Strict Texas abortion law goes into effect after SCOTUS inaction

[Jacob]

Well I guess we will find out next year when these people go up for re-election.

But this is Texas. I am not sure how dramatic it would have to get to get people to care about political matters.

Are you seeing any evidence that Covid deaths or restrictions might impact voting?

[Valmy]

Well I guess we will find out next year when these people go up for re-election.

But this is Texas. I am not sure how dramatic it would have to get to get people to care about political matters.

Are you seeing any evidence that Covid deaths or restrictions might impact voting?

I don't know, it certainly did not in 2020 where we had record turnouts. I was encouraged by the election this Spring where we swept out all the right wing culture warriors by big margins in the local elections, but that was pre-Delta variant. In the Spring there was a hopeful moment where it seemed the pandemic was over. This Fall's elections will be mostly direct democracy initiatives for things like bonds so we probably won't know much before the primaries next Spring.

[OttoVonBismarck]

Volokh and his gang of legal writers fairly disagree with that assessment at least, Minsky. His contention is procedurally there would have been no logic to issuing an injunction with the set of conditions brought forth in the suit, he also claims that procedurally even if they had, the suit only concerned a single judge (in addition to some "hypothetical" plaintiffs which are even more problematic to rule against) and would not have had any greater impact on the law in question and its operation in Texas. He asserts that they could have granted a much broader general injunction, and he is open in advocating for that as a Supreme Court norm, but he also says that it isn't something the court has regularly done in the past even in fairly extreme circumstances.

This is all addressed in the dissents.  The reality is that a pre-enforcement facial challenge to any statute involves a certain amount of legal fiction because you are enjoining presently unknown enforcement officials - or some representative stand-in for executive authority as a whole - from an action that hasn't yet happened.  Over time the courts just made up a procedure to do it so that there could be a remedy to a constitutional wrong.

The fact that there is no clear precedent here as to the precise procedure and legal magic words to be used just reflects the unprecedented nature of the Texas law and the legal wrong it poses.  There is no question that the Court has the power to fashion a procedure and grant the remedy.  This is not a constitutional standing issue; there is a clear case and controversy, as much as in any pre-enforcement facial challenge.

I don't think myself or Volokh ever said the Supreme Court couldn't issue a pre-enforcement injunction--in fact I believe I specifically mentioned the fact that Volokh believes the court should take a broader view of its injunction power in cases like this and he does not find it a compelling argument that the court could not do so. What Volokh said is that under the current standards the court has been following, and under the expected standards it will follow with its current 6 conservative justice majority, it is unlikely you're going to see any pre-enforcement general injunctions of this nature handed down as a matter of fact.

[The Minsky Moment]

What Volokh said is that under the current standards the court has been following, and under the expected standards it will follow with its current 6 conservative justice majority, it is unlikely you're going to see any pre-enforcement general injunctions of this nature handed down as a matter of fact.

Understood.

It's true that the Roberts Court has been hostile to pre-enforcement facial challenges.  However, that only makes Roberts' dissent here more telling.  This is a canary in the coal mine moment.  Roberts worldview for nearly his entire adult life has been protecting a vision of constitutional rule of law against perceived threats from the Left via legal realism or critical legal theory.  He is increasingly becoming aware that the greater threat to his conservative conception of the law may be from the populist Right.  And precedential tools that were previously frowned upon as instruments of excessive activism may now be seen as necessary implements of constitutional defense.

[OttoVonBismarck]

I suppose the other key difference with Alabama is this is a little bit of clever procedural trickery, no?

Because this law affects abortion providers or people who help someone get an abortion. So Texas can say - we're not restricting your constitutional right to abortion, we are restricted the ability of organisations to provide it and, as it's not their constitutional right (and there is no constitutional right to provide abortion), they don't even have standing to pursue a claim against us. And in any event it's third party individuals who are enforcing that - we've just created a route for claims.

Now that is bullshit - it is lawmaking purely to try to create and then jump through a loophole. The substance of the law is to restrict individuals' ability to access abortion and it is their right that is being restricted (though, again, they might not have standing because they're not the defendent).

So it would be like if you had this libel law in Alabama but it didn't create a libel claim against the publisher. Rather you could make a claim against distributors or retailers for spreading or profiting from libellous material. You're sort of creating the same procedural trickery of not restricting anyone's right to say or publish what they want - you're only clamping down on newsagents or bookshops (or social media companies) for spreading it and making them take responsibility. The effect is they won't take anything but the most non-controversial/safe material but it's not technically impacting their constitutional rights - I think it's how the old obscenity rules used to work? And the publisher/author doesn't have a claim because there's no constitutional right for everyone's writing to be distributed (thank God).

I feel like the court would be willing to see through that on free speech grounds but is being wilfully blind in this case.

The aspect of it being targeted at providers doesn't matter from a Roe perspective.

What matters more is just that private individuals have to enforce it.

It should be stated, even though I believe it is broadly understood by most of us--the Supreme Court do not actually strike down law, even though we all use that terminology. The courts enjoin named defendants from enforcing specific statutes against specific plaintiffs. In a ruling in which the underlying statute is found to be constitutionally invalid, and it is the Supreme Court ruling, then there is then legal precedent that no court in the country can enforce statues of that kind against any specific plaintiffs, essentially gutting the law's power. Note that some laws exist in a world outside of easily justiciable actions, and in those cases judicial review is difficult to enforce.

