Abortion

[Danoff]

🔥



Of course, abortion isn't actually a constitutionally protected right. Roe v. Wade's holding was an interpretation of the Due Process Clause, and while it's held for as long as it has, it's far from indestructible. It's also not terribly expansive, as Texas law simply traipsed around it.

This is entertaining, however.

I think it's also unfair to say that Texas has already ended the protections in Roe simply because SCOTUS didn't issue an injunction. There's nothing that says SCOTUS won't ultimately strike down the Texas law, and there's still further nothing that says SCOTUS would uphold lawsuits filed under that law. So these statements are premature, but they are based on an apparently reasonable assessment of the future.

Still, I wish people could put a more accurate point on their outrage.

 

[McLaren]

Supreme Court give the go-ahead on Texas' 6-week abortion ban. (Politico)

Particularly concerning is this portion of the article:


Am I right in saying that this is the Supreme Court literally allowing Texas to suspend Roe vs. Wade?

A $10,000 "reward" to anyone who wins a case against an dividual who even assists someone getting an abortion is one of the most disgusting things ever.

 

[UKMikey]

 

[TexRex]

A $10,000 "reward" to anyone who wins a case against an dividual who even assists someone getting an abortion is one of the most disgusting things ever.

Except that makes it sound like a bounty that people will be rewarded by the state or some anti-choice conservative groups, but it's to be paid by the subject of the suit.

Guarantee this will be used in a SLAPP-style capacity to coerce silence among advocates, and legal fees in unsuccessful attempts will undoubtedly be covered by said conservative groups. Subject to judicial discretion, of course, but the fear of litigation will turn into fear of advocacy with nothing lost by those who take legal action with such funding. Government actors get to remain hands-off enough that it's not in violation of speech protections.

 

[Famine]

Be a shame if the internet overloaded the Abort Report whistleblower site with malicious misinformation. A real shame.

 

[Eunos_Cosmo]

One thing I'm wondering about is how practical the civil enforcement of this law could be. Say a woman gets an abortion at 10 weeks pregnant in Texas, without telling anyone. It's not a criminal act by the nature of this law. And since the state has no enforcement mechanism of its own, and I doubt they could release patient records, who would even know? If nobody is aware of it, then they can't sue for it either. Will the state be compelled to release medical records? That would seem actually illegal.

The other thing I was thinking about is if a suit is brought, and it is successful, what entity compels the subject of the suit to pay the $10,000? Is it the state of Texas? Is it the specific court? Could the subject sue that entity under the protection of Roe V Wade and thereby just not pay it?

 

[UKMikey]

Be a shame if the internet overloaded the Abort Report whistleblower site with malicious misinformation. A real shame.

The group’s spokesperson Kimberlyn Schwartz told POLITICO that protesters have flooded their "whistleblower" website with phony tips in recent days, but claimed "they’ve been extremely easy to spot and filter out."

Perhaps this is just bravado, as there must be an upper limit to the number of calls they can deal with at any one time. I hope this is just the start.

Presumably the law doesn't ban out of state abortions although they'll become even harder if more states follow suit.

 

[Danoff]

Two points:

1) It's difficult to get an injunction in a case where the penalties are limited expressly to civil court. That's not prison time, that's just money. Courts typically don't issue injunctions when it's just money that changes hands (and can change back). That being said, in this case, there is more at stake than money, but it was created to be enforced entirely in civil court specifically to avoid the injunction. And it worked. That doesn't mean that the Texas law is going to hold. It's a really really weird law. Can you imagine if anyone could bring a civil suit in any murder case? That's practically what this is. There are so many reasons (such as standing) that make the Texas law really suspect. If the supremes are going to overturn Roe, the Texas law is a really weird one to do it with. I wouldn't be surprised if they ultimately struck the Texas law down in route to overturning Roe.

2) There is another case pending to overturn Roe, a 15 week gestational ban in Mississippi. That case looks a little weird when it comes to standing, but it seems like a much more straightforward place to overturn Roe than the Texas law.

Takeaway, I'm not convinced that the Texas law is going to hold up. But I still think Roe is going to fall. I think the supremes are patient enough to pick the right case.

 

[UKMikey]

If the supremes are going to overturn Roe

"Love child, never meant to be" sounds like an appropriate disc to spin under these circumstances.

 

[TexRex]

Chief Justice Roberts dissented! The Court voted 5-4 against granting an emergency injunction with Roberts joining Breyer, Kagan and Sotomayor. Roberts has made clear that he'd love to see Roe binned, but he's also principled and it isn't just any attempt to do away with it that he will support. He also made clear that the ruling doesn't imply constitutionality of the Texas law and that there was a procedural concern. A case that climbs through the system could see the law overturned.

 

[Keef]

@TexRex Well, that's unfortunate. I guess there won't be much hookin em going on in Texas anymore.

