Opponents of the Texas Abortion Ban Are Struggling to Find Defendants They Can Sue To Prevent Its Enforcement

“S.B. 8, the Texas abortion ban that took effect at the beginning of this month, was designed to frustrate pre-enforcement challenges by relying on private lawsuits to deter the conduct it forbids. A recent ruling by the U.S. Court of Appeals for the 5th Circuit shows how effective that strategy is. Because S.B. 8 explicitly bars Texas officials from enforcing its restrictions, the 5th Circuit said on Friday, they cannot be sued to block its implementation—a decision that illustrates the “complex and novel antecedent procedural questions” that the Supreme Court mentioned when it declined to intervene in this case.

The implication is that people who object to the law, which is plainly inconsistent with Supreme Court precedents, cannot challenge its constitutionality until someone is sued for performing or facilitating a newly prohibited abortion. But meanwhile, the law has already had its intended effect, since the threat of litigation has led Texas clinics to stop serving the vast majority of women seeking abortions.”

What banning abortion at 6 weeks really means

“On September 1, nearly all abortions became illegal in Texas.

A state law signed by Gov. Greg Abbott earlier this year bans abortions as soon as a fetal heartbeat can be detected. That’s as early as six weeks’ gestation, before many people know they are pregnant, making the bill a near-total ban on the procedure.

Earlier this week, abortion providers asked the Supreme Court to stop the ban from going into effect while legal cases continue. But the justices did not take action, allowing the six-week ban, which contains no exceptions for cases of rape or incest, to become the law of the land in Texas.

So-called heartbeat bills like Texas’s are not new. At least eight have passed in recent years, with a raft of states enacting the bans in 2019. But until the Texas law, no heartbeat bills have gone into effect — they have faced court challenges since they run directly counter to Roe v. Wade, the landmark 1973 decision that established the right to an abortion in America.”

“the Texas bill was intentionally written to prevent courts from blocking it before it takes effect. Rather than having state officials enforce the abortion ban, the bill essentially empowers private citizens to do so by suing abortion providers, according to the Texas Tribune. This unusual provision makes it harder for abortion-rights groups to sue state officials to block the law, since they aren’t technically the ones who will enforce it.

Regardless, legal challenges to the Texas law remain ongoing, and it could still be struck down. But for now, abortion providers in Texas say they will abide by the law, and most Texans will likely need to travel out of state for an abortion — if they can afford to do so.”

The staggering implications of the Supreme Court’s Texas anti-abortion ruling

“the Supreme Court allowed a Texas law that effectively bans all abortions after six weeks of pregnancy to take effect.

Twenty-four hours later, the Court released a brief, one-paragraph order explaining why it did so — though it is a stretch to describe the Court’s short and thinly reasoned order as an “explanation”. The vote in Whole Woman’s Health v. Jackson was 5-4, with conservative Chief Justice John Roberts crossing over to vote with the three liberal justices.

The implications of this order are breathtaking. The Texas law violates the precedent established in Planned Parenthood v. Casey (1992), which protects “the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state.” The sixth week of gestation is so early in a pregnancy that many people aren’t even aware they are pregnant.

At least 85 percent of abortions in Texas take place after the sixth week of pregnancy, according to the abortion providers who sued to block Texas’s law, SB 8. All of those abortions are now illegal in the state.

But the implications of the Court’s decision in Whole Woman’s Health stretch further.

SB 8 relies on a highly unusual enforcement mechanism. No state officer is permitted to enforce the statute. Instead, the law permits “any person, other than an officer or employee of a state or local governmental entity in this state” to file a lawsuit against an abortion provider or anyone who “aids or abets the performance or inducement of an abortion.” A plaintiff who prevails in such a lawsuit is entitled to bounty of at least $10,000, paid by the person they sued.

As Justice Sonia Sotomayor explains in one of four opinions filed by the dissenting justices, Texas lawmakers “fashioned this scheme because federal constitutional challenges to state laws ordinarily are brought against state officers who are in charge of enforcing the law.” So if no state officer can enforce the law, it is unclear whether anyone can be sued to block it.

The Supreme Court’s order, joined by the five most conservative justices, effectively blesses this method of evading judicial review.

But if Texas can avoid a court order blocking its anti-abortion law by delegating enforcement of the law to private bounty hunters, so can any other state. Indeed, nothing in the Court’s order prevents another state from passing a law banning all abortions — provided that the law is enforced using SB 8-style private lawsuits.”

