“On first glance, it would be easy to see the Supreme Court’s decision Friday in Whole Woman’s Health v. Jackson as a win for abortion rights. It would also be wrong.
More than two months after the Supreme Court allowed SB 8, a Texas law that effectively bans abortions after the sixth week of pregnancy, to take effect, the Court followed it up with a 5-4 decision that is an even larger defeat to proponents of abortion rights, and a victory to anti-abortion lawmakers in Texas.
The specific question in Jackson is whether abortion providers are allowed to bring a federal lawsuit seeking to block SB 8. Although Justice Neil Gorsuch’s majority opinion technically answers this question in the affirmative, it permits suits only against state health officials who play a very minimal role in enforcing the law. It does not allow suits to proceed against the Texas state officials who play the biggest role in enforcing SB 8: state court judges and clerks.
The upshot of this decision is that, while the abortion provider plaintiffs in Jackson may be able to get a federal court order declaring that SB 8 is unconstitutional, the only real relief they are likely to win is an order preventing a few state health officials from carrying out the minor role they play in enforcing the law. The most important provisions of the law — the ones that effectively prevent anyone from performing an abortion after the sixth week of pregnancy by threatening them with financial ruin if they do so — will most likely remain in effect.
Though procedural sophistry, Gorsuch and the other justices who joined his opinion engineered the outcome Texas wanted. And the implications of this case could stretch far beyond abortion cases.
SB 8 was written for the very purpose of evading judicial review, and Jackson largely blesses that tactic. As Justice Sonia Sotomayor writes in dissent, Gorsuch’s opinion “leaves all manner of constitutional rights more vulnerable than ever before.” If states can use an SB 8-style law to nullify the constitutional right to an abortion, they could very well use it to nullify any other constitutional right.”
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“Normally, private plaintiffs can’t sue a state directly in federal court — but they can sue the state official tasked with enforcing an unconstitutional law. SB 8 seeks to exploit this structure by forbidding any “officer or employee of a state or local governmental entity” in Texas from enforcing the state’s anti-abortion law. Instead, the law may only be enforced through private lawsuits.
Such lawsuits may be filed by “any person” who is not an employee of the state against anyone who either performs an abortion or who “aids or abets the performance or inducement of an abortion.” Plaintiffs who prevail in these lawsuits receive a bounty of at least $10,000, which must be paid by the defendant — and there is no upper limit on this bounty.
The idea behind SB 8 is that no one can challenge the law in federal court because there is no state official who can enforce it. And thus there is no proper defendant.”
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“A federal court, in other words, isn’t allowed to block the most important parts of SB 8 — the part allowing “any person” to seek a bounty from an abortion provider, and the part allowing state court judges to order providers to pay such a bounty. The Texas legislature, moreover, could potentially shut down federal lawsuits challenging SB 8 altogether, simply by repealing the provision of state law that permits health officials to bring enforcement proceedings against people who violate it.
So the bottom line is that Texas won. The state devised a scheme to evade judicial review, and five justices just blessed that scheme.”
“About 4.6 million people signed up for Obamacare through the fifth week of open enrollment, with roughly 923,000 people newly enrolled, according to the Centers for Medicare and Medicaid Services.
Enrollment is up 20 percent in Texas and 9 percent in Florida compared to this time last year, administration officials told reporters…crediting increased subsidies from the American Rescue Plan.”
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“These two states also have some of the highest uninsured rates in the country. Texas leads the nation with 17.5 percent of its population uninsured, according to the Kaiser Family Foundation. Florida ranks fifth, with 12.3 percent of its population uninsured.”
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“Overall, states that have not expanded Medicaid — which includes Florida and Texas — saw a 9 percent uptick in enrollment, officials said.”
“Texas Gov. Greg Abbott’s border-control crusade is overwhelming court systems, leaving detainees stuck in jails for weeks or even months without due process, and generally isn’t resulting in many convictions.
Abbott launched “Operation Lone Star” in March. Border enforcement is ordinarily the federal government’s job, but Abbott decided to deploy the state’s Department of Public Safety and the Texas National Guard to “deny Mexican Cartels and other smugglers the ability to move drugs and people into Texas.”
