https://www.reuters.com/article/topNews/idUSKBN2FX2MC
QuoteTexas six-week abortion ban takes effect
(Reuters) - A Texas ban on abortions after six weeks of pregnancy took effect early Wednesday morning after the U.S. Supreme Court did not act on an emergency request by abortion rights groups to block the law enabling the ban.
Barring a later ruling by the court, its inaction by midnight on the groups' request for an injunction will allow the ban litigation continues in the groups' lawsuit challenging its constitutionality.
Abortion rights groups say 85%-90% of abortions in Texas are obtained after six weeks of pregnancy, meaning the law would most likely force many clinics to close.
Such a ban has never been permitted in any state since the Supreme Court decided Roe v. Wade, the landmark ruling that legalized abortion nationwide, in 1973, they said.
Planned Parenthood and other women's health providers, doctors, and clergy members challenged the law in federal court in Austin in July, contending it violated the constitutional right to an abortion.
The law, signed on May 19, is unusual in that it gives private citizens the power to enforce it by enabling them to sue abortion providers and anyone who "aids or abets" an abortion after six weeks. Citizens who win such lawsuits would be entitled to at least $10,000.
Abortion providers say the law could lead to hundreds of costly lawsuits that would be logistically difficult to defend.
In a legal filing, Texas officials told the justices to reject the abortion providers' request, saying that the law "may never be enforced against them by anyone."
A court could still put the ban on hold, and no court has yet ruled on its constitutionality, Stephen Vladeck, a professor at the University of Texas at Austin School of Law, said in a tweet.
"Despite what some will say, this isn't the 'end' of Roe," he said.
Texas is among of dozen mostly Republican-led states that have enacted "heartbeat" abortion bans, which outlaw the procedure once the rhythmic contracting of fetal cardiac tissue can be detected, often at six weeks - sometimes before a woman realizes she is pregnant.
Courts have blocked such bans.
The state of Mississippi has asked here the Supreme Court to overturn Roe v. Wade in a major case the justices agreed to hear over a 2018 law banning abortion after 15 weeks.
The justices will hear arguments in their next term, which begins in October, with a ruling due by the end of June 2022.
The Texas challenge seeks to prevent judges, county clerks and other state entities from enforcing the law.
A federal judge rejected a bid to dismiss the case, prompting an immediate appeal to the New Orleans, Louisiana-based 5th U.S. Circuit Court of Appeals, which halted further proceedings.
On Sunday, the 5th Circuit denied a request by the abortion providers to block the law pending the appeal.
Banning abortions past a certain date and then leave it to private citizens to enforce it seems ... odd? I mean you don't ban drugs and then rely on private citizens to drag drug dealers to court. :unsure:
Is this an attempt to get around the ban of abortion bans by Roe v Wade? "We - as state - allow abortions, but f concerned citizens want to sue they're free to do so?"
It may be an attempt to drive home what Texas is all about. Insane government.
Is the $10k prize legally similar to a bounty?
It cannot be for damages suffered by the accuser for sure.
Awarding money by law sounds indeed like placing a bounty and incentivizing private actors to act as judicial vigilantes. How that can be legal, I don't know.
Besides that aspect, which is already troubling enough, all those "heartbeat laws" are fundamentally unfair, as they place the conditions for abortion in such a draconian way that it basically amounts to forbidding abortion on a technicality.
For small government types, they sure spam out laws like no one's business. I think they just thrw in hundreds of new laws? I guess just to sound badass on instagram.
Constitutionally I can see this be a concerning precedent, what is to stop liberal states for example from not outlawing private gun ownership, but creating some weird civil action process where individuals can see anyone who sells guns or owns guns sued under a similar regime?
We're going to get fucked up "Fetus defender" vigilante groups aren't we.
Quote from: Tyr on September 01, 2021, 07:36:39 AM
We're going to get fucked up "Fetus defender" vigilante groups aren't we.
