Who will be the Estelle Griswold of Texas?

At some point, some abortion provider will try to set up a test case to challenge S.B. 8.

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Pre-enforcement challenges to S.B. 8 have failed. And due to S.B. 8's unique structure, I think facial challenges will also fail–whether brought by abortion providers or the United States. Perhaps the only way to test the constitutionality of S.B. 8 is to set up a real test case. Old school style. Deliberately violate the law, and wait to be sued. At that point, the constitutionality of S.B. 8–in that particular context at least–can be tested.

There is some precedent for this practice. In 1961, the Connecticut Birth Control League opened a Planned Parenthood clinic in New Haven. The organization wanted to start a test case as a means to challenge the state's contraception law. Estelle Griswold was the executive director of the League. Dr. C. Lee Buxton, the chairman of the Yale University Department of Obstetrics and Gynecology, was the medical director of the clinic. Griswold and Buxton counseled married couples on the use of contraception, a clear violation of Connecticut law. They did so deliberately, so they would be arrested. Griswold and Buxton were each fined $100. Of course, this staged-arrest set up the test case that became Griswold v. Connecticut. Indeed, Griswold became necessary after the Supreme Court decided Poe v. Ullman. That case turned away a facial challenge to the contraception ban that the government did not actually enforce the law. There is nothing new under the sun.

At some point, some abortion provider will try to set up a test case to challenge S.B. 8. Who will be the Estelle Griswold of Texas?

Of course, due to the structure of S.B. 8, a victory of Estelle #1 would not help Estelles #2, 3, 4 … n.

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  1. It’s too bad Kermit Gosnell is busy.

    1. As awful as Kermit Gosnell is, and as much as he richly deserves to die alone in prison, his existence was made possible by the anti-abortion industry. Just as some gun owners see any regulation of guns as a first step toward confiscation, so some abortion rights activists see any regulation as a first step toward a total ban. In short, we don’t trust you to do reasonable regulation, and, as events in Texas show, apparently with good reason.

      Is there a need for reasonable regulation? Yes, for both guns and abortions. No more school shootings, and no more Kermit Gosnells. But that can only happen if both sides can have confidence that reasonable regulation isn’t just a first step toward a total ban.

      1. Pray tell us what ‘reasonable regulations’ out of the list that always seems to crop up would provide for ‘NO MORE SCHOOL SHOOTINGS’.
        That’s a very definite claim ‘NO MORE SCHOOL SHOOTINGS’ you’ve made, so fill us in.

        1. What reasonable regulations would have prevented Kermit Gosnell? And thanks for hijacking my point by changing the subject from the need to be able to trust the good intentions of the other side to the specifics of gun control.

          “No more” is aspirational rather than expectational. There will be some that slip through the cracks. But you can reduce the numbers. Doing that, however, requires that people be able to trust that a reasonable regulation really isn’t just a first step toward a complete ban.

          1. There actually were reasonable regulations in place to prevent Kermit Gosnell. The regulatory apparatus had been captured by people who believed elective abortion right up to birth was a right, and so they check on him, discovered what he was doing, repeatedly, and then didn’t report it. And buried reports from anybody else who noticed.

            1. And you know what? Laws against murder aren’t 100 percent effective at preventing all murders either but that’s not a reason not to have them. They undoubtedly reduce the numbers and sometimes that’s the best that can be done.

              You’re right that enforcement depends on the good intentions of the regulators but that’s true of any law. Do we abolish speed limits because some cop gave a buddy a free pass?

              1. In this case it was more like Murder Inc had some guys on the police force who’d be detailed to investigate their hits, but, yeah, pretty much.

                1. There’s actual precedent for that too but again, that’s not a reason not to have laws. Just do a better job of hiring regulators.

                  1. I think the problem with enforcement, is the perception the law is not the will of the people.
                    They fear that any new regulation will lead to the total ban.
                    Roe v Wade was 1973? 50 years both sides have fought the judiciary.
                    The legislatures we often stymied by judges. The people were deprived their power to self govern.
                    This is all created by judges flexing their power, that is not reviewable Even conservative judges are reticent to challenge what has become religious dogma in the legal culture…Roe.

                    Turn this back over to the States and the legislative process, will give the people back the power rightly theirs. Thus laws enacted will have wider acceptance

          2. “What reasonable regulations would have prevented Kermit Gosnell? ”

            How about abortion clinics must ACTUALLY be inspected? His was not for many years. Due to political support for abortion amongst the people who would have done inspections or demanded them.

      2. “his existence was made possible by the anti-abortion industry.”

        That’s an interesting take on the guy PP sent women to, to get their illegally late term abortions under horrific conditions. “The only reason we sent these women to that butcher is that you wouldn’t let us kill their ready to be delivered babies in an unsanitary manner ourselves!”

        “The only reason people hire hit men is that you don’t let them murder people!. So opponents of murder are responsible for hitmen!”

        I mean, there is an element of causality here, but it seems to me the proximate cause of Kermit Gosnell is actually the determination to kill infants who could have just been delivered live and adopted out if the mother really didn’t want them.

        1. Gosnell bears most of the blame. But some of it also goes to a climate in which aggressive enforcement of reasonable regulation is viewed with suspicion as a first step toward a total ban.

          1. I think it’s less a matter of that, than it is that the people actually running PP don’t think bans on late term elective abortions are reasonable. They don’t object to them because they’re afraid of a slippery slope, they object to them because they genuinely think that women ought to be able to kill their babies. For any reason, at any point in pregnancy, right up to shortly after they’re born.

            There are people who think that way. Peter Singer, for instance. And does it seem so weird that they’d gravitate to working in the abortion industry?

            The pro-life movement is dominated by people who object to even birth control, the pro-choice movement by people who are comfortable with even infanticide, because extremists gravitate to organizations, and take them over.

            Bottom line, they didn’t defend Gosnell, and feed him patients, because they saw that as a regrettable necessity to protect 1st trimester abortion. They did it because they thought he was doing the right thing, and they were glad somebody had the guts to do it.

            1. There are people who think that way. There are extremist Catholics who think Pius XII was the last legitimate pope. But you don’t judge a movement or a belief by its most extreme members.

