Understanding the Texas Law
The Texas Heartbeat Act bans abortions once cardiac activity can be detected in the embryo. This typically occurs around the sixth week of pregnancy but many women may not even realize they are pregnant.
Moreover, cardiac activity is a misleading signal based on electrical activity but heart valves are not yet formed. Thus, there is no genuine heartbeat.
The law makes no provision for rape or incest but does make a provision if the life of the mother is threatened.
That would overturn Roe v Wade. The kicker is an unconstitutional enforcement mechanism that will not at all stick.
Enforcement Mechanism
Rather than risk an immediate confrontation with the Supreme Court, the Texas Law established a unique enforcement mechanism.
The Wall Street Journal Explains.
The Texas law differs from other states’ recent attempts at restrictions to severely limit abortion access, because it creates a new enforcement structure that allows private citizens to bring a civil lawsuit against abortion providers and to collect at least $10,000 in damages plus legal costs per abortion challenged successfully.
In addition, the law also allows potential lawsuits against not only clinics and doctors, but also anyone who aids or abets an abortion, including insurance companies and transportation providers.
Clearly Unconstitutional
The Heartbeat Law is clearly unconstitutional.
Q: Why?
A: It allow outside parties with no say or damages to collect at least $10,000 in damages.
Anyone who performs an abortion or even gives someone abortion advice or drives them to a clinic is subject to a $10,000 fine, by any private citizen (or thousands of them).
Point blank, that is clearly nuts.
Q: So why didn’t the Supreme Court blast this idiotic law to smithereens?
A: Skirting the issue, the Court let the law stand until there is an actual challenge to it.
In an unsigned order, a conservative majority acknowledged there were “serious questions regarding the constitutionality of the Texas law” but said the court might lack the jurisdiction to act because of procedural technicalities. The three liberal justices and Chief Justice John Roberts filed dissents.
In effect, someone has to break the law then file a suit. Meanwhile, there will be hundreds if not thousands of lawsuits against that person breaking the law.
Is the Supreme Court Ready to Overturn Roe?
Noah Feldman, a writer for Bloomberg, asks Is the Supreme Court Ready to Overturn Roe?
Spoiler: “We Don’t Know“.
A day after the Constitution-flouting Texas anti-abortion law went into effect, a divided Supreme Court ruled on Wednesday that it won’t block the law before it can grapple with a concrete case that tests it in practice.
Every nonlawyer on the planet — and no doubt a few lawyers, too — is likely to read this outcome as prefiguring a 5-to-4 vote to overturn Roe v. Wade, the 1973 precedent that made abortion a constitutional right.
That’s a possible interpretation of the latest opinion, to be sure. But the opinion for the five conservatives explicitly denied it. “We stress,” said the justices, “that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit.” That’s lawyer-speak for saying both that the law could still be unconstitutional and that there might still be some procedural way to block its operation. For good measure, the opinion said the challengers “have raised serious questions regarding the constitutionality of the Texas law.”
But the fact remains that the majority in the Texas ruling did not address the underlying issues, so it would be premature to predict the outcome in the Mississippi case based on it.
Majority of Americans Against Overturning Roe v. Wade
The Texas law effectively would overturn Roe.
Only 13% of the country agrees. That total includes 11% of independents, 4% of Democrats, and 31% of Republicans according to an NPR/Marist Poll.
Potential Backfires
Most of the country would be quite happy with drawing the line at the first trimester except in cases where a woman’s life was in danger.
Instead, we have more extreme polarization foaming up in a law that is clearly unconstitutional as anyone with an ounce of common sense understands.
The 2022 Midterms elections are coming up.
This kind of extreme political nonsense could easily outrage independents and moderates.
And for what?
As soon as there is a case, the Supreme Court will be forced to do what it should have in the first place. Strike down the law.
What will the abortion abolitionists in Texas have gained?
Nothing, other than pissing off every sensible independent and moderate in the middle, and that especially includes moderates and independents in Texas.
