The Liberal Gun Club Forum

The U.S. Supreme Court on Wednesday allowed a restrictive Texas law to go into effect that criminalizes abortion at six weeks and deputizes citizens to enforce the ban.

S.B. 8 effectively bans abortion at six weeks, a time at which many people don’t yet realize they’re pregnant. The bill is more extreme than laws in states such as Alabama and Ohio due to a clause that financially incentivizes private citizens to sue anyone “aiding or abetting” abortion-seeking patients in Texas.

If someone successfully sues a person aiding and abetting the medical procedure, they could receive a bounty of $10,000 and have all of their legal fees paid for by the opposing side.

“The anti-choice movement is determined to decimate reproductive freedom and intimidate providers, pregnant people, and those who love and care for them,” said Adrienne Kimmell, the acting president of NARAL Pro-Choice America. “Make no mistake, this law paves the way for anti-choice extremists to turn their dystopian vision into a horrifying reality ― not just in Texas, but around the country.”

Texas Gov. Greg Abbott (R) signed S.B. 8 into law on May 19, despite fierce opposition from abortion rights advocates. Pro-choice groups filed a lawsuit in federal district court in July, hoping to stall the bill.

After the district court and then the U.S. Court of Appeals for the 5th Circuit shut down their attempts to block the law while the lawsuit proceeds, the groups filed an emergency request with the U.S. Supreme Court.

The court took no action, however, making the bill law as of 12 a.m. local time.

Texas’ ban on abortion at six weeks will force the state’s 7 million women of reproductive age to travel to neighboring states — most likely Louisiana or Oklahoma — for the procedure. Those two states have a total of only eight abortion clinics. The average one-way driving distance for a Texan seeking an abortion would increase from 12 miles to 248 miles, 20 times the distance, according to the Guttmacher Institute. And, as with most anti-abortion legislation, the new law will disproportionately affect Black and brown women.

As more and more states effectively ban abortion, pro-choice advocates fear the return of back-alley abortions. But some advocates are more focused on the criminalization of the medical procedure and how it can isolate women, according to Kristin Ford, the acting vice president of communications and research at NARAL Pro-Choice America.

“I often say, ‘Think about handcuffs rather than hemorrhaging,’” Ford told HuffPost last week. “It’s not so much that people will have back-alley abortions and be bleeding out in the way that you hear horror stories pre-[Roe v. Wade], but that people will be interrogated by law enforcement, could be arrested and criminalized for the outcome of their pregnancies. When you criminalize everyone around the pregnant person, you’re creating an environment of criminalization, of stigmatizing and isolating.”

The Texas House of Representatives passed another bill on Tuesday that restricts access to medication abortion, a procedure that accounts for more than one-third of abortions in the country. S.B. 4 prevents doctors and providers from administering the pill to women who have been pregnant for more than seven weeks. The bill already passed the state Senate and now heads to Abbott’s desk.

The governor signed a trigger ban into law earlier this year, which will automatically ban all abortions in Texas if the Supreme Court overturns Roe v. Wade. The court will have an opportunity to overturn Roe in the upcoming Dobbs v. Jackson Women’s Health Organization case.

Many abortion rights advocates are worried that Texas’ S.B. 8 will quickly become a blueprint for other red states looking to end legal abortion.

“Texas is a state that has passed restriction after restriction, and this is a time where other states may be looking to Texas for a new twist on abortion bans. Stopping this ban is even more important because we’re no longer just talking about the 7 million women of reproductive age in Texas,” Elizabeth Nash, a principal policy associate at Guttmacher Institute, told HuffPost last week. “At that point, the question really is ... What is left of Roe?”

Wino wrote: Wed Sep 01, 2021 10:59 am My generation (Silent) and Boomers won this war. Appears X & Y gens lost it. sad/sigh

FrontSight wrote: Wed Sep 01, 2021 1:00 pm Lets see how long before women start changing their votes in Texas.