              And I would agree that the middle needs to assert control. But part of that goes back to the lack of trust. There’s room to say Gosnell and his enablers belong in prison without also saying abortion needs to be a practical impossibility

              1. But you don’t judge a movement or a belief by its most extreme members.

                Who are you including among the “most extreme members”? Those who want abortion to be available any time prior to birth? There are plenty of those. And what’s the difference between a baby just prior to birth and one just after birth?

                1. In general, I do not support abortion being available right up until birth, so you’ll have to ask someone who does about the difference between just prior and just after. (I say “in general” because there might be an extreme situation, such as if the woman has developed an illness or been in an accident and aborting the fetus is the only way to save her life, in which I might make an exception.)

                  My view is abortion on demand up until viability; as the pregnancy develops past viability, the fetus’ interests become greater and greater, so it becomes a balancing test after that.

                2. Those who want abortion to be available any time prior to birth?

                  I think those are not a vanishingly small number, but a quite small percentage among abortion defenders. I have never met anyone who thought that way. The vast majority of people I associate with are abortion defenders, almost all of them more strongly so than I am. But the range of views is more like maybe, 12 weeks to 20 weeks. That seems to me to be the pro-choice mainstream—but always with exceptions for the life of the mother, and most always with exceptions for rape and incest.

                  On the other side, it’s pretty obvious that a lot of anti-abortion advocates are 100% abolitionists, and that many take it beyond that to banning birth control.

                  It is not a symmetrical contest of views.

              2. “But you don’t judge a movement or a belief by its most extreme members.”

                You do if they’re in control. I mean, look at the recent abortion law changes in NY. They didn’t just make abortion easier. They got rid of every safeguard that stood in the way of post birth abortions, AKA “infanticide”.

                The abortion debate: The RHA legalizes infanticide

                I’ve looked at the NY law she’s talking about, and she isn’t exaggerating. They systematically dismantled every single obstacle to infanticide, and you can basically get an elective abortion five minutes from delivery in NY now.

                That didn’t happen by accident, it wasn’t a mistake. The people in charge of making policy wanted that.

                1. And that’s too extremist for me, and I suspect for most people who support abortion rights earlier in the pregnancy. On the other side, zygote-worshippers who want to ban abortion from the moment of conception are just as extreme.

                  1. The morning after pill answers that circumstance. But the abortion battle centers on lack of personal responsibility.
                    The debate also rests on the premise of prioritizing a women’s convenience , by sacrificing a human life.

                  2. On the other side, zygote-worshippers who want to ban abortion from the moment of conception are just as extreme.

                    Suppose we have a person afflicted by a disease that for nine months renders him unaware and unable to think, eat or even breathe without external assistance. After the nine months of the disease he will, to a medical certainty, fully recover. Is insisting that his “life” not be ended before the nine months is up just as “extreme”? If not, why not?

                2. What pray tell is the difference between 5 minutes after birth and 1 year? or 10 years?
                  Okay, the Catholic Church says 7 is the age of reason; so I’ll back 10 years off to 6 years.

      3. “Look at what you made us do!”

        1. Not so much that as look what you made harder to prevent.

          1. Walk me through this…what led the “moderate” prochoice regulators and officials to ignore Gosness for so long?

            Your narrative isn’t accepted by the legacy media. If they believed Gosnell’s case was the fault of pro-lifers they would have given more publicity to the case, in order to discredit “extremist nuts” like myself.

            To believe your narrative, you’d have to believe that the legacy media downplayed facts which were harmful to the prolife movement. How likely does that seem?

            1. What he means is if the pro life movement went away those women could have gotten their late term elective abortions under better conditions, because they wouldn’t have been illegal.

              1. No that’s not what I mean. See my response to swood1000 above.

                1. As you sum up:

                  “My view is abortion on demand up until viability; as the pregnancy develops past viability, the fetus’ interests become greater and greater, so it becomes a balancing test after that.”

                  How would such a policy be threatened by prosecuting Gosnell?

                  1. Cal, I’ve now said four times I support prosecuting not just Gosnell but his enablers. So why are you asking a question that implies he shouldn’t be prosecuted?

                  2. I think you missed my point.

                    You want Gosnell prosecuted, then proceed to blame prolifers for Gosnell. You seem to think that the policies which might have thwarted Gosnell are being effectually blocked or delayed or in any case made more difficult by prolifers.

                    There was my concern, your blaming prolifers for Gosnell.

                    I thought *my* position was clear.

                    1. He isn’t “blaming pro-lifers for Gosnell,” he said they created the conditions that made Gosnell possible. Everyone knows that Gosnell is to blame for Gosnell.

                    2. “created the conditions that made Gosnell possible”

                      However you phrase it, it’s obvious that pro-choicers have the best weed.

                      Or maybe that hasn’t been water you’ve been drinking.

            2. You’re making a number of assumptions about the “legacy media” that I’m not sure are true, but that aside, that the regulators didn’t follow the laws on the books — and I’m fine with those who didn’t following Gosnell to prison — is a separate point from the one I’m making, which is this: Any proposed regulation of abortion is going to be greeted with “That’s just a first step toward a total ban, look at Texas.” Even if the proposed regulation is completely sensible and necessary to the orderly operation of the clinic. And if you want the pro-abortion side to agree to regulation, you’re going to have to convince them that a ban on abortion is off the table.

              1. “if you want the pro-abortion side to agree to regulation, you’re going to have to convince them that a ban on abortion is off the table.”

                Abolitionists were able to procure bans on the African slave trade before they were able to ban slavery itself. I don’t recall them having to give pledges in favor of slavery before they could get a ban on the African trade.

                1. That analogy turns things on their head though. You’re trying to enslave women by forcing them to carry pregnancy to term. So it’s really a situation of trying to enslave people who are currently free.

                  1. Of course we want to restrict the “freedom” to kill human beings.

                    In contrast, the so-called “prochoice” side wants to *compel* taxpayers to pay for abortion. Where’s the choice there? If you want a slavery analogy, there it is!

                    In their day, the slavers claimed *their* constitutional “right to property” was endangered by “fanatics.” Come to think of it, many of them said that if it weren’t for abolitionists, they would have reformed the “abuses” of the slave system, thus backhandedly acknowledging the abuses while finding a way to deflect blame from themselves.

                  2. Wait a minute, don’t you support bans on late-term abortions? If you want late-term abortions to be completely legal I apologize for the misunderstanding, but I took you to say you’d ban late-term abortions at least in general.

