:100: :up:

Institutions and individuals have been forfeiting their credibility for a long time now. The Supremes lost it on Bush v. Gore, as far as I'm concerned. I fantasize about the day the court holds me in contempt, and then allows me to say "But your honors, there is no need to hold me there. I am in contempt of you and I'm in good company. You've earned it!" I'll write you from my jail cell if they let me have a 'puter. :grin:

Anyway, we might have to spin up an underground railroad for the womens. Fuck Texas, and fuck the Supreme Court.

...allowing a law about which there are serious constitutional questions to be enforced--not merely by the state, but by anyone who is inclined to act as a private attorney general or D.A. Who can doubt that such people exist and are ready to act, especially in these dark times? — Ciceronianus

This is unbelievable but yes, I don't doubt for one minute that 'such people exist'.
I've been reading about it in the Guardian:
https://www.theguardian.com/society/2021/sep/02/us-supreme-court-refuses-to-block-radical-texas-abortion-law

Chief Justice John Roberts, Justice Stephen Breyer, Justice Sonia Sotomayor and Justice Elena Kagan dissented.

In her dissent, Sotomayor wrote that the law is “a breathtaking act of defiance – of the constitution, of this court’s precedents and of rights of women seeking abortions throughout Texas”.

“Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand,” she wrote...

...The structure of the law, which allows private citizens to bring civil lawsuits in state court against anyone involved in an abortion, has alarmed both abortion providers, who said they feel like they now have prices on their heads, and legal experts who said citizen enforcement could have broad repercussions if it was used across the United States to address other contentious social issues.

“It is a little bit like the wild west,” said Harold Krent, a professor at Chicago-Kent College of Law. He called it a throwback to early US history when it was common to have privately enforced laws at a time when the government was limited and there was little organized law enforcement.

“It is unbelievable that Texas politicians have gotten away with this devastating and cruel law that will harm so many.”

Joe Biden condemned the new law on Wednesday and reaffirmed the White House’s support for abortion rights.

“We are all going to comply with the law even though it is unethical, inhumane, and unjust,” Dr Ghazaleh Moayedi, a Texas OB-GYN who provides abortions, said. “It threatens my livelihood and I fully expect to be sued. But my biggest fear is making sure the most vulnerable in my community, the Black and Latinx patients I see, who are already most at risk from logistical and financial barriers, get the care they need.”

...given the composition of the court, that such decisions are likely to be repeated whenever a law that is constitutionally questionable but politically or socially agreeable to the Justices is before them. — Ciceronianus

Yes - see my added bolds in excerpt. That's the scary bit - the composition of the Supreme Court. Who the hell knows what's coming next - and what can be done about it ? Absolutely nothing ?

On the other hand, we do have citizen suit provisions in many environmental statutes. While I don't think they allow a bounty, per se, they do allow for attorney's fees and costs. Texas may be saying "Two can play at that game." Maybe we should add bounties to federal law for all the environmental rape that goes on in Texas and elsewhere. We could take the bounty money out of the Federal largess that we bestow upon Texas. Like Biden could pay the teacher salaries docked by no-mask governors and use money that would otherwise go to the state. Sounds Trumpian, but again, two can play at that game.

If they want to have a race to the bottom, I suppose we could teach them a lesson.

This is unbelievable but yes, I don't doubt for one minute that 'such people exist'.
I've been reading about it in the Guardian: — Amity

And this headline:

"You Can Now Carry A Handgun In Texas Without A License, Training Or Background Check"

There may be intelligent people in Texas: they need to make themselves heard. Else one concludes the state of Texas is making of itself a monument - a Babylonian tower - of stupidity. One might say Taliban, but at least the Taliban aspire to some principle, however repugnant.

One might say Taliban, but at least the Taliban aspire to some principle, however repugnant. — tim wood

Yeah, but the Taliban doesn't let women go strapped.

A new Taney Supreme Court. He of Dred Scott "fame."

Perhaps the Texas ladies, after Lysistrata (destroyer of armies), will refrain from all sexual intercourse until and unless guaranteed by contract financial security and resources for any pregnancy. Although Texas eunuchs - er Republicans - may not care, and the rest satisfied to play with their guns.

Yeah, but the Taliban doesn't let their women go strapped. — James Riley

Almost my whole point. Repugnant and repulsive as they may be to modern sensibility, they are not altogether stupid.

Almost my whole point. Repugnant and repulsive as they may be to modern sensibility, they are not altogether stupid. — tim wood

Yeah, keep those women defenseless, reliant upon men. You know, like the Texas legislature.