TrueTexan wrote: Wed Sep 01, 2021 12:10 pm

Wino wrote: Wed Sep 01, 2021 10:59 am My generation (Silent) and Boomers won this war. Appears X & Y gens lost it. sad/sigh

We didn't win the war, win only won a major battle that created a lull in the war as the Right wing regrouped to continue the war.

After the district court and then the U.S. Court of Appeals for the 5th Circuit shut down their attempts to block the law while the lawsuit proceeds, the groups filed an emergency request with the U.S. Supreme Court.

The court took no action, however, making the bill law as of 12 a.m. local time.

Balancing Test for Preliminary Injunctions

Since a preliminary injunction can restrain a party’s actions for a long period of time, the U.S. Supreme Court has set a high burden of proof for a plaintiff seeking an injunction. The Court identified a four-part balancing test in Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008).

1. Likelihood of Success on the Merits

First, a party seeking a preliminary injunction in a federal lawsuit must demonstrate that they are likely to succeed on the merits of their underlying cause of action. In Winter, the plaintiff sought a preliminary injunction to prevent the U.S. Navy from using sonar in certain training exercises because of the harm that it could cause to marine mammals. The plaintiff based its lawsuit on the National Environmental Policy Act of 1969. The Court held that a likelihood of success is the correct standard, rather than a mere possibility of success.

2. Likelihood of Irreparable Harm

The plaintiff must next establish that irreparable harm is likely if the court does not grant the preliminary injunction. This requires evidence of “a real and immediate threat of future injury by the defendant.” City of Los Angeles v. Lyons, 461 U.S. 95, 107 n. 8 (1983).

The Court in Winter rejected the finding by the Ninth Circuit Court of Appeals that, once a plaintiff establishes a likelihood of success on the merits, they must prove only a possibility of irreparable harm. The risk or danger must be something more definite.

3. Balance of Equities and Hardships

Once the plaintiff has established that they are likely to succeed on the merits, and that irreparable harm is likely to occur without an injunction, they must show that the balance of both equities and hardships is in their favor. This requires more than just weighing the pros and cons of the proposed preliminary injunction. In a general sense, “equities” refers to the plaintiff’s interest in obtaining an injunction, and “hardships” refers to the burden that an injunction would place on the defendant.

In Winter, the Supreme Court held that the Ninth Circuit erred in holding that the plaintiff’s interest in protecting marine wildlife outweighed the burden on the Navy’s ability to conduct training exercises. It ruled that the appellate court failed to consider warnings from Navy officials about the harm to the overall effectiveness of certain Navy programs.

4. Public Interest

Finally, the plaintiff must show that a preliminary injunction would be in the public interest. This is often a highly subjective standard, but courts can sometimes look at the statute at issue for guidance. In Amoco Production v. Village of Gambell, for example, the Supreme Court determined that the public interest promoted by the Alaska National Interest Lands Conservation Act was “to protect Alaskan subsistence resources from unnecessary destruction,” rather than preventing the actions that the plaintiff sought to enjoin. 480 U.S. 531, 544 (1987).

The Supreme Court just came out of the shadows
The "soft" overturn of Roe v. Wade exposes how far-right John Roberts has let the Supreme Court go

The move was quiet and it very well may be temporary (they could still issue a short decision any minute now, or not) but make no mistake, a Roe overturn is exactly what it is. But headlines across the country aren't coming right out and saying so, because the Supreme Court used a dastardly legal manipulation to let states ban abortion without actually issuing a straightforward decision to end abortion protections.

Earlier this summer, Texas passed a law banning abortion at 6 weeks. Six weeks may sound like a luxurious amount of time to make a decision, but in fact, it amounts to a near-ban on all abortion. That's because in reality, "six weeks" is only two weeks after the missed period, and that's only in women who have highly regular periods. Critically, it is also before many doctors will even do the procedure, for safety reasons. So it's estimated that 85-90% of abortions in Texas are performed after the 6-week mark.