 

[Eunos_Cosmo]

From what I understand (which could be understood wrongly) the reason they chose to go the civil route was so that no government entity could be sued...because there is no actual state enforcement. I've been trying to play this out in my head when one of these cases inevitably lands in court - where does the actual enforcement happen?. If, for instance, planned parenthood has a judgement against it for $10,000 for a particular case, what mechanism exists to force them to pay? If the court orders them to pay, couldn't planned parenthood then sue the court under RvW protections and not pay?

 

[Danoff]

From what I understand (which could be understood wrongly) the reason they chose to go the civil route was so that no government entity could be sued...because there is no actual state enforcement. I've been trying to play this out in my head when one of these cases inevitably lands in court - where does the actual enforcement happen?. If, for instance, planned parenthood has a judgement against it for $10,000 for a particular case, what mechanism exists to force them to pay? If the court orders them to pay, couldn't planned parenthood then sue the court under RvW protections and not pay?

It would be like any civil court finding of damages owed. Failing to pay would be its own transgression.

PP would just appeal the decision to pay. Which is what the supremes are anticipating when they say they have't ruled on the constitutionality of the law. So far, from what I've gathered, the merits of the actual law haven't been fully and properly argued, and it's a tricky law. They want a case in front of them where they can actually determine what to make of the state law. I'd argue an injunction was appropriate, because of the immediate effect it will have on people, but it was specifically designed to avoid that injunction.

The reason they chose the civil route is to prevent criminal prosecution, which would end up landing people with possible criminal sentencing - which it's easier to get the court to issue an injunction for. Jailtime can't be given back to someone who shouldn't have served it.

I'm fuzzy on whether multiple people can sue for the same abortion. I think multiple people can be sued for the same abortion. So for example you could have some whistleblower sue 20 different people for the same abortion, wanting to collect $10k from each person. The doctors, the counselors, transportation, friends, parents... basically everyone involved. Might even be able to go up the chain of command and sue managers or CEOs. But I don't know if 20 different whistleblowers can EACH sue 20 different people for a single abortion. I'm really not deep into understanding of this law, I only know that it's super weird.

If somehow the payout is limited to $10k, I could actually see PP just plowing ahead and taking the risk that they'll pay $10k in each abortion. That's of course assuming this holds up at the supreme court, and I still don't think it will. This is such a strange precedent.

 

[Eunos_Cosmo]

It would be like any civil court finding of damages owed. Failing to pay would be its own transgression.

This is the enforcement action and where it seems like to me this law runs up against RvW.

 

[Danoff]

This is the enforcement action and where it seems like to me this law runs up against RvW.

I'm not sure what you mean.

If you fail to pay a civil judgment, they can seize property, garnish wages, summon you to court, throw you in jail, find you in contempt, it all depends on how you try to get out of it. Bottom line, you run into separate legal transgressions as you try further and further to avoid paying. Ultimately, you can be imprisoned for failing to comply with a court order - the nature of it might depend on the state. It's not imprisonment for getting an abortion, it's imprisonment for failing to comply with a court order.

 

[Eunos_Cosmo]

I'm not sure what you mean.

If you fail to pay a civil judgment, they can seize property, garnish wages, summon you to court, throw you in jail, find you in contempt, it all depends on how you try to get out of it. Bottom line, you run into separate legal transgressions as you try further and further to avoid paying. Ultimately, you can be imprisoned for failing to comply with a court order - the nature of it might depend on the state. It's not imprisonment for getting an abortion, it's imprisonment for failing to comply with a court order.

Being imprisoned for failing to comply with a court order to pay a bounty would seemingly put the court issuing that order, ultimately, at odds with RvW because the underlying action (the helping abortion bit) is not actually a crime and the law doesn't seem to even try to establish that it is. The court ordering imprisonment for, ultimately, an abortion (or in the case of somebody advising on an abortion, literally nothing) seems to be a pretty clear violation of protected rights.

The law seems to set up an entirely novel idea of law itself, one that is seemingly limitless and incredibly dangerous. If SCOTUS lets this slide, than some pretty remarkable things are on the table and we might as well not even have constitutional protections.

 

[Danoff]

Being imprisoned for failing to comply with a court order to pay a bounty would seemingly put the court issuing that order, ultimately, at odds with RvW because the underlying action (the helping abortion bit) is not actually a crime and the law doesn't seem to even try to establish that it is. The court ordering imprisonment for, ultimately, an abortion (or in the case of somebody advising on an abortion, literally nothing) seems to be a pretty clear violation of protected rights.

You've either appealed the abortion related judgment and lost, or failed to appeal it. Either way the abortion related judgment is in the books, done. The jail time would be its own matter - failing to comply with a court order (or contempt or maybe even something else), and that would be a separate issue that you can contest (but will lose). RvW wouldn't come into the picture. It would be about whether you violated a court order.

