Texas Abortion Case

Right, but TX is saying that they aren’t banning doctors from performing abortions. There is no proof that this might happen, and if it does, then it is private persons. The Roe/Casey line of cases all say “the state” may not do such and such.

But what if it isn’t just big BigT. Suppose BigT gets 100 of his facebook friends each to each kick in $50 for his law suit, and 100 other BigT’s around the country do likewise? Now Greg Abbot can start his own GoFundme site to pay his legal fees, but defending 100 lawsuits is going to be a major pain in the ass, and may start him rethinking the ease with which people are able to sue under this law.

You could only say something like this if you’re entirely unaware of the electoral map in 2022 and 2024, as well as totally ignorant of how close state legislatures came to invalidating millions of Democrat votes in the 2020 election, and how they are gearing up to do that again. Plus the expected partisan gerrymandering taking place in Republican-run states following the 2020 census.

If you can name a step necessary to ensure permanent minority rule, Republicans are either laying groundwork for it, or attempting it, or have already pulled it off. I don’t see how someone could have paid attention to everything that happened since Scalia died and not understand this.

I would agree none of the defendants targeted in the suits involved in the emergency stay were infringing on previous precedent. However if someone is willing to lose $10,000 (which isn’t that much money in a one off, the legal fees will be far higher than that nominal amount), and a doctor is willing to participate, it’d be pretty easy to get a test case created–unless no pro-life organization was willing to challenge it, which would have the effect of undermining the chilling effect of the law since then other doctors would openly start violating it as well. I think the only sanction I could find in the law for the doctor is the fine and the part about being slapped with a “court order to not perform an abortion in these circumstances again.” At that point you have a Texas court (an organ of the state) enforcing something that would at least be relatively obviously against many of the “access to abortion” jurisprudence that has grown out of Casey.

I’m aware of it and have been saying you people are hyperbolic and off base. There is nothing worse about the electoral maps in 2022 and 2024 than in 2020 and 2016. In fact due to where the population growth was, and the fact several states actually phased out legal gerrymandering, or put inhibitions in place, the negative effects of gerrymandering from the 2020 maps to the 2022 maps are likely to be less than the effect observed from going to the 2010 to the 2012 maps. The Democrats can certainly lose a whole bunch of elections in 2022 and 2024–it’ll be because they are being bad at politics if they do, not because of fearmongering claims of democracy being dead.

I’m sure Texas courts will in very short order create a precedent that frees them to toss with prejudice any lawsuits that are obviously frivolous and vexatious, based on the fact that the law was obviously intended to target abortion providers and facilitating organizations.

If you think these guys rolled out a legal project like this with any real risk of getting hoist on their own petard in some unforeseen way, I’m sorry, that’s just delusional. It’s not happening.

Ah, so I see it’s just regular old ignorance then. Carry on.

This one is wrong I think.

State law already prohibits anybody except medical providers from giving abortions. And despite the question about enforceability, S.B.8. clearly makes it illegal for medical providers to provide abortions after the fetus has a heartbeat. Supreme Court precedence is very clear that the woman has a constitutionally protected right to obtain abortions of pre-viable fetuses without undue burdens from the state. The state itself has blatantly denied the woman of a constitutional right.

The problem is that the state is immune from prosecution by its own citizens. I previously mentioned Bivens but that wouldn’t work at all since this is the state and not the federal government.


Are we sure we know how vast the resources would be needed?

Say we get our test case. Sally McSnoopy sues abortion doctor Joe Smith for performing an abortion that he knew was 7 weeks in gestation. Smith loses, so he appeals. But typically in many states, to appeal, you can’t pay the Plaintiff. You deposit the money with the court, plus a fee for an appeal bond, plus the attorneys fees that he owes to the claimant.

So Dr. Smith can be sued over and over and over again for the same abortion because he didn’t “pay in full” the claimant. Plus he has to stop performing abortions lest he keep having to be sued over and over again. Also, it is unethical for an attorney to pay the client’s costs [ETA: of living] during litigation and the judgments.

And, as it is an appeal from the state court, it goes to a Texas court of appeals (not sure of that structure) before he could finally file an cert petition in the U.S. Supreme Court?

