My mistake; I overlooked that. Seems like gilding the lily, but there’s so much stupid here that it barely registers.
Notwithstanding the standing issue. ISTM that only the first person suing can get the $10000. The next people in line can’t get anything. If true, can you sue for no money?
The Scopes Monkey Trial was exactly the same thing, a test of a law.
The trial was deliberately staged in order to attract publicity to the small town of Dayton, Tennessee, where it was held. Scopes was unsure whether he had ever actually taught evolution, but he incriminated himself deliberately so the case could have a defendant.[2][3]
Scopes was found guilty and fined $100 (equivalent to $1,500 in 2020), but the verdict was overturned on a technicality. The trial served its purpose of drawing intense national publicity, as national reporters flocked to Dayton to cover the big-name lawyers who had agreed to represent each side.
A bit of an aside but not full-on hijack:
In the story linked above it says:
The new Texas law represents the most significant threat yet to the Supreme Court’s 1973 decision establishing the right to an abortion.
Is that true? Does this law pose a threat to Roe v Wade? Or does it just pose a threat to women’s right to choose an abortion? I don’t think they’re one and the same. Are they?
If this law is not found unconstitutional and stays in effect does that mean that Roe v Wade must be overturned? Obviously it grossly affects the right to choose but it doesn’t outlaw abortion. Can this law and the Roe v Wade decision both exist?
My feeling is, as happens so often, a reporter was not careful enough with her/his words but as usual, neither the editor nor anyone else cares because it’s “close enough”.
If the law is upheld without a finding that abortion is not a protected constitutional right, I think it would be worse in some ways. These laws would proliferate throughout states with Republican legislatures, resulting in a great diminution of bodily autonomy, and we’d be dumped head-first into a nullification crisis. Overturning Roe, as bad as that would be, wouldn’t cause a civil war, but allowing any state legislature to effectively nullify any part of the Constitution by letting random yahoos engage in judicial thuggery against it just might.
I agree. We come at this from different sides. I think Roe is bad law and should be overruled. But IF we are going to recognize abortion or anything else as a constitutional right, a state cannot be permitted to do indirectly what it may not do directly. Otherwise, a constitutional right is meaningless.
Here’s a fucked up thing:
That’s right: in Texas people who are too young to legally exercise their own constitutional rights can be legally responsible for the care of an even younger person, including making medical decisions for that younger person, even if they are not legally able to make medical decisions about their own body.
That’s fucked up.
The Supreme Court today again refused to say the Texas abortion ban, but agreed to fast-track the case with oral arguments scheduled for November 1:
It looks like they are teeing this up to have a decision released at the same time as the MS case. I predict (for what it is worth) and overturning of Roe along with striking down this TX law under some theory that people who are suing are acting as state agents.
I’m kinda confused why they’d grant expedited review. Maybe its like you say and they want to line it up with the MS case, but it’s pretty rare for the court to expedite a case absent some genuinely pressing deadline (the nearest analogue is probably Bush v Gore). And it’s pretty clear that there are five justices who see no real urgency in addressing this.
Again, just guessing, but the conservatives are probably like me: they have no issue with outlawing elective abortion, but the way in which TX has constructed the law would open a Pandora’s box to where a state could outlaw pretty much anything that is a basic right using this procedural manner of “private” enforcement, and make it immune from review unless and until someone suffers consequences and runs the gauntlet of appeals up to the United States Supreme Court. They don’t like that and want to do something about it, but consistent with current law, they cannot. So they want briefing and argument to tweak or outright overrule prior cases to prevent it.
Plus, as this is a huge abortion case it makes logistical sense to deal with that topic in a global manner with the MS case. To me, that makes sense even if a Roberts and/or Kavanaugh are unsure of overruling Roe. The ruling on the TX procedure has to take into account if TX is actually regulating a constitutional right and it implicates Roe.
Bumping this thread because I was surprised to find no reaction on the Dope to SCOTUS’ refusal to block the Texas abortion law.
Does this mean the law will stand? How on earth can it be constitutional?