To make it worse, the law is written in such a way as to make wife beaters, Aunt Lydias, and embittered incels the primary enforcers of the ban, establishing what amounts to a public bounty hunter system. As legal analyst Imani Gandy explained at Rewire News Group, the law "allows anyone—literally anyone, including strangers!—to file a lawsuit against a person they suspect is going to either provide an abortion or help a person obtain an abortion." This means that not only can the abusive ex-boyfriend sue the doctor who helped his victim escape his clutches, but he can now also go after the friend who put her up and paid for her abortion.

As The 19th reports, Planned Parenthood and other clinics across the state have already mass-canceled abortion appointments.

This Texas law clearly violates Roe v. Wade, the landmark Supreme Court decision that bars states from banning pre-viability abortion, a category which very much includes pregnancies two weeks after a missed period. And yet, somehow the Fifth Circuit Court, which is notoriously authoritarian, found a way to uphold the law. The law went into effect at the stroke of midnight on September 1, as the Supreme Court passively allowed that lower court decision to stand. The move, or lack thereof, is unprofessional and cowardly, but it did allow the far-right court to have it both ways by banning abortion in Republican-controlled states without drawing "Roe overturned" headlines that would anger the large majority of Americans who want to keep Roe in place.

Unfortunately, such a shadowy maneuver is hardly a unique move for this court. These kinds of passive, backdoor decisions are increasingly how the Supreme Court is now doing business. Despite the self-flattery from the legal world about the apolitical nature of the courts, the reality is today's Supreme Court is both very political and very right-wing.

It is not hyperbole to say that the GOP has spent years shaping not just the Supreme Court but the entire federal judiciary to force a far-right ideology on a public that keeps rejecting it at the ballot box. The problem for Republicans, however, is that dramatic Supreme Court decisions overturning Roe or otherwise gutting hard-earned human rights would anger voters. That could drive up turnout for Democrats in elections and hurt elected Republicans. The court's behavior suggests a clash between a yearning to push the country as far to the right as possible and a political need to avoid backlash.

One way they've squared that circle is by gradually chipping away at laws like the Voting Rights Act, so they can destroy human rights quietly without drawing the attention outright annihilation would bring. But the newest innovation is abusing the so-called shadow docket.

As Igor Derysh reported for Salon, the shadow docket is "where the justices hand down largely unsigned short opinions without going through standard hearings, deliberations, and transparency." Traditionally, it's mostly upholding lower court orders or emergency petitions that aren't especially controversial. But this court, controlled by Chief Justice John Roberts, has started to use the shadow docket to issue far-right rulings under the radar, avoiding the press coverage that more traditional rulings get. That's how, for instance, the Supreme Court dispensed with the eviction ban that President Joe Biden was implementing to prevent a surge of pandemic-caused homelessness. It's also how the Supreme Court forced the Biden White House to enforce the racist "remain in Mexico" policy regarding political asylum seekers. As Moira Donegan at The Guardian explains, this sleazy strategy for cheating the legal system was developed under Donald Trump.

Previously, shadow docket emergency requests had been rarely used, to advance the interests of the governing administration. From 2001 through 2016, the Department of Justice applied for these emergency relief interventions from the court only eight times. During the four years of Trump's presidency, however, the justice department applied 41 times.....

Bypassing lower courts, the Trump administration was able to solicit the supreme court for a green light for border wall funding and construction, for a ban of transgender troops in the military, for a ban of immigrants from Muslim majority countries, and for many, many executions during the administration's 11th-hour killing spree in the latter half of 2020.

Unfortunately, this strategy has been devastatingly effective at lulling the press into not covering how far-right the Supreme Court is, and therefore tricking the public into believing the courts are more reasonable than they actually are:

In Gallup's last poll, 51% of Democratic voters said they approved of the Supreme Court. For most of the past decade, the Roberts court enjoyed more support from Democrats than Republicans.

There's an epidemic of elite lawyer brain in blue America. https://t.co/jFRX6XfYzD pic.twitter.com/KsnudEcND1

— Eric Levitz (@EricLevitz) September 1, 2021

This Roe non-decision advances the court's cowardly strategy a step further. By not saying anything at all, they allow the Texas law to go in effect without drawing headlines that indicate that Supreme Court decision was made one way or another.

