder to the U. S. Supreme Court if possible. What’s wrong with that? Because the lower federal courts don’t get to throw their weight around?

        1. It messes with remedies and standing.

          Who do you sue for a constitutional violation when the enforcement body is everyone in the state?

          1. Whoever would enforce the judgement once entered? Which is, presumably, the state, though I suppose they could contemplate privatizing that, too, with some mechanism similar to vehicle repossession.

            The goal here is that the process be the punishment, but as old as that expression is, has the legal system ever admitted its truth?

            1. No, the goal here is evading process.

              No federal appellate court has upheld such a comprehensive prohibition on abortions before viability under current law. The Texas Legislature was well aware of this binding precedent. To circumvent it, the Legislature took the extraordinary step of enlisting private citizens to do what the State could not.

              ….Today, the Court finally tells the Nation that it declined to act because, in short, the State’s gambit worked.

              1. “well aware of this binding precedent”

                Oh, well then, no worries, a case will go from the state courts to the U. S. Supreme Court, which will deliver a ringing defense of abortion rights.

                Right?

                1. Even not touching on the merits, 5 on the Court think that’s not going to work.

                  1. Which 5 are you referring to?

            2. The goal here is that the process be the punishment, but as old as that expression is, has the legal system ever admitted its truth?

              Certainly. That’s the whole point of immunities.

              1. That’s not the admission asked about.

                Immunizing ones pet special interest from goring by the courts is not an admission that the courts routinely do it.

          2. Texas may have found a way around Ex Parte Young

            https://www.law.cornell.edu/supremecourt/text/209/123

            so, worst case scenario, we’ll be in the situation defended in the dissenting opinion of the first Justice Harlan:

            “We must assume—a decent respect for the states requires us to assume—that the state courts will enforce every right secured by the Constitution. If they fail to do so, the party complaining has a clear remedy for the protection of his rights; for he can come by writ of error, in an orderly, judicial way, from the highest court of the state to this tribunal for redress in respect of every right granted or secured by that instrument and denied by the state court.”

            But what did the first Justice Harlan know about dissents?

            1. Who do you sue in state court to get the ball rolling?

              Yes, this is playground nonsense. But the Supreme Court has endorsed this playground nonsense, it seems.

              1. Who do you sue? For starters, the abortionist, I imagine.

                Are you really sure you should be invoking playgrounds when the question at issue is whether children should even be alive to play in playgrounds?

                1. No, that’s not the question at issue, quit begging the question.

                  1. You used an inappropriate metaphor, as I noted.

                    This is an abortion case. I can understand why some people don’t exactly want to over-emphasize that fact, since discussing the details of abortion can get awkward and icky.

                    1. Equating abortion to children on playgrounds is begging the question of what abortion is.

                      Surely you’re not too thick to understand positions other than your own on the issue?

                    2. Since I used to be pro-abortion, I know their case better than you know ours.

                      Your metaphor was inappropriate, like someone suing for being held in slavery, and your getting mad at the planitiff and hoping he got “whipped in court.”

                    3. Trying for the triggered defense, snowflake?

                    4. It’s cute when SJWs try to project their snowflaky nature on others.

                    5. Not an SJW, just noting your bad faith.

                    6. Well, by now you should know what I want you to do with your phony-ass accusations.

                      And the bad faith is yours, since you concern-troll about the rights of innocent people falsely accused of abortion and how they need a loser-pays system – a point on which I agree, but I question your standing, as a supporter of *guilty* abortionists, to babble about this issue. It would be like John Wayne Gacy being a spokesperson for people falsely accused of murder.

                    7. Well, by now you should know what I want you to do with your phony-ass accusations.

                      And the bad faith is yours, since you concern-troll about the rights of innocent people falsely accused of abortion and how they need a loser-pays system – a point on which I agree, but I question your standing, as a supporter of *guilty* abortionists, to babble about this issue. It would be like John Wayne Gacy being a spokesperson for people falsely accused of murder.

              2. Who do you sue? For starters, the abortionist, I imagine.

                Are you really sure you should be invoking playgrounds when the question at issue is whether children should even be alive to play in playgrounds?

                1. No no, who do you sue when you get sued based on this law?

                  But you knew what I was asking.

                  You’re avoiding the question for some reason.

                  1. “who do you sue when you get sued based on this law”

                    I thought federal courts rarely interfered with ongoing judicial proceedings.

                    Anyway, with loser pays, anyone who wins a case, plaintiff or defendant, would be able to collect legal expenses from the other guy, though I advocate the loser pays remedy for all cases, not just abortion cases.

                    1. You jumped from is to ought there.

                      We’re still in is-land, don’t wander. And in is-land, there *is* a problem. Because who loses is not clear in Texas state court. And because those suing under this law won’t need to pay.

                    2. Well, I’ll play the world’s smallest violin for the poor abortionists who have to undergo the same things as other civil defendants.

                      Why do these problems in the laws only seem to matter when it’s an abortionist on the receiving end?

                    3. And there we have it.

                      You don’t care about abuse of process because you like the outcome.

                      You’re the one who doesn’t care about the law, or about principles, when the dancing stops.

                    4. I said “I advocate the loser pays remedy for all cases, not just abortion cases.”

                      So I guess you advocate that reform *only* for abortion cases?

                    5. Incidentally, the issue in the Supreme Court isn’t about a claim to a general right to loser pays in all cases. Would you want the Supreme Court to order such s remedy, or limit it to abortionists?

                    6. I must say, though, that this is the most passionate I’ve seen you get about promoting loser pays. Almost as if you picked up this issue as a one-time argument to be dropped once it was no longer useful to defend abortion.

                    7. You see, it’s as if you were to say, “the Supreme Court should declare that white people have the right to due process.”

                      And I said, “that’s wrong because everyone should have due process, not just whites.”

                      And you replied, “see, you race-mixer, you want to take rights away from white people!”