The law seems to set up an entirely novel idea of law itself, one that is seemingly limitless and incredibly dangerous. If SCOTUS lets this slide, than some pretty remarkable things are on the table and we might as well not even have constitutional protections.

It's true, the precedent is rather insane. It's worth an injunction on that account alone.

 

[TexRex]

Is cause recognized at all when it comes to judgment in civil cases apart from a case-by-case basis on appeal?

It's true, the precedent is rather insane. It's worth an injunction on that account alone.

It feels like that's what Roberts was getting at in his dissenting opinion. The Chief Justice of the Supreme Court saying something is unprecedented carries a bit of weight.

I was thinking about this and it's like it was specifically crafted to avoid an injunction. I can't imagine it's going to hold up on case challenge before the Supreme Court, but it was designed in such a way that that's really the only way to kill it, and that means it has to go into effect. That's a tremendous achievement in performativity. It really feels like the majority denying injunction is also party to the performativity, which can't please Roberts and validates the subject of Breyer's newest book.

 

[Eunos_Cosmo]

You've either appealed the abortion related judgment and lost, or failed to appeal it. Either way the abortion related judgment is in the books, done. The jail time would be its own matter - failing to comply with a court order (or contempt or maybe even something else), and that would be a separate issue that you can contest (but will lose). RvW wouldn't come into the picture. It would be about whether you violated a court order.

It's true, the precedent is rather insane. It's worth an injunction on that account alone.

Ok lets say Texas passes a new law that allows anyone to sue anyone else for...lets say breathing (it's not really that far removed from giving somebody a ride to an abortion clinic) and wins the suit. You're telling me that the court is going to follow through and order the judgement to be paid? There is no original, fundamental underlying violation of law and therefore, abstractly (practically may be another matter), there cannot be a judgement ordered. There's no there, there! It's like meta law, its an abomination.

It reminds me of a contract that requires in its terms some action that is illegal. It makes the contract void, regardless of any violation of those terms.

 

[Danoff]

Ok lets say Texas passes a new law that allows anyone to sue anyone else for...lets say breathing (it's not really that far removed from giving somebody a ride to an abortion clinic) and wins the suit. You're telling me that the court is going to follow through and order the judgement to be paid? There is no original, fundamental underlying violation of law and therefore, abstractly (practically may be another matter), there cannot be a judgement ordered. There's no there, there! It's like meta law, its an abomination.

I see what you're saying, thanks for clarifying.

Texas did actually make abortion illegal (at least based on my understanding of the law). They also said that the violation of the law shall not be enforced by the state of Texas, but by individuals in civil court. That's what makes this so weird. There is a fundamental violation of the law, but the government of Texas will not be policing that violation.

Perhaps an analogy would be copyright vs. patent infringement. Copyright enjoys criminal law protection. You can be imprisoned for copyright violation even if the copyright holder does not press charges. The FBI can investigate you, and you can get a criminal judgement. Patent infringement on the otherhand is entirely civil. The FBI cannot investigate patent infringement, and you can't serve jail time for infringing someone's patent. You pay damages, that's it, and it's only brought by the offended party.

That of course makes sense because there is actually an offended party. They effectively have to police their own patent rights. It makes a hell of a lot less sense in the Texas law where individual citizens are somehow given rights over the unborn in other individual citizens.

So if you got sued under a similar law for not breathing, and were found to owe damages to someone in civil court, meaning you lost your civil case, then if you fail to pay yes I think a court would enforce that. The miscarriage of justice is the part where you were found to owe damages in the original suit. If you appealed that (or not) and ultimately lost, the rest of it (making sure you pay) is trivial in the law.

There's so much wrong with the Texas law it's hard to know where to begin. I've barely wrapped my head around it. I just don't see how anyone can have standing to bring an abortion suit. You'd need to show you were damaged... but how?

 

[TexRex]

Compounding insanity, the law prohibits judges awarding defendants legal fees from plaintiffs bringing forward frivolous suits, and the bounty exceeds $10,000 if and when a judge orders the defendant pay a plaintiff's legal fees on judgment.

It's really just weaponizing the courts for grievance. It's all manner of awful and it can't possibly be affirmed, but damage has been done.

 

[Danoff]

damage has been done.

Yup. It was slippery and it did what it set out to do, which was at least temporarily ban abortion.


There's another aspect to this law which makes it even more likely to get struck down, which is that it has implications for free speech. Since counseling someone, or encouraging them, to have an abortion is covered, we have political speech, maybe even in other states, that can be considered to be illegal. At least a part of the Texas abortion law seems to violate the first amendment. There are already donation drives being set up to bring in funds from around the country to help women in texas who want abortions. But the mere act of donating could violate this new law, even from another state.

 

[TexRex]

Yay, Ken!