                    So, by your own reasoning, you support slavery. Maybe a lighter form of “slavery” than we’re proposing, but still a form of slavery, compelling the mother to carry the…whatever-it’s-called…to term if it reaches a certain stage of development.

                    1. I have dinner guests arriving in two hours (shrimp chowder, braised lamb, bananas foster) so this will be my last contribution to this thread.

                      At some point between conception and birth, the fetus becomes a person. Nobody knows precisely where that point is:

                      https://freethoughtblogs.com/pharyngula/2021/09/02/honest-biologists-cant-tell-you-when-human-life-begins/

                      But the closer to birth one gets, the more likely it is that we’re talking about a person. So, the balance of rights shifts over time. The closer to conception, the greater the woman’s interest and the lesser the fetus’ interest. The closer to birth, that reverses. Which is why it’s not inconsistent for me to say abortion on demand until viability, balance the interests after that. And, if a woman wants an abortion, she should not delay until the last minute. Sometimes you lose your rights if you sit on them.

                      Now, there is a broader point, which is this: There is no clear consensus on when the fetus becomes a person, which means the state should stay out of it. Slavery isn’t a really good analogy for either side in the abortion debate because unlike fetuses, there is zero question the slaves had been born and were therefore persons. There is no serious argument that a slave isn’t a person.

                      There are people out there who would say that I am guilty of murder for serving my guests braised lamb. They believe animal killing is murder. They view the life of that lamb as just as precious as you view the life of the fetus. Someday their viewpoint may command majority support, but not today. And I would say the same thing on that issue: Because there is no clear consensus, leave the state out of it. You get to decide for yourself what is essentially a religious and philosophical question, but so do others who don’t see it the same way you do.

                    2. I know you have to go, but I’ll leave this there for whoever is interested:

                      “There is no serious argument that a slave isn’t a person.”

                      There was a very serious debate over whether black people – slave or free – had any rights which the whites were bound to respect. And indeed, the supporters of slavery, joined by the “don’t-you-dare-call-us-proslavery” fence-sitters, dismissed this as a divisive question which ought to be papered over to avoid conflict.

                      “Because there is no clear consensus, leave the state out of it. You get to decide for yourself what is essentially a religious and philosophical question, but so do others who don’t see it the same way you do.”

                      To which I have two responses:

                      1) See my response to the above question.

                      2) Not everyone shares *your* view of abortion, either. How can you justify “imposing” that view on others? Or is this argument just for the benefit of those of a view you don’t share?

                    3. “And, if a woman wants an abortion, she should not delay until the last minute. Sometimes you lose your rights if you sit on them.”

                      How, in particular, can you justify imposing that particular view on pregnant women in terms which still leaves you free to criticize fanatics like me?

                      Debating abortion “moderates” can be frustrating, but it has its perks.

                  3. Not precisely, K_2.
                    The issue is not enslaving women, but murdering a viable human being, i.e., a person who can feel pain among other things.

        2. And Cal, you are one of those extremist nuts who really would ban all abortions if you could, who in the meantime will be happy to try to regulate it out of existence. You’re precisely whom I was talking about.

          1. I’m simply curious about how the presence of people like me makes it more difficult to put Kermit Gosnell in prison.

            If locking up Gosnell would set a bad precedent for “your side” which “my side” could exploit, then that says something bad about your side’s position, I would think.

            1. Oh, I’m completely in favor of locking up Gosnell, giving him lots of bad publicity, and firing if not prosecuting the regulators who allowed him to happen. I want abortion to be safe. What I’m saying is that putting regulations on the books necessary to keep Gosnell out of business in the first place are harder to pass became they come dressed in the presumption by my side that making abortion safer is just a pretext.

              1. Why are you waiting for the “other side” to propose safety regulations? Why haven’t you passed them *already*? If passed, why didn’t you enforce them?

                The “prochoice” legislators have full access to the legislative process, and they are fully capable of proposing what you would consider Roe-compliant laws to regulate abortion. If you’re worried about being contaminated by prolife support, add preambular language about the awesomness of reproductive choice.

                Why do you come “dressed in the presumption” that safety regulations are only going to be offered by the prolife side? Again, I thought *Roe itself* allowed for safety regulations and restrictions on “late-term abortions.”

                What is it about safety regulations, to put it bluntly, to make you associate such regulations with the prolife side and not your own?

                Remember that the legacy media is pro-choice, and is fully accustomed to pushing implausible narratives on the public. Yet even the legacy media thinks your narrative is so far-fetched as to transcend the very bounds of plausibility.

                If they thought Gosnell was the pro-lifers’ fault, they’d have color pictures of the dead babies, with the headline “pro-life horror unveiled!” or some such. Also, if it bleeds, it leads.

                So the legacy media’s reticence about covering this story is hard to reconcile with your account.

                https://www.lifenews.com/2013/04/12/shocking-photo-shows-empty-media-benches-at-kermit-gosnell-trial/

                1. You sure do know an awful lot about why the legacy media does things.

                  Anyone on either side can propose safety regulations. The difference is that thanks to Texas yours are going to be assumed to be pretextual. Please tell me you’re not so dense that you honestly don’t understand why.

                  1. Of course “ours” are going to be called all sorts of names, which is why I said (and I’ll repeat the very language I used):

                    “Why are you waiting for the “other side” to propose safety regulations? Why haven’t you passed them *already*? If passed, why didn’t you enforce them?

                    “The “prochoice” legislators have full access to the legislative process, and they are fully capable of proposing what you would consider Roe-compliant laws to regulate abortion. If you’re worried about being contaminated by prolife support, add preambular language about the awesomness of reproductive choice.”

                    1. Cal, your argument makes little sense because the proposals on both sides are contained within a political process. The nature of today’s politics dictates that the direction of advocacy will matter as much, or maybe more than, the substance of advocacy. Politicians lock up the process at any point where the perceived direction of the advocacy threatens to cost them votes—which means arguments like yours do not connect with reality.

                      By contrast, someone willing to propose, for the sake of argument, that there is a middle ground he would endorse on the pro-choice side is legitimately entitled to challenge you to make a similar proposal on the pro-life side. If you refuse the offer, you are the extremist.

                    2. I still don’t see how prolifers are to blame for Gosnell.

                      “…someone willing to propose, for the sake of argument, that there is a middle ground he would endorse on the pro-choice side is legitimately entitled to challenge you to make a similar proposal on the pro-life side. If you refuse the offer, you are the extremist.”