He will also be pursuing a federal court appeal which may end in the Supreme Court overturning Roe v. Wade. Plus every sleazy lawyer in Texas will be taking these cases in the hopes of free attorneys fees.

How many multiple hundreds of millions of dollars do you think Dr. Smith will owe if he is unsuccessful? Who wants to volunteer to be Dr. Smith?

Right. You can’t sue the judge under a Shelley v. Kramer theory because judges are absolutely immune from “adjudicatory acts.” If you wanted to sue Ms. McSnoopy, who would be the Plaintiff? The doctor? Again, (I stated it improperly before) he has no personal right to perform abortions. The woman he performed an abortion on? How was she harmed? She received an abortion—that’s the whole reason we are here—so what is her injury? Oh, but Ms. McSnoopy will file more suits and cause her not to be able to have another abortion? Ms. McSnoopy signs an affidavit saying that she will never sue again under SB 8, and in fact, agrees to the federal injunction that disallows her from suing under SB 8. The case is moot.

Some really smart lawyers thought of this [contrary to my earlier comments.]

I guess if you’re talking about your own views concerning the constitution and the laws of the United States yes we could say there’s regular old ignorance at play. My basis is that all of the scary laws you guys have been crying about, contain all kinds of procedural protections. Some malfeasant Republican just going LULZ NO DEM VOTES, would almost certainly be overturned in courts before almost any judge of any political persuasion. I pointed out data and facts about gerrymandering for ten years after Democrats went into a meltdown over the 2010 gerrymanders–that consistently showed the net effect of gerrymandering was about 6 House seats. This was never a decisive margin in control of the U.S. House until right now. David Wasserman, who I wouldn’t qualify as “ignorant” but might suggest is one of the foremost experts on redistricting and the data about population characteristics of Congressional seats, has basically said the census was good news for Democrats and in many areas, it just is now going to be much harder for Republicans to easily gerrymander. In many cases it’s because suburban tracts are just heavily intermixed with Democrats and Republicans more so than before, the greater share of your population is locked in heavy Dem urban tracts and heavy Republican rural tracts, the greater mischief you can get up to, the changing characteristics of the suburbs make it more challenging for Republicans to successfully gerrymander.

Additionally, several states have seen judicial or constitutional barriers built to gerrymandering that have yet to be tested by the new phase of redistricting but which probably make extreme partisan gerrymanders more difficult: Michigan, Ohio, Arizona, Pennsylvania and North Carolina. In Kentucky which already had a decent gerrymander protection in that the state’s congressional districts aren’t allowed to sub-divide counties except basically as a last resort, has even had Republican leaders express reservations about trying to push the needle too hard on gerrymandering (gerrymandering is not actually very popular politically, with either party.)

National Dem figures who are waving the torches and calling panic over all this are right to do so–it’s how you rally your base. But this is a message board where we can discuss things more realistically, and the reality is most of these structural issues will have little impact on Democrat’s ability to win elections. Some of the “access to the polls” issues, like mail voting, early voting etc, have repeatedly shown to actually backfire when Republicans have tried to roll them back, and lead to higher Dem turnout. Additionally in a number of states that have rolled back mail voting, it had traditionally favored Republicans, the people behind that decision made a basic gamble that going forward it was going to favor Democrats like it did in 2020 (a year of a historic pandemic), and wasn’t going to go back to favoring Republicans. It’s very likely they gambled wrong, and it will cost them–lots of the Republican base live in rural areas where driving to the polls can be a major barrier to voting.

But hey I’m sure you read a Tweet or watched a YouTube video showing democracy is over in the United States, so I’m sure that’s right.

I don’t believe the law or the courts would realistically see one person on the hook for “hundreds of millions” from one abortion. I think they would either pay the $10,000 and continue suing, or they would appeal those elements of the law, some of which I think may be against the constitution of Texas at minimum and possibly elements of Federal law unrelated to abortion. Additionally pro-choice groups can absolutely just cut a doctor a check, they can also pay his legal fees. Nothing in the law can stop that. Those groups do have many millions of dollars to fight cases like this.

Yup. Anybody remember back when Republicans used to complain that the alleged “increasing litigiousness” of American society was a bad thing and detrimental to American traits of liberty and independence?

