Supreme Court has voted to overturn abortion rights, draft opinion shows

[crazy canuck]

It is interesting (read horrifying) to see how judicial review is devolving in the US.  Here we did away with the idea of deference and have a review on the basis of reasonableness.  But the analysis does not involve the court substituting its own conclusions about what is reasonable in the circumstances.  Rather the reasonablness standard is fairly easy for a statutory decision maker to meet.  They need only demonstrate that there was evidence which supports their decision along with a cogent explanation as to why other evidence or positions were not preferred.

A court reviewing that decision does not ask itself whether the correct decision was made.   

 

[OttoVonBismarck]

There is an argument to be made that our judicial system is falling apart in large part because we lost our Congress as a functional legislative branch--it is arguable when that happened, it was in long term decline throughout the 20th century but became significantly non-functional in the 1990s and went into hyperdrive in the 2010s.

Congress has broad authority to regulate how the judiciary works, the nature of how the appellate process works etc, but because the Congress doesn't function, that is all mostly "in abeyance." Significant review of the judicial process has largely ceased after the 1925 Judiciary Act, and it is an area of law in sore need of revision.

But you can't make important law changes when the lawmaking branch is non-functional, and in which the executive's bureaucratic rule making agencies largely try to plug the gap with rulemaking (which is on worse footing legally / constitutionally because of a lack of lawmaking.)

[crazy canuck]

But you can't make important law changes when the lawmaking branch is non-functional, and in which the executive's bureaucratic rule making agencies largely try to plug the gap with rulemaking (which is on worse footing legally / constitutionally because of a lack of lawmaking.)

That is a very good point.  It caused me to reflect on a discussion in our Supreme Court's most recent decision on the standard of review, of why our reasonableness standard works the way it does. That part of the decision goes on for several pages but the upshot is that the court relies upon the fact that legislatures (at the provincial level) and Parliament (at the federal level) enact statutes which describe and prescribe the decision making authority of a statutory decision maker. 

The length of time they spent on that aspect of the decision seems a bit of overkill for what is really civics 101.  But perhaps our court was drawing a distinction for why our law is developing  differently from yours.  It is within the span of my career that the significant divergence has occurred.

[Hamilcar]

There is an argument to be made that our judicial system is falling apart in large part because we lost our Congress as a functional legislative branch--it is arguable when that happened, it was in long term decline throughout the 20th century but became significantly non-functional in the 1990s and went into hyperdrive in the 2010s.

Congress has broad authority to regulate how the judiciary works, the nature of how the appellate process works etc, but because the Congress doesn't function, that is all mostly "in abeyance." Significant review of the judicial process has largely ceased after the 1925 Judiciary Act, and it is an area of law in sore need of revision.

But you can't make important law changes when the lawmaking branch is non-functional, and in which the executive's bureaucratic rule making agencies largely try to plug the gap with rulemaking (which is on worse footing legally / constitutionally because of a lack of lawmaking.)

Could you please elaborate on this? What exactly should Congress be doing that it's not doing?

[Sheilbh]

It reminds me so much of the stories from when Ireland had their abortion ban, particularly the X case where a 14 year old girl had been raped and was intending to travel to the UK for an abortion as she was feeling suicidal. Her family asked the Garda if DNA could be obtained from the foetus before or after the abortion in order to prosecute her rapist.

The Garda asked the Attorney General for advice who then sought an injunction to stop her from travelling as it would breach Ireland's constitutional rights for the unborn. It was granted but I think defeated by the Supreme Court on the basis that risk of suicide was a "real" enough risk to the life of the mother (and therefore also the right to life of the unborn) for an exception where the mother could seek an abortion. Although the girl miscarried in any event.

The storm over that led to a constitutional referendum that the constitutional ban on abortion/"right to life" did not include a power for the government to stop women from leaving the country. I could be wrong but I think that amendment was actually opposed by Fianna Fail who were, at the time, the main governing party.

[The Minsky Moment]

It is interesting (read horrifying) to see how judicial review is devolving in the US.  Here we did away with the idea of deference and have a review on the basis of reasonableness.  But the analysis does not involve the court substituting its own conclusions about what is reasonable in the circumstances.  Rather the reasonablness standard is fairly easy for a statutory decision maker to meet.  They need only demonstrate that there was evidence which supports their decision along with a cogent explanation as to why other evidence or positions were not preferred.