                      Are you aware that the prolife side has been offering all sorts of “moderate” restrictions on abortion? Of course, if you just read the ACLU press releases you’ll think every bill a prolifer puts in the hopper is an extremist bill.

                      How about a law saying that you can’t do an abortion based on the race or sex of the fetus?

                      How about a law saying abortionists need admitting privileges at local hospitals?

                      How about a law requiring that the hallways in abortion clinics be wide enough to admit paramedics with stretchers, in case a woman suffers “complications” from a “procedure”?

                      How about a law against abortions in the ninth month? The eighth?

                      Or a law that babies who survive an abortion attempt should be resuscitated and not left to die?

                      If you think all these laws – proposed by prolifers – are all extreme, you may well be the extremist.

                      And all of this is strictly irrelevant because I think *all* Americans should be *extremely,* not lukewarmly, in favor of human rights. Of course they shouldn’t support abortion at all, whether extremely or lukewarmly.

                  2. “You sure do know an awful lot about why the legacy media does things.”

                    You think it’s a mystery why they under-covered the Gosnell case?

                    1. (hint: It wasn’t to spare the feelings of pro-lifers)

      4. “As awful as Kermit Gosnell is, and as much as he richly deserves to die alone in prison, his existence was made possible by the anti-abortion industry. Just as some gun owners see any regulation of guns as a first step toward confiscation, so some abortion rights activists see any regulation as a first step toward a total ban. In short, we don’t trust you to do reasonable regulation, and, as events in Texas show, apparently with good reason.”

        YET, gun stores had to pass inspections. Abortion mills like Gosnell’s did not.

        Why should regulations only apply to SOME businesses?

      5. By your logic the existence of school shooters was made possible by the anti-gun industry.

        1. I have no doubt that there are regulations that could be passed that would reduce the number of school shootings, but that will not be passed because those on the pro-gun side see them as a pretext toward getting rid of all guns. So you’re right; to an extent that is my logic. I’m not being one-sided here.

          I do suspect that the percentage of people trying to pass sensible gun regulations who actually want to confiscate all guns is smaller than the percentage of people trying to regulate abortion who actually want to ban it. There are some actual gun grabbers out there; just not as many as the pro-gun side thinks. But even if I’m wrong about that, my point about the mistrust stands, regardless of whether the mistrust is justified or imagined.

          1. I guess one point where your comparison doesn’t work is this: The gun-rights people don’t actually believe that the “sensible gun regulations” on offer would actually stop or slow school shootings. They don’t think they’re sacrificing children for the sake of avoiding a slippery slope; they don’t think such laws would do what they’re advertised as doing.

            In contrast, the abortion-rights people (at least in your version) *do* believe in safety regulations for abortion clinics and restrictions on late-term abortion. They *do* believe that such laws would legitimately protect mothers and children. (Again, I’m going by your account of what pro-choicers believe, so if you don’t think they believe this stuff please correct me).

            They believe there are abortion laws which would benefit the public, which are desirable, but they don’t want to support such laws for fear of aiding the prolifers. Again, the prolife threat is so dire they won’t even offer such laws themselves, much less sign onto such laws when offered by prolife legislators.

            Going by your account, prochoicers are sacrificing children *and mothers* for fear of a political slippery slope. *If true,* this would be quite an indictment of pro-choicers and would tend to confirm what nutcases like me say about pro-choicers’ indifference to human life.

            1. That’s not what I said. Pro choicers have and support safety regulations. You’ll have a hard time finding a pro choicer who thinks there should be no regulations at all.

              What I’ve said is that any proposed regulations coming from your side will be greeted with suspicion because we don’t think safety is really what you’re after.

              1. “That’s not what I said. Pro choicers have and support safety regulations.”

                OK, then I must have misunderstood your comment:

                “As awful as Kermit Gosnell is, and as much as he richly deserves to die alone in prison, his existence was made possible by the anti-abortion industry….

                “Is there a need for reasonable regulation? Yes, for both guns and abortions. No more school shootings, and no more Kermit Gosnells. But that can only happen if both sides can have confidence that reasonable regulation isn’t just a first step toward a total ban.”

                It sounded as if you were suggesting that pro-choicers would support more regulations if it weren’t for the prolifers.

                My point is, what did *we* do? Why is our existence stopping you from proposing, and enacting, the kind of laws you absolutely assure us you support?

                What’s to stop your side from proposing Roe-compliant regulations on abortion? Again, why not include pro-abortion rhetoric in your legislation to avoid any risk that prolifers would sign on to your bills and use them as precedent?

                Obviously, if you’re in a legislative minority, and a prolife legislature votes for a safety regulation, you’d suspect some kind of prolife trap. But in the legislatures *you* control, why don’t you pass these kinds of laws – put your own stamp on them so you don’t get confused with us?

                1. And there’s also the extra factor that *Roe* was *sold to the public* as a “moderate” decision which allowed “reasonable” regulation of abortion, especially as a pregnancy advanced. Likewise with Casey.

                  That would imply some kind of responsibility on the part of those who defend such “moderate” decisions, to provide some proof of moderation by passing the kids of laws these decisions declare acceptable.

                  It’s fair to say that hasn’t been your tactic.

                  Your side isn’t producing the kind of abortion-safety laws and late-term bans which Roe and Casey consider acceptable. You wait for some pro-life legislators to file some bill, then you say you can’t accept the bill because pro-lifers brought it forward!

                  1. kinds of laws, not kids of laws

              2. “What I’ve said is that any proposed regulations coming from your side will be greeted with suspicion because we don’t think safety is really what you’re after.”

                It’s not all we’re after, certainly. And Roe, much as I despise that case, actually said that much more than just the safety of the mother was constitutionally permitted. We’re actually allowed to have discouraging abortions as a legal aim, (Which itself demonstrates the Roe Court didn’t really think abortion was an actual civil right.) we’re actually allowed to ban elective abortions after viability, and have regulations aimed at making such bans effective.

                Whereas I get the impression that your stance is, nothing but maternal safety can be an acceptable basis for regulation at ANY stage of pregnancy. You might find elective abortions 5 minutes before delivery objectionable, but wouldn’t agree to banning them.

                What makes you think Gosnell should be in prison? That he was killing babies who could have been as easily delivered alive? Or just that he did it under unhygienic conditions that risked the lives of the mothers? I really suspect the latter.