“Allowing a law to stand that violates the Supreme Court’s 1992 Planned Parenthood v. Casey decision means that the constitutional right to an abortion is effectively dead. States now have the power to ban abortion for the first time since the Roe v. Wade ruling was handed down in 1973.

While it is theoretically possible that the Court could reverse course in subsequent litigation and strike down SB 8, the sort of justices who would allow such a law to take effect are exceedingly unlikely to do so. And the Court is already planning to hear a case in its next term, Dobbs v. Jackson Women’s Health Organization, which it can use to overrule Roe explicitly.”

“The Court has now signaled that it will permit states to enact laws that were intentionally drafted to frustrate judicial review, at least if a majority of the Court agrees with what that law is trying to accomplish. And it handed down one of the most monumental decisions of our era — a decision effectively overturning Roe v. Wade — in a shadow docket order that offers virtually no reasoning.”

“With their decision in Whole Woman’s Health, the justices have unleashed a monster. If taken seriously, that decision would allow any state to subject any person or institution to an overwhelming wave of lawsuits that they cannot possibly defend against. SB 8 is a direct attack on the rule of law and the principle that everyone should have their day in court before they are punished by the state.

It’s an attack on the 14th Amendment, which provides that no state may “deprive any person of life, liberty, or property, without due process of law.”

But, of course, if a state were to target gun owners, or Alito, or anyone else the Supreme Court’s most conservative justices approve of, the Court would almost certainly step in to protect a conservative litigant. Just last month, in Chrysafis v. Marks, the Supreme Court blocked part of New York state’s eviction moratorium because it “denies the landlord a hearing” before that landlord is required to house an unwanted tenant.

The Supreme Court is quite protective of due process — when the right litigant seeks the Court’s protection. One of the most disturbing things about Whole Woman’s Health is that it suggests the Court has abandoned its most fundamental principle: equal justice under law.”

Texas’s radical anti-abortion law, explained

“In May, Texas Gov. Greg Abbott (R) signed a state law that effectively bans abortions after the sixth week of pregnancy — sooner than many people learn they are pregnant. This law violates the ruling in Planned Parenthood v. Casey (1992), which protects “the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state.”

Nevertheless, the law took effect on Wednesday after a Supreme Court dominated by Republican appointees refused to grant a group of litigants’ emergency request and block it. Twenty-four hours later, the Court handed down a very brief order formally holding that the law may take effect.

The Court’s non-action on the Texas law almost certainly foreshadows a more explicit attack on abortion rights in a future case, and the Court is already scheduled to decide another abortion case next year.”

“SB 8 is unlike most other laws in that it was written to prevent courts from blocking it before it takes effect.

The anti-abortion law, which is before the Supreme Court in a case called Whole Woman’s Health v. Jackson, presents a maze of procedural complexities that are rarely seen in even the most complicated litigation. The law appears to have been drafted to intentionally frustrate lawsuits challenging its constitutionality. And Texas, with an assist from a right-wing appellate court, has thus far manipulated the litigation process to prevent any judge from considering whether SB 8 is lawful.

The stakes in this case are astronomical. Six weeks into a pregnancy is often very soon after a pregnant person misses their first menstrual period. So they may not even be aware that they are pregnant until it is too late. According to the abortion providers who are suing to block SB 8, at least 85 percent of abortions in Texas take place after the sixth week of pregnancy. Those abortions are now illegal under SB 8.

And the stakes in Whole Woman’s Health stretch far beyond abortion. SB 8 was drafted to frustrate judicial review before the law took effect. Now that the Supreme Court appears to have embraced this tactic, other states could copy it, potentially allowing states to enact all kinds of unconstitutional practices that can’t be challenged until after an unconstitutional law takes effect.”

“The way it’s written, a Texan who objects to SB 8 may have no one they can sue to stop it from taking effect.

For one, abortion rights plaintiffs can’t sue their state directly. The ordinary rule is that when someone sues a state in order to block a state law, they cannot sue the state directly. States benefit from a doctrine known as “sovereign immunity,” which typically prevents lawsuits against the state itself.