There is a difference between “constitutional” and “declared constitutional”, apparently.
I think this is the best phrasing of views of the current conservative majority of the Supreme Court.
It’s not: The Constitution does not protect a right to medical decision-making.
It’s not: The Constitution only protects enumerated rights from governmental intrusion.
It’s not: States are free to violate any right not specifically enumerated in the Constitution.
It’s not even: Stare decisis is only a thing for caselaw we agree with.
It’s just: “they have no issue outlawing elective abortion”. The conservative justice’s actual goal, stated clearly, and not hidden behind whatever tortured, post hoc judicial reasoning they’ll use to enshrine the goal. A brief shining example of what is really going on.
Conservatives in general seem to be doing a lot more of the “saying the quiet part out loud” nowadays…
Yes, but besides “conservative judges suck” – a notion with which I do not disagree – I was hoping someone here could help me understand just what the hell is going on here.
Why would they allow abortion providers to sue some parties and not others? And how does this ruling impact the seemingly inevitable SCOTUS review of the actual law (if at all)?
I’m not sure what you are on about. Conservative justices believe that just like from the beginning of the common law until 1973, abortion is an issue that should be decided by a democratic majority and that no reasonable reading of the Constitution removes that power from the people. Nothing more.
They say that out loud and for everyone to read. No hiding involved.
The hiding is during confirmation hearings. They refuse to admit this very obvious thing so a few asshole Senators can pretend they’re not voting to support overturning women’s rights to decide for themselves what to do about their pregnancies.
On point:
"In one exchange with Sen. Dianne Feinstein (D-Calif.) then, she asked if he agreed with former Justice Sandra Day O’Connor that a women’s right to control her reproductive life impacted her ability to “participate equally in the economic and social life of the nation.”
Kavanaugh responded by saying that, “as a general proposition,” he understood the importance of the precedent set in Roe v. Wade, and outlined the rationales that undergirded both Roe and Planned Parenthood v. Casey, which reaffirmed a woman’s constitutional right to obtain an abortion before fetal viability.
Feinstein then outright asked Kavanaugh what he meant by “settled law” and whether he believed Roe v. Wade to be correct law. Kavanaugh said he believed it was “settled as a precedent of the Supreme Court” and should be “entitled the respect under principles of stare decisis,” the notion that precedents should not be overturned without strong reason.
“And one of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992,” Kavanaugh said then.
Shortly afterward, Feinstein interrupted Kavanaugh to note that she had sat through nine confirmation hearings for Supreme Court justices, who had expressed similar sentiments about stare decisis.
“And when the subject comes up, the person says, ‘I will follow stare decisis,’ and they get confirmed, and then, of course, they do not,” she told Kavanaugh.
Kavanaugh did not answer Feinstein directly, instead pivoting to how he understood “how passionate and how deeply people feel about this issue.” He went on at length to talk about how Planned Parenthood v. Casey had reaffirmed Roe, making it “a precedent on precedent.”
“I understand the importance of the issue. I understand the importance that people attach to the Roe v. Wade decision, to the Planned Parenthood v. Casey decision,” Kavanaugh said. “I do not live in a bubble. I understand. I live in the real world. I understand the importance of the issue.”
The Supreme Court was ruling strictly on procedure, not merits. This entire case is about legal technicalities - only those technical questions are properly before the Court. Follow me here,
The petitioners in the present case, Whole Woman’s Health et al (a clinic), file a complaint in federal court.
- Petitioners allege that S.B.8 violates the Constitution.
- Petitioners seek an injunction barring these specific people from enforcing S.B.8 against petitioners:
- Austin Jackson, state-court judge
- Penny Clarkston, state-court clerk
- Ken Paxton, Texas attorney general
- Stephen Carlton, executive director of the Texas Medical Board
- Katherine Thomas, executive director of the Texas Board of Nursing
- Allison Benz, executive director of the Texas Board of Pharmacy
- Cecile Young, executive commissioner of the Texas Health and Human Services Commission
- Mark Lee Dickson, private party (pro-life activist)
All of these defendants asked the court to throw out the case, for various reasons. The district court said nope, and defendants appealed. This case is important enough it will be appealed to the Supreme Court no matter how the 5th Circuit rules, so the clinic petitioned for the rare certiorari before judgement, which was granted.
