Strict Texas abortion law goes into effect after SCOTUS inaction

[Habbaku]

[Eddie Teach]

A shame, I didn't get the chance to denounce any Texans.

[The Minsky Moment]

50 bucks even it's overturned.

Who's the 5th vote?

[Admiral Yi]

Who's the 5th vote?

Anyone but Thomas, maybe not Alito.

[Sheilbh]

Who's the 5th vote?

Anyone but Thomas, maybe not Alito.

Comey Barrett, Kavanaugh or Gorsuch?

Given this method of enforcement it only feels like a matter of a time before a state (maybe one that went for Biden but has GOP legislature/governor - like Arizona?) deputises its citizens to spot voter fraud - and I think we can probably guess how that will go.

[The Minsky Moment]

There are two aspects of the law that are concerning - one is the delegation of state powers and responsibilities to private bounty hunters and the other is the disregard of an established federal constitutional right.

As to the vigilante aspect, there is clear precedent the states can delegate their powers and responsibilities to private citizens, including the criminal law.  It was common during the colonial era that criminal prosecutions would be initiated by private persons and the practice continued into the post-independence era.  "Private attorney general" or qui tam procedures were also commonly use to enforce the laws on the state and federal levels and still exist today.  The Supreme Court has been hostile to qui tam but the procedure still lives on and thus e.g. a private citizen can bring a lawsuit against another person or company alleging fraud in federal contracts or tax evasion, even though they are not otherwise an interested party.

This Texas law is more extreme than a typical qui tam procedure and arguably violates the Texas Constitution.  However, the US Supreme Court has no authority to interpret or apply the Texas Constitution to Texas state law.  The Supreme Court's authority to police states is limited.  Aside from limited cases within its original jurisdiction like boundary disputes or the rarely invoked republican government clause, the main control on the states is the 14th amendment, which (a) requires equal protection, and (b) incorporates the bill of rights against the states.  That would include the rights protected by Roe v. Wade - but ONLY IF a majority of the Court still thinks Roe v Wade is good law.

Technically, the Court did not decide the constitutional issue in denying the stay.  However it did in effect decide a important constitutional issue - namely that a pre-enforcement facial constitutional challenge cannot be made against the law, regardless of what proof is presented as to harm and regardless of the significance of the constitutional right at stake.  I don't see how the 5 justices could take the position under existing precedent and in good conscience unless they believed no significant constitutional principle was at stake - i.e. that Roe v Wade was not good law.  And if Roe no longer stands and there is not constitutionally protected right to seek guidance and assistance in terminating a pregnancy, then there isn't really anything for the US Supreme Court to do here.

To take an example, imagine a state passed a law banning all monetary contributions and advocacy on behalf of the Republican Party in the state, including a ban on any positive media coverage of any kind.  That would obviously be very significant constitutional violation. Imagine they used the same same mechanism as Texas used here.  Does anyone believe those same 5 justices would sit on their hands and calmly wait for months while the state GOP was decimated? 

[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.

Volokh's opinion is this law can be challenged the same way some poor libel laws were in some other states. He mentions an Alabama law which allows public officials to sue media outlets for publishing "honest mistakes of fact" as libel. There was no pre-enforcement injunction issued against that law, but when the first lawsuit under the law wound its way through the courts, the law itself was ruled as unconstitutional and incompatible with constitutional law in terms of libel, and effectively that "killed" the law. Courts could no longer, constitutionally, hear cases under the auspices of that law going forward. Volokh believes something similar could happen here; assuming there's still 5 justices that will actually not overturn Roe.

[Sheilbh]

But isn't the difference with that Alabama law that it didn't ultimately interfere with your constitutional right? You could publish and be sued for libel but I imagine (at least I think this would be the norm in the UK) there'd be a stay on your case while the constitutional issue is resolved. So it wouldn't stop you from publishing and the chilling effect of a libel law would be on hold pending the SCOTUS ruling.

While the effect of this law is that in practice women in Texas can't get abortions which goes against - from my understanding, which is base - Roe v Wade and the constitutional position - because this law has taken effect and it is unlawful to provide abortion.

[The Minsky Moment]

But isn't the difference with that Alabama law that it didn't ultimately interfere with your constitutional right? You could publish and be sued for libel but I imagine (at least I think this would be the norm in the UK) there'd be a stay on your case while the constitutional issue is resolved. So it wouldn't stop you from publishing and the chilling effect of a libel law would be on hold pending the SCOTUS ruling.

That's correct, there was no prior restraint and hence the Alabama law did not affect the local media other than increasing their legal budget a smidge for a few months.  Where the Texas law has basically shut down all the clinics in the state.