But they also can’t really follow the same path that most citizens who want to stop laws do. That path relies on Ex parte Young (1908), a decision in which the Supreme Court established that someone raising a constitutional challenge to a state law may sue the state officer charged with enforcing that law — and obtain a court order preventing that officer from enforcing it. So, for example, if Texas passed a law requiring the state medical board to strip all abortion providers of their medical licenses, a plaintiff could sue the medical board. If a state passed a law requiring state police to blockade abortion clinics, a plaintiff might sue the chief of the state’s police force.

Part of what makes SB 8 such a bizarre law is that it does not permit any state official to enforce it. Rather, the statute provides that it “shall be enforced exclusively through . . . private civil actions.”

Under the law, “any person, other than an officer or employee of a state or local governmental entity in this state,” may bring a private lawsuit against anyone who performs an abortion after the sixth week of pregnancy, or against anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion.” Plaintiffs who prevail in such suits shall receive at least $10,000 from the defendant.

SB 8, in other words, attempts to make an end run around Young by preventing state officials from directly enforcing the law. Again, Young established that a plaintiff may sue a state official charged with enforcing a state law in order to block enforcement of that law. But if no state official is charged with enforcing the law, there’s no one to sue in order to block the law.”

“Now that the law has taken effect, abortion providers (plus anyone who “aids or abets” an abortion, a vague term that is not defined in the statute) will undoubtedly be bombarded with lawsuits seeking the $10,000 bounty authorized by the new state law. These defendants will then be able to argue in court that they should not be required to pay this bounty because it is unconstitutional.

But they will do so under the threat of having to pay such a bounty to anyone who brings a lawsuit against them. Even if abortion providers prevail in all of these suits, moreover, they will still have to pay for lawyers to defend themselves in court. And the suits seeking a bounty under SB 8 will likely be numerous and endless, because literally “any person” who is not a Texas state officer can file such a suit.

If SB 8 remains in effect, any abortion providers who do remain operational are likely to be crushed by a wave of lawsuits that they cannot afford to litigate.”

The Supreme Court leaves the Voting Rights Act alive — but only barely

“Brnovich upholds both Arizona laws — a provision that disenfranchises voters for casting a ballot in the wrong precinct, and another that prevents most third parties from delivering another voter’s absentee ballot to a polling place. But Alito’s opinion most likely preserves civil rights plaintiffs’ ability to challenge many of the most odious provisions of the voter suppression laws currently being pushed by Republican state lawmakers in other states.”

“the opinion is limited in scope. Brnovich does not apply to all Voting Rights Act cases, or even to all cases involving the law’s “results test” — the specific provision of the Voting Rights Act at issue in the case. Rather, the opinion limits its analysis to “cases involving neutral time, place, and manner rules” governing elections. Thus, while Brnovich does shrink the Voting Rights Act considerably, it primarily does so in this limited context.”

“Alito lays out five factors that govern future “time, place and manner” lawsuits (more on this five-factor test below). One of the practical upshots of these five new factors is that states will largely be free to enact voting rules that were common in 1982, when a key amendment to the Voting Rights Act became law. But novel restrictions on the right to vote are less likely to survive judicial scrutiny.”

“The Voting Rights Act of 1965 is the seminal law that broke the back of Jim Crow, along with the previous year’s Civil Rights Act of 1964. It is arguably the most successful civil rights law in American history, and it was this nation’s first serious legislative attempt since Reconstruction to build a pluralistic democracy rooted in the principle of racial equality.”

“Under a 1982 amendment to the law, the Voting Rights Act has three prongs, but the Supreme Court has either deactivated or severely weakened two of these prongs. The first is “preclearance,” which required states with a history of racist voting practices to “preclear” any new voting practices with officials in Washington, DC — in order to ensure that those practices did not discriminate on the basis of race.
The Supreme Court gutted preclearance in Shelby County v. Holder (2013).

The second prong of the Voting Rights Act is known as the “intent test,” and it prohibits state voting practices enacted with racist intent. But, in Abbott v. Perez (2018), the Supreme Court held that lawmakers enjoy such a high presumption of racial innocence that it is nearly impossible to prove invidious intent, except in the most egregious cases.

That leaves the third prong of the law, known as the “results test,” which derives from the Voting Rights Act’s language forbidding a state election practice that “results in a denial or abridgement of the right … to vote on account of race or color.””

