“In November of 2018, Lucil Basco of Bexar County, Texas, awoke to a thunderous boom, followed by a parade of eight cops barging through her front door. She was handcuffed, and, with her screaming child, removed from the premises. The officers soon realized they made a mistake: They had the wrong house, based on incorrect information from a confidential informant. Yet they continued the operation anyway.”
“Deputies arrived and broke into Basco’s home that evening, despite there being no reason to believe such force was required. Though it appears they did not do the requisite research to confirm she was involved in the drug trade, they did conduct plenty of surveillance: “Officers conducted a traffic stop of Mrs. Basco shortly before the raid during which they searched her vehicle and learned that she is a nurse,” writes Pulliam. “And officers were surveilling the home both when Mrs. Basco left to collect her child and when she returned with him.””
“It is not uncommon for police departments to leverage confidential sources to carry out violent, no-knock raids. The Chicago Police Department, for example, is well-known for its so-called John Doe warrants, based solely on anonymous tips.
In 2019, a cadre of male cops knocked down the door to a Chicago apartment, handcuffing a naked woman while they ransacked her home. The officers elicited nearly 100 misconduct allegations during that one raid because they had the wrong address and had not bothered to do rudimentary verification beforehand. The city has a pile of similar suits.”
“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.”
“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 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.”
“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.”
“Passed in May, the law makes it illegal to perform an abortion once fetal cardiac activity is detected. That starts six weeks into pregnancy, and about two weeks after a woman can tell she is pregnant.
What makes the measure (Senate Bill 8) more novel—and extreme—is that it also lets anyone (even people outside the state) sue anyone they think has violated the law by performing a prohibited abortion or aiding and abetting the provision of an illegal abortion. Among other things, aiding and abetting here includes “paying for or reimbursing the costs of an abortion through insurance or otherwise,” the law states.”
“It’s also not clear whether Abbott can use disaster funds to pay for the wall under Texas state law. He declared a disaster for 34 counties in the state last month due to a recent increase in unauthorized immigration at the border, freeing up resources to deal with the problem and allowing him to suspend state laws and regulations that would impede any solutions.”
“the current levels of unauthorized immigration might not truly constitute a “disaster.” While officials reported that the number of migrant apprehensions at the border in May was nearly eight times the total in the same month last year, that doesn’t necessarily mean the actual number of migrants trying to cross the border is higher.
Those numbers don’t account for the fact that there has been a surge in adults who have been caught trying to cross the border multiple times due to policies enacted during the pandemic. In 2020, 26 percent of migrants apprehended by Border Patrol had been caught more than once, compared to 7 percent the previous year.”
““A governor should not be able to circumvent the legislative process by declaring such matters to be emergencies and then implementing whatever measures he wishes,” state Rep. John Turner (D-Dallas), told the Texas Tribune. “If a governor can commence such a long-term, multi-hundred-million-dollar public works project under the cover of emergency powers, it is difficult to know what the limits of those powers are.””
“Abbott’s plans to arrest migrants at the border on various criminal charges, including trespassing and vandalism, would also likely face legal challenges if implemented.
Abbott has threatened to put such migrants “in jail for a long time,” but legal precedent isn’t on his side: The Supreme Court prevented Arizona Republicans in 2012 from similarly arresting migrants on trespassing charges, on the basis that states cannot enforce immigration law. It’s possible, however, that the 2012 ruling could be overturned with several new Trump-appointed justices on the Court.”
“Abbott and the Texas GOP’s embrace of a border wall seems to be part of their strategy for the 2022 midterm elections. Abbott is also up for reelection in 2022, but some have also suggested he could be setting up a run for president in 2024.
The Texas Republicans appear to be trying to appeal to their right-wing base in order to fend off potential primary challengers. There isn’t much concern about Democrats launching a serious offense in the general given that the party’s promises of Texas turning blue didn’t come to fruition in 2020.
Republicans in the state have also recently passed legislation aiming to fire up their base that removed the requirement of a permit to carry a handgun and established an effective ban on abortion. And Abbott’s agenda for an upcoming special session of the state legislature involves more items related to border security, restrictions on voting, and preventing the teaching of critical race theory in schools.”
“while there has been pushback from border counties and Democratic officials, the majority of Republican voters in Texas do support building the wall: about 74 percent, according to a recent survey by the Dallas Morning News and UT Tyler.”
“there is ample evidence that vaccines sharply reduce the risk of infection and are even more effective at preventing life-threatening symptoms. Furthermore, schools have a long history of requiring that students be vaccinated against other diseases. Abbott’s order nevertheless says “state agencies and political subdivisions shall not adopt or enforce any order, ordinance, policy, regulation. rule, or similar measure that requires an individual to provide, as a condition of receiving any service or entering any place, documentation regarding the individual’s vaccination status for any COVID-19 vaccine administered under an emergency use authorization.” That prohibition also applies to “any public or private entity that is receiving or will receive public funds through any means, including grants, contracts, loans, or other disbursements of taxpayer money.””