On the other hand, we do have citizen suit provisions in many environmental statutes. While I don't think they allow a bounty, per se, they do allow for attorney's fees and costs. Texas may be saying "Two can play at that game." — James Riley

There are statutes allowing for enforcement by private citizens in certain circumstances, yes. However, they're generally premised on the fact the prohibited conduct poses a risk to or a limitation on the rights of those granted the authority to enforce the law. Open government laws, environmental laws as you point out.

Abortions won't pose a risk to or threaten private citizens who seek to enforce this Texas law, however. It may offend them, they may think it unethical or a violation of God's laws, they may think it's murder, but we don't (or haven't) granted private citizens the right to prosecute others for murder or for religious or philosophical reasons. Perhaps Texas is nostalgic for the days of the vigilantes.

A new Taney Supreme Court. He of Dred Scott "fame." — tim wood

Yes, though property and money were at issue then.

I'm normally a shy, humble sort, — Ciceronianus

:chin:

To stick with the Wild West theme, you can always shoot a few judges while there's a democratic majority.

Perhaps the early death rattle of the republic. The court is packed, the Senate unresponsive to the majority, and a temporary allocation of power to those who see the end written on the wall. The only avenues left are delay, procedural frustration, rallying the base, and driving the opposition to non-participation (due to hopelessness, numbness, or short attention span).

For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. California v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 8). And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention. Clapper v. Amnesty Int’l USA, 568 U. S. 398, 409 (2013) (“threatened injury must be certainly impending” (citation omitted)). The State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly. Nor is it clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law. See Ex parte Young, 209 U. S.123, 163 (1908). Finally, the sole private-citizen respondent before us has filed an affidavit stating that he has no present intention to enforce the law. — Unsigned Opinion

Unsigned Order

So the state hands some private citizen its stick with which to beat other private citizens and then claims that is not using the stick and so cannot be enjoined. And the Supremes say that they cannot enjoin the mechanism by which the stick is used, even though the state is actually the entity responsible for the functioning of the stick (courts entering judgment and then using governmental process to enforce such judgment). This is procedural due process run amok and spitting in the face of substantive due process. Everyone sees that the outcome is unconstitutional (state interference with protected right without using a narrowly tailored policy to achieve a compelling governmental purpose), but they will just look the other way until such time as the proper procedure is used. It is almost like having to name Rumpelstiltskin to save your baby.


For those keeping score at home, by way of quick reading. Personal jurisdiction is the Court's ability to bind parties to a litigation to the authority of the court and make them do whatever the court orders. What this unsigned order seems to suggest is that where the court cannot make the defendants do what the plaintiffs ask, there is a lack of personal jurisdiction.

So clarify for me what this is specifically about. My understanding of the Texas law is that it provides civil remedies against abortion clinics and those who profit from abortions (not the women themselves) performed after the fetus is 6 weeks old. The Plaintiffs in those suits may be ordinary citizens, apparently granting standing to the general public.

This is not a criminal law, correct? That being the case, abortions have not been banned, but abortion clinics will be subject to potential civil penalty in the event they are successfully sued.

The question then becomes one of immediate harm that would warrant injunctive relief. Abortion clinics may continue to operate in Texas, and they will no doubt be sued, but any judgment would be appealable on the basis of the Constitutional violation, meaning no actual judgment could be enforced prior to the Court eventually ruling.

This is distinct from a criminal matter where an abortion clinic doctor would be immediately incarcerated for performing an abortion and the matter would immediately find its way in the courts. In a criminal law scenario, an abortion clinic could be raided and shut down by the government, but that is not the case here

I recognize the denial of the injunctive relief places the abortion clinics in peril because they may one day be assessed significant monetary penalty if the law is upheld, but, as a highly technical matter, the denial of injunctive relief prior to the adjudication of the legal matter on its merits is not that uncommon. Whether the litigants are placed in immediate harm due to fear that Roe v. Wade might be overturned and the civil law upheld is that technical question that at least gives some colorable basis for denial of the injunctive relief.

The outrage is likely more due to the signaling that Roe v. Wade might soon be overturned and what is now considered a civil right is going to be removed. But should this have been a law of a different sort granting a new form of civil remedy, I'm not sure it would be so surprising if the injunctive relief was denied.

In any event, this procedural moment will be a minor footnote in history if Roe v. Wade is squarely overturned. The need for such complicated schemes to limit abortions will not need to be made.