“Alito’s opinion is vague, and it leaves as many questions open as it answers. When courts are faced with “time, place, and manner” cases under the Voting Rights Act, he writes, “any circumstance that has a logical bearing on whether voting is ‘equally open’ and affords equal ‘opportunity’ may be considered.” Nevertheless, he also provides a non-exhaustive list of five factors that “should be mentioned.””

“One impact of this decision, in other words, is that many laws that have a disparate impact on voters of color will be upheld — though it is not yet clear just how severe a law’s impact on minority voters must be before the courts will intervene.”

“The upshot of Brnovich, in other words, is that it gives states tremendous power to roll back expansions of voting rights such as early voting and expanded access to absentee ballots, although that power may be limited if such restrictions are imposed in ways that clearly target voters of color.”

3 winners and 3 losers from the just-completed Supreme Court term

“Roberts has spent much of his career crusading against voting rights, specifically the Voting Rights Act of 1965, the landmark civil rights law that ended Jim Crow practices disenfranchising Black voters and prohibiting race discrimination of all kinds in elections.

As a young Justice Department lawyer, Roberts fought unsuccessfully to convince President Ronald Reagan to veto an important 1982 amendment to the law, which overturned a previous Supreme Court decision making it very difficult to win Voting Rights Act lawsuits. As a justice, Roberts wrote the Court’s decision in Shelby County v. Holder (2013), which neutralized much of the law. He also joined two other opinions severely weakening the rest of the law — the latter of which, Brnovich v. DNC, was decided on the last day of this term.

The practical impact of this trilogy is that the Voting Rights Act is barely alive. Under Brnovich, for example, states are likely to have carte blanche to roll back early voting and absentee voting, as well as other, similar innovations that became common in the last four decades. And most challenges to the latest wave of Republican voter suppression laws are likely to fail.”

“in a term gravid with extraordinarily aggressive arguments made by right-wing lawyers, conservatives and Republicans had an exceptionally good run. They convinced the Court to hobble the Voting Rights Act, to open a new line of attack on donor disclosure laws, to expand property rights, to attack unions, and to rewrite the rules governing when religious objectors are exempt from the law.

And that’s after just one term with a 6-3 Court. Next term, the Court will hear a case that could overrule Roe v. Wade.”

Losing Patience With Legislators, Mexico’s Supreme Court Orders Permits Allowing Consumers To Grow and Possess Marijuana

“The Mexican Supreme Court first ruled that marijuana prohibition was unconstitutional in 2015. That decision became binding nationwide three years later, when the court gave the Mexican Congress 90 days to pass a legalization bill. Legislators missed that deadline and several others, and last week the court lost patience, ordering the federal government to issue permits that will allow cannabis consumers to possess and grow marijuana at home.

Similar permits have been available since 2015, but until now they were limited to marijuana users who had filed lawsuits and obtained injunctions. Commercial cultivation and distribution remain illegal.”

“Mexico legalized limited medical use of marijuana in 2017. Last year President Andrés Manuel López Obrador confidently predicted that the legislature would approve a framework for licensing and regulating recreational marijuana suppliers in early 2021. But legislators still had not agreed on the details when the most recent court-imposed deadline came and went on April 30, and this time they did not request an extension.”

“Mexico might be the third country to legalize marijuana—or possibly the fourth, if Israeli legislators follow through on a legalization plan that was endorsed last fall by both of the major parties that controlled the government at the time. The new governing coalition, a hodgepodge of right-wing and left-wing parties, is also officially in favor of legalization.

In the U.S., 18 states, representing 44 percent of the national population, now allow recreational use of marijuana, but the federal ban remains in place. Since President Joe Biden wants to keep it that way and congressional Democrats who favor legalization are not making a serious effort to attract Republican support, the conflict between federal and state marijuana laws is unlikely to be resolved anytime soon.”

The Supreme Court just handed down disastrous news for unions

“Cedar Point is a sign the radical new conservative regime that many Republicans crave and that liberals fear could actually be upon us. The Court fundamentally reshaped much of American property law in Cedar Point. It did so in a party-line vote. And it did so in a case involving labor unions — institutions that are often celebrated by liberals and loathed by conservatives.

The case involves a nearly half-century-old California regulation, which gives union organizers limited, temporary access to farm worksites. Under this regulation, a union may enter such a worksite for up to 30 days at a time, and it may invoke this right up to four times a year. On the days when the union is permitted to enter, it may only speak to the workers for three hours a day — the hour before the start of work, the hour after the end of work, and the workers’ lunch break.