                1. Bellmore, Krychek_2 has been clear about his position. Your, “impression,” misdescribes it.

                  The consistency and avidity with which you attribute dishonesty and evil intent to political adversaries is over the line. It is a sickness. I try to be polite to you, but in all frankness, I have to tell you your self-aggrandizing approach to discussion makes me think you do not deserve the courtesy you get from most of the commenters here. I suppose they cut you some slack because they think you are just cognitively incapable of doing better. I don’t join in that assessment.

          2. I think the percentage of people trying to pass “sensible gun regulations” that really support a full ban is higher than you think. It’s very common for people to say “I don’t want to ban all guns, just semi-automatics” or “I don’t want to ban all guns, just all those that can kill 20 people in a few minutes.”

            When you confront them with the fact that they’re describing nearly every gun out there, including ordinary handguns, they then say “Well, then I guess I am for banning all guns.”

            1. I don’t think there’s any question about that at all. The reaction to the Heller decision was instructive.

              DC had the most extreme gun laws in the country. It was virtually impossible for anybody not officially ‘important’, (Because gun laws never apply to important people.) to own a gun, and if they did get to, they had to keep it disassembled in a safe. Heller himself was a security guard, he was armed at work, and they wouldn’t let him put his own gun back together!

              This would have been the ultimate freebie for gun control advocates to demonstrate their reasonability, and most of them couldn’t. The gun control movement had a collective meltdown over the decision, declared it an outrage that had to be overturned.

              That tells us what they consider “reasonable” regulation: A de facto ban.

              1. Yes, indeed, good point. When I’ve confronted them with this, they say that they opposed Heller because they thought it would lead to prohibitions on reasonable gun control. Obviously, BS.

                1. Of course they said that. The unspoken part is that they consider ANY gun control at all to be “reasonable”, since in their view nobody should be allowed to own guns in the first place.

            2. The bigger problem is that the pro-gun control lobby does not actually know anything about guns or current gun laws.

      6. Bullshit you lying idiot. His continued operation was made possible and condoned by the pro-abortion advocates you cheer. Had they bothered with basic safety rules and shut him down there would be no reason to push harder, but you proved none of you care about people on the slightest just power.

  2. The litigants may have to provide the plaintiff as well as the target, since anti-abortion folks will smell a trap.

    -dk

    1. If there is anything anti-abortion absolutists are known for, it is being non-gullible, reasoning, and worldly.

      1. That would make pro abortion absolutists gullible, nonreasoning, and provincial.

        I mean, you did get rolled by this law, so that makes sense.

      2. If there is anything Artie is known for is being white, male, and old. He needs to be replaced by a diverse. Diversity is the strength of our country.

    2. Even if so, lawyers and interest groups will be monitoring cases and can swoop in to defend in a case that wasn’t sniffed out.

    3. Nah, that’s unnecessary. Either nobody gets sued and the whole thing is moot (not gonna happen when random people can sue), or someone does and a dozen different groups volunteer to give the defendant pro bono representation.

  3. “Who will be the Estelle Griswold of Texas?”

    You can at least be grateful it wasn’t your mother.

    1. To think of all the scholarly insights the world would’ve been denied . . .

      1. A life unworthy of life, eh?

        1. Another rousing meeting of Libertarians For Statist Womb Management (joint meeting with Libertarians For Big-Government Micromanagement Of Ladyparts Clinics) . . . convened, of course, at a White, male, faux libertarian blog.

          Carry on, clingers. Your betters (and deans) will let you know how long, and how far, you are permitted to go.

  4. It’s actually a two part challenge here.

    1. The abortion provider needs to break the law.
    2. The abortion provider needs to find someone to “sue” the provider. Ideally someone they already own. This way they can effectively own both sides…the plaintiff and defendant

    1. Those are the rules of the game created by the Texas Legislature.

  5. Weren’t Heller and McDonald test cases? I always thought Republicans should have got a Muslim baker for the Masterpiece Bakery case.

    1. Only the side opposed to the law were generating test cases there. The law was being genuinely enforced against everybody.

      Well, not in DC, admittedly. There it was only being enforced against people who weren’t ‘important’.

      1. So why didn’t Blackmon say “Heller” instead of “Griswold”?? And just as I suspected Heller was on the “second team” because the Cato Institute wanted the African American female to be the face of the litigation. So conservatives should have recruited a Muslim baker to be the face of their FEC litigation.

    2. Heller wasn’t a “test case”. Heller himself had been trying to get a legit gun permit for years. He was not arrested for having a gun illegally. He was a person that reached out to gun rights groups because he couldn’t get a gun, no matter how hard he tried.

      1. That’s a test case.

        1. If thats a test case all constitutional cases would be test cases.

          The meaning of a test case is that you have a charismatic otherwise law abiding defendant intentionally violate the law in a way that creates the case.

      2. Test cases ARE real cases. They’re real cases an organization funds because they want to test the law.

        If they weren’t real cases, they wouldn’t be good test cases.

  6. Planned Parenthood has sued Texas Right to Life, its director and 100 John Doe defendants in state court in Austin seeking declaratory judgment that the challenged statutory scheme violates numerous provisions of the Texas Constitution, as well as an injunction against the defendants and those working in concert with the defendants filing suit against the plaintiffs.

    https://www.plannedparenthood.org/uploads/filer_public/84/e2/84e289eb-c2d1-4991-8a93-cd6e9b2c40fc/20210902_-_pp_v_trl_-_original_petition-public.pdf

    The complaint looks well pleaded and persuasive to me. Any comments?

    1. Assuming those comments about Texas Right to Life are accurate, this seems like a fair vehicle to frame the issue on the merits. And is largely what I’ve been predicting for the last couple of days.

    2. Isn’t this exactly what the Supreme Court majority opinion meant when it suggested the parties pursue “procedurally proper challenges to the Texas law, including in Texas state courts”?

    3. “Moreover, the burdens of this cruel law are falling most heavily on Black, Latinx,
      and indigenous patients who, because of systemic racism”

      …are more likely to be aborted.

      The heartbeat law is said to be unconstitutional under the equal protection clause of the Texas constitution, the “law of the land” provision of same, the sanctity-of-the-home clause, the free speech clause, the right to petition, the ex post facto clause, the open-courts clause, separation of powers, and maybe I missed a couple.