A court reviewing that decision does not ask itself whether the correct decision was made.   

It's a casualty of the culture wars and the extreme politicization of the selection process.  Post WW2, as federal agencies grew in scope and responsibility, the Supreme Court adopted various doctrines of deferring to agency interpretation and construction.  The support for agency deference was bipartisan - the Chevron decision for example was unanimous and upheld an agency interpretation of the Reagan-era EPA (implemented by none other than Anne Gorsuch, mother of the present Justice Gorsuch).

Despite the apparent consensus over agency deference, there was always critics on the political fringe, especially among radical libertarians or those committed to an antebellum view of a Jeffersonian republic. But with the extreme politicization of the judicial selection process and its takeover on the right by the Federalist Society, these fringe views have percolated into the federal judiciary.  Most of the key deference doctrines are still "good law" in theory, but in practice they have been increasingly whittled down or "distinguished" in individual cases.

[OttoVonBismarck]

Could you please elaborate on this? What exactly should Congress be doing that it's not doing?

Not super easy to answer because the topic is so broad.

For one, many "functional" aspects of Congress have become locked into procedural issues that got mega weaponized in recent years. Almost all such procedural issues could be fixed within the House of Congress in which they occur.

A few quick examples--the rules around confirmations that is letting one Senator from Alabama stop all high level military promotions could easily be rectified with rule changes in the Senate. (Note that rule changes can be made without allowing them to be subject to the filibuster, but it obviously requires all of the current Democratic Senators to agree to that bypass.)

The filibuster itself, which I think we have discussed extensively here over the years, used to quite literally work differently. It required some major nonsense that shut down the Senate, and most people believe a lot of modern filibusters would never have gone on like they have if we had to actually follow those rules. Instead we have just defaulted to "all business before the Senate aside from certain executive confirmations and reconciliation bills are subject to a 60 vote threshold." That is entirely a Senate rules problem, and it has large effects in that it has paralyzed the legislature on any number of topics, not just since Biden became President--we are talking for over a decade now.

On the broader topic of agency regulations, delegation of legislative authority to agencies etc--there are two ways of looking at it. One way is agencies are delegated a lot of power and should continue to use it, and the historically "fringe" views that now hold sway among many Federal judges should just be ignored. But one could argue, again--if we had a functional Congress, you could just pass some pretty quick legislation to clear it up. If the extreme judges still found additional ways to keep ruling against agency power, it would at that point be obvious judges like that just operate in good faith and then the problem becomes more difficult to solve (but not impossible.)

Some of the judicial attacks on agency authority, at least if we take the attacks at face value do have clear legislative solutions. For example just amending the Clean Air Act to say "the EPA has authority to regulate the emission of carbon into the atmosphere", would in theory undercut much of the judicial arguments against it--now that isn't to say a Federalist judge won't find another reason, but we aren't even doing the legislative side of the work at all so who knows.

In terms of the appellate process etc--Congress entirely controls how all that works. The process where you can judge shop in a Texas district where only one judge ever hears a certain type of cases, and then he can issue a nationwide injunction against an executive branch action etc. Nothing in our Constitution requires or allows that, and it could be easily fixed legislatively. Back in the New Deal era for example they started requiring three judge panels review injunctions with broad scope--i.e. against non-parties (I think against Federal law instead of executive branch action, but same principal applies), and 1 of the three judges on the panel had to be a member of the Circuit Court for that district.

There are also (likely) ways you could reform the judicial nominating and confirmation process to try and depoliticize it--there's plenty of plans out there that don't require constitutional amendments. Some are probably too extreme, but some could be reasonable options--but again, it goes back to "if we had a Congress that meaningfully cared about operating as a coequal  branch in a 3 branch system."

[Syt]

https://www.texastribune.org/2023/09/01/texas-cities-abortion-trafficking/

Texas highways are the next anti-abortion target. One town is resisting.

Even in conservative corners of Texas, efforts to crack down on abortion travel are meeting resistance with some local officials who support Texas's strict abortion laws, expressing concern that the efforts go too far.

LLANO, Texas — No one could remember the last time so many people packed into City Hall.

As the meeting began on a late August evening, residents spilled out into the hallway, the brim of one cowboy hat kissing the next, each person jostling for a look at the five city council members who would decide whether to make Llano the third city in Texas to outlaw what some antiabortion activists call "abortion trafficking."

