24 votes

Supreme Court upholds new Texas abortion law, for now

30 comments

  1. [4]
    psi
    Link
    The Atlantic – Five Justices Did This Because They Could The Supreme Court is seriously risking its legitimacy as an institution.

    The Atlantic – Five Justices Did This Because They Could

    And so after initially allowing the Texas law banning abortion before most women know they are actually pregnant to go into effect, five conservative justices told Republican-controlled states they could disregard Roe while insisting that wasn’t what they were doing at all.

    Instead, the justices in the majority argued in their unsigned opinion that because the case presented “complex and novel antecedent procedural questions,” their hands were tied. This is ludicrously dishonest. If Texas passed a law granting $10,000 bounties to private citizens if they sued anyone who held or enabled an indoor church service during the pandemic, the Court’s conservative wing would not feign confusion about whether the constitutional right to freedom of worship had been violated because of the supposed novelty of the scheme.

    The Supreme Court is seriously risking its legitimacy as an institution.

    18 votes
    1. [3]
      spit-evil-olive-tips
      Link Parent
      the court lost its legitimacy in 2000, when they appointed George W. Bush as President on a 5-4 party line vote. sadly, it's taken 20 years (and counting) for the mainstream left to wake up and...

      the court lost its legitimacy in 2000, when they appointed George W. Bush as President on a 5-4 party line vote.

      sadly, it's taken 20 years (and counting) for the mainstream left to wake up and smell the Christofascism.

      but hey, congrats to Justice Stephen Breyer on the publication of his new book, which is released next week.

      The book explores the nature of the court’s authority, saying it is undermined by labeling justices as conservative or liberal.

      Justice Breyer made the point more broadly in his new book. “My experience from more than 30 years as a judge has shown me that anyone taking the judicial oath takes it very much to heart,” he wrote. “A judge’s loyalty is to the rule of law, not the political party that helped to secure his or her appointment.”

      Justice Breyer said he was wary of efforts to increase the size of the court, saying it could erode public trust in it by sending the message that the court is at its core a political institution and result in a tit-for-tat race to the bottom.

      15 votes
      1. Parliament
        Link Parent
        If Justice Breyer is concerned that court packing would erode public trust and result in a race to the bottom, maybe he should consider the fact that public trust is already eroded and the race to...

        Justice Breyer said he was wary of efforts to increase the size of the court, saying it could erode public trust in it by sending the message that the court is at its core a political institution and result in a tit-for-tat race to the bottom.

        If Justice Breyer is concerned that court packing would erode public trust and result in a race to the bottom, maybe he should consider the fact that public trust is already eroded and the race to the bottom has already begun. The confirmation of Clarence Thomas after the Anita Hill hearings in 1991, the 5-4 decision in 2000 along party lines to confirm Bush as president, McConnell's refusal to conduct hearings on Merrick Garland in 2016 leaving a seat open for an entire year, the appointment of Gorsuch to a stolen seat by a president who was elected under extremely questionable circumstances, the appointment of an alleged rapist to the court in 2017 who lied under oath, and ramming the Roe v Wade death knell Barrett nomination through the Senate in record speed 2 weeks before the 2020 election. Court packing is not the first step in this race to the bottom, it is a long overdue response to a race that started decades ago.

        21 votes
      2. psi
        (edited )
        Link Parent
        Look, I get that Bush v Gore was terrible, but the Court has had partisan biases forever, and it probably will forever more. 1 The Court's action2 here is orders of magnitude worse. Typically this...

        the court lost its legitimacy in 2000, when they appointed George W. Bush as President on a 5-4 party line vote.

        Look, I get that Bush v Gore was terrible, but the Court has had partisan biases forever, and it probably will forever more. 1

        The Court's action2 here is orders of magnitude worse.

        Typically this Court effects conservative outcomes through technicalities. As an example, the Court recent forced the Biden administration to reinstate the "Remain in Mexico" policy due to (vaguely explained by the Court) procedural deficiencies as required by the Administrative Procedure Act.

        Here the Court doesn't even pretend to do that. For injunctive relief to be granted, a party has to demonstrate two things: (1) a risk of irreparable harm and (2) that they're likely to succeed on the merits. Both of these conditions are clearly met. Regarding (1), people will be denied access to their constitutionally-protected right to an abortion. Finacially, abortion providing services will be forced to shutter (as we are now seeing in Texas). The case for (2) is even stronger -- Planned Parenthood v Casey expressly prevents states from banning abortion pre-viability. The Texas law is absolutely, unquestionably unconstitutional.

        In their unsigned opinion3, the Court effectively rejected this application for injunctive relief based on (2), arguing that the mechanism by which the Texas law is enforced raises complex legal questions and that the petitioners hadn't adequately addressed this point. This argument by the Court is absolute bullshit. A novel enforcment mechanism doesn't make you more likely to succeed on the merits -- it makes you less likely to succeed!