                    8. My argument is only that this decision is bad. Because I’m in is-land.

                      You are defending this decision in ought-land, and pretending I’m there as well.

                      Stick with the facts before you, not some alternate Texas with loser pays.

                    9. As I said above, I question your standing.

                      You support the “rights” of *guilty* abortionists, yet you want us to believe you care deeply about the rights of people falsely accused of abortion – because that’s the situation in which loser-pays would come in.

                      You couldn’t care less about the rights of alleged abortionists unless they were actually guilty, where loser-pays wouldn’t be a concern for you and your ilk.

                    10. Continuing to live in ought-land when it comes to what abortion is does not help your case, it just shows you as a zealot.

                      I care about the process being followed. That you are immediately sure I’m doing so for outcome-oriented reasons says a lot about how you work, but not much else.

                    11. As I understand it, the plaintiffs here actually *are* violating the Texas law, they want relief from that law because they think they have the right to violate it.

                      What standing do they have to complain about the falsely accused, when they are quite clearly guilty and are going into court on that basis?

                    12. “That you are immediately sure I’m doing so for outcome-oriented reasons says a lot about how you work, but not much else.”

                      Oh, pull the other one, you’re full of accusations not only against me, but against others, saying things about our motives you have no way of knowing.

                      Is it too far-fetched to attribute projection to you? How else would you know so much about bad-faith arguments, if not from your own consciousness?

                      And, no, you don’t get to plead for the rights of innocent people when this injunction is sought on behalf of those who are admittedly guilty.

                      The lead plaintiff, Whole Women’s Health, admits its guilt on its own Web site:

                      MEDICATION ABORTION
                      Also referred to as the Abortion Pill. Available to patients up to 10 weeks of pregnancy in all clinics, and up to 11 weeks of pregnancy in Maryland, Minnesota, and Virginia.

                      We also now offer abortion medication by mail in Minnesota.

                      FIRST TRIMESTER ABORTION CARE
                      One-day in-clinic abortion procedures with optional Oral or IV Sedation.

                      SECOND TRIMESTER ABORTION CARE
                      One-day surgical procedures from 12 weeks through 18 weeks, or up to 24 weeks depending on the state. Here are the legal limits within our states of operation:

                      Texas: to 17.6 weeks
                      Minnesota: to 18.6 weeks
                      Virginia: to 20 weeks
                      Maryland: to 22 weeks
                      PRIVATE ABORTION CARE AND FAST-TRACK OPTIONS
                      Private and Fast-Track appointments are available for patients in unique circumstances.

                      https://www.wholewomanshealth.com/abortion-care/

                      We have their voluntary confession, yet you keep concern-trolling about the possibility that they might be innocent?

                    13. We have their voluntary confession, yet you keep concern-trolling about the possibility that they might be innocent?

                      This is why Sarcastr0 has been saying that you have been begging the question. It is as if you don’t understand what that fallacy is.

                  2. “But you knew what I was asking.”

                    You give yourself too much credit; you’re not as intelligible as you think you are.

                    1. I mean, it’s also the subject of the OP, and of your comment which I was replying to.

                    2. In my comment, to which you were replying, Justice Harlan talked about how the way to challenge a state law was to *get sued* in state court and bring the issue, if necessary, to the Supreme Court.

                      Got anything else?

                    3. Yes, you were in ought-land there as well, citing a dissent as the law of the land.

                    4. You *are* a silly person. I specifically called it “the dissenting opinion of the first Justice Harlan.”

                      I guess I shouldn’t mention his dissent in Plessy, either?

                  3. “No no, who do you sue when you get sued based on this law?”

                    You don’t. You raise the defense that the law is unconstutional. Am I missing something?

                    1. In Texas state court.

                      Should work out great. Everyone knows what’s going on here; don’t play dumb.

                    2. What’s going on is that the Texas legislature is avoiding the usual kabuki theater: Pass a law they know the federal circuit court will strike down, then shrug and say “we tried.”

                      From the shrieking and hollering, it seems that Texas may have come across a more productive procedure: Keep the cases in Texas state courts rather than in lower federal courts, with a right of appeal to the U. S. Supreme Court like in all other state-court cases.

                    3. the usual kabuki theater

                      Otherwise known as the appellate process.

                      You’ve already shown your bad faith above. You don’t care about following procedures, so long as it helps your ideology.

                      As for your inevitable argument that I’m the same, check out my take on Biden and the eviction moratorium.

                    4. “You’ve already shown your bad faith above. You don’t care about following procedures, so long as it helps your ideology.”

                      As I said, your knowledge of bad-faith arguments is derived entirely from your own consciousness.

                    5. “As for your inevitable argument that I’m the same”

                      I didn’t say you’re the same, I said you’re worse.

                      I think Donald Trump is an opportunist.

                      I think Biden was right about ending Afghanistan’s forever war, and the conservative critics are wrong.

                      You think you have the right to concern-troll about innocent people accused of abortion when you know perfectly well you’re interested in defending the guilty only.

                    6. And you’re in ought-land, bemoaning innocent people accused of abortion and how they can’t get compensated by their false accusers – when in this specific case the plaintiffs admit they’re guilty of violating the Texas abortion law. *That’s why they’re suing,” here in is-land.

                    7. “In Texas state court.”

                      Texas state judges are just as capable of interpreting federal law as federal judges.

                      Of course everybody knows what’s going on. Procedures for remedies of constructional violations usually suck. But nobody’s going to get paid under this law unless RvW is overturned.

                    8. Yep, TiP. You’re no fool, and neither am I (unclear about some of the other folks around here). And of course the money isn’t the point.

                      The evasion of the federal appellate process is the point.

                    9. “The evasion of the federal appellate process is the point.”

                      Really? You think so? What a brilliant insight!

                      And you’re not in any ripping off my own remark that “Texas may have found a way around Ex Parte Young.”

                    10. “The evasion of the federal appellate process is the point.”

                      Sure, but what’s the remedy?

                    11. Not let a state legislature do that.

                    12. “Not let a state legislature do that.”

