{"id":6026,"date":"2021-09-08T19:04:45","date_gmt":"2021-09-08T19:04:45","guid":{"rendered":"http:\/\/lonecandle.com\/?p=6026"},"modified":"2021-09-08T19:04:45","modified_gmt":"2021-09-08T19:04:45","slug":"texass-radical-anti-abortion-law-explained","status":"publish","type":"post","link":"https:\/\/lonecandle.com\/?p=6026","title":{"rendered":"Texas\u2019s radical anti-abortion law, explained"},"content":{"rendered":"\n

\n\n“In May, Texas Gov. Greg Abbott (R) signed a state law that effectively bans abortions after the sixth week of pregnancy<\/a> \u2014 sooner than many people learn they are pregnant. This law violates the ruling in Planned Parenthood v. Casey<\/em><\/a>(1992), which protects \u201cthe right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state.\u201d<\/p>\n\n\n\n

Nevertheless, the law took effect on Wednesday after a Supreme Court dominated by Republican appointees refused to grant a group of litigants\u2019 emergency request and block it. Twenty-four hours later, the Court handed down a very brief order<\/a> formally holding that the law may take effect.<\/p>\n\n\n\n

The Court\u2019s 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<\/a>.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“SB 8 is unlike most other laws in that it was written to prevent courts from blocking it before it takes effect.<\/p>\n\n\n\n

 The anti-abortion law, which is before the Supreme Court in a case called Whole Woman\u2019s Health v. Jackson<\/em><\/a>, presents a maze of procedural complexities<\/a> 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.<\/p>\n\n\n\n

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<\/a> 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<\/a> take place after the sixth week of pregnancy. Those abortions are now illegal under SB 8.<\/p>\n\n\n\n

And the stakes in Whole Woman\u2019s Health<\/em> 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\u2019t be challenged until after an unconstitutional law takes effect.”  
<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“The way it\u2019s written, a Texan who objects to SB 8 may have no one they can sue to stop it from taking effect.<\/p>\n\n\n\n

For one, abortion rights plaintiffs can\u2019t 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 \u201csovereign immunity,\u201d which typically prevents lawsuits against the state itself.<\/p>\n\n\n\n

But they also can\u2019t really follow the same path that most citizens who want to stop laws do. That path relies on Ex parte Young<\/em><\/a> (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 \u2014 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\u2019s police force.<\/p>\n\n\n\n

Part of what makes SB 8 such a bizarre law is that it does not permit any<\/em> state official to enforce it. Rather, the statute provides that it \u201cshall be enforced exclusively through . . . private civil actions<\/a>.\u201d<\/p>\n\n\n\n

Under the law, \u201cany person, other than an officer or employee of a state or local governmental entity in this state,\u201d may bring a private lawsuit against anyone who performs an abortion after the sixth week of pregnancy, or against anyone who \u201cknowingly engages in conduct that aids or abets the performance or inducement of an abortion.\u201d Plaintiffs who prevail in such suits shall receive at least $10,000 from the defendant.<\/p>\n\n\n\n

SB 8, in other words, attempts to make an end run around Young<\/em> by preventing state officials from directly enforcing the law. Again, Young<\/em> 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\u2019s no one to sue in order to block the law.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“Now that the law has taken effect, abortion providers (plus anyone who \u201caids or abets\u201d 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.<\/p>\n\n\n\n

 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 \u201cany person\u201d who is not a Texas state officer can file such a suit.<\/p>\n\n\n\n

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.”  
<\/p>\n\n\n\n

https:\/\/www.vox.com\/2021\/8\/31\/22650303\/supreme-court-abortion-texas-sb8-jackson-roe-wade-greg-abbott<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

“In May, Texas Gov. Greg Abbott (R) signed a state law that effectively bans abortions after the sixth week of pregnancy \u2014 sooner than many people learn they are pregnant. This law violates the ruling in Planned Parenthood v. Casey (1992), which protects \u201cthe right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state.\u201d<\/p>\n

Nevertheless, the law took effect on Wednesday after a Supreme Court dominated by Republican appointees refused to grant a group of litigants\u2019 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.<\/p>\n

The Court\u2019s 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.”<\/p>\n

…<\/p>\n

“SB 8 is unlike most other laws in that it was written to prevent courts from blocking it before it takes effect.<\/p>\n

The anti-abortion law, which is before the Supreme Court in a case called Whole Woman\u2019s 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.<\/p>\n

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.<\/p>\n

And the stakes in Whole Woman\u2019s 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\u2019t be challenged until after an unconstitutional law takes effect.” <\/p>\n

…<\/p>\n

“The way it\u2019s written, a Texan who objects to SB 8 may have no one they can sue to stop it from taking effect.<\/p>\n

For one, abortion rights plaintiffs can\u2019t 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 \u201csovereign immunity,\u201d which typically prevents lawsuits against the state itself.<\/p>\n

But they also can\u2019t 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 \u2014 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\u2019s police force.<\/p>\n

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 \u201cshall be enforced exclusively through . . . private civil actions.\u201d<\/p>\n

Under the law, \u201cany person, other than an officer or employee of a state or local governmental entity in this state,\u201d may bring a private lawsuit against anyone who performs an abortion after the sixth week of pregnancy, or against anyone who \u201cknowingly engages in conduct that aids or abets the performance or inducement of an abortion.\u201d Plaintiffs who prevail in such suits shall receive at least $10,000 from the defendant.<\/p>\n

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\u2019s no one to sue in order to block the law.”<\/p>\n

…<\/p>\n

“Now that the law has taken effect, abortion providers (plus anyone who \u201caids or abets\u201d 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.<\/p>\n

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 \u201cany person\u201d who is not a Texas state officer can file such a suit.<\/p>\n

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.”<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[13],"tags":[521,431,528,21],"class_list":["post-6026","post","type-post","status-publish","format-standard","hentry","category-article-share","tag-abortion","tag-democracy","tag-supreme-court","tag-texas"],"_links":{"self":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/6026","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=6026"}],"version-history":[{"count":1,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/6026\/revisions"}],"predecessor-version":[{"id":6027,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/6026\/revisions\/6027"}],"wp:attachment":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=6026"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=6026"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=6026"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}