The end of Roe. (no more question mark)

PVW said:

 So what does the court do next? I think there are implications both for Roe and for the basic concept of rule of law. Does it officially overturn Roe v Wade? Does it accept the legitimacy of for-profit-vigilantism? Can any constitutional right now be overturned by setting a bounty and delegating enforcement to private citizens, or only parts of the constitution Republicans don't like? Or does Roberts convince at least one other member of the court to step back from the precipice and smack this whole crazy thing down with prejudice?

 While there is discussion on the vigilantism aspect, I'm trying to coordinate an argument that is linked to the privacy issue of both Roe and the new Texas law. I don't want to oversimplify my reaction so did a search and decided to read this to see if it comes close to my initial response. Still digging but see what you think.

https://www.law.cornell.edu/constitution-conan/amendment-14/section-1/privacy-after-roe-informational-privacy-privacy-of-the-home-or-personal-autonomy


PVW said:

 So what does the court do next? I think there are implications both for Roe and for the basic concept of rule of law. Does it officially overturn Roe v Wade? Does it accept the legitimacy of for-profit-vigilantism? Can any constitutional right now be overturned by setting a bounty and delegating enforcement to private citizens, or only parts of the constitution Republicans don't like? Or does Roberts convince at least one other member of the court to step back from the precipice and smack this whole crazy thing down with prejudice?

 If lawsuits by disinterested parties are allowed, then there are no bounds on lawsuits.


Any Judge can dismiss the suit on the grounds that the Law is unconstitutional.

I suppose a State can pass a law allowing anyone to sue anyone causing air pollution or global warming but if a State passed a law allowing anyone to sue anyone for practicing Islam the first such law suit would be dismissed on constitutional grounds.


Anti-abortion leaders in Texas said they never expected many people to actually file lawsuits, thinking the process would be too costly and onerous.

“These out-of-state suits are not what the bill is intended for,” said Chelsey Youman, the Texas state director and national legislative adviser for Human Coalition, an anti-abortion group that said it had no plans to file a lawsuit against the physician, Dr. Alan Braid, or to encourage others to do so.

“The goal is to save as many lives as possible, and the law is working,” Ms. Youman said, adding that the notion behind the law was that the mere threat of liability would be so intimidating that providers would simply comply.

https://www.nytimes.com/2021/09/21/us/texas-abortion-lawsuits.html

They just wanted to scare people, they didn't intend for anybody to have to go to court. Idiots.


I’ve just read this awful news

https://www.theguardian.com/us-news/2021/sep/22/texas-abortion-inducing-drugs-law-greg-abbott

So, when my friend discovered early that her baby had serious brain abnormalities and would not develop further into a normal pregnancy, she needed a medical termination. Now in Texas, it appears there would be no hope for her and further, she’d be treated as if she had caused some mysterious injury to the developing foetus. Unbelievable.


Sen. Susan Collins planning to oppose the Dem abortion rights bill. Where's the surprise. Read a comment that liberals no longer trust her. What liberals trusted Collins?

https://www.pressherald.com/2021/09/22/sen-susan-collins-says-she-would-oppose-bill-on-abortion-rights/


Morganna said:

Sen. Susan Collins planning to oppose the Dem abortion rights bill. Where's the surprise. Read a comment that liberals no longer trust her. What liberals trusted Collins?

https://www.pressherald.com/2021/09/22/sen-susan-collins-says-she-would-oppose-bill-on-abortion-rights/

 A phony moderate that sucked many independents and Democrats into voting for her. She voted "moderate" when her vote was not really needed to keep her moderate credentials.

Now that Republicans need just about every vote we see what she really is. A party hack.