For well over an hour, the people of Llano — a town of about 3,400 deep in Texas Hill Country — approached the podium to speak out against abortion. While the procedure was now illegal across Texas, people were still driving women on Llano roads to reach abortion clinics in other states, the residents had been told. They said their city had a responsibility to "fight the murders."

The cheers after each speech grew louder as the crowd readied for the vote. Then one woman on the council spoke up.

"I feel like there's a lot more to discuss about this," said Laura Almond, a staunch conservative who owns a consignment shop in the middle of town. "I have a ton of questions."

More than a year after Roe v. Wade was overturned, many conservatives have grown frustrated by the number of people able to circumvent antiabortion laws — with some advocates grasping for even stricter measures they hope will fully eradicate abortion nationwide.

That frustration is driving a new strategy in heavily conservative cities and counties across Texas. Designed by the architects of the state's "heartbeat" ban that took effect months before Roe fell, ordinances like the one proposed in Llano — where some 80 percent of voters in the county backed President Donald Trump in 2020 — make it illegal to transport anyone to get an abortion on roads within the city or county limits. The laws allow any private citizen to sue a person or organization they suspect of violating the ordinance.

Antiabortion advocates behind the measure are targeting regions along interstates and in areas with airports, with the goal of blocking off the main arteries out of Texas and keeping pregnant women hemmed within the confines of their antiabortion state. These provisions have already passed in two counties and two cities, creating legal risk for those traveling on major highways including Interstate 20 and Route 84, which head toward New Mexico, where abortion remains legal and new clinics have opened to accommodate Texas women. Several more jurisdictions are expected to vote on the measure in the coming weeks.


"This really is building a wall to stop abortion trafficking," said Mark Lee Dickson, the antiabortion activist behind the effort.

Conservative lawmakers started exploring ways to block interstate abortion travel long before Roe was overturned. A Missouri legislator introduced a law in early 2022 that would have allowed any private citizen to sue anyone who helped a Missouri resident secure an abortion, regardless of where the abortion occurred — an approach later discussed at length by several national antiabortion groups. In April, Idaho became the first state to impose criminal penalties on anyone who helps a minor leave the state for an abortion without parental consent.

But even in the most conservative corners of Texas, efforts to crack down on abortion travel are meeting some resistance — with some local officials, even those deeply supportive of Texas's strict abortion laws, expressing concern that the "trafficking" efforts go too far and could harm their communities.

The pushback reflects a new point of tension in the post-Roe debate among antiabortion advocates over how aggressively to restrict the procedure, with some Republicans in other states fearing a backlash from voters who support abortion rights. In small-town Texas, the concerns are more practical than political.

Two weeks before the Llano vote, lawmakers in Chandler, Tex., held off passing the ordinance, citing concerns about legal ramifications for the town and how the measure might conflict with existing Texas laws.

"I believe we're making a mistake if we do this," said Chandler council member Janeice Lunsford, minutes before she and her colleagues agreed to push the vote to another time. She later told The Washington Post that she felt the state's abortion ban already did enough to stop abortions in Texas.

Then came the Llano City Council meeting on Aug. 21. Speaking to the crowd, Almond was careful to emphasize her antiabortion beliefs.

"I hate abortion," she said. "I'm a Jesus lover like all of you in here."

Still, she said, she couldn't help thinking about the time in college when she picked up a friend from an abortion clinic — and how someone might have tried to punish her under this law.

"It's overreaching," she said. "We're talking about people here."

About a month earlier, Dickson had arrived in Llano with an urgent warning.

A "baby murdering cartel" was coming for the pregnant women of Central Texas, he recalled telling a group of about 25 Llano citizens in the town library, wearing his signature black blazer and backward baseball cap.

"By trains, planes and automobiles, I say we end abortion trafficking in the state of Texas," he said.

Dickson brought along a laminated map of his state, black and red Sharpie marking each of the 51 jurisdictions across Texas that had passed ordinances to become what he calls a "sanctuary city for the unborn."

He hoped Llano would be next.

A director of Right to Life of East Texas, Dickson joined forces with former Texas solicitor general Jonathan Mitchell in 2019, when abortion was still legal in Texas until 22 weeks of pregnancy. Together, the men set out to ban abortion city by city, focusing on conservative strongholds. The Texas ordinances relied on the novel enforcement mechanism that empowers private citizens to sue, creating the model for the statewide "heartbeat ban" that took effect exactly two years ago, on Sept. 1, 2021.