This law is facially in contravention of Roe, the fact that it targets providers is not an end-run around Roe, at least as Roe has been upheld time and time again. As Casey upheld and subsequent cases have upheld, significantly infringing on or interfering with an abortion provider's reasonable operations is itself a violation of Roe. So the law targeting the providers, at least if the court is going to adhere to Roe precedent, isn't any kind of cheat code that evades Roe.

Going back to how the Supreme Court stops laws from being enforced, the court has to make a decision about at what stage in a legal proceeding it is willing to weigh in, who it is willing to hear cases from and in what circumstances and etc etc. The court has a long history of hearing cases brought by private citizens targeted at government agents, and staying government agents powers even before they have been used in fact. For example if Virginia passed a law criminalizing all abortions, and directed the State police to begin arresting all the staff at every abortion clinic, under common procedures and with a lot of precedential examples, you could get an injunction against basically the entire law enforcement apparatus of the Commonwealth precluding it from enforcing that statute. You could get such an injunction even before a single person had been placed under arrest.

There is much less of a history of the court offering pre-emptive injunctions (or whatever the specific legal term is) against "bad rules in the civil law that allow civil litigation that itself is unconstitutional", instead there is more of a history of the courts enjoining against further execution of those laws during the process of the civil trials themselves. So far I don't believe a single civil action has occurred under SB8. The writers of SB8 specifically crafted it to evade pre-enforcement injunction, understanding that the Roberts court has been pretty conservative about procedural matters relating to standing and injunctions generally. Now they didn't know for sure they'd avoid pre-litigation injunction, but they guessed they might, and they were correct. I'll note that Roberts somewhat stepped outside his normal lane by joining with the liberals here, he usually has been pretty limited in expanding injunction scope outside of its existing norms. Most likely for him a compelling interest is the chilling effect, which means he essentially agrees with Volokh's opinion (and Minsky's) that this specific case would have justified creating "new magic words" to stop something that had a massive chilling effect on the execution of a well-established constitutional right.

Because of the structure of the law, there is no easy target for a suit ala the Virginia hypothetical law I mentioned, where you could easily file suit against the specific people that run the Virginia State Police (I think such a suit would probably target Brian Moran, the Virginia Secretary of Public Safety), at least until an actual suit filed under the auspices of SB8 hit the courts.

[Sheilbh]

That's a useful explanation - and I think we basically agree that the structuring of the law this way precisely to create those procedural challenges and give supreme court judges, if they want it, an out? It's a legalist pretense that I think the court would and could see through - if they wanted to.

As I say if the exact same structure but targeting speech or gun rights was passed, my suspicion is the court wouldn't go along with the sort of creative drafting designed to cause precisely those procedural challenges. I suspect they would see through it to the substance of the law. That may be wrong and overly cynical of me.

[OttoVonBismarck]

My take on it is you can 100% make the argument that maybe a strict proceduralist in the 5 justice majority simply wasn't willing to go against his procedural notions to block the potential chilling effect, but that same justice may be unwilling to uphold SB8 when it is being litigated in an actual case and it (inevitably) reaches the Supreme Court.

However as much as you can make that argument, I agree with Minsky there's a bit of the "showing of the hand" so to speak in that Roberts couldn't get any of the conservatives to break their proceduralist stance. Kavanaugh for example has been noted for frequently deferring to Roberts, particularly in cases like this where it'd be a shadow docket ruling and not a full decision. It doesn't bode well that he didn't do so here.

The court also, while it is supposed to consider each matter before it on its own merits, it's known justices think about other cases on the docket when they make decisions. There's a case I believe out of Mississippi that could see Roe itself overturned, and the current 5 justice majority may simply already know that it plans to do just that. That being the case, to them it is less of an issue to deal with giving a pre-litigation injunction against SB8 when they plan to issue a ruling relatively soon that will just overturn Roe itself--a decision that actually will also take SB8 out of effect. SB8 self-sunsets if the Roe decision is overturned, and in its place a law goes into effect that directly criminalizes abortion in Texas, utilizing ordinary police power of the state and not private attorneys general.

[Sheilbh]

I think that's a fair take. Mine is a bit more cynical - that procedural justifications/arguments like this are normally tools or devices for supreme court justices to deliver the result they want politically. Maybe it wasn't always so but that'd certainly be my reading of this court and those justices - similarly I agree Roberts a bit of a canary in the coalmine here (not least because I think credibility of the court/legitimism is a big part of his views).

[The Larch]

More Texan legal shenanigans, feel free to split it from the thread if necessary.

Texas passes social media 'de-platforming' law

The US state of Texas has made it illegal for social media platforms to ban users "based on their political viewpoints".
(...)
Free speech

The new law states social media platforms with more than 50 million users cannot ban people based on their political viewpoints.

Facebook, Twitter and Google's YouTube are within its scope.

Critics say the law does not respect the constitutional right of private businesses to decide what sort of content is allowed on their platforms.

"This bill abandons conservative values, violates the First Amendment, and forces websites to host obscene, anti-semitic, racist, hateful and otherwise awful content," said Steve DelBianco, president of NetChoice trade association.

"Moderation of user posts is crucial to keeping the internet safe for Texas families, but this bill would put the Texas government in charge of content policies."

The law is due to come in to force in December, but may face legal challenges.

In May, Florida passed a law which banned social networks from de-platforming politicians.

However, some parts of that bill were suspended by a federal judge, who ruled that it violated the First Amendment right to free speech.

Another Texas law, changing the rules around abortion in the state, is currently being challenged by the US Department of Justice.

[The Brain]

How much operations do Facebook, Twitter, or Google have in Texas?

[The Brain]

Everything is bigger in Texas.