      Which of these claims are “persuasive”?

      1. The ex-post facto clause. Due to the provision allowing you to be sued after the fact for conduct engaged in at a time that it was held to be legal by court rulings.

        I mean, I don’t like abortion one bit, but that one jumped right out at me.

        1. But see footnote 8 of “United States v. $5,644,540.00 in U.S. Currency” (9th Cir. 1986). The ex post facto prohibition was found to not apply in a civil case, allowing the government to take advantage of its new civil forfeiture law even though the conduct was before the effective date of the law. The court actually says “The ex post facto clause, however, applies only to criminal cases”.

        2. There’s ex post facto and ex post facto, though.

          If X is legal in 2021, and then a statute is passed in 2022 that makes X illegal – with effect from 2022 – then X was still legal in 2021. But if the 2022 is made retroactive to 2021 then that would be an ex post facto law.

          However suppose there is a 1931 statute which looks as if it makes X illegal, but there is a 1948 court precedent that, notwithstanding the 1931 law, X is in fact legal. In 2021 you do some X. But in 2022 you get prosecuted for doing X in 2021 and the court rules X is illegal, and the precedent from 1948 is either wrong or inapplicable or whatever, then you get convicted.

          It’s hard on you, obviously, as you relied on that old precedent, but the court would deny it’s making up ex post facto laws. It would say that X has been illegal since 1931 and yes, it’s unfortunate that in 1948 a court got it wrong, but technically as a matter of law, tough noogies.

          In relation to abortion, SCOTUS has ruled that various State anti-abortion statutes are unconstitutional, and so doing stuff that is prohibited by them is not illegal.

          But SCOTUS has been known to change its mind. If it should change its mind on some old abortion precedent, and thereby deny that ancient anti-abortion statutes are indeed unconstitutional, it hasn’t suddenly passed an ex post facto law. It’s just done what courts do all the time – find that the law is not quite what people thought it was. The effect, of course, for a long standing precedent is analogous to an ex post facto law. But legally it’s not. It’s just a court judgement.

          Now SCOTUS when it does do one of those backflips, often mutters about “reliance interests” (except when it’s a corporation that it’s stinging for a few hundred milllion under some newly conceived class action feeding opportunity) but that’s not quite the same as striking an ex post facto law. It’s judicially invented mitigation of overturned expectations.

          1. Right, it’s your typical, “We screwed up here, but we can never, ever admit that, so we’ll do something half-assed to try to moderate the damage.”

            Like inventing “substantive due process” to avoid admitting the Slaughterhouse cases were wrongly decided. The Court does this all the time. Declaring the ex post facto clause applicable only to criminal law, when the word “criminal” appears nowhere in it, just just an early example of this tendency of the Court to, once having made a mistake, refuse to ever correct it.

      2. “Latinx”
        A made up PC word.
        The correct feminine is Latina. No Latino’s are going to get pregnant

  7. Unlikely that any woman in Texas is going to go for an abortion now. A test case might not be for years. Which fits the intent of the drafters.

    And what would a test case do? Antiabortion zealot A sues clinic Z. Clinic Z wins. Antiabortion zealot B sues. No collateral estoppel. Clinic Z has to expend more legal costs and wins. Antiabortion zealot C sues. . .

    1. Clinic Z keeps filing the same motion to dismiss, and either keeps winning the trial court actions until

      1. They run out of plaintiffs willing to pay the filing fee to immediately lose;
      2. A plaintiff appeals the loss; or
      3. Clinic Z loses, in which case they appeal.

      1. You do realize you’re talking about many plaintiffs but only one defendant right?

        1. Yes? That’s kind of the basis of my point.

          1. After 500,000 or so lawsuits, don’t you think defendant will be financially strapped?

            1. After 500,000 or so lawsuits, don’t you think defendant will be financially strapped?

              500,000 lawsuits against a clinic means by definition that the clinic has conducted somewhere in the neighborhood of 500,000 abortions with full knowledge of the law. So no, such a hypothetical defendant is nearly certain not to be financially strapped. (In fact, to the contrary, I suspect funding/donations will be pouring in to the faithful from out of state true believers….)

              1. That’s not true at all. Where does the law say you can’t have multiple plaintiffs each suing over the same abortion?

                1. Where does the law say you can’t have multiple plaintiffs each suing over the same abortion?

                  Section 171.208(c), our favorite too-cute literalist:*

                  Notwithstanding Subsection (b), a court may not award
                  relief under this section in response to a violation of Subsection
                  (a)(1) or (2) if the defendant demonstrates that the defendant
                  previously paid the full amount of statutory damages under
                  Subsection (b)(2) in a previous action for that particular abortion
                  performed or induced in violation of this chapter, or for the
                  particular conduct that aided or abetted an abortion performed or
                  induced in violation of this chapter.

                  * As I’m sure you’re aching to too-cutely point out, this would not prevent multiple plaintiffs from FILING the same action. But in the real world, any court with an interest in self-preservation through docket management (i.e., all I’ve had the pleasure to encounter) will ultimately allow a raft of me-too motions to dismiss in response to a raft of me-too complaints, thus minimizing D’s follow-on costs and discouraging pile-on Ps from ponying up filing fees with zero hope of recovery. Please do feel free to provide real-world data points to the contrary.

                  1. LoB, how many instances of, “particular conduct,” do you suppose a right-wing, anti-abortion Texas judge would allow? My guess is that the doctor, nurses, administrative staff, landlord, each vendor of medical supplies or office supplies, any vendor who helped publicize the clinic, the clinic’s computer service provider, the plumber, the electrician, the clinic’s utility providers, any person who aided the patient, every donor to the clinic, and maybe the attorney defending the clinic would all get targeted. The contractor who built the operating suite would probably get targeted again and again, to give him a chance to prove that each instance of medical service was not a separate abortion.

                    This is Texas. It’s short on real-world data points, but full of, “particular conduct.”

                    Please stop pretending you don’t understand what is going on.

            2. What’s stopping those same 500,000 people from filing suits against a clinic in, say, New York?

    2. “Unlikely that any woman in Texas is going to go for an abortion now.”

      Why would that be? It only kicks in after about 6 weeks, some abortions are done prior to that. And only if a fetal heartbeat is detected, some abortions are a result of fetal death, rather than a cause of it. And doesn’t apply in genuine medical emergencies, which DO happen from time to time.