Morganna said:

 While there is discussion on the vigilantism aspect, I'm trying to coordinate an argument that is linked to the privacy issue of both Roe and the new Texas law. I don't want to oversimplify my reaction so did a search and decided to read this to see if it comes close to my initial response. Still digging but see what you think.

https://www.law.cornell.edu/constitution-conan/amendment-14/section-1/privacy-after-roe-informational-privacy-privacy-of-the-home-or-personal-autonomy

 I wonder if "privacy" is as compelling of an argument as it used to be. I think about privacy a lot in the context of tech -- we've collectively given up a lot of privacy over the last decade or so as social media and big internet companies in general have grown in power and influence, and most people seem to just shrug this off.


Morganna said:

Sen. Susan Collins planning to oppose the Dem abortion rights bill. Where's the surprise. Read a comment that liberals no longer trust her. What liberals trusted Collins?

https://www.pressherald.com/2021/09/22/sen-susan-collins-says-she-would-oppose-bill-on-abortion-rights/

She also just endorsed Paul LePage for his run for Governor of Maine.  He's the proto-Trump. 


Steve said:

Morganna said:

Sen. Susan Collins planning to oppose the Dem abortion rights bill. Where's the surprise. Read a comment that liberals no longer trust her. What liberals trusted Collins?

https://www.pressherald.com/2021/09/22/sen-susan-collins-says-she-would-oppose-bill-on-abortion-rights/

She also just endorsed Paul LePage for his run for Governor of Maine.  He's the proto-Trump. 

The only reason she has this image of a moderate Republican is because the media loves the idea that they actually exist - despite all evidence to the contrary.


PVW said:

 I wonder if "privacy" is as compelling of an argument as it used to be. I think about privacy a lot in the context of tech -- we've collectively given up a lot of privacy over the last decade or so as social media and big internet companies in general have grown in power and influence, and most people seem to just shrug this off.

 True but people seem to accept HIPAA laws which is privacy surrounding ones medical information. Doesn't that apply here?



PVW said:

 I wonder if "privacy" is as compelling of an argument as it used to be. I think about privacy a lot in the context of tech -- we've collectively given up a lot of privacy over the last decade or so as social media and big internet companies in general have grown in power and influence, and most people seem to just shrug this off.

I have to believe that women regard the right to privacy of their bodies to be as compelling an argument as ever.


As for Susan Collins, many women hoped she would support Roe because she was a woman. Not saying all women support Roe but as it has stood since the 70s it seemed like it would be a safe cause to support.

When many of us a few years ago were part of postcard campaigns, and office sit ins, she got her fair share of push back and it led to the hope that she would wake up. But alas, Collins is always ready to disappoint.


drummerboy said:

The only reason she has this image of a moderate Republican is because the media loves the idea that they actually exist - despite all evidence to the contrary.

 I believe they exist but it always seems to occur when they decide to leave office.


tjohn said:

I have to believe that women regard the right to privacy of their bodies to be as compelling an argument as ever.

 I suppose the midterms will provide some evidence one way or the other.


I made phone calls for her opponent in the last election.  We thought it was going to be close and we had a chance to beat her. We were wrong. A Maine Democratic Activist told us that almost every Democrat in Maine has voted for Collins at one time or another.


House voted today to pass the Women's Health Protection Act 218 -210 but then there's the Senate.


Federal judge blocks enforcement of Texas law banning abortion as early as six weeks (WaPo)

Blocked, at least temporarily, though will almost certainly be appealed. Story also notes that coming up in Dec is a SCOTUS hearing on Mississippi’s ban on abortion after 15 weeks, a direct challenge to Roe.


PVW said:

Federal judge blocks enforcement of Texas law banning abortion as early as six weeks (WaPo)

Blocked, at least temporarily, though will almost certainly be appealed. Story also notes that coming up in Dec is a SCOTUS hearing on Mississippi’s ban on abortion after 15 weeks, a direct challenge to Roe.

The Mississippi ban  will be tough challenge. I've had conversations with women who I think would support that, in theory. The average person will not think that is unreasonable because most of us do not know exactly what tests are given when, or what problems could arise after that point. The argument used about the 6 week ban was pretty easy, that many women do not know they are pregnant at that point. To anyone glancing at the number 15 weeks, it will be easy to assume the decision should have been made and arrangements could have been made.