                      OK, but there are bad ways to “Not let a state legislature do that.”
                      Can you suggest some good ways?

                    13. The fact is, you know quite well that the Texas legislature is not evading the federal appellate process.

                      The U. S. Supreme Court can take appeals from the state courts.

                      You are fully aware of this, and that the Texas legislature isn’t taking away U. S. Supreme Court review.

                    14. One good way was suggested by Breyer:

                      permitting lawsuits against officials whose actions are necessary to implement the statute’s enforcement powers.

                      Presumably, such officials include all the judges who can hear lawsuits under SB 8.

                    15. @Josh R: You endorse “permitting lawsuits against officials whose actions are necessary to implement the statute’s enforcement powers.”

                      The title of the instant case, so far not dismissed, is WHOLE WOMAN’S HEALTH ET AL. v. AUSTIN REEVE JACKSON, JUDGE, ET AL.

                      So, what’s your complaint, again?

          3. Who?

            2. or perhaps by permitting lawsuits against officials whose actions are necessary to implement the statute’s enforcement powers.

            Nobody can bring a lawsuit without entering the government framework for lawsuits, run by government employees and the occasional elected judge.

            Imagine a similar scheme for First Amendment suppression, where some law allows you to sue opinions you don’t like, according to some legal descriptor.

            1. “Imagine a similar scheme for First Amendment suppression”

              You mean that amendment which is actually in the Constitution, and wasn’t found floating around among the penumbras?

          4. John Doe and Jane Roe, a bit ironically.

        2. I think this misses the point. Even if the law is eventually declared unconstitutional in an actual case where constitutionality is raised as the defense, the law’s intended harm–incentivizing everyone to have nothing to do with abortion–will have already played out. That’s exactly why we have Ex Parte Young exceptions to 11A immunity. The law allows suit, *by anyone*, against *anyone* who *aids or abets* the procurement of an abortion after 6 weeks. That’s astonishing in its breadth, especially coming from the same people who push tort reform to end “vexatious litigation.” I could see a lawsuit against Planned Parenthood donors, despite the clear 1A command to the contrary.

          1. Opposition to vexatious lawfare does not obligate anyone to eschew it unilaterally.

            As to Ex Parte Young, Judge Austin Reeve Jackson is still being sued, last I heard.

      2. “. Passing a law that allows any private individual to sue other private individuals without the plaintiff being the least bit harmed by the defendant is already a huge problem.”

        Someone has to represent the baby that is being killed.

        1. Someone has to represent the baby that is being killed.

          The state represents crime victims when it prosecutes criminal offenses. Especially when there is no family or other people close to the deceased. Even if you do believe that an embryo at 7 weeks is a “baby” that deserves protection, then the state is perfectly capable of doing so. Outsourcing this to whatever people feel like suing is absurd.

          And, as always, why not sue the woman getting the abortion? Why let her get away with what you say you view as murder?

          1. …..the state is perfectly capable of doing so…

            Trouble is the state can nix your case simply by appointing an attorney “to represent your interests” who prefers to represent the other side :

            https://www.newsmax.com/newsfront/soros-school-board-public-schools-elaine-tholen/2021/08/27/id/1034100/

          2. “The state represents crime victims when it prosecutes criminal offenses.”

            No. It does not. The state prosecutor represents the state as the wronged party, not the murdered or aborted, etc.

            “Even if you do believe that an embryo at 7 weeks is a “baby” that deserves protection, then the state is perfectly capable of doing so.”

            On the contrary, overreach by the Federal kritarchy has deprived the States of that capability. SB8 is an expression of Texas’ continued resistance to that overreach.

            “…why not sue the woman getting the abortion? Why let her get away with what you say you view as murder?”

            Abortion mills like Whole Woman’s Health don’t make for particularly sympathetic defendants. Your political opponents are under no obligation to pretend that public opinion doesn’t exist.

      3. Roe has been beyond the pale for almost half a century now.
        Outrage about legislative overreach to counter it is laughable.

  5. Defendants are expressly permitted to raise as an affirmative defense that the law, as enforced in a particular case, violates Roe and Casey. And that affirmative defense remains available until the Court overrules Roe and Casey. The six-week ban would only become operational if those precedents are overruled. At present, a suit against Whole Woman’s Health premised on a six-week abortion would be barred. Thus, it is not technically accurate to say, as Justice Breyer does, that Texas’s law runs afoul of Roe and Casey. Virtually every media outlet, and three Supreme Court Justices, have botched this distinction.

    This seems utterly ridiculous to me. S.B. 8 permits people to sue abortion providers if they perform an abortion after 6 weeks, but the defendants in the case can just point to Roe and Casey as a defense and win? What is the point of S.B. 8 then? What is the point of even allowing a lawsuit that should be dismissed immediately?

    To answer the question, I would suggest that the point is twofold: (1) to harass abortion providers with lawsuits they’d have to spend time and money to defend, (2) to try and get Roe and Casey overturned. If (2) happens, then I would expect Texas to immediately scrap S.B. 8 and pass a law to have the state government enforcing abortion restrictions instead of this too-clever-by-half ridiculousness.

    This whole thing is just absurd.

    1. “What is the point of S.B. 8 then? What is the point of even allowing a lawsuit that should be dismissed immediately?”

      The answer to your questions is in the portion you quoted.

      1. The six-week ban would only become operational if those precedents are overruled.

        Yeah, exactly. My questions were mostly rhetorical. As I said, S.B. 8 was passed only as a vehicle to get precedent overturned and to harass abortion providers in the meantime. Without Roe and Casey, there is no reason for S.B. 8 to exist in that form. It is far simpler to ban abortion under the authority of the government directly. But if Texas had passed the same ban enforced by the state government, it would have gone nowhere in the courts because of existing precedent. Or rather, it should go nowhere, since such issues have been clearly decided already.