Maybe. But nobody really knows what the law says. They think it just made post-six week abortions illegal, and that is only to the tiny minority who pay close attention to state politics. The fact that the law doesn't really do that is not widely known. We will see what happens.
Quote from: Darth Wagtaros on September 01, 2021, 06:21:02 AM
For small government types, they sure spam out laws like no one's business. I think they just thrw in hundreds of new laws? I guess just to sound badass on instagram.
They do this because our legislature only meets for a short period on odd numbered years so yeah during that time they have to churn out two years worth of laws. It makes for an insane time where there is a barrage of intense change and then you get two years to figure it all out. By the time everybody adjusts the legislature is getting back together to do it again.
[deleted]
Quote from: OttoVonBismarck on September 01, 2021, 07:22:43 AM
Constitutionally I can see this be a concerning precedent, what is to stop liberal states for example from not outlawing private gun ownership, but creating some weird civil action process where individuals can see anyone who sells guns or owns guns sued under a similar regime?
Yeah. Especially with what's effectively a bounty - and I feel like the last thing America needs is more civil litagation :lol: Especially because from my understanding the people who can be sued are very broad - anyone providing abortion or assisting someone in accessing abortion can incude lots of people. Particularly weird from here because the courts love a floodgates argument and that is one of their biggest fears - but apparently not in the US.
I also just conceptually have a problem with this. My understanding is that because of Roe v Wade, Texas can't ban abortion or they can't enforce that ban/give it effect because that would be the state imposing an undue burden. So the galaxy brain solution is that they create a law making something illegal, that the state cannot constitutionally enforce and instead open it up to individuals to bring private prosecutions who can then claim a reward. I get there are private prosecutions but those are to catch bits where the state fails (or doesn't prioritise). I think allowing states to make crimes that they cannot actually lawfully police is a really dangerous idea - as well as you say, a workaround of more or less anything in the constitution.
It looks to me that a parent could not take their pregnant daughter to a more amenable state, or even give her the funds for a flight to a better state, without risking being descended on by bounty hunters :hmm:
Quote from: Richard Hakluyt on September 01, 2021, 12:48:32 PM
It looks to me that a parent could not take their pregnant daughter to a more amenable state, or even give her the funds for a flight to a better state, without risking being descended on by bounty hunters :hmm:
I think that's by design.
Quote from: Richard Hakluyt on September 01, 2021, 12:48:32 PM
It looks to me that a parent could not take their pregnant daughter to a more amenable state, or even give her the funds for a flight to a better state, without risking being descended on by bounty hunters :hmm:
Yeah and that reminds me of the tangle Ireland had (and they had some horrifying cases) with their abortion ban and the tens of thousands of women who came to GB every year for an abortion.
Quote from: Maximus on September 01, 2021, 12:52:15 PM
Quote from: Richard Hakluyt on September 01, 2021, 12:48:32 PM
It looks to me that a parent could not take their pregnant daughter to a more amenable state, or even give her the funds for a flight to a better state, without risking being descended on by bounty hunters :hmm:
I think that's by design.
Yes indeed. Very nasty, very destabilising.
I say we take off and nuke the entire state from orbit. It's the only way to be sure. Sorry, Valmy. Collateral damage is a bitch...
Who pays the bounty? The defendant (which would just make abortions an issue for poor people as seems often the case with GOP policies) or the taxpayer ("small government")?
The providers mostly, at least that is the intent.
Shadow docket voted 5-4 to let the Texas law stand, Roberts siding with the liberals.
(https://pbs.twimg.com/media/E-QHnVdXIAE8ht8?format=jpg&name=small)
[...]
(https://pbs.twimg.com/media/E-QIEX-XIAAM2tW?format=jpg&name=small)
[...]
(https://pbs.twimg.com/media/E-QKXqYWUAEur3v?format=jpg&name=small)
(https://pbs.twimg.com/media/E-QJr5WXoAAFdix?format=png&name=small)
From this thread: https://twitter.com/mjs_DC/status/1433278317269028865
Is there a plan in motion to evacuate people from Texas as it falls to religious fundamentalists?
