this is really worth reading https://reason.com/volokh/2021/09/0...t-could-not-block-texass-fetal-heartbeat-law/ [Josh Blackman] New Op-Ed in Newsweek: The Supreme Court Could Not "Block" Texas's Fetal Heartbeat Law by Josh Blackman [President Biden is wrong: The Supreme Court lacks the “supreme authority to ensure justice could be fairly sought.”] Today, Newsweek published my column, The Supreme Court Could Not "Block" Texas's Fetal Heartbeat Law. In about a thousand words, I try to debunk every false accounting of Whole Woman's Health v. Jackson–and there have been many. Here is the introduction: On Wednesday, the Supreme Court declined to intervene in a challenge to S.B. 8, Texas's new abortion law. This unique statute empowers private citizens to sue those who perform or facilitate abortions. President Biden ripped the 5-4 decision, charging that the conservative Justices followed "procedural complexities" "rather than use its supreme authority to ensure justice." Biden is wrong. The Court has no majestic power to "ensure justice." Indeed, it is a myth that courts can "strike down" laws. Rather, judges have a very limited power: to prevent specific government officials from enforcing laws against specific people. The judiciary cannot simply erase statutes from the book. And when the government plays no role in enforcing a statute–like with S.B. 8–courts cannot "block" that law from going into effect. In future cases, the courts can assess the constitutionality of S.B. 8. For now, the Supreme Court was right to reject the premature challenge. And from the conclusion: Why, then, did the dissenters offer a remedy that simply could not be granted? This quartet endorsed President Biden's mythical account of the Supreme Court. At least three of the four dissenters deeply felt that this law was unjust, so there must be a way to stop it. But not every wrong has a remedy in federal court. In time, actual Texans will file suit against abortion clinics, and those who fund the organizations. And the courts can then decide if those suits are consistent with Roe v. Wade. For now, the Supreme Court was right to stay on the sidelines. If you think my conclusion is hyperbole, read Noah Feldman's new column. He writes that the Court "made a point that is incorrect in my view, but that is legally plausible." Why was it incorrect? Feldman explains, "The better view is that the court should have been creative and found a way to block the law anyway." And why should the Court have gotten creative? Feldman writes, "if the underlying law is unconstitutional and injures basic rights, the courts must have the power to block its operation." If there is a really bad law, the usual rules of jurisdiction can be ignored, because the court "must" be able to do something about it. I always appreciate Feldman's candor. He says aloud what others are thinking. Unfortunately, telling courts to be "creative" is to tell courts to–pardon my French–"make **** up." more at the link
Didn't read the article, but from my understanding if a new law has provisions that are very apparent in resulting in violating constitutional rights, a court can temporarily block it temporarily until it's fully litigated because the time table for when it is fully litigated by the SC will take months and in the meantime during those months constitutional rights can be violated and when it comes to those rights it's better to be safe than sorry. Think of the ramifications of the precedent set here. Imagine a state legislature passing highly restrictive voting bills right before an election that are clearly violating voting rights. Those state legislatures know that it will take months for it to be fully litigated and by that time the election is over and the damage has been done. Therefore it's the responsibility of the courts to block it until they are certain that the new provision doesn't violate those rights.
People don’t care how. Banned via technicality is still banned. The intention is clear and the SC has a chance to stop it but wouldn’t. Roe v Wade has basically been overturned by texas legislators and we have already heard other republicans state legislators say they will follow. Worse, in their zealot to ban abortion, these lawmakers do not care that they have legalized public mob which if stand will come around and bite everyone butts.
This is all very confusing to me. Putting the abortion stuff to the side, the issue seems to be that citizens can be sued for something that isn't actually illegal and forced to defend themselves in court at their own cost. Why aren't there civil protections against that?