Clearly, all that really mattered to them about “litigiousness” was the question of who was getting sued.

I suspect ultimately, they won’t be seen as that smart. The Supreme Court has a pretty clear history of striking down lots of crazy legal games like this. The reality is the plaintiffs simply assumed they’d get their emergency stay, and haven’t taken a serious crack at what strategy to pursue outside of that because of an innate assumption they would be granted the emergency stay, which has usually been a safe bet in cases like this. We’ll see what the state of the legal reasoning is in a few weeks when the various top legal minds that will be involved in this start breaking apart the constituent parts of the law and how they intersect with the Texas constitution, Federal laws and the Federal constitution. I have a suspicion it won’t seem so ironclad after that, but we shall see.

Oh I agree fully. I don’t expect this law to hold up long term. I was just saying that they were “smart” because of what you say.

Most of the time, a state passes a law that outlaws all abortions, politicians get to make grand statements, but at the end of the day, they know that the law will be enjoined and never take effect. Maybe as a secondary thing the Court may one day use their law to overturn Roe, but that is secondary. They are just appealing to their base.

The plaintiffs got caught off guard here because Texas came up with a new theory, and a thoroughly drafted law that has actually gone into effect and gotten them this far.

Eugen Volokh who is just such a top legal mind as I mentioned has laid out a pretty decent foundation for how the law could be challenged, it’s a pretty good read:

Thoughts on the Supreme Court’s Texas Abortion Ruling – and How to Prevent it From Setting a Dangerous Precedent – Reason.com

He cites a more in-depth study out of Florida International that goes into more detail.

Solving the Procedural Puzzles of Texas’ Fetal-Heartbeat Law by Charles W. (Rocky) Rhodes, Howard Wasserman :: SSRN

The TLDR of both is that there is nothing magical about letting private parties litigate against someone to enforce a law, and if the underlying law is unconstitutional you will see this litigated to that effect, eventually. Once that happens future such cases get more difficult to litigate, because you can obtain dismissals early in the process once it is settled law that the statute itself is unconstitutional, or maybe they’d even have issue filing the suits if the law they were filing under had been struck down (I’m unsure on that aspect.)

The flipside of it is if this is the first in a round of weaponized “nuisance” litigation, there is only so much that can be done because of how the Supreme Court views issues of standing and injunctive relief. Volokh says that longer term unless the Supreme Court alters its standing viewpoint (which is unlikely, Roberts is a big stickler of this) or broadens its scope for issuing injunctive relief, you could see many future bad actions like this even if SB 8 is struck down.

Some of that is nothing new–it’s not at all unusual for wealthy people to use the mere threat of litigation to put a chilling effect on say, negative press or commentary about them. There are limits to how effectively they can do that, but they are not ironclad. For example Trump famously has sued several people for saying things he didn’t like about him, and while he has never prevailed in such a suit, virtually everyone targeted with them has said they were a major imposition on their life in various ways. If you start having state legislatures willing to fast track laws like this, which can only be addressed once the private suits are litigated, repeated versions of these laws could sprout up as fast the Supreme Court strikes them down, which could see a pretty wild weaponization of the courts to go after any number of things–my two suspicions are it would be guns and abortion as the big issues, although Volokh’s hypothetical about a law that would let someone sue a person for $10,000 for every “$1,000 of excessive political advertising” they pay for could be something I’d not be shocked to see a lefty state do, either.

That has pretty much always been the case. What they were really against is big corporations getting sued by the little guy. If its the little guy getting stomped by big corporation’s deep pockets, hey no problem.

Is that perhaps the intention? Set up what looks like a genuinely effective means of banning abortion for all practical purposes, and then instead of keeping it operative and having to confront an energized opposition about it, let it get trashed within the year and thereby energize your (generic Texas Republican “you”) own voters seething with frustration at yet another failure to ban abortion?

And the fact that you are defending your property rights is what gives you standing. Your neighbor could not do the same thing; it’s not her property.

As I understand it, the law explicitly gives standing to sue to anyone (in Texas?) except agents of the state of Texas.

So, in a sense (not literally), has this given anyone who has standing a property right over every > 6 week old fetus in the state of Texas?

I’m seeing reports that Florida is now working to pass a similar law.