Addendum
The court ruling is more than a bit hypocritical as noticed by the SCOTUS Blog
Abortion, the Death Penalty, and the Shadow Docket
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Even better than that for Newsom is the presence of Larry Elder in the race. If he had not been there, it was possible that the D base would not be so enthused to vote in large numbers and there was at least a good chance that Newsom would fail to hit the 50 mark. That would resulted in one of the conventional (though lackluster) Republicans making it with maybe 20 percent of the vote.
But now that Elder is there and can’t seem to shut up (just like Trump), the D base has mobilized and is turning up for Newsom. Every time Elder opens his mouth, Newsom’s margin increases by a point or two. I won’t be surprised if the final tally is like a 59-41 Newsom win or close to that.
In addition, the law also allows potential lawsuits against not only clinics and doctors, but also anyone who aids or abets an abortion, including insurance companies and transportation providers. “
according to my greatest ability and judgment, and I will do no harm or
injustice to them.Neither will I administer a poison to anybody when asked to do so, nor will I suggest such a course.Similarly I will not give to a woman a pessary to cause abortion.”
The Supreme Court opinion https://nl.nytimes.com/f/newsletter/hWKeR2fy7W-nine9K6S-og~~/AAAAAQA~/RgRjFH4iP0TbaHR0cHM6Ly93d3cubnl0aW1lcy5jb20vMjAyMS8wOS8wMS91cy9zdXByZW1lLWNvdXJ0LXRleGFzLWFib3J0aW9uLmh0bWw_Y2FtcGFpZ25faWQ9OSZlbWM9ZWRpdF9ubl8yMDIxMDkwMyZpbnN0YW5jZV9pZD0zOTUxOSZubD10aGUtbW9ybmluZyZyZWdpX2lkPTkxNDgxNTIxJnNlZ21lbnRfaWQ9Njc5ODgmdGU9MSZ1c2VyX2lkPWIxN2IwMjRiN2ZjNmE3NWIxZWY4ZWUwYzI4MzU3OTlkVwNueXRCCmEwIvkxYf2JKo9SE3Nla2FyMTAyN0BnbWFpbC5jb21YBAAAAAA~ was different from most major rulings by the court.
This one came out shortly before midnight on Wednesday. It consisted of a single paragraph, not signed by the justices who voted for it and lacking the usual detailed explanation of their reasoning. And there had been no oral arguments, during which opposing lawyers could have made their cases and answered questions from the justices.
Instead, the opinion was part of something that has become known as https://nl.nytimes.com/f/newsletter/M13LZ36Mg8n85xCMyKOyDQ~~/AAAAAQA~/RgRjFH4iP0TbaHR0cHM6Ly93d3cubnl0aW1lcy5jb20vMjAyMC8xMC8yNi91cy9zdXByZW1lLWNvdXJ0LWVsZWN0aW9uLWNhc2VzLmh0bWw_Y2FtcGFpZ25faWQ9OSZlbWM9ZWRpdF9ubl8yMDIxMDkwMyZpbnN0YW5jZV9pZD0zOTUxOSZubD10aGUtbW9ybmluZyZyZWdpX2lkPTkxNDgxNTIxJnNlZ21lbnRfaWQ9Njc5ODgmdGU9MSZ1c2VyX2lkPWIxN2IwMjRiN2ZjNmE3NWIxZWY4ZWUwYzI4MzU3OTlkVwNueXRCCmEwIvkxYf2JKo9SE3Nla2FyMTAyN0BnbWFpbC5jb21YBAAAAAA~ In the shadow docket, the court makes decisions quickly, without the usual written briefings, oral arguments or signed opinions. In recent years, the shadow docket has become a much larger part of the Supreme Court’s work.