      1. What is the standard for detecting a fetal heartbeat.

        A heart beat, as commonly known now, is the actual sound made by the mechanical impulses of heart valves slapping closed at the beginning and end of systole(contraction).
        A beating heart, in contrast may be noted by non-auditory methods, such as detection of the flow of blood using doppler ultrasound, or through other imaging, such as MRI, or fluoroscopy(radiation not recommended in pregnancy however.)

        Detect heartbeat by the sounds: Fetoscopy, essentially a big stethoscope, will find fetal heartbeat at 18-20 weeks, for one with good ears and patience. However medical boards do not place requirements on physician’s hearing.

        Detect pulsatile blood flow with ultrasound. these devices are cheap enough to be direct to consumer, less than a hundred bucks, and beat anything I trained with in the late 90’s. Can find blood flow at 8-10 weeks. Presumptive of a beating heart, but technically would not be a ‘heartbeat’.

        1. From Texas’s SB8:
          Sec. 171.203. DETERMINATION OF PRESENCE OF FETAL HEARTBEAT
          REQUIRED; RECORD. (a) For the purposes of determining the presence of a fetal heartbeat under this section, “standard medical practice” includes employing the appropriate means of detecting the heartbeat based on the estimated gestational age of the unborn child and the condition of the woman and her pregnancy.
          (b) Except as provided by Section 171.205, a physician may not knowingly perform or induce an abortion on a pregnant woman unless the physician has determined, in accordance with this section, whether the woman’s unborn child has a detectable fetal heartbeat.
          (c) In making a determination under Subsection (b), the
          physician must use a test that is:
          (1) consistent with the physician’s good faith and
          reasonable understanding of standard medical practice; and
          (2) appropriate for the estimated gestational age of the unborn child and the condition of the pregnant woman and her pregnancy.
          (d) A physician making a determination under Subsection (b)
          shall record in the pregnant woman’s medical record:
          (1) the estimated gestational age of the unborn child;
          (2) the method used to estimate the gestational age;
          and
          (3) the test used for detecting a fetal heartbeat,
          including the date, time, and results of the test.

    3. “Unlikely that any woman in Texas is going to go for an abortion now.

      I disagree. A Republican member of the Texas House who knocks up his staffer will send her to another state for an abortion. A Federalist Society chapter president who impregnates his daughter will do the same. A professor at a low-grade law school who turns out to have fired a live round after picking up someone at a Pat Boone concert will . . . well, you know what kind of eyes she got.

      This bit of counterproductive performance art from clingers will impose hardship on some poor women, though. That’s why better Americans will see to it that a dear price is paid by out society’s disaffected culture war casualties.

    4. We know you live in a world where you only see what your in-group sees, but, bet a case of beer that there is a suit that looks likely to win within two weeks? Maybe even one week? Your biases certainly have you hyperventilating more than normal, though.

  8. Who will be the first “private attorney general” to be sued for damages (exceeding $10,000) under Section 1983?

  9. Not sure what the point of a test case would be given that the law is clearly contrary to existing precedent.

    1. I think you know it’s quite clear. There is a real life outside of the courthouse.

  10. Yes, you can challenge the statute facially. Analogy: Congress amends the False Claims Act to require that relators must be of Samoan ancestry, or to exempt any fraud attempting to establish the Pastafarian Church as the national religion. The Texas statute has two remedies: injunction against the clinic and damages. For either, Texas needs to create a legal right and a zone of interests around that right, and whether that legal right is secured by relators, private plaintiffs, or Hue and Cry led by at least one mounted Texas Ranger, the federal courts can still determine that Texans have no right to X under any set of facts where that right invades Federal interest Y, however X might be vindicated.

    And there are equitable remedies that might be of use in this situation — the Bill of Peace, for example, can be used to guarantee the enjoyment of a certain right against any challenge in any jurisdiction or forum.

    There’s a difference between initial jousting and poking a stick in the eye of the federal judiciary. I don’t think Texas is making any friends here.

    Mr. D.

  11. Or abortion fans could do the honest thing and author and attempt to pass a Constitutional Amendment for stuff they wish the Constitution says.

    1. They don’t need to. They have SCOTUS. Much easier.

      1. Not so much anymore and there will be fewer liberals on the court in the years to come.

        That is my hope anyway.

    2. Democrats have held house, senate, and white house simultaneously for at least 10 years in total since Roe. They could have gotten off their asses and passes something more substantial, rather than letting the judicial branch manage what should be a legislative act.

      1. They didn’t, because it was a case of the Court giving them something that would have been too politically toxic to accomplish by legislation, and way too unpopular to have a prayer of being ratified as an amendment.

        1. I am told repeatedly the vast majority of America favors abortion on demand. I fail to see the danger of political backlash. (The polls don’t lie, right?)

          1. The polls actually show, once you get into the weeds, and start asking questions more nuanced than “Should abortion be totally banned?”, that even in the 1st trimester elective abortions are more unpopular than not, and the public is just fine with banning abortions in the 2nd and 3rd trimesters as long as their are some exceptions made for things like rape and medically necessary abortions. Roe went WAY beyond the state of public opinion, then or now.

            I personally think the exception for rape makes no sense, who in hell doesn’t know they’ve been raped until 4 months later? But such is the state of public opinion; Maybe it’s a buried desire to deny rapists offspring?

            But elective abortions? You could outlaw them at any stage of pregnancy, and the public would not find it objectionable.

  12. Could I be the Clark Griswold instead?

  13. Obviously the challenge to SB8 failed because they sued the wrong people, but can they sue Texas state judges as a class? Judges and courts would have to hear cases and enforce judgements, and surely they could receive an injunction to not do so.

    Alternately, the statute does require the closing of any abortion provider who loses a suit under SB8 – who’s going to close them? Surely that’s the state? Why can’t the state be sued for an injunction to prevent that?

  14. Perhaps the only way to test the constitutionality of S.B. 8 is to set up a real test case. Old school style. Deliberately violate the law, and wait to be sued. At that point, the constitutionality of S.B. 8–in that particular context at least–can be tested.

    This is the crux of the matter. One thing though…I would love to meet the lawyer(s) who thought through this legal strategy and then wrote the law. Judging by the VC posts and comments, SB-8 is truly a novel legal approach. Whatever you think of the intent and/or effect of the law, it is novel. Personally, I appreciate the legal analysis, and not the ‘hyped’ media analysis.