And for the record, I am pro-choice, but just trying to make sense out of the situation.

The question then becomes one of immediate harm that would warrant injunctive relief. Abortion clinics may continue to operate in Texas, and they will no doubt be sued, but any judgment would be appealable on the basis of the Constitutional violation, meaning no actual judgment could be enforced prior to the Court eventually ruling. — Hanover

One would think, but then it wasn't. They punted because the "right" party wasn't named even though it is the state that enforces private rights of action. It is like the court now expects people to bring claims against a class of defendants in anticipation of the defendants maybe doing something. So far as I know, actions against a class of defendants are a non-starter. The only way to actually get the injunction is potentially to play whack a mole with actual people who have brought suit (the "plaintiff") and hope that the Supremes will still decide the case even after the plaintiff drops the suit and alleges mootness.

Abortions won't pose a risk to or threaten private citizens who seek to enforce this Texas law, however. — Ciceronianus

Agreed. That is a distinction with a relevant difference. Also, those other laws usually required a failure of the Administration to step up and enforce, first.

As to vigilantes, I could be wrong but I recollect some reading that the originals, in CA, shortly after the gold rush started in the 1850s, were first spun up to counter wife beating. The men in the community would gather and have a little wall-to-wall counseling with the offender. If that didn't work, well, let's just say that "lynching" doesn't necessarily have to be a southern or a racist thing. It has a long history out west, for white people. A neck tie party. Their mission expanded beyond wife beating of course, but I guess that is where it started.

If true, then I find it interesting that the men of old used to use vigilante justice to protect women's rights. Some Texas men have fallen from that regard.

Oh well, as someone opined on the Afghanistan thread, some women like it. I noticed Texas put all their female legislators out front for the signing. Kind of like Republicans always sprinkling women and blacks and Hispanics in their photo ops. Are there a few legit? Sure. But we all know signaling when we see it.

A tweet I read said:

"When the penalty for aborting after rape is more sever than the penalty for rape, then you know it's a war on women." mohamad safa.

And another:

"End the filibuster. Expand the Supreme Court. Break the glass and pull the alarm because this is a fucking emergency." Andy Richtor

I think I agree, and it's not just the Texas deal. I think I will emphasize: It's not just the Texas deal. I think it's time. To hell with the potential future scenario when it's used against us. The one way to guarantee that future is to not do it now. They give no quarter. If we do it, they may never sit again. I'd be willing to risk it. I know, it's not up to me and it's not just my ass on the line. But it's my opinion.

The Supremes and the New Texas Abortion Law

Perhaps the early death rattle of the republic. The court is packed, the Senate unresponsive to the majority, and a temporary allocation of power to those who see the end written on the wall. The only avenues left are delay, procedural frustration, rallying the base, and driving the opposition to non-participation (due to hopelessness, numbness, or short attention span). — Ennui Elucidator

It's not the death rattle of the Republic. Progressive policy and practice (in the US and everywhere else) is generally an uphill battle, with only a chance that Virtue will be victorious in the next election.

We without long memory (having not read much history) see current problems as exceptions. What look like exceptions may be rules. That our economic system (capitalism) is based on exploitation in order to maximize profit or stockholders, is a rule that produced a lot of suffering, and has been doing this since before the Pilgrims landed on Plymouth Rock. Women won universal suffrage only 100 years ago, after a 72 year struggle (1849 to 1920). Blacks were emancipated in 1863, but were legally suppressed for another century, and even then they did not gain real equality. They still haven't.

Most people are working class, but the quality of life for working class people, men and women, has never been great -- workers have rarely had enough power to gain good wages, decent working conditions, and ancillary benefits for working families. The American founders owned slaves, true enough, but they also considered "poor working white people" as white trash. That attitude has prevailed since Plymouth Rock.

So, in every generation we see things that make us think of Republic Death Rattles. What looks like the 'end times' ("it can't get any worse than this!") is just business as usual. Look, the Republic doesn't exist to serve you. Be grateful for crumbs, but the Republic is built around providing the ways and means for the wealthy. Its health is robust.

What to do about it? A revolution, like as not.

But should this have been a law of a different sort granting a new form of civil remedy, I'm not sure it would be so surprising if the injunctive relief was denied. — Hanover

Picture a law giving a private right to any person to sue another for maintaining/opening a building in which another person practices Christianity where there is a statutory award (regardless of harm/damages) of no less than $10,000 plus costs/fees. Do you see the Supremes enjoining the state from allowing such cases to be prosecuted within the state courts pending the ruling on the Constitutionality of the law?