From a journalist's perspective, I can say that this method, while sordid, is effective for media manipulation. Outlets cannot publish straightforward headlines that say "Roe overturned" or "Supreme Court upholds Texas abortion ban," because it hasn't actually happened, one way or another. It's possible that a decision is issued later today or this week, or never. There's no way to know and so no way to write clear, compelling headlines, much less stories that state clearly, one way or another, if Roe is overturned. It's Schrödinger's abortion ban.

Except, of course, for the women who actually need abortions. For them, these legal ambiguities are irrelevant, because the situation is black-and-white: They need abortions, but are barred legally from getting them. If they can't figure out ways to get abortions on the black market or out of state, they may end up being forced into childbirth. While headline writers are stuck trying to explain this to the public, pregnant people themselves are very much non-ambiguously in crisis.

What makes the non-decision even more repugnant is that the Supreme Court is due to hear arguments next month in Dobbs v. Jackson Women's Health Organization, which involves a 15-week abortion ban in Mississippi. That ban may sound less serious than the Texas ban, but it is also an invitation to the Supreme Court to overturn Roe, since it's an attack on the pre-viability standard. Mississippi's lawyers have even made it clear that overturning Roe is the point of the law.

That's why, even if the Supreme Court accedes to public outrage over this cowardly Roe overturn, and issues a too-late injunction against the Texas law, a lot of damage has been done by not swiftly enjoining a law so clearly in violation of Roe. Legal analysts Jessica Mason Pieklo at Rewire and Steven Mazie at The Economist explained on Twitter:

Instead of issuing a ruling blocking Texas' 6-week abortion ban from taking effect, the Court did nothing. But in this case, doing nothing is actually doing EVERYTHING. Because by doing nothing, the justices said Roe is no longer good law.

— Jessica Mason Pieklo (@Hegemommy) September 1, 2021

Still a chance SCOTUS will temporarily block the TX abortion law when it gets around to issuing an order.

Some will say that means we midnight tweeters have been too alarmist re Roe.

But no. You don't treat a right so cavalierly if you plan to uphold the case undergirding it.

— Steven Mazie (@stevenmazie) September 1, 2021

It's a truism in Beltway media that Roberts is an "institutionalist" who values preserving the Supreme Court's integrity over his far-right views. This is, as many pieces of received wisdom in D.C., utter nonsense. To be clear, Roberts values his reputation as an institutionalist. That's why he has increasingly embraced strategies based on subterfuge and obfuscation, so he can preserve that reputation while actually doing what he was appointed by George W. Bush to do, which is impose a far-right ideology on a public that rejects it. Roberts is the one who is shepherding this abuse of the shadow docket. Roberts is the one who is letting Texas ban abortion, in direct violation of Roe, by simply washing his hands of the issue. He's a radical wolf in institutionalist sheep clothing. The only hope is that this abortion ban is finally what attracts enough national attention to these abuses, and blows up an authoritarian strategy that only works in the shadows.

YankeeTarheel wrote: Wed Sep 01, 2021 1:01 pm

FrontSight wrote: Wed Sep 01, 2021 1:00 pm Lets see how long before women start changing their votes in Texas.

Don't count on it....

WHOLE WOMAN’S HEALTH ET AL. v. AUSTIN REEVE
JACKSON, JUDGE, ET AL.

Supreme Court Declines To Block Extreme Texas Abortion Law In 5-4 Ruling

The U.S. Supreme Court said Wednesday night it would not block Texas’ extreme new law that criminalizes abortion after six weeks, a striking defeat for abortion rights advocates who say the ban is a direct assault on Roe v. Wade.

The ruling was 5-4, with Chief Justice John Roberts siding with the court’s three liberal members.

The majority issued a brief decision saying that, although women’s health groups had raised “serious questions about the constitutionality” of the law, the application failed to “carry the burden” necessary for an injunction while any legal challenges work their way through the courts.