[EDIT: This is a two-parter, so start with the top if you read it.]



I very nearly said in my previous post that I kind of want people to turn this ****ing awful monster on the oozing sacks of **** who loosed it, but I caught myself because that's really not something I want. Retaliation isn't the way to go, particularly if it means using the system they created here.

 

[Eunos_Cosmo]

If this manages to hold up, what rights could even survive, aside from the particular set of ones that (state) congress specifically allows - how's that for a complete end run on and bastardization of the entire idea of the United States? Gay marriage would seem to be next on the chopping block. You could just as easily write a broad law allowing anyone to sue anyone who facilities the marriage of same sex couples...there's no material difference.

Conservatives are so worried that progressives will destroy the fabric of the country if they acquire too much power that they are willing to destroy the fabric of the country to acquire enough power to stop them from doing it.

I genuinely feel like this is a major inflection point in our history, all because some lawyers in Texas decided to get cute.

 

[Danoff]

I genuinely feel like this is a major inflection point in our history, all because some lawyers in Texas decided to get cute.

I still don't think it will hold up. It has too many implications, including and especially political speech.

It is an inflection point though, because it represents just how far some people are willing to go to get their way. They're willing to screw up absolutely everything, like you said. I agree that you could put the same bounty on same sex marriage, or homosexuality altogether for that matter.

This is the republicans right now in a nutshell, willing to burn everything down in a fit of toddler rage over not getting their way.

 

[Jezza819]

If this manages to hold up, what rights could even survive, aside from the particular set of ones that (state) congress specifically allows - how's that for a complete end run on and bastardization of the entire idea of the United States? Gay marriage would seem to be next on the chopping block. You could just as easily write a broad law allowing anyone to sue anyone who facilities the marriage of same sex couples...there's no material difference.

Conservatives are so worried that progressives will destroy the fabric of the country if they acquire too much power that they are willing to destroy the fabric of the country to acquire enough power to stop them from doing it.

I genuinely feel like this is a major inflection point in our history, all because some lawyers in Texas decided to get cute.

Well you're already starting to see from various white supremacist groups heaping praise on the Taliban for how they're handling returning to power. They like how the Taliban are sweeping in, killing anyone opposed to them, establishing strict adherence to religion as law. Conservatives seem to be heading down a similar path with this Texas BS.

Like you said gay marriage would be the next to go followed by interracial marriage, then inter faith marriages. After all we must keep the race and religion pure.

 

[TexRex]

This is the republicans right now in a nutshell, willing to burn everything down in a fit of toddler rage over not getting their way.

(I hope there's no NWA crossover here.)

 

[ryzno]

All this court talk, I have a question, albeit off topic.
When did you have to start qualifying for a public defender? Back in my old crime days you ask for one and received one. Now with no lawyer and a few grand later I'm screwed cause the case is taking longer than the lawyer thought and he dropped me when we didn't have any more money and asked for a payment plan.
The public defender office said there was no way they can process my app much less talk to anyone by the 21st. I have 3 more court appearances on the 15th 27th of this month and 7th of October.
I'm broke and screwed. Have a family friend but she can't do anything cause she can only practice law in North Carolina.

 

[Danoff]

All this court talk, I have a question, albeit off topic.
When did you have to start qualifying for a public defender? Back in my old crime days you ask for one and received one. Now with no lawyer and a few grand later I'm screwed cause the case is taking longer than the lawyer thought and he dropped me when we didn't have any more money and asked for a payment plan.
The public defender office said there was no way they can process my app much less talk to anyone by the 21st. I have 3 more court appearances on the 15th 27th of this month and 7th of October.
I'm broke and screwed. Have a family friend but she can't do anything cause she can only practice law in North Carolina.

You can probably ask for a continuance to secure council. If your lawyer dropped you, and you need to wait for a public defender, the court should probably be sympathetic. Your family friend should probably know this.

Don't sit on it though, call the clerk and have a discussion about it ahead of time.

 

[TexRex]

All this court talk, I have a question, albeit off topic.
When did you have to start qualifying for a public defender? Back in my old crime days you ask for one and received one. Now with no lawyer and a few grand later I'm screwed cause the case is taking longer than the lawyer thought and he dropped me when we didn't have any more money and asked for a payment plan.
The public defender office said there was no way they can process my app much less talk to anyone by the 21st. I have 3 more court appearances on the 15th 27th of this month and 7th of October.
I'm broke and screwed. Have a family friend but she can't do anything cause she can only practice law in North Carolina.

The system is likely under strain due to COVID. So very many things are. I'm also seeing that cuts to public defender budget (it's taxpayer funded) has been an agenda pushed by the Georgia executive since at least January 2020 but I don't know what's gone into effect. Mind you the current chief executive has been in place since January of 2019, having been elected in 2018.