Thus, union organizers are allowed on a farm’s property for a maximum of 120 days a year, and for a total of only three hours per day. And the union also must notify the employer when it wishes to invoke this right.

But the right of unions to enter onto a California farm to organize workers is now in deep trouble. In an opinion penned by Chief Justice John Roberts, the Court held that California’s longstanding regulation violates the Constitution’s “takings clause,” which provides that no one shall have their property taken from them by the government “without just compensation.”

And, in order to reach this result, Roberts rewrites decades of law interpreting that clause.”

“Under the new rule announced in Cedar Point, any law or regulation that “appropriates a right to invade” private property amounts to a per se taking. If California allowed union organizers to enter an employer’s land for a single minute, then California committed a per se taking.
“The right to exclude is ‘one of the most treasured’ rights of property ownership,” Roberts writes. And much of his opinion suggests that any intrusion on this right to exclude amounts to a taking.”

“One problem with Roberts’s expansive view of the takings clause is that it could prevent the government from performing very basic functions, such as health and safety inspections.

Suppose, for example, that a restaurant has a disgusting, rat-infested kitchen that violates numerous local health ordinances. The restaurant’s owners obviously do not want these violations to be discovered, so they refuse to admit any government health inspectors. Under Roberts’s reading of the takings clause, it’s not clear why the restaurant owner should not be allowed to do so — or why it shouldn’t be able to, at the very least, demand compensation from the government before health inspectors can be allowed on their property.

After all, if “the right to exclude is ‘one of the most treasured’ rights of property ownership,” why should an employer be allowed to exclude union organizers but not health inspectors?”

“Roberts’s opinion recognizes that it would be untenable to hold that health and safety inspections violate the Constitution, so he carves out a special rule allowing such inspections to stand. “The government may require property owners to cede a right of access as a condition of receiving certain benefits,” such as a license to operate a business, Roberts writes, so long as that condition “bears an ‘essential nexus’ and ‘rough proportionality’ to the impact of the proposed use of the property.”

Those are some very large and very vague words, and it’s not entirely clear what it means for an inspection requirement to be roughly proportional to “the impact of the proposed use of the property.” Nor is it clear why, if the government can require restaurants to admit health inspectors as a condition of doing business, it can’t also require that restaurant to admit union organizers as a condition of employing workers.

The Court has simply made a value judgment here. It views health inspections as sufficiently important to justify creating an exception to its new understanding of the takings clause, but it doesn’t view protecting a worker’s right to organize as important enough to justify a similar exception.”

“the Court has revolutionized its understanding of the takings clause. And it did so in an opinion that applies an extremely skeptical rule to pro-union regulation while it simultaneously creates carveouts for regulations that the Court’s conservative majority supports.”

The Supreme Court decides not to light the housing market on fire

“The premise of the unitary executive doctrine is that all officials who execute federal law must be accountable to the president. That means that the president typically must be able to fire agency leaders and other top government officials at will — a view that the Supreme Court upheld in 2020.”

“The Court’s previous decisions..have some language suggesting that any action taken by an agency led by a director who is unconstitutionally shielded from presidential accountability is void — and that’s certainly how the plaintiffs in Collins read those decisions. They argued that literally every action taken by the FHFA since its creation 13 years ago must be declared invalid.

Had the Supreme Court agreed with this approach, it would have meant that all of the hundreds of billions spent to prop up Fannie and Freddie were spent illegally. It’s hard to even imagine how to unravel these transactions, and the process of doing so could have sparked another housing crisis similar to the catastrophic 2008 meltdown.

In any event, when confronted with the possibility of being responsible for one of the greatest financial crises in modern American history, Justice Alito blinked, as did most of his colleagues. Collins did not lead to an apocalyptic event; instead, it will stand as a warning of what can go wrong if the Court is too cavalier about remaking our constitutional system in a conservative image.”

“Though the head of the FHFA must be removable at will by the president, Alito argues in his opinion that “there was no constitutional defect in the statutorily prescribed method of appointment to that office” — that is, an FHFA director who is nominated by the president and confirmed by the Senate may still exercise executive power. Their previous actions are not void.
It’s as good a reason as any not to light the nation’s economy on fire.”