Instead, according to media reports from multiple outlets, suspected illegal immigrants caught at the border are being arrested for misdemeanor trespassing and then being held in jail. And then…nothing, frequently. The Wall Street Journal reports that only 3 percent of the 1,500 people who have been arrested under Operation Lone Star have been convicted, all with guilty pleas of misdemeanor trespassing.
Texas does not have the authority to deport any of these people, so the rest are either still detained in jail or being released back into the community—the very outcome Abbott insists he was trying to stop.”
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“Lacking any ability to deport these immigrants and apparently not being able to charge most of them with crimes other than trespassing and some property crimes (because they likely are not the drug cartel smugglers and human traffickers Abbott claims they are), many of them are just sitting in pretrial detention for weeks or months. Normally a person arrested in Texas for a nonviolent misdemeanor would be released or out on bail quickly, in a matter of days at most. That’s not happening here.”
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“Meanwhile the courts on these border counties are being overwhelmed. Texas Monthly reports that Kinney County (population: 3,659), the ground zero for a lot of these arrests, hasn’t had a jury trial in seven years. Kinney officials have filed charges against those they’ve detained, more than 1,000 migrants, but it’s not entirely clear how they’ll be able to arrange trials.
Abbott’s crusade comes with costs, and they’re considerable. Abbott shifted $250 million dollars from elsewhere in the budget (including the prison system itself) to fund this program. And the state legislature directed another $3 billion his way for border enforcement. Officials in Kinney County calculate that actually prosecuting all these immigrants will cost them $5 million, but Operation Lone Star’s funding is sending only $3.19 million their way, according to Texas Monthly.”
“In May, the Lone Star State raised the minimum legal age for working in a sexually oriented business from 18 to 21.”
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“Since the new law passed, adult businesses in Texas have laid off “droves” of 18- to 20-year-old workers, according to the Texas Entertainment Association (TEA), an organization that represents the interests of sex-oriented businesses and one of the plaintiffs challenging S.B. 315. Kevin Richardson, a TEA member who owns five adult cabarets, told the court he had to lay off more than 700 people due to the new law.
Evanny Salazar is one of the young adults who lost a job after S.B. 315 reclassified her as a child. Salazar “worked at two adult cabarets in San Antonio, Texas, where she earned about $1,000 a night” and did not witness any human trafficking, U.S. District Judge Robert Pitman noted in a July ruling. “Before she worked as an exotic dancer, Salazar was homeless and lived in her car,” he wrote. “Her job at the adult cabarets allowed Salazar to obtain housing and cover her living expenses. Since losing her job as an exotic dancer, Salazar has become homeless again and works for Door Dash [sic], where she makes about $30 a night.””
“”Private businesses don’t need government running their business,” an Abbott spokesperson told the Tribune in August.
Apparently, Abbott now thinks they do. By sticking his nose into the affairs of private businesses, Abbott is setting up a potential conflict with some of his state’s biggest employers, including Southwest Airlines and American Airlines—both of which are based in Texas and recently told employees to get the shot if they want to keep their jobs. Mandatory vaccination policies should always include carveouts to cover those who have had a previous COVID-19 infection or have religious or medical reasons for not getting jabbed, of course, but those issues are better worked out between employers and employees.
Abbott’s new mandate also puts some businesses in a tricky situation where they must choose between disobeying state or federal law. President Joe Biden announced last month that all businesses with more than 100 employees would be required to mandate vaccines for their workers (or conduct weekly tests), with the Department of Labor’s Occupational Safety and Health Administration (OSHA) enforcing the mandate.”
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“Vaccines remain by far the best strategy for saving lives and ending the pandemic. It makes sense that businesses would want their employees to be vaccinated. Those who refuse the shot should be free to do so, but they do not have a right to any particular job. None of those decisions should require the coercive efforts of state or federal officials.”
“Texas Gov. Greg Abbott, who..signed a bill that aims to restrict social media platforms’ editorial discretion, says the new law “protects Texans from wrongful censorship” and thereby upholds their “first amendment rights.” The law, H.B. 20, is scheduled to take effect on December 2, but that probably will not happen, because it is blatantly unconstitutional and inconsistent with federal law.
Abbott, a former Texas Supreme Court justice who served as his state’s attorney general from 2002 to 2015, presumably knows that. But whether he is sincerely mistaken or cynically catering to his party’s base, H.B. 20 reflects widespread confusion among conservatives about what the First Amendment requires and allows.”