What I don't get is how they could pass this law but not the voting law because of no quorum.
Quote from: Oexmelin on September 02, 2021, 12:49:22 AM
Is there a plan in motion to evacuate people from Texas as it falls to religious fundamentalists?
I mean, any airlines or other transportation companies could be found guilty under this law if they let women use their services to leave the state.
It's been picked up on UK legal twitter (SCOTUS decisions/rulings are always so stylistically different from SCOTUK it's always really interesting) - but there seems to be a real divide (including Roberts).
Totally agree with Roberts and Kagan that the whole scheme of this - that the state can avoid review of doing something unconstitutional if it isn't the one doing it, but instead it deputises private citizens is crazy.
Crazy or not, it's the law now. Until the SCOTUS reverse course again, which may be tomorrow or in 50 years.
If I'm understanding correctly, they haven't ruled on the constitutionality yet, just declined to grant a stay. So not settled law yet.
Quote from: Admiral Yi on September 02, 2021, 05:12:50 AM
If I'm understanding correctly, they haven't ruled on the constitutionality yet, just declined to grant a stay. So not settled law yet.
It's law until they actually review it, no?
Quote from: Zanza on September 02, 2021, 05:52:46 AM
Quote from: Admiral Yi on September 02, 2021, 05:12:50 AM
If I'm understanding correctly, they haven't ruled on the constitutionality yet, just declined to grant a stay. So not settled law yet.
It's law until they actually review it, no?
Sure.
Quote from: Admiral Yi on September 02, 2021, 05:12:50 AM
If I'm understanding correctly, they haven't ruled on the constitutionality yet, just declined to grant a stay. So not settled law yet.
Yeah - that's what I understood from Roberts' points - but while it may well be unconstitutional, surely if ever there's a case for staying the effect of a law while it's considered it's one that is on a big issues, that proposes a novel way of passing laws (basically states aren't responsible for them because they don't enforce them - they delegate that to the public) and a restriction on rights.
As Roberts points out this is a model of action for states in other areas (OvB mentioned the second amendment cases - but I don't see why you'd need to stop there) - if I was a liberal state I'd probably do something very similar, possibly around gun control right now:
QuoteThe statutory scheme before the Court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.
The State defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place. I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner. Defendants argue that existing doctrines preclude judicial intervention, and they may be correct. See California v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 8). But the consequences of approving the state action, both in this particular case and as a model for action in other areas, counsel at least preliminary judicial consideration before the pro-gram devised by the State takes effect.
It's also the force of Kagan's point:
QuoteWithout full briefing or argument, and after less than 72 hours' thought, this Court greenlights the operation of Texas's patently unconstitutional law banning most abortions. The Court thus rewards Texas's scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State's behalf. As of last night, and because of this Court's ruling, Texas law prohibits abortions for the vast majority of women who seek them—in clear, and indeed undisputed, conflict with Roe and Casey.
At the minute - the court has greenlit a loophole to the constitution would be my understanding.
Edit: And from what I understand that loophole exists until this case works it's way through the system and there's a full hearing and judgement on constitutionality.
Quote from: OttoVonBismarck on September 01, 2021, 07:22:43 AM
Constitutionally I can see this be a concerning precedent, what is to stop liberal states for example from not outlawing private gun ownership, but creating some weird civil action process where individuals can see anyone who sells guns or owns guns sued under a similar regime?
That is exactly what they want to happen. A blue state using this to outlaw guns validates them and makes their outrage that much stronger.
Official statement from the White House:
(https://pbs.twimg.com/media/E-So1SZWUAIrpmz?format=png&name=medium)
Quote from: Sheilbh on September 02, 2021, 04:45:39 AM
It's been picked up on UK legal twitter (SCOTUS decisions/rulings are always so stylistically different from SCOTUK it's always really interesting) - but there seems to be a real divide (including Roberts).