I once heard Senator Patty Murray give a powerful speech on the Senate floor, articulating some of the later complications in pregnancy. Quite a bit of specific information that I was not aware of. 

Problem is this is an emotional topic and one most people do not even wish to weigh in on, so it will just be a number and might cause a divide in support for Roe. To those on the fence it will make Dems who fight against it seem unreasonable. If I remember correctly, votes on late term abortion were held against Obama and Hillary. I've got to check on the specifics.


Well, that "temporary" block was quite temporary indeed:

Appeals court reinstates Texas’s six-week abortion ban, two days after it was lifted

A federal appeals court late Friday reinstated the nation’s most restrictive abortion law, which bars the procedure as early as six weeks into pregnancy with no exceptions for rape or incest.

The U.S. Court of Appeals for the 5th Circuit granted a request filed Friday afternoon by the Texas attorney general to temporarily suspend a judge’s order blocking the law, which has halted most abortions in the state.
...
[Texas AG] Paxton told the appeals court that the Justice Department has no legal authority to sue the state and said the appeals court must intervene immediately to lift the injunction.

The lower-court judge overstepped, Paxton said in his filing, by halting a law that is enforced by private citizens, not state government officials.

The lower-court judge overstepped, Paxton said in his filing, by halting a law that is enforced by private citizens, not state government officials.

I'm sorry, but quite apart from the actual issue of abortion here, this whole "you can't sue because it's enforced by private citizens" tactic is so ridiculous. I can't imagine that if this were about nearly any other issue the courts would allow it. Letting it stand is really making the courts looks like faithless, unprincipled hacks. Taken at face value, it blows up the entire concept of judicial review (as I noted at the top of the thread).


I'm kind of confused about how this case seems to be bouncing from upper to lower courts and then back up again.

Since SCOTUS already said the law is good to go for now, how did the lower court judge issue the recent injunction against it? And do the law's opponents have any recourse other than appealing to SCOTUS at this point? SCOTUS hasn't agreed to take on oral arguments yet, right?

Color me befuddled.


  • May: Gov. Abbot signs SB 8, which goes into effect Sep 1
  • July: abortion providers and reproductive rights supporters sue to block the law
  • US District court judge in Austin schedules hearing on law (for Aug 30 I think)
  • Aug 27: 5th district calls off the hearing. Law's opponents appeal to SCOTUS to block the law
  • Sep 1: SCOTUS declines to block the law, and it goes into effect (Roberts, joining the liberals in dissent, says he would have blocked the law to give a chance to weigh the arguments in court. Whether or not he wants to overturn Roe, he's not in nearly as much of a hurry to do so as his fellow conservatives)
  • Oct 7: a federal judge in TX blocks the law
  • Oct 8: the 5th circuit (yes, them again) reverses the block.

Note that in all of this, there hasn't actually been a hearing on the merits of law itself. There's been requests to block it to allow time for such a hearing, and refusals to do so, and Texas making the ridiculous argument (that SCOTUS has accepted) that the law can't be blocked because it's enforced by private citizens, not the state.

Relatedly, a TX doctor wrote an op-ed in the WaPo saying he broke the law, and was sued, so in theory that would be a way to get it before the courts for an actual hearing.


drummerboy said:

I'm kind of confused about how this case seems to be bouncing from upper to lower courts and then back up again.

Since SCOTUS already said the law is good to go for now, how did the lower court judge issue the recent injunction against it? And do the law's opponents have any recourse other than appealing to SCOTUS at this point? SCOTUS hasn't agreed to take on oral arguments yet, right?

Color me befuddled.

None of the decisions have been on the substance of the law, all have been based on who is suing, and who is being sued.


nohero said:

None of the decisions have been on the substance of the law, all have been based on who is suing, and who is being sued.

That is true for the appellate decisions.  The recent decision by the District Court addressed the merits on a preliminary basis. 