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“the First Amendment applies to the government and imposes no constraints on private parties.
To the contrary, the First Amendment guarantees a private publisher’s right to exercise editorial discretion. The Supreme Court emphasized that point in a 1974 case involving a political candidate’s demand that The Miami Herald publish his responses to editorials that criticized him.
The constitutional protection against compelled publication does not disappear when we move from print to the internet, or from a news outlet to a website that invites users to post their own opinions. As Justice Brett Kavanaugh noted when he was a judge on the U.S. Court of Appeals for the D.C. Circuit, “the Government may not…tell Twitter or YouTube what videos to post” or “tell Facebook or Google what content to favor.”
Yet that is what H.B. 20 purports to do. The law says “social media platforms” with more than 50 million active monthly users in the U.S. may not “censor” content based on the “viewpoint” it expresses. That edict covers any effort to “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.”
H.B. 20 makes a few exceptions, including “expression that directly incites criminal activity” and “specific threats of violence” that target people based on their membership in certain protected categories. But otherwise the rule’s reach is vast: As two trade organizations note in a federal lawsuit they filed last week, H.B. 20 “would unconstitutionally require platforms like YouTube and Facebook to disseminate, for example, pro-Nazi speech, terrorist propaganda, foreign government disinformation, and medical misinformation.””
“This is not the first time Abbott has sought to falsely portray a group of migrants at the border as a public safety threat in order to rile up anti-immigrant attitudes among his base.
Just in the last few months, he issued an executive order allowing public safety officers to stop and reroute vehicles suspected of transporting migrants with Covid-19, though the measure has been blocked in federal court for now.
He has told Texas child care regulators to revoke the licenses of facilities that house migrant children and state troopers to jail migrants for state crimes, such as trespassing on private property when they cross the border.
And he is trying to finish the wall along the Texas border, pledging a $250 million “down payment” drawn from state disaster relief funds — money that could have gone to the aid of those still recovering from last winter’s storms or struggling under the burden of the pandemic. And he’s crowdfunded almost another $500,000 as of June 23. (Though that’s still a drop in the bucket of what he might need to finish the project, which the federal government estimated could cost as much as $46 million per mile in some sectors of the border.)
He has also played no small part in creating the false perception that migrants crossing the border are the source of his state’s coronavirus surge, which is spreading largely among the unvaccinated and leaving hospitals without enough ICU beds.”
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“Despite promises to institute a more humane immigration policy, the Biden administration has clung to pandemic-related border restrictions, known as the Title 42 policy, implemented by the Trump administration last year. Since March 2020, that policy has been used to rapidly expel more than a million migrants, without hearings before an immigration judge. (A federal judge partially blocked the policy, effective September 30, and the Biden administration has appealed that decision.)
Biden is also restarting Trump’s “Remain in Mexico” policy, under which tens of thousands of migrants were forced to wait in Mexico for their court hearings in the US, and he has resumed rapidly deporting families at the US-Mexico border. All the while, his message to migrants has been “don’t come,” even though many of them are fleeing unlivable conditions, not unlike those Afghan refugees are running from — problems ranging from gang violence to climate-related devastation.
Toward Haitians specifically, Biden’s policies have appeared inconsistent. He has allowed more than 100,000 Haitians already living in the US to apply for Temporary Protected Status. But at the same time, he has continued to prevent Haitians waiting on the other side of the US-Mexico border from entering under Title 42 and, to the shock of immigrant advocates, resumed deportation flights to Haiti on Wednesday despite the country’s continuing turmoil.
Mexico has recently started refusing to take Haitians expelled under Title 42. That’s why Haitians stranded in Del Rio are slowly being processed by US immigration authorities and allowed to enter the US, where most will likely be released with instructions to appear for an immigration court hearing at a later date.
But if Biden had it his way, they wouldn’t be allowed to cross at all.”
“One Texas patient who was taking birth control had no idea she was pregnant until it was too late. Others came in for their state-mandated ultrasounds but had their abortion appointments delayed by Tropical Storm Nicholas. They, just like the first patient, will now have to travel hundreds or even thousands of miles in order to end their pregnancies — if they can get together the money, time off work, and child care necessary to do so.