Totally agree with Roberts and Kagan that the whole scheme of this - that the state can avoid review of doing something unconstitutional if it isn't the one doing it, but instead it deputises private citizens is crazy.
Under our law government cannot duck the constitutional question by passing the implementation of their policy onto non governmental actors. If that occurs then those non governmental actors also become subject to the Charter. If the US has a similar approach then the big constitutional question would occur when the first bounty case is challenged on constitutional grounds.
My understanding from legal analysts I follow is that from a very technical perspective the court isn't really wrong to have not acted, the plaintiffs were filing suit against entities not really involved in any legal question per se that would justify an emergency stay. It is likely the first time one of these private party civil actions is brought, it could get ruled on differently. But the take I've seen is because of the effects of letting the law stand (which is to shut down all the abortion clinics in Texas at the moment) it justified some extraordinary action from the SCOTUS. Which there is some precedent for the SCOTUS stepping outside of its typical lane for extreme cases.
I somewhat wonder if the conservatives already know they are just going to overrule Roe itself in the case out of Mississippi that is getting decided this term, and thus it will moot a lot of this.
Assuming the text of the law that I had found is the right one...it is not so much that it delegates enforcement to private actors (via lawsuit), but does so by forbidding the state, and lower jurisdictions/officials from enforcing it.
I cannot yet speak to my view on constitutionality, but regardless of that, it is batshit crazy. Or at least, I cannot think of any other law that "bans" something, and then strictly pushes enforcement into the civil lawsuit realm.
Quote from: Tonitrus on September 02, 2021, 12:51:01 PM
I cannot yet speak to my view on constitutionality, but regardless of that, it is batshit crazy. Or at least, I cannot think of any other law that "bans" something, and then strictly pushes enforcement into the civil lawsuit realm.
And as mentioned in the Quo Vadis thread it is particularly insane given the conservative stated fear of "cancel culture" to set a precedent of enforcement via activist groups acting as sort of civil litigation vigilantes :lol: :blink:
The law, for those interested:
https://legiscan.com/TX/text/SB8/id/2395961
I am not sure if I filtered out the legalese well enough, but did I read it right that even if you win in a lawsuit, as the defendant, the law forbids that same winning defendant from recovering legal fees/costs from the losing plaintiff?
Edit: this part:
Quote(i) Notwithstanding any other law, a court may not award
costs or attorney's fees under the Texas Rules of Civil Procedure or
any other rule adopted by the supreme court under Section 22.004,
Government Code, to a defendant in an action brought under this
section.
Quote from: Tonitrus on September 02, 2021, 12:53:57 PM
The law, for those interested:
https://legiscan.com/TX/text/SB8/id/2395961
I am not sure if I filtered out the legalese well enough, but did I read it right that even if you win in a lawsuit, as the defendant, the law forbids that same winning defendant from recovering legal fees/costs from the losing plaintiff?
Edit: this part:
Quote(i) Notwithstanding any other law, a court may not award
costs or attorney's fees under the Texas Rules of Civil Procedure or
any other rule adopted by the supreme court under Section 22.004,
Government Code, to a defendant in an action brought under this
section.
Oh if that's so, that makes it the perfect tool for harassing women for any reason whatsoever.
I guess it'd be poetic justice if someone puts a bunch of effort into spurious suits against high profile GOP women (and men, for aiding and abetting), safe in the knowledge there'll be no repercussions. But realistically it'll be used to harass people and organizations that are more vulnerable.
Quote from: Tonitrus on September 02, 2021, 12:53:57 PM
The law, for those interested:
https://legiscan.com/TX/text/SB8/id/2395961
I am not sure if I filtered out the legalese well enough, but did I read it right that even if you win in a lawsuit, as the defendant, the law forbids that same winning defendant from recovering legal fees/costs from the losing plaintiff?
Edit: this part:
Quote(i) Notwithstanding any other law, a court may not award
costs or attorney's fees under the Texas Rules of Civil Procedure or
any other rule adopted by the supreme court under Section 22.004,
Government Code, to a defendant in an action brought under this
section.