Since Roe fell, triggering a new ban that outlawed almost all abortions in Texas, Dickson and Mitchell have changed their strategy. Along with passing ordinances in conservative border towns in Democrat-led states, where abortion providers may look to open new clinics, the team has zeroed in on those helping women leave Texas for abortions — a practice they call "abortion trafficking."

By Dickson's definition, "abortion trafficking" is the act of helping any pregnant woman cross state lines to end her pregnancy, lending her a ride, funding, or another form of support. While the term "trafficking" typically refers to people who are forced, tricked or coerced, Dickson's definition applies to all people seeking abortions — because, he argues, "the unborn child is always taken against their will."

The law — which has the public backing of 20 Texas state legislators — is designed to go after abortion funds, organizations that give financial assistance to people seeking abortions, as well as individuals. For example, Dickson said, a husband who doesn't want his wife to get an abortion could threaten to sue the friend who offers to drive her. Under the ordinance, the woman seeking the abortion would be exempt from any punishment.

Abortion rights advocates say the ordinance effort is merely a ploy to scare people out of seeking the procedure. To date, no one has been sued under the existing "abortion trafficking" laws.

"The purpose of these laws is not to meaningfully enforce them," said Neesha Davé, executive director of the Lilith Fund, an abortion fund based in Texas. "It's the fear that's the point. It's the confusion that's the point."

While these restrictions appear to violate the U.S. Constitution — which protects a person's right to travel — they are extremely difficult to challenge in court, said Mary Ziegler, a law professor at the University of California at Davis who focuses on abortion. Because the laws can be enforced by any private citizen, abortion rights groups have no clear government official to sue in a case seeking to block the law.

"Mitchell and Dickson are not necessarily conceding that what they're doing is unconstitutional, but they're making it very hard for anyone to do anything about it," Ziegler said.

Mitchell declined to comment for this story.

Asked about the constitutionality of his ordinances, Dickson cites the Mann Act, a federal law from 1910 that makes it illegal to transport "any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose." If the Mann Act is constitutional, he says, so is this.

Llano was a particularly attractive target, Dickson said, because the town sits at the crossroads of several highways. Travelers driving west toward New Mexico from Austin, for example, would likely take Highway 29 or 71 — both of which pass through Llano.

When Dickson first came to town to drum up interest for his ordinance, Councilwoman Almond was well aware of his endeavors. She'd seen his flier, advertising "the effort to protect Llano residents from abortion across state lines." Then a friend reached out to ask if Almond and her husband would sit down with Dickson for a meeting.

"I've got a lot going on in my life," Almond said she told her friend. "And right now, that's just not where my energy is."

Almond says she was thankful when Roe was overturned. A 57-year-old former elementary school teacher, she voted twice for Trump, and says she plans to vote for him again. Her friends call her a "pistol-packing mama." Every time she gets a text message, her phone spits out the sound of two gunshots.

But Almond — who wears flower earrings and glittery orange nail polish — is also known as a bit of a city council wild card. At her consignment store, "Possibilities," she employs an eclectic staff whose beliefs span the political spectrum. Her store manager is one of the only married, openly gay men in town — and if anyone has a problem with him, Almond says, they'd better hope she doesn't hear about it.

Almond had Llano's community of "cowboys and hippies" in mind when she chose her store's slogan: "Where you meet awesome people and the possibilities are endless."

Llano — just beyond the radius of Hill Country most trodden by Austin weekenders — is known as a deer and dove hunting destination, peppered with taxidermy studios and wild game processors. Every April, residents come together to cook roughly 25,000 pounds of crawfish for a festival that draws people from all across Texas.

The town recently made national news as ground zero for another cultural flash point when its library removed several books from its shelves, including some that focused on sex, race and LGBTQ+ issues.

"People get along pretty well here until we have dividing issues like the library — and now this," Almond said.

Since she heard about the proposed ordinance, Almond said, she'd been wondering whether Llano really needed to further restrict abortion. She worried the term "abortion trafficking" was confusing, creating the impression that many women were being forced to get abortions across state lines against their will.

"It sounds like more of a slave situation," she said.

It was not clear if some of the proposed ordinance's most ardent proponents in Llano understood what it would do, with several mischaracterizing the measure during interviews with The Post.