        Any judges ruling to uphold government bans on abortion after six weeks would be doing so simply because they have personal disagreement with a right to abortion, not because of any new legal issues. The point of stare decisis is to provide consistency and to prevent the interpretation of the law from changing on the whims of the personal opinions of the judges making rulings.

        1. It sounds like they’re setting up a U. S. Supreme Court test.

          Normally the lower federal courts, based on US Supreme Court precedent, enjoin these laws, and the US Supreme Court declines to intervene. Now they seem to want a case going through the state courts first – maybe the state courts will give a prolife decision which the Supremes will *have* to take if, as you say, they are obliged to hold on to Roe v. Wade.

          “The point of stare decisis is to provide consistency and to prevent the interpretation of the law from changing on the whims of the personal opinions of the judges making rulings.”

          You’re kidding me, right?

          Table of Supreme Court Decisions Overruled by Subsequent Decisions

          https://constitution.congress.gov/resources/decisions-overruled/

          Damn, that’s a lot of cases. There’s so many cases of the Supreme Court overruling itself, that the court overruling itself seems to have become a sort of precedent on its own!

          Or is abortion entitled to the special indulgence and protection of the courts?

          1. Of course, I might be wrong about setting up a prolife ruling in the state courts, since the law’s text seems to require following Roe and Casey until the US Supreme Court, not the Texas Supreme Court, casts doubt on those rulings.

            But it’s obviously having *some* effect in protecting the unborn from being killed, given all the wailing and howling about how horrible and awful and unprecedented the law is. They wouldn’t be screaming and rending their garments unless the law actually put a dent in the abortion business.

            1. Yes, people disagree with you, so it all must be in bad faith. You are usually better than this. Disappointing. But I guess it’s always the outcome that matters, whatever the means.

              1. “Yes, people disagree with you, so it all must be in bad faith.”

                If by bad faith you mean insincerity, I think they *sincerely* believe in the right to abortion, and therefore are shocked and appalled that Texas has found a way to bypass the lower federal courts (but not the U. S. Supreme Court).

                If pro-abortionists are yelling and screaming about such a procedural issue, calling it wicked and unprecedented, it’s because they sincerely support abortion.

                “But I guess it’s always the outcome that matters, whatever the means.”

                No, this is a matter of the lower federal courts vs. the state courts, and how to keep jurisdiction away from the former and limit it to the latter, while preserving a right of appeal from the state courts to the U. S. Supreme Court.

                If you think this is the same as the end justifying any means, you might be an abortion “rights” supporter. But a *sincere* one.

                1. I’m not simply referring to people who say “gosh, I’m not sure I agree with this.”

                  I’m talking about the people who foam at the mouth and say that the Texas legislature has done the most horrible thing ever, Scratch any of these people and you’ll find an abortion “rights” supporter.

                  But they are sincere.

                  “So are they all, all honorable men.”

                  1. The *supporters* of abortion “rights,” on this very site, cite the reduced number of abortions as a reason to oppose this law. From an article by Elizabeth Nolan Brown, Reason’s resident abortion-fancier:

                    “Effects in Texas

                    “Abortion clinics are already having to turn away women seeking abortions.

                    “Bhavik Kumar of Planned Parenthood in Houston told The Texas Tribune he normally performs two or three dozen abortions per day. On Wednesday, “Kumar saw only six patients. He had to deny abortions to half of them,” the Tribune reports.

                    “”Since mid-August, all 11 of the Planned Parenthood health centers in Texas that provide abortion services have stopped scheduling visits after Sept. 1 for abortions past six weeks of pregnancy,” notes NBC News.”

                    https://reason.com/2021/09/02/supreme-court-punts-on-constitutionally-dubious-texas-abortion-law/

                    They make no secret of it – they’re against this law because it reduces the number of abortions.

                    1. Prolifers are frequently taunted – “if you *really* believed what you claim to believe, why don’t you take more extreme measures, including illegal violence?”

                      But let pro-lifers pass a mere procedural law to get abortion cases before prolife judges (while recognizing the power of the U. S. Supreme Court to reaffirm Roe), then it’s screams of “extremist! you think the ends justify any means!”

                      Well, make up your minds.

                      Step by step, through gradualist, incremental steps, the prolifers are passing laws. They eschew the extremism which concern-trolls urge on them. But of course because they’re prolife, whatever they do is extreme and unprecedented. So excuse me if I tune out that sort of rhetoric as a cover for the abortion-fanciers.

              2. “…people disagree with you, so it all must be in bad faith.”

                This is in reply to a post by Cal that makes no allegation of bad faith.

                So either you are hallucinating or it is your post that is in bad faith.

          2. It isn’t that precedent never gets overturned, or that it never should be overturned. It is that it shouldn’t be overturned on the whims of judges that have a personal opinion that differs from precedent. That should be obvious, except that you have precedents that you don’t like, and those you do. So you just think that the courts need to have judges that agree with you so that they can do away with the ones you don’t like and follow the ones you do. Just like you’d accuse liberals of doing.

            1. “It is that it shouldn’t be overturned on the whims of judges that have a personal opinion that differs from precedent.”

              Your agreement that Roe was wrongly decided is noted.

    2. That part seems suspiciously like sanctuary city CYA boilerplate to refuse to help the Feds except where legally required.

    3. The law specifically provides that the SUBSEQUENT overruling of a supporting precedent negates any defense, even if that makes hash of how affirmative defenses are supposed to work. So the idea is to intimidate doctors out of providing currently-legal abortions by threatening them with financial ruin if and when the Supreme Court overrules Roe and Casey.

      1. To be clear, the law specifically provides that the overruling of Roe or Casey means that the fact that those precedents had not yet been overruled at the time of the abortion doesn’t mean that they can still be appealed to even after they have been overruled.

        SB8 is on the books and declares post-heartbeat abortions illegal. SB8 observes that other Texas statutes outlawing abortion are also current law even thought Texas is currently prevented from enforcing them. If Roe/Casey is overruled that is a decision that that prevention was a legal error. So, your claim that abortions performed before the precedents were overruled are “currently legal” is non-obvious, as is the truth of your claim that that is “how affirmative defenses are supposed to work”. So, expand on your proposition.

