Texas Law is unenforceable

I was looking at the April UT/TT poll (or at least a couple webpages summarizing that poll), but it looks like I made a major mistake.

49% of Texans support the six week ban. I had that right.

54% of Texans oppose a trigger law (a law that would ban all abortions the instant it becomes constitutional to do so). I had misinterpreted this as 54% being in favor of a trigger law.

I must, of course, retract my posts today in shame.


It’s weird, because that is already higher than the polling in March. Anyway, looks like opinion on this is surprisingly fluid.

Just butting in here to point out that it’s perfectly reasonable to desire to reduce the number of abortions even if one has no moral objections to abortion whatsoever.

An abortion is invariably an attempt to deal with an undesirable situation that everybody wishes did not exist in the first place. Whether that situation is an unwanted pregnancy, or the endangering of a wanted pregnancy by life-threatening medical issues, abortion is always a means of fixing a problem, not a recreational activity or a rite of passage or anything considered desirable for its own sake.

So we can all agree that we’d all like to see fewer abortions, in the sense that we’d like to see fewer of the undesirable situations that lead pregnant women to seek abortions. That doesn’t necessarily mean that we have any sympathy or common ground with the anti-abortion advocates who are trying to drastically restrict access to abortions.

^ This.

That was the motto for decades, though objections arose due to a perception (accurate or not) that “rare” stigmatized those who had abortions.

To my mind no stigma was intended; the formulation simply meant that the ideal would be that all pregnancies were planned pregnancies.

“Every child a wanted child” was another motto expressing the same basic idea. Of course those who believe that a supernatural entity should be the one deciding these matters didn’t care for that one.

It looks like we may well get our first test case as soon as courts open up for filing on Monday. A physician in San Antonio published an op-ed in the Washington Post stating that he performed an abortion in violation of SB 8. And getting sued is almost certainly the intent – I’d be shocked if this weren’t done in coordination with abortion rights advocates to generate the best possible test case for challenging the law. The op-ed says almost nothing about the woman, but she will likely have a very sympathetic story.

Dr. Alan Braid of San Antonio has been sued by a former lawyer from Arkansas for performing an abortion that violates Texas’ new ban on the procedure.

From the man suing the doctor:
“I woke up this morning…and I saw a story about this doctor, Dr. Braid,” said Oscar Stilley, a former lawyer convicted of tax fraud in 2010, in an interview. “He’s obviously a man of principle and courage and it just made me mad to see the trick bag they put him in and I just decided: I’m going to file a lawsuit. We’re going to get an answer, I want to see what the law is.”

So the first test case involves a plaintiff from outside Texas who doesn’t appear to be an anti- abortion activist.

The second plaintiff is also pro-choice. The antis are standing down.

A second suit filed Monday just four paragraphs long came from a man in Chicago who asked a state court to strike down the abortion law as invalid.

Texas Right to Life, an antiabortion group, quickly disavowed the lawsuits as “self-serving legal stunts.”
“We believe Braid published his op-ed intending to attract imprudent lawsuits, but none came from the Pro-Life movement,” John Seago, the organization’s legislative director, said in a statement. “Texas Right to Life is resolute in ensuring the Texas Heartbeat Act is fully enforced.”

After publication of Braid’s column, conservative legal commentator Ed Whelan discouraged supporters of the law from suing the doctor and giving him the “test case that he is seeking.”
Whelan wrote Monday that private citizens should not bring a civil enforcement action until the Supreme Court has ruled in the Mississippi case, which asks the justices to overrule Roe.

Right. Because the pro-fetus crowd don’t want a test case with a doc whose likely to get help. They want to target people who can’t fight back. It’s the way of the bully.

I think they don’t even feel super confident about any test case passing Constitutional muster. The plan was to scare providers into not providing abortions. The new SCOTUS appointees greenlit the law on semi-bullshit procedural grounds: “oh, we can’t grant an injunction against the law itself; we have to wait for someone to actually bring a suit under it!” But would even this court actually uphold the law on the merits? I don’t think they’re sure.

By the time the Texas case makes it to SCOTUS, Roe v. Wade will already be overturned. SCOTUS will reject the Texas law because they won’t want to allow it as a mechanism to end-run the 2nd Amendment.

It sounds like they are talking themselves out of court. They don’t want $10k and they don’t want the doctor to stop performing abortions? Then whatever you want to call these suits, they are not ones authorized by the new TX law.

They may not be the suits the lawmakers wanted, but can you point me to the language in the statute that excludes them?

Right, it’s not like they don’t have standing. That’s the whole point. And who says they don’t want $10k?

Who says that they don’t want the money?

Sounds like he wants the money to me.

Does the Texas law say that one has to have strongly held views about reproductive rights in order to claim the bounty? If so, please cite.

Texas passed a bad law, that it is being abused is because of how it was written in order to get around constitutional protections. People are just upset that the wrong people are abusing the law.

Very well then. That works under the law. I missed that part. But a consequence of the suit will be an injunction to stop performing abortions. Will the plaintiff tell the judge that he wants that?

I’m not talking about standing, I am talking about redressability. Under this law, you are saying “I want my $10k, and that guy to stop performing abortions.” If you tell the judge that you don’t want either, then why are you here? Okay, you want $10k, but if you win, he must stop performing abortions. Do you want that? No? Then I can’t help you.

I don’t think this particular plaintiff cares one way or another about the injunction

If he has to ask for an injunction to get his $10k I don’t think that’s going to change his mind.


What are you talking about? Have you read the law, or any of the articles explaining it?

He’s right about the injunction being a consequence. Sec. 178.208(b)

If a claimant prevails in an action brought under this section, the court shall award:

  1. injunctive relief sufficient to prevent the defendant from violating this subchapter or engaging in acts that aid or abet violations of this subchapter;
  2. statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced in violation of this subchapter, and for each abortion performed or induced in violation of this subchapter that the defendant aided or abetted; and
  3. costs and attorney’s fees.


Yes. Imagine being the pregnant fifteen-year-old daughter of any of the nutcases who made this law happen. Telling such people such news would be terrifying and potentially dangerous.