Holy Crap.
Valmy, take your loved ones and leave now.
When was the US supposed to disintegrate according to that nutty Russian professor btw?
Yep, guess I read it right...
https://www.marketwatch.com/story/texas-abortion-law-10-000-penalty-could-incentivize-bounty-hunters-to-make-tens-of-thousands-of-dollars-11630609738
QuoteIf a plaintiff wins, the defendants "and any lawyer who dares represent them are on the hook for the plaintiff's legal fees," Sepper added. When a case fails, defendants lack the same power to rake money from the plaintiffs for the cost of fighting the lawsuit, she noted.
Regardless of one's view on abortion (while not an abolitionist, I am probably more squeamish on the issue than not), as a simple matter of good law, this is fermented fruitcake level kind of nuts.
Yeah, regardless of one's view on Roe, the law is pretty fucked up.
Quote from: Admiral Yi on September 02, 2021, 05:12:50 AM
If I'm understanding correctly, they haven't ruled on the constitutionality yet, just declined to grant a stay. So not settled law yet.
That's true but the fact that the Chief couldn't get one justice to support his position is a very bad sign.
50 bucks even it's overturned.
Oh.
And here's the site for reporting annonymous tips.
https://prolifewhistleblower.com/anonymous-form/
Of course they've set up a firewall to block overseas access.
I was just going to have a look.
But now I must do my bit.
QuoteIf you want to help enforce the Texas Heartbeat Act anonymously, or have a tip on how you think the law has been violated, fill out the form below. We will not follow up with or contact you.
Proof read much?
And this is what happens when you open up access to stuff to the public. :lol:
QuoteTikTokers flood Texas abortion whistleblower site with Shrek memes, fake reports and porn
Critics of Texas' new law have been filing hundreds of fake reports to the whistleblowing website in hopes of crashing it
Pro-choice users on TikTok and Reddit have launched a guerrilla effort to thwart Texas's extreme new abortion law, flooding an online tip website that encourages people to report violators of the law with false reports, Shrek memes, and porn.
The law makes it illegal to help women in Texas access abortion after the sixth week of pregnancy. To help enforce it, anti-abortion group Texas Right to Life established the digital tipline where people can send anonymous information about potential violations.
"Any Texan can bring a lawsuit against an abortionist or someone aiding and abetting an abortion after six weeks," the website reads, and those proved to be violating the law can be fined a minimum of $10,000. An online form allows anyone to submit an anonymous "report" of someone illegally obtaining an abortion, including a section where images can be uploaded for proof.
But pro-choice users had other ideas, bombarding the site with false reports and fabricated data through a campaign primarily organized on Reddit and TikTok.
Though the site was launched a month ago, the fake reports came flooding in on the eve of the bill's enactment. One TikTok user said they had submitted 742 fake reports of the governor Greg Abbott getting illegal abortions.
In a tongue-in-cheek caption, the user encouraged others to do the same: "It would be a shame if TikTok crashed the ProLifeWhistleBlower website".
Redditors said they had submitted reports blaming the state of Texas for facilitating abortions by having highways that allow people to travel to the procedure.
"Wouldn't it be so awful if we sent in a bunch of fake tips and crashed the site? Like, Greg Abbott's butt stinks," one TikTok creator said.
Another TikTok user showed how he uploaded Shrek memes claiming they were images proving "my wife aborted our baby 4 weeks into her pregnancy without my consulting me". Meanwhile, other users encouraged people to upload image attachments containing various kinds of porn.
The coordinated effort echoes a movement in June 2020 to flood a Donald Trump rally with fake sign-ups, resulting in an empty stadium for the actual event.
An activist who goes by the name Sean Black said he programmed a script to submit reports en masse on the website automatically.
Black, who describes himself as a "regular college student from North Carolina", has released a Python script and an iOS shortcut for less tech-savvy to send thousands of reports a day.