(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. — Fetal HeartBeat Law

Fetal Heart Beat Bill Text: TX SB8

I hear you BC, the apocalypse is just round the corner. "BUT THIS TIME IT IS DIFFERENT!"

There are times where cynicism is warranted and there are times where we have had armed groups march on the capitol to be welcomed by the outgoing minority party. You can decide whether the alarm bells are ringing or we are just mishearing the sound of the close of day at the stock exchange.

Dammit. You're making me read and interpret a law without being paid for doing so.

This is not a criminal law, correct? — Hanover

In all honesty, I'm not sure what the hell it is. It's worded as a criminal law would be, I think. But it reads as though a criminal law was drafted initially, but then altered to make it enforceable by private citizens, but as much of a law as would impose a fine for prohibited conduct as it could otherwise be.

Abortion clinics may continue to operate in Texas, and they will no doubt be sued, but any judgment would be appealable on the basis of the Constitutional violation, meaning no actual judgment could be enforced prior to the Court eventually ruling. — Hanover

According to the law:

"a physician may not knowingly perform or induce an
abortion on a pregnant woman if the physician detected a fetal
heartbeat for the unborn child as required by Section 171.203 or
failed to perform a test to detect a fetal heartbeat."

I find the summary of the law by the House Research Organization of the Texas House of Representatives more readable than the law itself. The summary seems accurate on a quick review of the text (if I'm looking at the right text--I'm not sure what an "Enrolled" law is in Texas. According to the HRO:

"SB 8 would establish the Texas Heartbeat Act, which would prohibit a
physician from performing an abortion on a woman who was pregnant
with an unborn child who had a detectable fetal heartbeat. The bill would
require a physician, before an abortion was performed, to conduct a test to
determine whether a fetal heartbeat was detected."

"Under the bill, a physician could not
knowingly perform or induce an abortion on a pregnant woman if the
physician detected a fetal heartbeat for the unborn child or failed to
perform a test to detect a fetal heartbeat. A physician would not violate
this provision if the physician did not detect a fetal heartbeat while
performing the required test."

However, according to the HRO:

"No enforcement of provisions
relating to the detection of a fetal heartbeat or of certain Penal Code
provisions in response to violations of the bill could be taken or threatened
by the state, a political subdivision, a district or county attorney, or an
executive or administrative officer or employee of the state or a political
subdivision against any person, except as provided in the bill."

But, says the HRO:

"The bill would authorize any person,
other than an officer or employee of a state or local governmental entity in
the state, to bring a civil action against any person who:
 performed or induced an abortion in violation of the bill's
provisions;
 knowingly engaged in conduct that aided or abetted the
performance or inducement of an abortion, including paying for or
reimbursing the abortion costs through insurance or otherwise,
regardless of whether the person knew or should have known that
the abortion would be performed or induced in violation; or
 intended to engage in the conduct described above.
The bill would allow a person to bring a civil action until the sixth
anniversary of the date the cause of action accrued." (I've seen "fourth anniversary date" as well, somewhere).

The text of the law provides that a successful private enforcer of the law would be entitled to:

"(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."

But, according to the HRO: "A court could not award costs or attorney's fees under the Texas Rules of
Civil Procedure or any other rule adopted by the supreme court to a
defendant in a civil action." Also: "Any person, including an entity, attorney, or law
firm, who sought declaratory or injunctive relief to prevent this state from
enforcing certain laws that regulate or restrict abortion would be jointly
and severally liable to pay the costs and attorney's fees of the prevailing
party, as defined in the bill."

In addition:

"SB 8 would prevail over any conflicting law. The state would
have sovereign immunity, a political subdivision would have
governmental immunity, and each officer and employee of the state or a
political subdivision would have official immunity in any action, claim, or
counterclaim or other type of legal action that challenged the validity of
Health and Safety Code ch. 171 or its application."

A complicated bit of legal draftsmanship.

Abortion clinics may continue to operate in Texas, and they will no doubt be sued, but any judgment would be appealable on the basis of the Constitutional violation, meaning no actual judgment could be enforced prior to the Court eventually ruling. — Hanover

Well, where I come from, judgments may be enforced even on appeal unless a court rules otherwise. So it may be that such relief would have to be sought--and who could say what court would stay enforcement of a judgment under a law the enforcement of which the Supremes refused to stay?