        At this point, you're probably thinking, well, doesn't this just prove my point that these Justices are partisan hacks? Well, yes, they are -- this is judicial activism at its worse. But what makes this action by the Court so awful isn't just that the result is awful, but that these Justices were willing to throw-out precedent to reach that goal. Precedent is the bedrock of the judicial system. In Supreme Court parlance, it's so important that it has its own name -- stare decisis. Here the Court hasn't merely shown that they're willing to bend the law to effect conservative outcomes; they've shown that they're also willing to rewrite the law entirely.

        Make no mistake, the diagnosis is clear -- Roe v. Wade is dead.


        1 At least, the Court will remain partisan until we significantly expand the court to make is more ideologically diverse.

        2 I write action, and not decision, because it's not a decision. The Court has not yet been briefed on the merits of the case. Nor is this action binding -- if New York were to enact a law limiting religious gatherings as described in The Atlantic's hypothetical, the Court absolutely could enjoin that law from going into effect. Yes, it would be deeply hypocritical, but not legally contradictory.

        3 Technically unsigned, but since Roberts, Breyer, Sotomayor, and Kagan each published a dissent, we know exactly who was responsible.

        9 votes
  2. [16]
    AugustusFerdinand
    (edited )
    Link
    The Supreme Court has elected (5-4) not to put a stay on the law because of some perceived lack of addressing it how they'd want, despite the law chopping 75% of the court's own 24 week precedent...

    The Supreme Court has elected (5-4) not to put a stay on the law because of some perceived lack of addressing it how they'd want, despite the law chopping 75% of the court's own 24 week precedent out. The five voting to not address the law chose cowardice elected to not sign the opinion.

    For those not local/aware:

    Texas' new laws generally go into effect on September 1st of each year. This year 666 - \m/ - new laws went into effect yesterday, with some of the more idiotic headline grabbing laws being things like banning abortion as early as 6 weeks (by allowing private citizens to sue others who help someone get an abortion), banning teaching of Critical Race Theory (despite admission that critics and lawmakers don't know what it is), banning homeless encampments (because that'll solve the problem), a completely un-noteworthy minor expansion of medical cannabis, and legalizing the permit-less carrying of firearms (that even this gun enthusiast thinks is asinine).

    Some others like SB23 requires a public vote to defund a police department, HB1900 defunds cities if they defund their police force, HB1280 is a preemptive ban on abortion should Roe v. Wade be overturned, SB69 bans police chokeholds, HB929 bans turning off police body cams, HB2497 and HB3979 requires "Patriotic Education" and bans making the 1619 Project required teaching, HB2586 and SB1281 added requirements to strengthen the power grid after February's deadly freeze, and HB19 requires, in the event of an accident, that the driver of an 18-wheeler be proved negligent prior to the company that employs the driver can be sued (Texas has more fatal crashes involving large trucks than any other state).

    While the laws mentioned above have all passed and go into effect Wednesday, the state legislature is currently busy in the second special session working on other items of importance outlined by Republican Gov. Abbott including the GOP-backed bill on election integrity (banning expanded hours for voting), bail, and property tax reform, limits on transgender kids competing on sports teams.

    12 votes
    1. [15]
      vektor
      Link Parent
      Thanks for the detailed explanation. I haven't looked into it, but I've heard talk about a 10000$ bounty wrt. abortions. What's that all about?

      Thanks for the detailed explanation. I haven't looked into it, but I've heard talk about a 10000$ bounty wrt. abortions. What's that all about?

      3 votes
      1. [14]
        enticeing
        Link Parent
        I found this explanation: An ordinary American, from Texas or elsewhere, may now be able to seek up to $10,000 (£7,200) in damages in a civil court against abortion providers and doctors - and...

        I found this explanation:

        An ordinary American, from Texas or elsewhere, may now be able to seek up to $10,000 (£7,200) in damages in a civil court against abortion providers and doctors - and possibly anyone at all involved in the process. That means people like clinic staff, family members, or clergy who encourage or support the procedure could, in theory, be sued.

        The website that was set up to receive these tips has information on their front page as well.

        5 votes
        1. [4]
          joplin
          Link Parent
          Following up on this, GoDaddy has booted the website from its service. They also mention in that article that the EFF thinks this is likely to hit a "torrent of lawsuits":

          Following up on this, GoDaddy has booted the website from its service. They also mention in that article that the EFF thinks this is likely to hit a "torrent of lawsuits":

          the Texas law will "unleash a torrent of lawsuits" and that its prohibition on "aiding or abetting" abortion will have a chilling effect on speech protected by the First Amendment.

