It has to be, right (that this law will not stand the test of time)?
Because ultimately the goal is to overturn Roe. This law is exactly the wrong vehicle to do that, because it is deliberately designed to avoid Roe and Casey.
So basically you are buying time until Roe is struck down. Until the appropriate steps happen to allow a challenge to this law, starting Sep 1, there will be basically no abortion services available in Texas. Then, the thinking goes, SCOTUS will rule on one of the more direct challenges to Roe, and likely overturn or severely limit abortion rights protections at the federal level. Once that happens, laws like SB-8 become moot because you no longer need the legal facade it erected - you can just ban abortion after six weeks and let the state enforce the ban.
Clearly conservative legal scholars don’t want this type of law to stand as a broad legal principle. It would severely undermine constitutional protections in all number of areas - speech, gun rights, religious freedom.
I read both articles and the Rhodes article didn’t seem to have a solution (in that it pretty convincingly shows that everything, under current law at least) will cause these abortion providers to have to extend time and money to go through a lengthy process, all the while facing crippling lawsuits.
And Volokh didn’t really offer any solutions except to encourage that an injunction be able to be entered against everyone in the world. He cites no legal authority except to say that people who aren’t going to sue under the law are not harmed, and those that are intended to sue are getting a correct legal judgment applied to them.
His view is not supported by the law. Under his proposition, the judge would be issuing a ruling against everyone in the entire world (except TX officials). Do you really think a U.S. District Judge could enjoin the President Macron of France or Prince Charles? To say that they won’t want to file one of these petitions in TX is beside the point; it is the basic principle of law that a judge doesn’t have that power.
And if I was a person subject to an injunction who did want to file a petition in TX, the judge made a ruling against me when I wasn’t a party to the case, never was notified of it, and was not permitted to argue in my favor. That’s about as huge of a violation of due process as I can imagine.
TX has found a way under the current legal regimes regarding standing, Younger abstention, federal forum law, and a host of others, but to argue that we should change those just to show TX then opens up a bunch of other problems that those doctrines are around to prevent.
The one I did see that has some promise is to have a pro-choice advocate announce on TV, on Twitter, everywhere that he or she intends to file one of these petitions. Then the Younger abstention wouldn’t apply, and that person could be brought into federal court to enjoin the suit. Then create a class of plaintiffs similar to this person.
But there is even a problem with that. The person could admit that she is in favor of abortion and is only doing this to hopefully strike down the law. Nothing in the TX law requires a person to be opposed to abortion. Then, however, it should be dismissed for lack of standing as there is no adversarial relationship.
So the pro-choice person could then lie and say that she is doing it to rid the world of the scourge of abortion providers, but lying in federal court is a big no-no.
Did you actually read the Volokh or Rhodes article? Both said the way to fight SB8 is literally to just litigate one of the $10,000 cases and get SB8 overturned, neither thinks it is particularly likely to survive judicial review.
Volokh’s advocacy of a broader injunction power was not how he believes SB8 is going to be fought, but what he said should be considered to prevent a runaway escalation of behavior like this in the future long after SB8 isn’t relevant any longer. Volokh’s opinion there is an opinion on how the Supreme Court ought function, not how he thinks litigants should attempt to see SB8 overturned.
But yes the answer is to contest it in court, they don’t actually think it’s going to be that difficult, they just won’t get an emergency injunction while it is being litigated. But that doesn’t mean you don’t fight it, you don’t leave bad law on the books because challenging it is hard.
No. But it will take a long time, which is very unusual from an abortion perspective when an anti-abortion law remains active. They will win eventually, but unless the federal courts cheat their own case law, the litigation occurs while abortion doctors in TX are all shutting down because they are tired of being in court all of the time.
Oh, David Wasserman? You find him to be authoritative? Here’s what he really has to say on the matter:
You’re also ignoring Georgia’s successful effort to strip county voting commissioners of power and aggregate it to the (Republican) state election board. You’re disregarding Arizona’s legislation to do the same. You’re omitting the drastic voter-purges being erected in Georgia, Mississippi, Wisconsin, and numerous other red-controlled state.
And it’s just the height of hilarity in this thread, talking about SCOTUS’s cowardly dereliction of duty in reviewing constitutional rights vis-a-vis abortion you suggest “don’t worry, the courts will certainly shoot it down” with regard to state election takeovers. News flash: they won’t.
I’m not disregarding or ignorant of any of those things, you just are interpreting them differently and frankly, hyperbolically.
Yes, Republicans do have control of more redistricting than Democrats, and yes, it “could be enough” to deliver the House to Republican control. That’s a pretty vague and meaningless statement, and doesn’t contradict anything I said. We already have a good idea of how many seats redistricting can affect, and in a very tight House, it absolutely can be decisive. No one has ever said otherwise. What I did say is that Democrats should focus more on running good candidates and being good at politics. It wasn’t actually all that long ago that Democrats won an extremely comfortable margin of control of the House that would be immune to gerrymandering changing control. The much narrower control of the House they have now makes it more of a risk, but we’re at an unusually tight House at the moment. Lots of things can flip the House when it’s this close. But from a systemic view there is no reason it should be this close, the Dems have shown they can win big margins with the current maps, and the future maps could be even better.