        1. …let me clarify further. Elsewhere on this thread someone has provided a list of what purports to be, iirc, a list of cases where SCIOTUS has overruled itself. Is it customary for the losing party to be grandfathered in and exempted from damages, penalties, etc. on the grounds that they were entitled to rely on the overturned precedent?

    4. Also, being able to point to Roe and Casey and “win” is a rather hollow victory if you have to do it in thousands of cases and you’re barred from recovering costs and fees, normally available to deter frivolous suits.

    5. I believe the answer is in 171.208(e)(3). Although one can today defend on the basis of Roe or Casey, the law expressly invalidates that defense if Roe is overturned–and does so retroactively. There is a 4 year statute of limitations. So if a person today abets a woman to leave Texas to procure an abortion 10 weeks into pregnancy, and SCOTUS later overrules Roe in 2024, that person who today exercised his or her existing Constitutional right can be successfully sued in 2025 under SB 8.

      1. But the overruling of Roe would mean that the right to abort post-heartbeat is NOT an “existing Constitutional right”, merely judicial error. The extent you can rely on the protection of unreversed judicial error to protect you from the consequences of deliberately disobeying black-letter law is non-obvious.

        Serious question: When SCOTUS reverses itself are the current losers customarily grandfathered in? My impression is… No.

    6. Since the Texas Legislature only meets every other year, presumably at least part of the point was that if Roe & Casey get overturned, they have a law in effect that can immediately go into action instead of waiting for the next legislative session and spend months passing the bill.

  6. “The State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly.”

    So, the State has represented that, if somebody files one of these lawsuits, and prevails, the State will not enforce the judgement?

    That’s very interesting, and unexpected, but it does rather pull the law’s teeth.

    1. No, that’s not what the quoted text says.

      1. So, you’re saying that enforcing a judgment under this law would not constitute indirect enforcement of the law itself? That seems a dubious claim.

        1. Not by the Executive branch

    2. Are you seriously suggesting that the State cannot choose to distinguish between enforcing a law and collecting judgments arising from violations of said law IF IT WANTS TO?

      Sure, a different authority with different priors may refuse to recognize the distinction, but that’s just more who-whom.

  7. Would those defending this particular law also defend a similar legal framework regarding guns if passed by NY or CA?

    1. No, but they would use the fig leaf argument that one is based on actual constitutional text, and the other is not. According to them.

      1. Well, I can point to the Second Amendment for guns. Having a much harder time finding such for abortion.

  8. Any guesses on whether Blackman will take the view that there is a “right without a remedy” if a blue state or city decides to create the same bounty scheme against anyone who sells anyone a gun?

    1. The Texas law sets the limit to abortion(limits are constitutional) and leaves enforcement up to people filing civil law suits against Aiders and abettors.
      What constitutional limit, that the govt has not already set, are you going to set on the seller of a gun?

      1. Limits are constitutional? I think we all know that the limits Texas set here are way out of whack with current precedent on the subject. C’mon.

        If it’s reasonable for Texas to do what it did, then it’s also reasonable for a liberal state to do something out of whack with current Supreme Court precedent on an issue like guns with a similar private enforcement provision.

        Agree with Roe or not, you can’t make sauce for the goose and not have it be sauce for the gander.

      2. Just let me sue my neighbour for owning a gun, and the gun store for selling it to him. Fixed and high damages from both, and Bob’s your uncle.

        1. You can’t sue me, the Constitution protect my right to “keep” arms.
          You cant sue a retailer for engaging in legal commerce.

          The Texas law set a top end limit on the development of the baby. Something SCOTUS has specifically found to be well within legislative power. Just as legislatures have placed limits on which types of arms can be kept.
          What you are wrestling with, unsuccessfully, a gun is an inanimate object.
          A baby is a human.

    2. The kind of states blue enough to implement those laws already have onerous laws about gun sales. This is the problem the left faces hegemonic power and resentment based laws have been the lefts bread and butter for 30 years. They are out of sticks. The right is just hardier and deals with inconvenience better. You have to toughen up to win. But hegemony breeds softness. Choose wisely I guess. Toodles.

  9. Under English law you can sometimes sue an as-of-yet-unknown person. For example, see this case from the Court of Appeal last year, where a company was suing persons unknown who were or might be protesting outside their factory, seeking an injunction telling them to go away: https://www.bailii.org/ew/cases/EWCA/Civ/2020/303.html

    Might such a thing be possible in the US? Eg. “Abortion clinic v. Doe, the unknown future plaintiff in a suit.” That way you’d at least be litigating against a sensible defendant, except that you’d have to figure out a way to provide that defendant with some meaningful legal representation.

    1. You couldn’t do that in federal court, which is the whole point of the law.

      1. How do you figure? (That last bit.) The law prevents federal courts from having jurisdiction when the defendant is an official of the state of Texas, but how does it prevent federal courts from having jurisdiction when the defendant is a private citizen would-be plaintiff?

        (I mean, Federal law might prevent that, but I don’t see anything in SB 8 itself that anticipates this.)

        1. Because of the case or controversy requirement of Article III standing. The plaintiffs not only have to prove that they themselves have standing. They have to prove that the defendants have standing.

          Without a known fefendant with standing, there is no case or controversy, and no Article III court jurisdiction.

          1. Yes, that’s what I was asking about. But your reference to “the whole point of the law” seemed to suggest something else.

            1. The law was deliberately intended to avoid being struck down in federal court prior to going into effect by ensuring that nobody has standing to sue until a lawsuit under the law is actually in preparation. The Supreme Court decision we’re discussing means it achieved it’s intended effect.

              It’s not the entire point of the law. But it’s definitely one of the major points, and the main point of the method of enforcement.