You may read the law and come to your own conclusions, but it seems to me to be drafted in such a manner (by prohibiting award of attorney's fees to defendants, making defense lawyers liable for costs and fees, by limiting affirmative defenses which may be raised, putting the burden of proof on the defendant, and other means) that an action to enforce the law will be very difficult in not impossible to defend against.

My primary quarrel with the Supremes is their failure to act.

But, according to the HRO: "A court could not award costs or attorney's fees under the Texas Rules of
Civil Procedure or any other rule adopted by the supreme court to a
defendant in a civil action." Also: "Any person, including an entity, attorney, or law
firm, who sought declaratory or injunctive relief to prevent this state from
enforcing certain laws that regulate or restrict abortion would be jointly
and severally liable to pay the costs and attorney's fees of the prevailing
party, as defined in the bill." — Ciceronianus

So if the defendant wins, he can't get his court costs paid by the person who brought the case, but if the defendant loses, he has to pay the court costs of the person who brought the case?

Some Democrat state should make an equivalent law regarding buying guns or registering as a Republican and see if the Supreme Court will make the same decision.

So if the defendant wins, he can't get his court costs paid by the person who brought the case, but if the defendant loses, he has to pay the court costs of the person who brought the case? — Michael

No I don't think that's the case. The defendant can't obtain reimbursement for the defendant's costs and fees if the defendant manages to prevail, though.

Yes, though property and money were at issue then. — Ciceronianus

Well, aren't women's bodies (property) and civil penalties (money) at issue now? "The state's interest" in protecting the property rights of slavers (fetuses), I think, has been codified in effect ever since Roe vs Wade, which is why Congress needs to enact legistlation in order to enshrine in a Federal statute (The Gilead Amendment) as a civil right a separation of womb and state.

How will this happen? End the jim crow filibuster. The Dems have to end it this fall. (Fuck Joe Manchin!) If they don't, then they will almost certainly lose their governing majority in the 2022 midterms.

No I don't think that's the case. The defendant can't obtain reimbursement for the defendant's costs and fees if the defendant manages to prevail, though. — Ciceronianus

I don't remember that much, but I thought there were some things the courts found to be solely within their wheelhouse, and the legislative and executive branch lacked jurisdiction to encroach into those areas. You would think that costs and fees would be in there. Or the court could could order some relief in equity. Maybe not. I knew the courts were emasculated but I didn't know how much.

With the likes of Butt-chug Brett and Amy Barrett on SCOTUS (!!!) we shouldn't really be surprised by anything at this point, but... still can't help but be slightly shocked by how brazen this was (ignoring precedent, making special exceptions for a conservative hobbyhorse, etc). Bad enough on its own, but maybe even worse in terms of what it indicates moving forward.

It also doesn't help that the Dems continue to insist on showing up to gunfights with a plastic butter knife.

That's the scary bit - the composition of the Supreme Court. Who the hell knows what's coming next - and what can be done about it ? Absolutely nothing ? — Amity

To stick with the Wild West theme, you can always shoot a few judges while there's a democratic majority. — Benkei

Here's a quick shoot-out 21st Century solution.

TikTokers 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.

...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.
— Guardian article: abortion whistleblower website flooded

All very well. But that kind of action can work both ways. And there are probable work-arounds.

Where is the coordination between appalled people on the ground, political/legal activism and good journalism to block this ? What is Biden doing ?

This reminds me so much of how Trump got into power in the first place.
The sense that the wrecking ball is swinging and nothing can stop it...

No wonder the US gifted Afghanistan to the Taliban. They share the same hateful, fucked up, attitudes towards woman.

Also maybe Americans will come to realize the supreme court as an institution is a vile, anti-democratic house of shit, no matter who sits on it, but more probably liberals will take the line that no actually it's just one or two (5?) bad apples nominated by Republicans. As if the entire institution isn't a fucking sham that occasionally dangles some cultural compromise like meth to keep the economic serfs at bay.

No wonder the US gifted Afghanistan to the Taliban. They share the same hateful, fucked up, attitudes towards woman. — StreetlightX

This isn't correct on a couple of levels, the first being that life for a woman in Afghanistan bears little resemblance for life as a woman in the US, with likely 0% of the US women wishing Taliban policies would be instituted in the US upon them.

The other being that I take the pro-life folks at their word that their concern is over fetal rights and not a desire to subjugate women. Every reasonable person within the abortion debate places some limit on when abortions can occur based upon the belief at some point the fetus does have protectable rights. The fact that you place that number at 3 months (or whenever) and Texas at 6 weeks is an important distinction, but it doesn't make them hateful and fucked up.