The Georgia law for what it is worth doesn’t just strip all power from local government. County election boards are only taken over by the legislature in specific circumstances spelled out by the law. They have to appoint a panel to do an investigation into the performance of the board, and then based on findings of that they can take over the board. Now, while the legislature can ultimately choose to interpret those findings fairly liberally, if they don’t follow the actual justifications spelled out in their own law, they are opened to litigation. The courts will and do hold you accountable for the text of the laws you write. Further, if a county board is taken over, they still have to follow normal election procedures. They can’t just go in and be like “okay only one precinct in Atlanta can operate on election day, and only white people can use it.” These boards, regardless of whole control them, largely perform ministerial functions and their powers and the procedures they are intended to follow, are governed both by state law and the U.S. Constitution. They aren’t magical boards that just let you reimplement Jim Crow at a whim. The vote counting / accreditation all happen in full open view, and anything inappropriate would be litigated. The U.S. Courts would not simply let a ministerial body throw out thousands of proper ballots.
While it cannot be enforced currently the law allows for cases to be brought retroactively if the law is upheld. So, clinics will not re-open until it is settled in their favor (if it is settled in their favor) since they could be sued for any abortions they perform while the law is being litigated.
From what I have read the odds-on favorite is the US Supreme Court will kill Roe v. Wade/Casey v. Planned Parenthood when a Mississippi law comes before the court soon.
They probably won’t outright end abortion protection in the US but defang it so thoroughly as to make little difference. Casey was a step in that direction and got us here. The Mississippi case will be the nail in the coffin (probably).
I can see overturning Roe being possible, but “odds-on favorite?”
Roberts is essentially guaranteed to side with the liberal bloc, so it’s just a 5-4 conservative majority, and it only takes one defector out of either Gorsuch or Kavanaugh to sink the case. Alito, Thomas and Barrett are the only three who are likely to hold steady.
Yeah…not a foregone conclusion but odds-on favorite seems a fair assessment.
Perhaps the one thing that will save Roe that is in the back of their minds is abortion is a great wedge issue for conservatives. If they remove that they jazz up liberals and conservatives, feeling they won that fight, lose steam.
This is often said but IMHO it is pro-choice wishful thinking - it will probably in fact have exactly the opposite effect. It would be a huge boost to pro-life morale and they’d be even more revved up. A climber who’s just finished scaling a 20,000-foot peak for the first time in his life doesn’t get deflated, it in fact makes him want to go for Everest next.
Bear in mind that abortion is only one out of a hundred things that piss pro-lifers off - most of them also oppose LGBT, BLM, feminism, etc. So a big victory in abortion is likely to buoy their confidence in tackling the next big battle, such as overturning Obergefell.
And the abortion fight won’t go away - it simply changes the nature of it. Instead of “we need to ban abortion,” it becomes “we need to keep abortion banned; those baby killers are trying to bring it back.”
On top of that, overturning Roe doesn’t even ban abortion nationwide - it merely bans it in some states. So pro-lifers will still think, “We’ve got lots of work yet still to do.”
I don’t think the care too much about wedge issues for conservative voters. For the most part they are ideologues not partisans. The thing that might cause them pause is the reputation of the court. If all their decisions break 5-4 or 6-3 towards the far right, then they start appearing purely partisan and so lose legitimacy in the eyes of the public. Roberts is particularly sensitive to this, since its under his name that the court is going to be remembered,
The question is whether any of the other conservative justices care about their are viewed.
The end goal of the pro-life movement is not to overturn Roe, which would turn the decision over abortion’s legality to the states. These are not federalists we’re talking about, they’re zealots. Their goal is to end legal abortion throughout the United States through judicial fiat by finding that the unborn have Fourteenth Amendment rights. This is explicitly the position of the Republican Party platform.
This statement is untrue. The platform does not ask for a judicial declaration of Fourteenth Amendment personhood for fetuses. It advocates for a constitutional amendment which would do so, implicitly realizing that this is not the current state of the law.
This is just red meat for the zealots because there is no way such an amendment would ever pass. It would be fraught with unintended consequences, and the idea itself stems from the judicial usurpation caused by Roe and Casey which started this dangerous trend of trying to get around those decision. The TX law is the latest and most dangerous. Fourteenth Amendment personhood is soooo 1980s. and it had to do with the fact that the Roe decision stated that the Fourteenth Amendment did not recognize the unborn as persons. So creative lawyers thought that if state laws could recognize them as persons, that would add more to the pro-life argument. It failed, so now we have TX type laws.
None of this nonsense will end until the Supreme Court, far from harming itself as an institution, enhances itself by overruling one of its most egregiously wrong precedents. And some believe that it was wrong even though they support legal elective abortion. The decision is nothing short of a policy decree.