    2. I doubt it. The distinction that I see is between a yet unidentified party, and someone who hasn’t done anything wrong yet. The latter is problematic, because it could be anyone of Texas’ millions of residents. In the former case, there is typically an argument that there is some nexus between the Doe and the tort or crime, and should therefore have knowledge of the suit against them as a party.

      1. Makes sense. And how difficult would it be to get one volunteer to sue another volunteer under this law, in order to run a test case?

        1. I think that if a private party starts making efforts to prepare a state court case under the law and someone on the other side finds out, you will then have Article IIi standing and the party can be sued in federal court.

          1. Yes, that seems right. But what if they want legal certainty now? Because, as you said, the mere uncertainty about the law will have a chilling effect for as long as it lasts. So what if the lawyers for Planned Parenthood Texas get a friend at another firm, who they know to be pro-life, to file suit asap? Would that create risks for the lawyers involved if someone suspects the suit is fabricated?

            1. In all candor, if I were a lawyer working for a prospective plaintiff, I would think tipping off my friend in Planned Parenthood so they can pre-emptively sue and get legal fees unavailable to them as successful defendants in a state court suit would not exactly be in my client’s interests, and would not exactly be consistent with my ethical duties to my client.

              If I were on the Texas Right to Life side, I’d want to keep as quiet as possible about what I’m doing until the state suit actually gets filed, to prevent a federal suit against me (and the risk of judgments for legal fees etc.) until it’s actually in state court and abstention doctrines come into play.

          2. Despite denying any intention of filing any SB8 suit Texas Right to Life was enjoined against collecting information about purported SB8 violations. (And GoDaddy deplatformed their website. Etc.)

  10. The laws 3 goals, and appears to be achieving all of them.

    1. Keep things out of federal courts for a couple of years, until the Supreme Court is ready to make a move.
    2. Create a vehicle for reversing Roe v. Wade when it is.
    3. In the meanwhile, create risks and uncertainties for abortion clinics that tend to reduce abortions in Texas.

    Many commenters obviously disagree with these goals. But given its performance so far, it seems a rational way of achieving them. As Justice Sottomeyor put it, Texas’ gambit so far has worked.

    1. Which basically mirrors all of the lawsuits against Trump for immigration. What goes around comes around.

      1. What is the parallels you see? I don’t see many here.

      2. What’s going to come around is the undoing of the second amendment. If abortion rights can be curtailed in this way, so can gun rights.

        Sue the gun store for “aiding and abetting” gun ownership. Get $10,000 as well as a permanent injunction against the store. No executive branch enforcement required.

        1. That’s true, except that in the case of Roe and Casey there may be the votes in SCOTUS to overturn, which I doubt is the case with Heller et al.

          1. IF this gambit works, which I don’t think it will but if it does, Roe, Casey, and Heller become irrelevant. Overturn them, don’t overturn them, it doesn’t matter. You won’t be able to buy a gun either way, because the
            gun store can’t afford to defend against a lawsuit per gun sold, and there’s nobody for the supreme court to enforce Heller against.

        2. There’s no sign of anyone getting $10k from any abortionist.

          The abortion mills refusing to do heartbeat abortions are being over-cautious, IMHO. Or perhaps they’re posturing to raise support. But they’re anyway gifting the SB8 folks a win that they won’t actually get from the courts.

    2. No the goal was to keep this out of state courts and force it into federal courts where it can be appealed to the Supreme Court. Lol I’m in PE and even I can see that.

  11. Four dissents in Carpenter (which was the Chief + 4 libs):

    Kennedy, joined by Thomas, Alito
    Thomas
    Alito, joined by Thomas
    Gorsuch

    1. Four dissents in Lamps Plus (class arbitration)

      Ginsburg, joined by Breyer, Sotomayor
      Breyer
      Sotomayor
      Kagan, joined by Ginsburg, Breyer; Sotomayor in part

      1. Four dissents in June Medical

        Thomas
        Alito, joined by Gorsuch; Thomas in part; Kavanaugh in part
        Gorsuch
        Kavanaugh

    2. Were people saying 5-4 decisions were illegitimate due to being 5-4, you might have a point.

      No one is arguing that, so maybe discuss the merits.

      1. I think Chris was simply making the shocking point that Blackman might have been wrong about how rare it is to have four separate dissenting opinions…

        1. Oh. Derp.

          I forgot about the OP.

          Which, to be fair, I didn’t read.

          Sorry Chris!

          1. Dixit Blackman: “The last time I recall the Court had four separate dissents was Obergefell, but I may be missing a case.”

            So yeah, he might have missed more than one case…

      2. JB mentioned that there are very few cases that get 4 dissenting opinions (not 4 dissenting votes) and remembered only one.

        Chris is just refreshing Josh’s memory.

  12. It would seem to me that organizations that are engaging in activities to help prospective plaintiffs, such as investigating or gathering data on abortions that could be subject to lawsuits, might be suitable defendants for a more narrowly tailored, surgical lawsuit.

    A difficulty with the 5th Circuit and Supreme Court’s approach is that standing is a fact-specific inquiry, and there was no time to make the sort of party-by-party analysis of details required.

    If I were the plaintiffs, I might go back to district court and find one or two defendents who are most clearly involved in preparing for lawsuits and for whom the most solid evidence supporting involvement exists.

    The sheer breadth of the suit clearly worked against the plaintiffs in this case. I wouldn’t make that mistake again.

    1. Texas Right to Life was in fact subjected to a TRO against gathering data despite denying any present intention to bring suit, but that’s a vio of its 1stA rights that I do not believe will stand.

  13. The anomaly here is that a suit initiated in state court can ordinarily be removed to federal court if it presents a federal question, which includes defenses. So any suit under the Texas law would be removable. But then the federal court wouldn’t have jurisdiction because of the absence of standing. Usually, federal courts dismiss rather than remand in that scenario, but I suppose if the state court would have jurisdiction and the federal court doesn’t, it would remand.

    I’m curious whether standing is really completely optional in Texas courts. Has the Texas Constitution been so construed?