“a state law that Abbott signed on June 16 goes further, saying “a business in this state may not require a customer to provide any documentation certifying the customer’s COVID-19 vaccination or post-transmission recovery on entry to, to gain access to, or to receive service from the business.” It says any business that violates this provision is ineligible for state contracts, and it allows state agencies to “require compliance with that subsection as a condition for a license, permit, or other state authorization necessary for conducting business in this state.””
“”Texas is open 100 percent, and we want to make sure that you have the freedom to go where you want without limits,” Abbott declared after signing the law banning proof-of-vaccination requirements. That position sacrifices private property rights and freedom of association in the name of an unlimited “freedom” that has never been legally recognized: the freedom of any given customer to dictate the terms on which businesses offer products or services.”
“assuming that school vaccine mandates are justified with respect to other communicable diseases, it is hard to see why COVID-19 should be treated differently—leaving aside the lack of full FDA approval, which is expected to be remedied soon. One counterargument is that COVID-19, which rarely causes life-threatening symptoms in children and teenagers, poses a less serious danger to them than other diseases for which vaccination is required.* Still, requiring teachers and students to be vaccinated certainly seems like a more cost-effective policy than requiring them to wear masks all day.”
“it hardly makes sense to say that private businesses should be free to require face masks, on the theory that customers who don’t like that rule can go elsewhere, while prohibiting them from requiring proof of vaccination, which likewise is not tantamount to a legal requirement.”
“In a performative bid against “human trafficking,” Texas has raised the legal age for working at a strip club from 18 to 21 years old, putting many employees out of work and putting clubs that hire them—even inadvertently—in risk of serious legal penalties, including up to 20 years in prison and a $10,000 fine. The state also updated part of its penal code to define “child” as anyone under age 21.
There’s no evidence that legal strip clubs in Texas are rife with underage workers (which would already be against the law), nor that young adults working in these clubs are at higher risk of human trafficking. Texas lawmakers—and their counterparts in Congress and in states across the country—love to Do Something About Sexual Exploitation even if that thing has serious ancillary consequences and no chance in hell of accomplishing its stated goals.
What the new Texas law (S.B. 315) will do is make it illegal for young adult women inclined to work at a strip club to do so—driving up the likelihood that some of them will instead engage in more risky forms of sex work and/or fall into the arms of exploitative third parties (those who police call “traffickers” and “pimps”). Meanwhile, someone already under the control of a “trafficker” will still be, but in a location further underground.
“Those who pushed the bill may feel like heroes for ‘rescuing’ 18, 19, and 20-year-olds from what they believe to be the horrors of the sex industry,” writes Jessie Sage—managing editor of Peepshow mag and a self-described erotic laborer—in a blog post about the Texas legislation and those who will be pushed out of employment because of it. “Yet, in the wake of a global pandemic that has devastated the economy, and a lack of employment protections for sex workers, the sure harms of such laws far outstrip any imagined benefit, particularly for the young dancers whose livelihoods now hang in the balance.””
“Strip clubs aren’t the only ones affected. The law—which was signed into law on May 24 and took effect immediately—says all “sexually oriented businesses” must comply with the new age limit. So working at shops selling sex toys, porn, or other adult goods is now off limits for adults under age 21, even though it’s legal for these same adults to purchase sex toys, purchase porn, or go to strip clubs and other sex-related businesses. Adult modeling studios, webcam studios, and their ilk are off limits too.
Any sexually oriented business found employing someone 18 to 20 years old in any capacity (with the exception of as an “independent contractor solely performing repair, maintenance, or construction services at the business”) is now guilty of a class A misdemeanor, punishable by up to a year in jail and a $4,000 fine.
Anyone employing an 18- to 20-year-old to work nude, topless, or “in a sexually oriented commercial activity”—that is, “a massage establishment, nude studio, modeling studio, love parlor, or other similar commercial enterprise the primary business of which is the offering of a service that is intended to provide sexual stimulation or sexual gratification to the customer”—is now guilty of violating the state’s law against Employment Harmful to Children, a felony.
Employing someone ages 18 to 20 to work nude, topless, or in a sexually oriented commercial activity has become a second-degree felony, punishable by a mandatory minimum of two years in prison (and possibly as many as 20 years in prison), plus a fine of up to $10,000. “Conduct under this section constitutes an offense regardless of whether the actor knows the age of the victim at the time of the offense,” the law states.”
“”Rather than pearl-clutching moralism, law makers would be better off listening to the chorus of sex workers who tell them that these laws are harmful to their community and young people who will be pushed into making more dangerous choices when clubs are no longer available to them,” suggests Sage. “If they were actually interested in protecting young sex workers, they would listen to them; sex workers know what they need, and it’s not less opportunity.””