The article linked to above seems to argue that Roe hasn't been overturned, it's still very much applicable, but we must wait until someone is actually sued and there's an attempt to enforce an unconstitutional law against them. At that point, there can be an appeal against enforcement, and that can ultimately go to the Supreme Court? But will that fix the problem if the law remains on the books and people are stilled forced to defend themselves in court because of it?
one way of reading the subtext here is that the conservative majority insisted on not making the (potential) right decision for the wrong reasons . . . which is essentially the conservative critique of Roe itself (at least for some conservatives). Putting anti-abortion evangelical-type conservatives aside, critics of Roe have long argued that while it may have arrived at the right conclusion, it got there by employing the wrong reasons (the putative 'right to privacy' somehow hidden in the Constitution). In essence the Court has merely declined to repeat the judicial activism model. This is why Blackman the author gives Feldman credit for at least voicing what others decline to say out loud ("make something up"). This is also why the decision itself is so careful to state that the decision itself has nothing to do with the constitutionality of the Teas law (only that the case before the court was insufficient to win on procedural grounds): In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts. Blackman has a follow-up piece just out https://reason.com/volokh/2021/09/03/four-things-opponents-of-s-b-8-should-not-say/
Providers are turning away patient so it’s already there. A way to get back to Roe is through Congressional legislation. If that doesn’t happen then there’s good reason to blow up the court. Really, it should already be enough but Congress can try to see if its willing to protect precedent. Abortion clinics, physicians feeling immediate effects of Texas anti-abortion law
Fourth, eventually, some trial judge will find the law unconstitutional in a specific context. At that point, opponents of S.B. 8 still should not say "S.B. 8 is unconstitutional." That ruling would only bind the particular plaintiffs and defendants on those particular facts. Other plaintiffs, in other jurisdictions, with other claims, could sue the same defendants and reach a different result. This law is like a hydra: cut off one head, and two heads grow in its place. The "conservative" viewpoint here is not very reassuring. So, no protection against costly lawsuits that aren't charging an actual illegal offense committed?
What's not "reassuring" is that a whole host of people, according to the Texas statute now in effect, are now open to being sued by eager "vigilante" extremists in an effort to stop legal abortions. Let's not leave out those who will be doing it in hopes of collecting $10,000 and for no other reason. The result is that those being pursued and sued for going about their lawful business, from the woman who came to see her physician, to that physician, who may have just told her that she is pregnant, to her great surprise, and on to the driver from the Lyft service who drove the now very confused woman to her doctor. To attempt to claim that the Supreme Court didn't have grounds to block enforcement of this diabolical assault on the rights of several different Americans including, let's not forget, the woman involved, who usually doesn't even know she's pregnant at 6 weeks, is patently absurd. Please tell me that you don't seriously believe the Supreme Court didn't have grounds to block this law.
One cumbersome way to fight this law: "flood the zone." If a dozen extra doctors park in front of a clinic for a procedure, and twenty fake female patients, the vigilantes will have to file exponentially more law suits, most of them immediately dismissable.
Also, for those of you crowing about tech companies moving to Austin ... It's a bold strategy, Cotton, ... let's see how this law works out for Texas.
This is what the court did in the case of Tandon V Newsom regarding a CA law that would've restricted private Bible study classes and prayer meetings because of COVID restrictions. The Court also stopped that law from going into effect under the Shadow Docket.
Also, due to the constitutionality limbo of this, I wonder if a victim of one of these suits after this law is struck down by the courts in a year or so can strike the fear of God into those who filed law suits against these women by doing counter suits saying that these people who sued them violated their constitutional rights and and caused undue burden, stress, fear etc amounting to hundreds of thousands of dollars in punitive damages. So if some ******* wants to actually sue a woman they should understand that there is a chance they will be counter sued with a much larger amount of money in damages.
i think they could counter-sue before the law is overturned-- the whole thing is a CF of jurisprudence and the USSC should be ashamed to let it lurch forward.
If this were a war of attrition, I'd extract the max anger out of this in order to set the national agenda for "ending shadow docket tyranny" by packing the courts. Dem voters apparantly don't care about anything until their own lights turn off.
abbott tries the same untruth someone tried here... within the six weeks the woman may not even know she is pregnant and many victims of rape don't report they have been raped.