I will try to explain:

A law is passed. People sue the State saying the law is unconstitutional. A law suit ensues with all that entails. However the plaintiffs, at the same time they file suit, seek an immediate injunction against the law's going into effect while the suit is pending. The Court, in this case SCOTUS, says yes or no to immediate relief while the suit continues.

A new plaintiff, the United Sates of America through the Department of Justice, then takes over and sues and goes to a local Federal District Court Judge (which I think SCOTUS advised them that they could do) and that Judge grants the injunction. (And in this instance does so with an 113 page opinion which I find extraordinary). Now that Judge is a trial  division Judge, that is a Judge at the lowest level in the Federal system, the United States District Court for the (Northern, Southern, western or whatever) of Texas. The defendant, in this case, the State of Texas, appeals the granting of the emergency injunction to the next level Court, the United Sates Court of Appeals for the )in this instance) Fifth Circuit, which covers a number of States, including Texas. 

From there plaintiff, in essence Merrick Garland, can go back to SCOTUS to appeal the Circuit Court's reversal of the District Court.

And the procedural wrangling continues with no definitive decision on the underlying issue.


STANV said:

I will try to explain:

A law is passed. People sue the State saying the law is unconstitutional. A law suit ensues with all that entails. However the plaintiffs, at the same time they file suit, seek an immediate injunction against the law's going into effect while the suit is pending. The Court, in this case SCOTUS, says yes or no to immediate relief while the suit continues.

A new plaintiff, the United Sates of America through the Department of Justice, then takes over and sues and goes to a local Federal District Court Judge (which I think SCOTUS advised them that they could do) and that Judge grants the injunction. (And in this instance does so with an 113 page opinion which I find extraordinary). Now that Judge is a trial  division Judge, that is a Judge at the lowest level in the Federal system, the United States District Court for the (Northern, Southern, western or whatever) of Texas. The defendant, in this case, the State of Texas, appeals the granting of the emergency injunction to the next level Court, the United Sates Court of Appeals for the )in this instance) Fifth Circuit, which covers a number of States, including Texas. 

From there plaintiff, in essence Merrick Garland, can go back to SCOTUS to appeal the Circuit Court's reversal of the District Court.

And the procedural wrangling continues with no definitive decision on the underlying issue.

 no wonder I'm confused.  cheese


Question for the lawyers -- so I understand the claim, even if I think it sounds ridiculous, that no injunction can be filed since no Texas state officials are enforcing it. That's not actually true though, is it? Supposing someone sues under this law -- doesn't a state judge have to hold a hearing? And if the plaintiff prevails, isn't it the state court system that would enforce the $10,000 penalty? Therefore, wouldn't the Texas state government be in fact enforcing this law after all, and hence sue-able?


PVW said:

Question for the lawyers -- so I understand the claim, even if I think it sounds ridiculous, that no injunction can be filed since no Texas state officials are enforcing it. That's not actually true though, is it? Supposing someone sues under this law -- doesn't a state judge have to hold a hearing? And if the plaintiff prevails, isn't it the state court system that would enforce the $10,000 penalty? Therefore, wouldn't the Texas state government be in fact enforcing this law after all, and hence sue-able?

 Yes


Watching C SPAN. Senators are coming to the floor to discuss Roe v Wade as SCOTUS considers the Mississippi 15 week limit tomorrow. Republicans are making their arguments.

I think SCOTUS is going to allow the 15 week ban. Objectively, the GOP are making persuasive arguments but I doubt very many people are watching.

I am willing to bet that Rachel Maddow will highlight the topic tonight so I'll have to put Dexter on hold.


Morganna said:

I think SCOTUS is going to allow the 15 week ban. Objectively, the GOP are making persuasive arguments but I doubt very many people are watching.

Seems so.

Civil rights are usually only gotten or expanded after hard fought fights. But they can be so easily lost. As we're seeing now.

Even the right to vote can lose meaning if state legislatures decide to override the vote of the public by directly appointing of presidential electors. Which is allowed by our constitution.


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