    1. That’s not exactly right. A case can be removed to federal court if the federal court has original jurisdiction, and it has original jurisdiction if (i) there’s diversity of citizenship or (ii) the action arises under federal law. A suit under the Texas law doesn’t arise under federal law, and the Supreme Court has held that “a case may not be removed to federal court on the basis of a federal defense, … even if the defense is anticipated in the plaintiff’s complaint, and even if both parties concede that the federal defense is the only question truly at issue.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 393 (1987).

  14. One other point that I’m not surprised Blackman missed, because it’s a big one and it undercuts his preconceived notions about this case. The case comes up on the district court’s dismissal of the defendants’ 12(b)(1) immunity motion. The party that asked the 5th Circuit for an administrative stay is a private defendant who said he wanted to enforce the law. He has no plausible claim to immunity, and thus no standing to appeal and certainly no grounds to ask for stay. So the district court plainly has subject-matter jurisdiction at least over him. And thus there’s no reason for the 5th Circuit, and then SCOTUS, to stay the proceedings *entirely* except to gratify SB8’s cynical procedural ploy to stymy federal litigation.

    1. It didn’t stay the proceedings as to him. But getting an injunction against him doesn’t do anything other than keep him from suing the defendants.

  15. Republicans sure are going to enjoy the bounties placed on environmental violators and large magazine enthusiasts in blue states.

    Hanging out at gun ranges and taking notes could become really profitable!

    1. Profitable only if someone can actually collect the $10k+ bounty, which is not in evidence, nor necessary for SB8’s good effect it seems.

  16. A law where every abortion provider has to have attorneys raise an affirmative defense in every district in Texas since venue can’t be changed, in suits filed by literally anyone no matter how little standing they have, and can’t collect attorneys fees for frivolous cases, doesn’t create an undue burden in violation of Casey, even as numerous providers stopped offering post-heartbeat abortions because of just that? You’ve got to be kidding. What a facially absurd argument.

    With the consequences and blatant attempt to evade review of an unconstitutional law, the dissent is absolutely right, an unprecedented attempt to evade judicial review calls for an unprecedented remedy, on an emergency basis when the immediate harm is so clearly demonstrated and the law so clearly unconstitutional.

    What’s also unprecedented is courts entertaining an ‘Haha I found a technical loophole to do something illegal and you can’t touch me!’ defense. I guarantee they wouldn’t do this without having open contempt for the underlying right.

    1. The remedy for this development seems destined to include enlargement of the Supreme Court, relegating the Republican justices to careers of authoring bitter, clinging, seething, inconsequential dissents.

      1. You keep fucking that chicken, Rev

        I’m sure it’s the only sex you get, outside of your hands

    2. Try reading the article again. SCOTUS can’t erase laws. Or maybe that’s the “unprecedented remedy” you desire, but then don’t tell me you give a damn about the integrity of the law.

      And, yes, the authors of SB8 have open contempt for the supposed “right” invented in Roe and Casey, etc. As is their right.

  17. IANAL, so please bear with me. If SB8 criminalizes abortions post heartbeat, and allows private citizens to do the suing legwork, but due to Roe and Casey a post fetal heartbeat abortion isn’t illegal, wouldn’t anyone attempting to sue the clinic and the uber driver get in trouble for filing frivolous suits? I mean, I know it isn’t illegal yet due to Roe/Casey but if I file anyway don’t I have a heap of trouble waiting for me in court?

    1. Unfortunately, I don’t think so. Lawyers can, consistent with the rules of professional conduct, file any claim or defense that is supported by existing law or by a nonfrivolous argument for changing the law. Suing under a state statute that expressly authorizes suit, involving a federal right that many observers agree may be soon invalidated, would fit that standard.

  18. This development changes the propositions board with respect to the proposition: ‘Twenty years from now, what will be generally recognized as the precipitate for enlargement of the Supreme Court during the 2020s?’

    The new odds:

    Abortion 3-1
    Voter suppression 6-1
    Health care 8-1
    Guns 12-1
    Election results/partisanship 3-1
    Civil rights (gay-bashing, racism, misogyny, etc.) 9-2
    Religious extremism 25-1
    No enlargement 1-2

  19. I don’t see how Kagan can call this “shadow-docket decisionmaking.” It was the plaintiffs who were seeking extraordinary relief from the Supreme Court by way of the shadow docket. They weren’t seeking a grant of certiorari to review a circuit decision in the ordinary course — they were asking the Supreme Court, in the first instance, to enjoin enforcement of a statute before anyone had ruled on the merits, in a case where none of the defendants had any part in enforcing the statute, and without even the benefit of any argument. Saying “no, come back when there’s an actual case for us to consider” is the opposite of shadow-docket decisionmaking.

    1. I suspect she shares the Robertsian framing of the question, which seems to be that the starting position should be the situation before the Bill was passed. So everything should rest there, as if there was no Bill, until everyone has had plenty of time to think this through properly.

      It’s an interesting approach, but seems to me a bit more revolutionary than the procedural dodges that Roberts is concerned about, since there’s no reason why if this approach should be applied to this Texas Bill, it shouldn’t be applied to any Bill, State or Federal.

      How strange it would have been if, recognising that there might be serious constitutional arguments about the ACA, SCOTUS had simply put the whole thing on ice as soon as it was passed, so that the starting point was the status quo ante, until they had chewed their way through the constitutional questions over the next five years.

      1. It would seem strange indeed if the kritarchs suddenly started applying their interesting sauces for geese only to the ganders. But that’s not the way to bet.

  20. Is there a reason why the plaintiffs didn’t try to enjoin the Governor of Texas from signing the Bill ?

    1. Why start with the Governor? Just order the members of the TX Legislature not to put it to a vote.

  21. I think California or some other liberal state should pass a new law modeled nearly word for word after this Texas law. Only instead of banning abortion after 6 weeks, it should ban anti-abortion activists from demonstrating near abortion clinics. Hey, it won’t be California officials enforcing it, so there would be no one to sue to block it from taking effect, right? They’d have to wait until someone sued the pro-life protesters to challenge the law.