[OttoVonBismarck]

But isn't the difference with that Alabama law that it didn't ultimately interfere with your constitutional right? You could publish and be sued for libel but I imagine (at least I think this would be the norm in the UK) there'd be a stay on your case while the constitutional issue is resolved. So it wouldn't stop you from publishing and the chilling effect of a libel law would be on hold pending the SCOTUS ruling.

While the effect of this law is that in practice women in Texas can't get abortions which goes against - from my understanding, which is base - Roe v Wade and the constitutional position - because this law has taken effect and it is unlawful to provide abortion.

I don't believe the libel law in Alabama stopped publication, since it was only possible to raise it as a justification for a libel suit after publication had already occurred. The Alabama libel law absolutely could operate to have a "chilling effect" on the exercise of free speech, just as Texas SB8. There are some differences to SB8--in that it allows unlimited standing, and if a litigant wins a case against an individual, they collect a personal bounty of $10,000, and automatically win attorney's fees. I believe a provider who loses a case is also hit with some sort of judicial order prohibiting them from doing such a thing again, so if they are part of an abortion next time around, they might be hit with some sort of sanction for violating that order.

But from a mechanical sense they are fairly similar, both laws allowed private civil litigants to sue you for doing something that was constitutionally protected, neither law provided for easy pre-trial injunctions or stays as the issue wasn't "judicially ripe", and both laws can have a chilling effect. I think in practice Alabama's law didn't have anywhere near the chilling effect SB8 is already having--I think a few other states have "bad libel laws" on the books as well. I think that these laws weren't being actively used in law suits regularly, so didn't have a chilling effect, and once raised in a lawsuit were struck down during the proceedings of that suit.

SB8 is having a much worse chilling effect, and arguably abortion providers are a lot more scared of it than publishers were in Alabama--probably because publishers know the Supreme Court will almost always have their back on First Amendment issues, I suspect abortion providers are much less confident that an SB8 test case will result in the Supreme Court ruling to protect them because there is an actual chance the Supreme Court could overturn Roe, while there is little to no chance the Supreme Court is going to overturn 230 years of First Amendment jurisprudence. I do imagine as Volokh says there will eventually be a "Griswold" in Texas, someone willing to deliberately incur the wrath of SB8 and see the case to its fruition.

[OttoVonBismarck]

But isn't the difference with that Alabama law that it didn't ultimately interfere with your constitutional right? You could publish and be sued for libel but I imagine (at least I think this would be the norm in the UK) there'd be a stay on your case while the constitutional issue is resolved. So it wouldn't stop you from publishing and the chilling effect of a libel law would be on hold pending the SCOTUS ruling.

That's correct, there was no prior restraint and hence the Alabama law did not affect the local media other than increasing their legal budget a smidge for a few months.  Where the Texas law has basically shut down all the clinics in the state.

Except the law and the State have not shut down the clinics. The clinics have chosen to stop operating, or to only operate in a narrow band of providing pre-6 week pregnancy terminations, out of a fear of litigation. That is quite different from "prior restraint" or the state itself directly closing clinics.

[The Minsky Moment]

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.

[Sheilbh]

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 Minsky Moment]

Except the law and the State have not shut down the clinics. The clinics have chosen to stop operating, or to only operate in a narrow band of providing pre-6 week pregnancy terminations, out of a fear of litigation. That is quite different from "prior restraint" or the state itself directly closing clinics.

The relevant fact is that clinics have shut down because of the law and that was the intent of the law.  So there is presently existing harm and therefore standing to sue.  That's is all the Court needs to act - unless it doesn't want to. 

As an example, the Telecommunications Act of 1996 banned the transmission of indecent material over the internet to any recipient under 18.  Before any attempt was made to enforce the law, the ACLU sued to have those provisions struck down and they won.  They won because even in the absence of prior restraint, the risk of speech being chilled was sufficient harm to warrant enjoining the law on its face.  And that was a case where the harm was a lot more inchoate then what is happening in Texas today.

It's true that not every case plays out that way.  I don't know the Alabama case Volokh was referring to, but if that law was indeed targeted to "media outlets" - entities that have experience and a budget for dealing with libel litigation - they may have been willing and capable of ignoring the law and defending a test case when brought.  Thus no chilling effect.  That is a common pattern but by no means universal.  Facial pre-enforcement challenges are permitted and there is ample precedent for doing so, whether there is prior restraint or not.  What matters is the extent of the harm and its chilling effect, both clearly established here.

[Valmy]

Frum had a good piece on this.

If nothing else, this disaster of a law is going to show once and for all how people feel about abortion rights. If Texans all give a collective shrug and let it go, then that tells us something for sure.

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.