          8 votes
          1. [3]
            tomf
            Link Parent
            They've since moved to Epik with all of the other hate groups :( https://reddit.com/phkgas

            They've since moved to Epik with all of the other hate groups :(

            https://reddit.com/phkgas

            4 votes
            1. [2]
              AugustusFerdinand
              Link Parent
              And they've been shut down, for now, with at statement that Epik has stepped in and the site now just redirects to another pro-life site that isn't bounty focused.

              And they've been shut down, for now, with at statement that Epik has stepped in and the site now just redirects to another hategroup against women's rights pro-life site that isn't bounty focused.

              3 votes
              1. tomf
                Link Parent
                the founder of Epik is named Rob Monster --- which is fitting.

                the founder of Epik is named Rob Monster --- which is fitting.

                1 vote
        2. tomf
          Link Parent
          For anyone outside of the US who couldn't see it, here's a capture

          For anyone outside of the US who couldn't see it, here's a capture

          4 votes
        3. [4]
          joplin
          Link Parent
          How realistic is it that that portion of the law could pass (federal) constitutional muster? Getting an abortion, even with this law, is not illegal, so encouraging someone to get one is not...

          How realistic is it that that portion of the law could pass (federal) constitutional muster? Getting an abortion, even with this law, is not illegal, so encouraging someone to get one is not contributing to a crime. So how can the government fine you for speaking about it?

          2 votes
          1. [3]
            eladnarra
            Link Parent
            The bounty applies to abortions after 6 weeks, I believe. Which are illegal under the new law. (Functionally, abortion is now banned.)

            The bounty applies to abortions after 6 weeks, I believe. Which are illegal under the new law. (Functionally, abortion is now banned.)

            7 votes
            1. AugustusFerdinand
              Link Parent
              Technically, the bounty would apply to an abortion that occurs after "cardiac activity" is detected in the fetus, which typically occurs as early as 6 weeks. Worth noting, this isn't a heartbeat...

              The bounty applies to abortions after 6 weeks, I believe.

              Technically, the bounty would apply to an abortion that occurs after "cardiac activity" is detected in the fetus, which typically occurs as early as 6 weeks. Worth noting, this isn't a heartbeat (as many like to call it), as fetuses don't have valves in their heart to create a heartbeat yet. It's just "electrical activity"

              7 votes
            2. joplin
              Link Parent
              Ah, OK, that makes (more) sense.

              Ah, OK, that makes (more) sense.

              1 vote
        4. [4]
          eladnarra
          Link Parent
          It would be a shame if lots of people submitted realistic but fake data to that website. Would take them ages to find real targets.

          It would be a shame if lots of people submitted realistic but fake data to that website. Would take them ages to find real targets.

          1 vote
          1. [3]
            AugustusFerdinand
            (edited )
            Link Parent
            Has been happening since the website was found. It's worth noting that the website is not owned/set up/run/or in any way connected to the State of Texas. It's a private party collecting info to...

            Has been happening since the website was found.

            It's worth noting that the website is not owned/set up/run/or in any way connected to the State of Texas. It's a private party collecting info to sue people.

            Others have been sending in fake data for some time and several have claimed to set up bots to do so, the website owners turned off the ability to send attachments when sending in a tip a few days ago and the site has stopped working numerous times.

            Edit, more info: Texans are trolling an anonymous tip line for reporting suspected abortions

            7 votes
            1. [2]
              AugustusFerdinand
              Link Parent
              Update on the site, GoDaddy has given them 24 hours to get lost: https://www.theverge.com/2021/9/3/22656196/godaddy-texas-right-for-life-abortion-whistleblowing-site

              Update on the site, GoDaddy has given them 24 hours to get lost: https://www.theverge.com/2021/9/3/22656196/godaddy-texas-right-for-life-abortion-whistleblowing-site

              6 votes
  3. [2]
    moriarty
    Link
    Can we finally start packing the court now?

    Can we finally start packing the court now?

    11 votes
    1. JCPhoenix
      Link Parent
      Right? I'm so tired of Democrats having to play by "the rules." You can't play a fair, orderly game when one player is blatantly cheating and disregarding rules, while openly bragging about it....

      Right? I'm so tired of Democrats having to play by "the rules." You can't play a fair, orderly game when one player is blatantly cheating and disregarding rules, while openly bragging about it. And there's no way to make that player abide by the rules.

      Hell, if anything, the Trump years showed us that so many of these "rules" are just traditions anyway. Since we saw that one side is willing to break from tradition, Democrats have got to grow a spine and start doing the same. Especially when civil rights are under attack.

      Do I really want us to go down this path? Of course not. But there's no pulling Republicans back. Or we, as a country, back off this path that Republicans have steered us onto.