While the language of the draft ordinance explicitly states that it would apply to people transporting "any individual for the purpose of providing or obtaining an elective abortion," the mayor, Marion Bishop, said the term "abortion trafficking" did not apply to women who were choosing to get abortions "on their own free volition."

"It would be people who were either coerced or undecided, who found themselves loaded onto a van and headed somewhere," Bishop said in an interview at the vodka distillery he owns downtown.

Pressed on the contradiction between his statement and the language of the proposal, Bishop acknowledged that what he originally said "may not be totally accurate."

Still, he said, he continues to support the ordinance, which he views as largely symbolic.

"Is it absolutely necessary? No," Bishop said. "Does it make a statement? Yes it does."

The morning of the council meeting, Almond decided to cancel her plans so she could fully consider the implications of the ordinance that would outlaw "abortion trafficking" in her town.

She still wasn't totally sure how she would vote.

With seven hours to go before the meeting, she pulled out a printed copy of the 16-page proposal. Then she sat down at her kitchen table, pen in hand, and began to read.

The whispers in the back of city hall grew louder as the crowd realized that Almond would not be voting as they had expected.

"Laura can't do this by herself," said an advocate for the ordinance, leaning over to the other people in her row. "She needs someone to second. There's still a chance."

Then the other woman on the council, Kara Gilliland, chimed in with her own hesitations.

"I'm not for abortions and that's my personal belief," Gilliland said. "But I cannot sit up here knowing that there are 3,400 other citizens in this town who don't have the same belief necessarily as I do."

Four of the five members of the Llano City Council voted to table the ordinance for another time.

"You can be mad at me if you want to," Almond said to her town. "But I've got to sleep with myself at night."

Combing through the ordinance that morning, Almond said in an interview, she scribbled furious notes in the margins, trying to identify every potential issue. She feared the law's civil enforcement mechanism would turn members of the Llano community against each other. While she'd supported the implementation of the Texas "heartbeat ban," which relied on the same provision, she said she hadn't given much thought to how that could pit neighbor against neighbor.

Now it was her job to "peel the layers" — and she didn't like where the law could lead.

As the city council moved on to other matters, Dickson ushered the angry crowd out to the porch.

The ordinance was tabled, he reminded his audience — not dead. The city would have another opportunity to consider the proposal as soon as early September.

"Is this the city council of Austin or is this the city council of conservative Llano?" Dickson said. "This is far from over. ... Show up at their businesses with some signs."

"I know where Laura works," offered the wife of a local pastor.

Dickson recalled what happened in Odessa, a far larger city in West Texas that failed to advance an earlier version of a "sanctuary city" ordinance several years earlier. With help from antiabortion residents, he said to the group, some of the council members who opposed the measure were ultimately voted out of office.

"Now Odessa has a 6-1 majority that is in favor of this," Dickson said.

Odessa passed the ordinance in December.

The next night, Dickson drove 40 minutes to Mason, Tex. to try to convince another small, conservative community to pass the same law.

More than 20 people gathered around plates of pizza and pasta at a restaurant that doubles as a gun store. In the window, next to a sign for "fresh oysters," someone had painted the message, "Let's go, Brandon," an insult aimed at President Biden. On one wall of the restaurant is a confederate flag taller than Dickson; above the bar, a flag for "Trump 2020."

Dickson chose this location for his next meeting, inviting local pastors and other antiabortion advocates in the area to hear a version of the same speech he delivered a month earlier in Llano.

"Guys, I don't care if there's only one person on your city council who wants to pass this," Dickson said. "If you have a personal relationship with a council member, reach out."

Mason residents smiled and nodded, digging through their purses for pens to write down Dickson's email.

Less than 24 hours later, the "abortion trafficking" ordinance was added to the official agenda for the Mason board of county commissioners.

They would take up the matter at their next meeting.

[crazy canuck]

Material for Margret Atwood's next novel

[Valmy]

So a woman just needs to get in her own car and drive herself.

[HVC]

So a woman just needs to get in her own car and drive herself.

Good point. We must suspend the licences of pregnant women!

[grumbler]

So a woman just needs to get in her own car and drive herself.

Good point. We must suspend the licences of pregnant women!

And, since we cannot know if a woman is pregnant (she may not even know herself), we need to suspend the drivers' licenses of all women.