He said his data shows nearly 8,000 people have used the Python code and 9,000 have used the iOS shortcut. Others have been inspired by his coding against anti-abortion advocates, saying collaborators across the US are working with him on 10 "active branches" of new features in the tool.
The website appears to be doing its best to take on the influx of false reports and remains online despite other sabotage attempts including attacks by hackers.
Nancy Cárdenas Peña, a Texas director for the National Latina Institute for Reproductive Justice, said she was blocked by the website from using the form after she tweeted about it. Some web hosts allow people to block visitors to their sites by IP address.
"Gosh, I wonder if they factored in people abusing the integrity of this system," she said, jokingly adding: "Hmmm I hope ppl don't abuse this! That would be terrible."
I sent a little story about how my girlfriend had an abortion I'm mighty sure because she was fat but now she aint and our mom says that she saw a doctor about womens problems. :)
What I'm struggling with is that normally, to take someone to court, you have to make a case that your rights were violated. With this Texas law, though, anybody can go to court even if they gave zero connections to the case. This feels very iffy and opens the door to denunciation and witch hunts (and not helped by a defendant not being able to recover legal costs if they win).
Quote from: Syt on September 03, 2021, 04:37:06 AM
What I'm struggling with is that normally, to take someone to court, you have to make a case that your rights were violated. With this Texas law, though, anybody can go to court even if they gave zero connections to the case. This feels very iffy and opens the door to denunciation and witch hunts (and not helped by a defendant not being able to recover legal costs if they win).
I think that's probably the plan - there may not be many successful cases but the legal costs will drive anyone helping provide abortion out of business.
It all reminds me of Sejanus https://en.wikipedia.org/wiki/Sejanus and the paid informers that made Rome hell while Tiberius indulged himself on Capri :nerd:
To put the issue of abortion completely to one side for one moment, this law is still a complete abomination. It is a measure of how crazed the Republicans have become that they can even entertain such ideas.
It's not even that they entertain the notion, but they enact it, and the institutions sanction it.
Quote from: Oexmelin on September 02, 2021, 12:49:22 AM
Is there a plan in motion to evacuate people from Texas as it falls to religious fundamentalists?
Um if we evacuate them from Texas we will ensure the oppression of the people who remain.
I thought you wanted us to fight now you are eager to surrender a major battleground?
Let me remind you that the conservative majority has shrunk over the last decade and extreme actions like this help us to continue to turn the tide. But no, Oex is all: SURRENDER NOW!!!11
And it is not religious fundamentalists, at least they would be consistent and maybe even have some good ideas, it is culture warriors.
Quote from: Richard Hakluyt on September 03, 2021, 04:47:05 AM
It all reminds me of Sejanus https://en.wikipedia.org/wiki/Sejanus and the paid informers that made Rome hell while Tiberius indulged himself on Capri :nerd:
To put the issue of abortion completely to one side for one moment, this law is still a complete abomination. It is a measure of how crazed the Republicans have become that they can even entertain such ideas.
They are fighting a war, a culture war. They need to show, every session, that they are progressing on the front against the foe. They will come up with something even more extreme next time if they are not stopped.
Quote from: Valmy on September 03, 2021, 11:58:39 AM
They are fighting a war, a culture war. They need to show, every session, that they are progressing on the front against the foe. They will come up with something even more extreme next time if they are not stopped.
Agreed.
So Texas also put a bunch of voter suppression measures in. I assume they've done their homework and the measures will be effective... but it's just an assumption. What's the feeling in Texas? Is there anything resembling a chance that the GOP will face enough backlash and lose?
Quote from: Jacob on September 03, 2021, 12:03:25 PM
Quote from: Valmy on September 03, 2021, 11:58:39 AM
They are fighting a war, a culture war. They need to show, every session, that they are progressing on the front against the foe. They will come up with something even more extreme next time if they are not stopped.
Agreed.