      If Republicans idealize the 1950s as some kind of golden age they want to go "back" to, then Democrats do the same thing by thinking that by not reelecting Trump, we're going to back to some pre-Obama or pre-Bush 2 or pre-Gingrich time. It's not happening, not when such a large chunk of the nation is willing to go to practically any lengths to hasten "back" to that supposed golden age.

      16 votes
  4. [2]
    Gaywallet
    Link
    "for now" - as in if the court isn't packed with conservatives itching to erode nearly a century of progress. This is just one of many civil liberties at risk. Just because they haven't been...

    "for now" - as in if the court isn't packed with conservatives itching to erode nearly a century of progress. This is just one of many civil liberties at risk. Just because they haven't been eroding them all instantly does not mean they aren't looking to do so slowly, so that it doesn't draw enough public ire to cause someone to stop them.

    8 votes
    1. NoblePath
      Link Parent
      The court regardless of orientation has pretty much repealed the fourth amendment already. The only context it has not has been dwi law, largely because lots of rich white people get dwi’s. The...

      The court regardless of orientation has pretty much repealed the fourth amendment already. The only context it has not has been dwi law, largely because lots of rich white people get dwi’s. The last time the court really held up presumption of innocence was Miranda.

      4 votes
  5. spit-evil-olive-tips
    Link
    very disappointed in the way NPR is framing this. upholding the law "for now" as if there's a snowball's chance in hell the 6-3 conservative majority Supreme Court will decide to strike the law...

    very disappointed in the way NPR is framing this. upholding the law "for now" as if there's a snowball's chance in hell the 6-3 conservative majority Supreme Court will decide to strike the law down at some later date.

    a better headline: The Supreme Court Overturned Roe v. Wade in the Most Cowardly Manner Imaginable

    the Texas law is as close as you can get to a complete ban on abortion without saying outright that abortion is completely banned.

    in voting to allow the law to take effect, they have effectively overturned Roe v. Wade (as well as the 1992 Planned Parenthood v Casey case which created a vaguely defined "undue burden" standard for abortion restrictions)

    there are, depending on how you count, somewhere between 10 and 20 states which ban abortion the moment Roe v. Wade is overturned. it's only a matter of time before those state legislatures decide this decision counts as overturning Roe and start enforcing those bans.

    7 votes
  6. [4]
    Rez
    Link
    I'm curious as to how this will play out digitally. Anyone who files a lawsuit is basically setting themselves up for a social media mob to attack them. On the other hand, would you be able to sue...

    I'm curious as to how this will play out digitally. Anyone who files a lawsuit is basically setting themselves up for a social media mob to attack them. On the other hand, would you be able to sue someone for their online activity for indirectly abetting an abortion, such as advice on how to order abortifacients, even if the advice wasn't addressed to any specific person?

    Even setting aside the cost of not being able to get an abortion when you want one, it seems like this all has the potential to get real messy and dramatic real fast in the current social media climate. The government is boring - you can't "cancel" the government. But this law is ripe for story-making and narratives, pitting citizen against citizen, with mobs set to stand behind both parties.

    5 votes
    1. [3]
      streblo
      Link Parent
      My knowledge of this new Texan law is very superficial -- but I have read that the only enforcement provisions included are for private citizens suing each other? Is that correct? Even ignoring...

      My knowledge of this new Texan law is very superficial -- but I have read that the only enforcement provisions included are for private citizens suing each other? Is that correct?

      Even ignoring how gross the law is for a second, that seems... extremely cowardly and insane? As you mention, it's going to attach very public faces to anyone who wants to be the state's vigilante in the face of a very motivated and emotionally charged opposition.

      3 votes
      1. [2]
        AugustusFerdinand
        Link Parent
        Correct. It's not "illegal", it's just now law that private citizens can sue anyone involved from the clinic to the doctor to the person that drives the woman to the clinic.

        My knowledge of this new Texan law is very superficial -- but I have read that the only enforcement provisions included are for private citizens suing each other? Is that correct?

        Correct.

        It's not "illegal", it's just now law that private citizens can sue anyone involved from the clinic to the doctor to the person that drives the woman to the clinic.

        1 vote
        1. JCPhoenix
          Link Parent
          Not a lawyer, but doesn't a person have to have standing to sue someone? Like what injury is a person claiming when they bring suit against an abortion provider, a unwitting uber driver, a doctor,...

          Not a lawyer, but doesn't a person have to have standing to sue someone? Like what injury is a person claiming when they bring suit against an abortion provider, a unwitting uber driver, a doctor, etc?

          I can't sue someone for fraud, unless I myself have been defrauded. At least I don't think I can bring suit just by overhearing someone is defrauding someone else. So how does this work? What did Texas come up with to allow this?

          2 votes