    1. No problem. And then the people sue under anti-SLAPP provisions, and recover attorney’s fees.

      Because you’re explicitly going after people’s political participation.

      So, here’s a thought: why don’t you just try using birth control, and not murdering babies?

      1. So, here’s a thought: why don’t you just try using birth control, and not murdering babies?

        Here’s a thought, why don’t pro-lifers actually advocate for real sex education and access to birth control instead of insisting that employers can nix contraceptive coverage if it is against their religious beliefs and insisting on abstinence only sex ed that is proven to be ineffective or even worse than saying nothing sometimes? I’d absolutely agree that better birth control use is preferable to abortion, but religious conservatives just don’t want people to have the dirty sex unless it produces lots of kids.

        No problem. And then the people sue under anti-SLAPP provisions, and recover attorney’s fees.

        Because you’re explicitly going after people’s political participation.

        The Texas law doesn’t allow for defendants to recover any legal fees if they win their case, I believe. Since anti-SLAPP laws are state law provisions, I’m sure my suggestion would do the same thing.

      2. And of course, I don’t concede that abortion is “murdering babies.” I can never seem to get anyone against abortion around here to answer why the women having the abortions are always exempt from punishment in these laws, so I don’t think you all really believe that anyway.

        1. Abortion is killing a human, by definition.
          It is not usually prosecuted under murder because it is lawful. If abortion were illegal, it wouldn’t be and then you presumably would see such prosecutions.

          There are cases where killing an unborn child (against the mother’s will) IS prosecuted as murder – “at least 38 states have fetal homicide laws” says the National Conference of State Legislatures. And these cases happen regularly.

          1. There are cases where killing an unborn child (against the mother’s will) IS prosecuted as murder – “at least 38 states have fetal homicide laws” says the National Conference of State Legislatures. And these cases happen regularly.

            Fetal homicide is not the same statute as the one that someone that killed a person, including an infant, would be prosecuted under. So, in law, it is not the same thing. All 50 states have laws against killing a person.

            And that is against the will of the woman is all of the difference. In those cases, a woman that wanted a child had that taken from her.

            Abortion is killing a human, by definition.

            Then a miscarriage is the death of a human, by definition. As would be the estimated ~50% of fertilized eggs that never implant in the uterus in the first place. Are those mourned to the same extent that a person is?

            I’ve known people that have lost a pregnancy and one that went through a stillbirth. In that latter case, they had known that the odds were severely against them as the diagnosis of a severe chromosomal anomaly was made. They referred to him as their son, having named him, even though he was never born. That was tragic, and I feel great sympathy for them. But that is where my sympathy is. Their son was never born, and I refer to him as their son out of respect for them.

            Other people that lose a pregnancy don’t feel that same degree of loss, especially if it is earlier. And I once read an article written by a woman that had an abortion at 21 weeks because the fetus had developed anencephaly. That is, it lacked most of the brain. She was horrified at the thought that the procedure might have been banned out of some misguided anti-abortion stance, as it would have been in some laws being proposed at the time. She would have been forced to carry a doomed fetus for months longer rather than end her suffering sooner.

            And of course, there is the case of Savita Halappanavar in Ireland. She died when her fetus was about 17 weeks because abortions were banned in that country. Even though the doctors agreed that the death of the fetus was virtually inevitable, the hospital would not abort it as long as a heartbeat could be detected, because the law could prosecute them if they did.

            That is why I am pro-choice. The overall odds of maternal death in the U.S. are about 1 in 6000 live births. I will not ever condone forcing a woman to take that risk against her will, even if you could convince me that a embryo at 6 weeks was equal to a newborn infant.

        2. Who needs SLAPP laws when you have 42 U.S. Code § 1983?

  22. It’s not clear to me why the majority does not base its decision entirely on what seems to me Prof. Blackman’s most important point, viz., that there is no preliminary remedy against any law. There can be an order prohibiting enforcement pending further proceedings, but the law is meant to have a chilling effect on behavior, and temporarily barring enforcement does not address that effect.

    I don’t believe the “private action” ruse amounts to a hill of beans. If Roe is upheld, Shelley v. Kraemer or something similar will be invoked to provide a remedy for those aggrieved by the statute. If Roe is overturned, then all the shenanigans will have been unnecessary, as a straight-up ban would have been sufficient.

    Another issue here that bothers me is the attempt to make what should be a crime, if it is to be banned, into a tort. The only difference between a crime and a tort is that “the people” have standing to prosecute a crime. That distinction should work both ways. If the government votes to give everyone “standing” to collect liquidated damages from someone on account of their behavior, that state has created a “crime,” and defendants should be subject to the protections of the criminal law.

    Whether one is pro-life or pro-choice, I don’t see how anyone can find the Texas law jurisprudentially defensible. Roe will fall or it won’t, and abortions will be legal or illegal in Texas accordingly. But this piece of legislative garbage will receive the same reception as that silly attempt to kill Obamacare by removing the penalty. The law is simply dishonest, and every lawyer who participated in its creation should be disbarred on motion of any Texan with a working brain.

    1. The removal of the penalty from Obamacare was not an attempt to kill it, it was an attempt to save it by making its prospect less noxious. Until that point the desire to make it less noxious had resulted in it never being applied to anyone, iirc.

      “The only difference between a crime and a tort is that ‘the people’ have standing to prosecute a crime. That distinction should work both ways. If the government votes to give everyone “standing” to collect liquidated damages from someone on account of their behavior, that state has created a “crime,” and defendants should be subject to the protections of the criminal law.”

      You’re of course playing stupid word games with the phrase “the people”. A DA purportedly represents “the people”, but is not merely a random person. If everyone is given standing to sue for damages you’ve done the opposite of “creating a crime” since no such special bureaucrat is required.

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