“In particular, this order is not based on any conclusion about the constitutionality of Texas’ law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts,” the justices wrote. They added that the ruling “in no way limits other procedurally proper challenges to the Texas law.”

The decision came just under a day after the court effectively allowed the Texas abortion ban to go into effect by not taking any action after a coalition of abortion rights groups filed an emergency appeal to halt it.

The new law, Senate Bill 8, effectively bans abortions at six weeks, when many women don’t yet realize they’re pregnant. It also deputizes private citizens who can receive bounties of up to $10,000 for suing anyone accused of “aiding and abetting” patients who seek an abortion in Texas.

Justice Sonia Sotomayor excoriated her conservative colleagues, saying the court had “silently acquiesced in a state’s enactment of a law that flouts nearly 50 years of federal precedents.”

“The court’s order is stunning,” she wrote in her dissent, joined by Justices Stephen Breyer and Elena Kagan. “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.”

Roberts, in a separate dissent, said he would have blocked the law while it was before the court, calling it “not only unusual, but unprecedented.”

“Although the Court does not address the constitutionality of this law, it can of course promptly do so when that question is properly presented,” he wrote. “At such time the question could be decided after full briefing and oral argument, with consideration of whether interim relief is appropriate should enforcement of the law be allowed below.”

The Texas law, however, is notable in that it was drafted specifically to be difficult to challenge in court. The bill bars state officials from enforcing the new law but, by deputizing private citizens, it makes it much harder to craft a legal argument against it.

Abortion rights advocates have said the new law will effectively force tens of thousands of people to travel outside the state in order to get an abortion, placing a huge financial and emotional burden on them. Women’s rights advocates have also argued the bill could easily become a blueprint for other states hoping to also deny a woman’s right to choose abortion.

The New York Times notes that about 85% to 90% of abortions in Texas occur after the sixth week of pregnancy.

sikacz wrote: Wed Sep 01, 2021 9:53 pm

YankeeTarheel wrote: Wed Sep 01, 2021 1:01 pm

FrontSight wrote: Wed Sep 01, 2021 1:00 pm Lets see how long before women start changing their votes in Texas.

Don't count on it....

This would never have happened if Texas women didn’t support it.

CDFingers wrote: Thu Sep 02, 2021 8:57 am I have a solution: break up the US into West America, East America, and Dumbfuckistann in the middle there. We'll starve them into submission or death. None of those dumb red states could get by without blue money. Fuck them. I'm done thinking that they're worth any more than a bucket of cow flap. Grrr.

on edit

CDFingers

highdesert wrote: Thu Sep 02, 2021 1:37 am The vote at SCOTUS on the emergency injunction was 5-4. Thomas, Alito, Gorsuch, Kavanaugh and Barrett voted to deny it, Roberts sided with Breyer, Sotomayor and Kagan and would have granted it.

WHOLE WOMAN’S HEALTH ET AL. v. AUSTIN REEVE
JACKSON, JUDGE, ET AL.

http://cdn.cnn.com/cnn/2021/images/09/02/21a24.pdf

The statutory scheme before the Court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.

The State defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place. I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.

How is this law different from other states' efforts?
Groups who oppose abortion rights have pushed for this Texas law, hoping that it will be harder for federal courts to knock it down. Instead of requiring public officials to enforce the law, this law allows individuals to bring civil lawsuits against abortion providers or anyone else found to "aid or abet" illegal abortions.

In a federal lawsuit challenging this, a coalition of abortion providers and reproductive rights groups said the law "places a bounty on people who provide or aid abortions, inviting random strangers to sue them."

featureless wrote: Thu Sep 02, 2021 10:44 am Fucking legislatures. Such a bullshit law. And, as pointed out, bullshit the Dems haven't cemented abortion rights. Roe is really on quite shakey legal footing relying on privacy, especially with the current SCOTUS composition. My best guess is they didn't see the need for an emergency injunction since the lower courts are still chewing on it. How will they ultimately rule, that's the question.