So Texas also put a bunch of voter suppression measures in. I assume they've done their homework and the measures will be effective... but it's just an assumption. What's the feeling in Texas? Is there anything resembling a chance that the GOP will face enough backlash and lose?
I don't know. There was a chance they could have lost in 2020 and they did not. The problem is that Texans are remarkably apolitical, they really do not care and are usually pretty uninformed. It is how a bunch of out-of-state culture warriors descended on our Republican Party and hijacked it from the Texas good ole boys who used to run it. They don't give a fuck about Texas man, they just noticed we were the biggest Republican state so it is where they can most advance their culture battle.
So in 2018 we saw a big shift to the Democrats. Will we see another in 2022 or 2024? I don't know, but we will if I have anything to say about it.
I have made it my business to so far to drive every single culture warrior out of local office in my county and town and have had considerable success so far. But even when it is just a conservative, and not a culture warrior at all, they will have to eventually agree to some pretty insane stuff, which I find frustrating.
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.
Considering current levels of political apathy/resignation from most people except crazies, I wouldn't see this one instance as proof of a collective, well-informed opinion on anything.
QuoteRepublicans in six states rush to mimic Texas anti-abortion law
North Dakota, South Dakota, Mississippi, Indiana, Arkansas and Florida eye similar measures to new Texas ban after six weeks
Quote from: Oexmelin on September 03, 2021, 01:16:10 PM
Considering current levels of political apathy/resignation from most people except crazies, I wouldn't see this one instance as proof of a collective, well-informed opinion on anything.
Who said anything about anything well-informed?
Quote from: Berkut on September 03, 2021, 12:44:05 PM
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.
What I think the bill's architects might have been thinking, if given an unreasonable level of benefit of doubt, is that those who oppose abortions will only see the "abortion banned after six weeks!" headline, and never get into the minutia of the enforcement mechanism. Allowing them to take the credit for passing an anti-abortion law, but never having to have any public enforcement officials get their hands dirty in carrying it out.
But because of the enforcement mechanism, those architects are either super villain-level evil, or inexcusably incompetent. Unfortunately, the former is the more believable. And, well, given the level of detail needed in crafting a law this way, really the only explanation.
The invisible hand of the free market apparently decided not to host the denunciation website for now.
:yeah:
A shame, I didn't get the chance to denounce any Texans.
Quote from: Admiral Yi on September 05, 2021, 07:44:13 PM
Quote from: The Minsky Moment on September 05, 2021, 07:40:41 PM
Who's the 5th vote?
Anyone but Thomas, maybe not Alito.
Comey Barrett, Kavanaugh or Gorsuch? :hmm:
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.
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?
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.
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.
Quote from: Sheilbh on September 07, 2021, 10:57:54 AM
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.
Quote from: Sheilbh on September 07, 2021, 10:57:54 AM
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.
Quote from: The Minsky Moment on September 07, 2021, 11:19:02 AM
Quote from: Sheilbh on September 07, 2021, 10:57:54 AM
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.
Quote from: OttoVonBismarck on September 07, 2021, 10:52:51 AM
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 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.
Quote from: OttoVonBismarck on September 07, 2021, 11:21:30 AM
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.
Quote from: Berkut on September 03, 2021, 12:44:05 PM
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.
Quote from: Valmy on September 07, 2021, 12:08:56 PM
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?
Quote from: Jacob on September 07, 2021, 12:11:44 PM
Quote from: Valmy on September 07, 2021, 12:08:56 PM
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.
Quote from: The Minsky Moment on September 07, 2021, 11:49:18 AM
Quote from: OttoVonBismarck on September 07, 2021, 10:52:51 AM
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.
Quote from: OttoVonBismarck on September 07, 2021, 12:16:24 PM
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.
Quote from: Sheilbh on September 07, 2021, 11:57:06 AM
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.
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.
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.
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).
More Texan legal shenanigans, feel free to split it from the thread if necessary.
QuoteTexas 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.
How much operations do Facebook, Twitter, or Google have in Texas?
Everything is bigger in Texas.