    And the ‘private attorney’s general’ blogs of late have piqued my interest. I bet that (being your own private attorney’s general) can be used in some inventive ways, also. Example, if you see (and document) a state legislator engaging in illegal behavior, can you bring suit as a ‘private attorney’s general’? How about a congressman? Or a police officer? Or an FBI agent? I hope to read more about this.

    Professor Blackman: L’Shana Tovah tikatev v’tichatem

    1. “Private attorney general” is a long established legal premise. It even has a Latin name — qui tam.

      1. Fascinating concept to me = “Private attorney general”

        I mean, you can make much mischief with that. Or combat corruption.

        1. AFAIK qui tam actions were always side by side with state law enforcement. “Private” attorneys general stepped in where the actual attorney general could not or would not prosecute. This new law might be the first ever instance of standalone qui tam.

    2. C_XY,
      L’Shanah Tovah tikatayvu.

      1. And the same to you, Don Nico: L’Shanah Tovah tikatayvu.

        I’ll be glad to close the books on this year.

    3. Its not really novel at all. Its akin to how employment sexual harassment and discrimination law works.

  15. Whew! I was worried the culture wars were winding down and Blackman would have to return to substantive academic work!

    1. Return? When did he ever?

      1. Exactly. From whence one has never been, there is no return.

        Don’t feel sad for the blackman kid though. His giddiness over this SB 8 thing shows that this may be the happiest he has ever been.

        Way happier than running any of his fantasy leagues or making self-described wrong prognostications.

    2. “I was worried the culture wars were winding down . . .”

      Don’t worry. Nothing is winding down until America’s betters decide it is. The clingers are just being dragged along for a painful ride at this point.

  16. Notice how we’ve shifted the argument here. No one can really question that a baby whose heart is bestows not alive,

    But over the last few years the pro death crowd really really want the right to kill babies.

    It’s uncomfortable but it’s true

    1. I can, quite easily. Is it an individual? Is it theoretically possible that it can survive outside of the womb? Because as long as it doesn’t even have the potential to be an individual, why should it have individual rights.

      Show me a fetus that has the minimum requirements to survive on its own (major organs, a functioning neurological system, brain activity) and I can see your point.

      But saying that something that doesn’t even have an actual heart has a “heartbeat” is just as dishonest as insisting life begins at conception without ever trying to prove it.

      1. Is it an individual? ……Because as long as it doesn’t even have the potential to be an individual, why should it have individual rights.

        I’m not sure what you mean by “individual’ here. The vast majority of zygotes are “individuals” in the usual sense of the word, in that they function as organisms separate and distinct from other organisms. A minority of zygotes divide into identical twins at a very early stage of development.

        Is it theoretically possible that it can survive outside of the womb?

        Of course. That’s how IVF works. The zygote is created outside the womb and can survive for a few days outside the womb (or indefinitely if frozen.) Under the current state of technology it then has to be implanted in the womb, but it can be any functional human womb, it doesn’t have to be the womb of the genetic mother. The womb provider is always a volunteer.

        In such a situation we have a situation analagous to yours when you board an airplane. Before you the plane takes off you can survive indefinitely outside it. But after that, your survival time outside the aircraft is about three minutes, until you go splat. Then when the plane lands, you can survive indefinitely outside it. Thus you go through a tricky window during the flight during which you can’t survive for more than three minutes without the goodwill of the owner of the aircraft, and its crew. Traditionally, it is thought bad form to chuck the passengers out mid flight.

  17. Something interesting about SB8 – it defines the age of the unborn baby not based on when fertilization occurred, but based on when the woman’s last menstrual cycle was.

    (5) “Pregnancy” means the human female reproductive
    condition that:
    (A) begins with fertilization;
    (B) occurs when the woman is carrying the
    developing human offspring; and
    (C) is calculated from the first day of the
    woman’s last menstrual period.

    That seems to introduce an error of at least a week, up to almost a month in normal circumstances, and potentially up to almost two months if the woman’s menstrual cycle tends to skip months. (Which does happen). Seems like a poor way to calculate the baby’s gestational age.

    1. Nevertheless, that is the standard way of calculating gestational age, as approved by the medical profession, since the year dot. The reason being that fertilization is not detectable. I say “is” based on my historical knowledge. I don’t know if they’ve worked out a way to detect it by now.

      I believe that in medical circles although “pregnancy” is dated from the woman’s last menstrual period, the official medical profession counts implantation as the beginning of pregnancy – ie until implantation there’s no pregnancy, but once the crittur has implanted, then the pregnancy is instantly a few weeks old.

      There’s a plausible rationale for defining pregnancy as starting on implantation (contra the Texas definition part (A) ) which is that if you regard pregnancy as a statement of the condition of the woman’s body, she only becomes physically connected to the crittur on implantation.

      Curiously though, pro choice advocates tend to defend this implantation => pregnant definition on the basis that fertilisation isn’t detectable, so that would be a dumb moment to pick. Which sounds plausible until you appreciate that implantation isn’t detectable either.

      The real reason for the medical profession defining pregnancy as beginning at implantation is ….. the abortion wars. The definition of pregnancy has been adjusted (away from the Texas (A) one) in order to conform with the revised medical definition of “contraception.”

      Which since the 1960s has been adjusted to mean “that which prevents conception or implantation.”

      And “abortion” has been neatly shaded to refer to the abortion (ie the bringing to a premature end) of the pregnancy. Not the bringing to a premature end of the crittur’s life.

      With these redefintions, that which prevents the blastocyst from implanting can still be described as a “contraceptive” ; and the ending of the blastocyst’s life can be described as “not an abortion” – because the “pregnancy” has not been aborted (since it is defined as starting at implantation.) Hence the “contraceptive” is not an “abortifacient.”

      Apart from the first one – the convention of dating a pregnancy from the woman’s last menstrual period – there’s nothing specifically or expertly medical about these redefintions – it’s all politics. But owning the medical definitions does help pro choicers frame the debate – and accuse pro lifers of being scientifically ignorant when they do not go along with the redefintions.

      Y’all will appreciate therefore that it is absolutely necessary for the Texas legislature to define its terms specifically.

  18. Well, they got their restraining order.

    Doesn’t cover every possible plaintiff, but it does cover anybody with any connection to Texas Right To Life.

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