This is what it looks like to try to get an abortion in Texas since the passage of SB 8, a law that bans nearly all abortions after six weeks, before many people know they are pregnant. For the few patients who do realize it in time, it’s a race against the clock to schedule an appointment and get the money for the procedure — which costs an average of about $500 and typically isn’t covered by insurance. “There’s a sense of urgency that’s causing a devastation among our callers,” said Shae Ward, hotline program coordinator at the Lilith Fund, which funds abortions in Texas. “They just are like, ‘If it’s not done by then, I don’t know what I’m gonna do.’”
The options aren’t good. While one Texas doctor, Alan Braid, has been vocal about performing an abortion in defiance of the new law, providers generally say they are complying. That means patients who aren’t able to get an abortion before six weeks, or who don’t realize they’re pregnant before then, have to make what’s often a multi-day journey to a clinic in Oklahoma, Kansas, or even as far away as Michigan or New Jersey. Such a trip is simply out of reach for a lot of Texans. “If you can’t afford the $500 to get seen in-state,” Ward said, “then you definitely can’t afford the $500 to get your procedure somewhere else, and then also a flight and also a hotel.””
“The sheer number of bills — both enacted and proposed — really emphasizes what a big priority tightening election laws has become for the GOP since the 2020 election. But it’s also important to remember that a single law can contain numerous far-reaching voting restrictions. And as such, Texas’s Senate Bill 1 is probably the most comprehensive voting-restriction law passed since Florida’s SB 90.
SB 1 requires absentee voters to provide their driver’s license number or the last four digits of their Social Security number on both their absentee-ballot application and absentee-ballot envelope; gives partisan poll watchers “free movement” around polling places; requires the secretary of state to check the voting rolls for noncitizens; and creates more paperwork for people who help other people fill out their ballots. It also bans specific ways of encouraging voting that were used by heavily Democratic counties, such as Harris, in last year’s election — including automatically mailing absentee-ballot applications to voters, drive-through voting and 24-hour early voting. The law does, however, include some provisions supported by Democrats, such as allowing voters to fix, or “cure,” mistakes on their absentee ballots and requiring training for poll watchers.”
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“both the severity and quantity of voting restrictions has increased dramatically in 2021. While we don’t know whether these changes will actually affect the outcomes of elections (as many Democrats fear and at least a few Republicans hope), it will undoubtedly be harder to vote in 2022 in many states than it was in 2020.”
“SB 1 has morphed and changed considerably over the last several months, and the final version does not include some of the most aggressive attempts to limit voting rights that were included in previous iterations. The final version stripped a provision that would have shut down many urban polling precincts, and another that would have ended early voting on Sunday mornings, when many Black churches sponsor “souls-to-the-polls” drives.
It also doesn’t include anything resembling the most troubling provision of Georgia’s recently enacted election law, which permits Republican officials to take over election administration in Democratic strongholds such as Atlanta, which has the potential to disenfranchise voters en masse.”
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“the bill does include a number of provisions that either make it harder to vote in Texas or tweak the state’s election rules in ways that advantage Republicans.
In 2020, for example, a few polling places in Harris County, a highly Democratic area that includes Houston, remained open for 24 hours. The Republican bill bans this practice while simultaneously expanding early voting in many smaller counties — which tend to be the domain of the GOP.
Similarly, the bill imposes new restrictions on absentee voting, such as a requirement that most voters provide their driver’s license number in order to vote by mail, and a provision that makes it a felony for election officials to send unsolicited absentee ballot applications to voters. In 2020, Republicans were much less likely to vote absentee than Democrats, most likely because then-President Donald Trump repeatedly denounced mail-in ballots.”
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“One potentially troubling provision of the GOP bill requires election officials to conduct monthly purges of the state’s voting rolls, ostensibly to identify noncitizens who may have registered to vote. Another provides new legal protections to partisan poll watchers, who are permitted to observe elections and the vote-counting process — but who may also attempt to disrupt the election.”
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” No one who cares about voting rights should celebrate SB 1. It erects unnecessary barriers between voters and the franchise, and it subtly changes Texas’s election law in ways that are likely to benefit the party that wrote the bill. But much of SB 1 makes only marginal changes to Texas’s already quite restrictive voting laws.”