With that background in mind, the questions before the Supreme Court, and the Court’s answers, are:
- Should the motion to dismiss the suits against the state-court employees be granted?
Yes, 9-0 for the judge, 5-4 for the clerk.
a) State employees usually have sovereign immunity from lawsuits by their own citizens under the 11th amendment (Alden v Maine). There is an exception allowing citizens to sue state executive officials (Ex parte Young), but that does not apply to the state judicial officials in this case.
b) While federal jurisdiction is limited to actual controversies arising between adverse litigants (Muskrat v U.S.), and the judges and clerks here are not adversarial but neutral with respect to S.B.8.
c) The Supreme Court can’t/won’t issue an injunction preventing a judge from adjudicating (or clerk from processing) a future case, because of due process concerns, ethical concerns, practical concerns, etc. - Should the motion to dismiss the suit against the Texas attorney general be granted?
Yes, 5-4.
a) The Texas attorney general has no enforcement authority for the court to issue an injunction against.
b) Even if the court could enjoin the attorney general from enforcing S.B.8, under the principles of equity that cannot be leveraged as a general injunction over private individuals. - Should the motion to dismiss the suits against the executive licensing officials be dismissed?
No, 8-1.
a) State employees usually have sovereign immunity from lawsuits by their own citizens under the 11th amendment (Alden v Maine); however, there is an exception allowing citizens to sue state executive officials (Ex parte Young), which includes the named executive licensing officials.
b) The majority agrees with Justice Thomas’s assertion that state executive officials are immune when they lack the authority to enforce the challenged law. The majority disagrees with Justice Thomas about whether these named executive licensing officials have the authority to enforce S.B.8. See below. - Should the motion to dismiss the suits against Mr. Dickerson (pro-life activist) be dismissed?
Yes, 9-0.
Mr. Dickerson has supplied sworn declarations attesting that he has no intention to enforce S.B.8 against petitioners. Petitioners have not argued that he intends to file an S.B.8 suit against them.
The court expressly limited its ruling to pre-enforcement challenges - it would be a different story if we were looking at a case where someone actually sued the clinic under S.B.8.
That’s what Justice Thomas said. Justice Gorsuch replies, it seems that licensing officials have authority to enforce the law. Therefore they can be enjoined by the equitable principles expressed in Ex parte Young.
JUSTICE THOMAS suggests that the licensing-official defendants lack authority to enforce S. B. 8 because that statute says it is to be “exclusively” enforced through private civil actions “[n]otwithstanding . . . any other law.” See Tex. Health & Safety Code Ann. §171.207(a). But the same provision of S. B. 8 also states that the law “may not be construed to . . . limit the enforceability of any other laws that regulate or prohibit abortion.” §171.207(b)(3). This saving clause is significant because, as best we can tell from the briefing before us, the licensing-official defendants are charged with enforcing “other laws that regulate . . . abortion.” Consider, for example, Texas Occupational Code §164.055, titled “Prohibited Acts Regarding Abortion.” That provision states that the Texas Medical Board “shall take an appropriate disciplinary action against a physician who violates . . . Chapter 171, Health and Safety Code,” a part of Texas statutory law that includes S. B. 8. Accordingly, it appears Texas law imposes on the licensing-official defendants a duty to enforce a law that “regulate[s] or prohibit[s] abortion,” a duty expressly preserved by S. B. 8’s saving clause. Of course, Texas courts and not this one are the final arbiters of the meaning of state statutory directions. See Railroad Comm’n of Tex. v. Pullman Co., 312 U. S. 496, 500 (1941). But at least based on the limited arguments put to us at this stage of the litigation, it appears that the licensing defendants do have authority to enforce S. B. 8.
~Max