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The Great Texas Abortion Law Freak Out
By now, those of you who are paying even a smidgen of attention to the news are aware that legislation titled the Texas Heartbeat Act (S.B. No. 8) went into effect yesterday. The law prohibits a physician from performing an abortion, absent a medical emergency, “if the physician detected a fetal heartbeat for the unborn child.” This occurs at about six weeks from conception. Of most interest is the fact that the law–unlike some other state attempts–does not permit state officers to enforce it. In a rather unique piece of draftsmanship, it permits a private party to sue in state court against anyone who violates the law or aids and abets in the violation. If the plaintiff is successful, they are entitled to injunctive relief, attorney’s fees, and at least $10,000 in damages.
There is a somewhat complex procedural history leading up to yesterday’s Supreme Court action which I’m not going to track here. The bottom line is that, by a 5-4 vote, the Supreme Court denied abortion providers’ request for an emergency injunction preventing the law from going into effect. This is not a decision “on the merits”–on the ultimate constitutionality of the law, but only a determination that the defendants in the suit–Texas officials (including the Attorney General) and a citizen activist–were not attempting to enforce the law, so there was (among other things) no “case or controversy” to be resolved. That is, or should have been, a fairly simple resolution. But not so fast. It’s abortion.
“By its inaction, the Supreme Court ended abortion access in TX last night. Roe v. Wade was effectively overruled, not with a bang, but with a whimper, through the shadow docket . . .” said Senator Richard Blumenthal of Connecticut, indicating little knowledge of the Supreme Court’s action. Not to be outdone, President Biden said the statute “unleashes unconstitutional chaos and empowers self-anointed enforcers to have devastating impacts.” According to Biden, “For the [Supreme Court] majority to do this without a hearing, without the benefit of an opinion from a court below, and without due consideration of the issues, insults the rule of law and the rights of all Americans to seek redress from our courts . . .”
Surprising no one, a collective of “legal experts” on Twitter unleashed a barrage of criticism directed at the Supreme Court, and public demonstrations have followed. The freak out is so severe that we are even hearing about “women’s” rights once again, with the inclusiveness of “birthing people” seemingly forgotten. Since a degree of subtlety is rarely the hallmark of criticism from the left, the fact that none of the defendants in the case had actually done anything seems to have escaped notice.
There are, of course, lessons to be learned even at this intermediate stage of the dispute. There is a strong case that, based on the law, the decision should have been 9-0. The dissents, including one from Chief Justice Roberts (natch), are weak, and never really say what an injunction against the named defendants would accomplish. This reminds us, again, that politics, and in Roberts’ case, optics, frequently drives the unanimity from Justices on the left. It’s also no surprise that the usual suspects are demagoguing a complex issue, or that the reaction of Twitter is usually a contrary indicator to what is actually right. But, hopefully, we already knew that.
Published in Law
What caught my ear was that the Plaintiffs could be awarded their attorney’s fees, but the Defendants could not. That is just wrong, what is good for the goose is good for the gander.
This law reminds me of civil asset forfeitures, and the infamous Kelo v City of New London case.
How is this relevant, Brian?
Oh, Jerry, it’s simply a humorous sidelight. Admittedly, Hoyacon’s follow-up comment was much more relevant to the matter…dare I say it, at hand.
It is their holy sacrament. Their #1 issue. Gotta kill them babies.
There was an excellent deep dive on Advisory Opinions with David French and Sarah Isgur at the Dispatch.
After talking about the unique legal status of this case, David and Sarah turned to the specific Texas statute.
As I mentioned above, the Plaintiff wins a minimum of $10,000 against each defendant who helped facilitate an abortion after 6 weeks, and the Plaintiff gets all of the Plaintiff’s attorney’s fees paid by the Defendant. By contrast, the Defendants are statutorily unable to win their attorney’s fees. The Plaintiff need have no relationship with the Defendants, only that the Plaintiff can’t be a government employee. Also the mother can’t be sued, but has complete immunity. Only those who commit the abortion or facilitates in getting the abortion can be sued.
Here is a potential fact pattern. Jane Doe is pregnant. Her wealthy parents drive her to her medical providers. The Plaintiff is a neighbor who hates Jane Doe’s family and is down on his luck. Jane Doe has a miscarriage. The Plaintiff notes that Jane Doe no longer is pregnant. The Plaintiff files a lawsuit for $10,000 each against Jane Doe’s parents, plus all of his attorney’s fees. The Plaintiff easily finds a lawyer who knows that if Plaintiff wins, that lawyer automatically gets all of her or her attorney’s fees from Jane Doe’s wealthy parents. Jane Doe’s Parents have to hire an attorney. Jane Doe’s parent defeat the plaintiff. Jane Doe’s parents have NO ability to recover their attorney’s fees. The Plaintiff owes his lawyer nothing as this was a contingency fee case. The Plaintiff’s lawyer moves on to his or her next client.
“The Lives of Others” is a story of the East Germany Stasi who get neighbors to inform on their neighbors. A minimum of $10,000 per defendant is one heck of a lot of money. East Germany may have nothing on Texas.
I deplore abortion. I hired a birth mother who had just placed her baby for adoption, sight unseen. I have represented dozens of birth mothers. I have represented a bunch of adoptive parents. But the Texas law is not the way to go.
Edit: David French thinks that while the Supremes will not accept the 6 weeks line of Texas, he thinks that they will uphold the Mississippi case, and there is a slight chance that the Supremes may over-rule Roe v. Wade itself, the second most famous case of the Twentieth Center after Brown v. Board of Education, both results that he firmly prays for,
I didn’t see the clip, but Jim Geraghty commented on yesterday’s Three Martini Lunch that his hands were above the table the entire time. As explained, Toobin is the wrong person to comment on this issue for multiple reasons.
Jeffery Toobin is the wrong person to comment on this because he was sleeping with a coworker’s daughter. She became pregnant, and he demanded that she get an abortion. She refused and he’s now paying child support. Toobin is now practicing birth control on a regular basis, to include practicing during Zoom meetings.
Pay close attention to the allegedly pro-life conservatives who are suddenly upset that the law is finally moving in a direction they’ve claimed to want all along. It’s like those Republicans in Congress who always support conservative positions when they’re out of power (in order to fund-raise) but can’t seem to pass any conservative legislation when they’re in power.
We’ll see where their allegiances lie.
OK, thanks. This one is pretty funny, too.
Gary, I don’t seen any similarity between this and Kelo, other than you apparently not liking both of them.
If you feel so strongly about fees being a two-way street, you ought to contact your state representative about some Arizona statutes. Off the top of my head, there’s a probate statute that allows an award of fees to a prevailing trustee but not a prevailing challenger, and there’s a statute the allows an award of fees to a prevailing plaintiff in a wrongful (real estate) recording case but not to a prevailing defendant. I’d have to double-check, but there may be a similar rule in an employee wage claim and a securities fraud claim and in condemnation cases (in favor of the landowner for this one, I seem to recall). I also vaguely recall that this rule applies in a federal sec. 1983 civil rights claim.
I don’t think that it’s not necessarily true that a fee award statute should always be a two-way street.
Are there some upset? I haven’t been following this topic that closely.
Good points. Thanks.
Yes, the Texas legislature was a little too clever in the way they wrote this law. The courts will eventually strike it down.
Only a constitutional amendment will end abortion as we know it, and I don’t see this as likely with the current composition of Congress.
We were set to make big gains in the mid-terms, and this could spoil that.
Boss man has found some people on the cusp of getting it.