Shadow-docket rulings have shaped policy on voting rights, climate change, birth control, Covid-19 restrictions and more. Last month, the justices issued shadow decisions forcing the Biden administration to https://nl.nytimes.com/f/newsletter/5IXpGrrmbWeNQZFFKOHM_A~~/AAAAAQA~/RgRjFH4iP0TXaHR0cHM6Ly93d3cubnl0aW1lcy5jb20vMjAyMS8wOC8yNi91cy9ldmljdGlvbi1tb3JhdG9yaXVtLWVuZHMuaHRtbD9jYW1wYWlnbl9pZD05JmVtYz1lZGl0X25uXzIwMjEwOTAzJmluc3RhbmNlX2lkPTM5NTE5Jm5sPXRoZS1tb3JuaW5nJnJlZ2lfaWQ9OTE0ODE1MjEmc2VnbWVudF9pZD02Nzk4OCZ0ZT0xJnVzZXJfaWQ9YjE3YjAyNGI3ZmM2YTc1YjFlZjhlZTBjMjgzNTc5OWRXA255dEIKYTAi-TFh_Ykqj1ITc2VrYXIxMDI3QGdtYWlsLmNvbVgEAAAAAA~~ and to reinstate a Trump administration immigration policy. “The cases affect us at least as much as high-profile cases we devote so much attention to,” Stephen Vladeck, a University of Texas law professor, told me.
Shadow-docket cases are frequently those with urgency — such as a voting case that must be decided in the final weeks before an election. As a result, the justices don’t always have time to solicit briefs, hold oral arguments and spend months grappling with their decision. Doing so can risk irreparable harm to one side in the case.
For these reasons, nobody questions the need for the court to issue some expedited, bare-bones rulings. But many legal experts are worried about how big the shadow docket has grown, including in cases that the Supreme Court could have decided in a more traditional way.
“Shadow docket orders were once a tool the court used to dispense with unremarkable and legally unambiguous matters,” https://nl.nytimes.com/f/a/5Amz6p9wqCE-_C6zNgeA3g~~/AAAAAQA~/RgRjFH4iP0TuaHR0cHM6Ly93d3cudGhlZ3VhcmRpYW4uY29tL2NvbW1lbnRpc2ZyZWUvMjAyMS9hdWcvMzEvc3VwcmVtZS1jb3VydC11cy1jYXNlcy1zaGFkb3ctZG9ja2V0P2NhbXBhaWduX2lkPTkmZW1jPWVkaXRfbm5fMjAyMTA5MDMmaW5zdGFuY2VfaWQ9Mzk1MTkmbmw9dGhlLW1vcm5pbmcmcmVnaV9pZD05MTQ4MTUyMSZzZWdtZW50X2lkPTY3OTg4JnRlPTEmdXNlcl9pZD1iMTdiMDI0YjdmYzZhNzViMWVmOGVlMGMyODM1Nzk5ZFcDbnl0QgphMCL5MWH9iSqPUhNzZWthcjEwMjdAZ21haWwuY29tWAQAAAAA. “In recent years the court has largely dispensed with any meaningful application of the irreparable harm standard.”
Why have the justices expanded the shadow docket?
In part, it is a response to a newfound willingness by lower courts to issue decisions that apply to the entire country, https://nl.nytimes.com/f/newsletter/F-_PxDfT_SHLXpA9Xq17iw~~/AAAAAQA~/RgRjFH4iP0TyaHR0cHM6Ly93d3cubnl0aW1lcy5jb20vMjAyMS8wOS8wMi91cy9wb2xpdGljcy9zdXByZW1lLWNvdXJ0LXNoYWRvdy1kb2NrZXQtdGV4YXMtYWJvcnRpb24uaHRtbD9jYW1wYWlnbl9pZD05JmVtYz1lZGl0X25uXzIwMjEwOTAzJmluc3RhbmNlX2lkPTM5NTE5Jm5sPXRoZS1tb3JuaW5nJnJlZ2lfaWQ9OTE0ODE1MjEmc2VnbWVudF9pZD02Nzk4OCZ0ZT0xJnVzZXJfaWQ9YjE3YjAyNGI3ZmM2YTc1YjFlZjhlZTBjMjgzNTc5OWRXA255dEIKYTAi-TFh_Ykqj1ITc2VrYXIxMDI3QGdtYWlsLmNvbVgEAAAAAA~~. By acting quickly, the Supreme Court can retain its dominant role.
But there is also a political angle. Shadow-docket cases can let the court act quickly and also shield individual justices from criticism: In the latest abortion case, there is no signed opinion for legal scholars to pick apart, and no single justice is personally associated with the virtual end of legal abortion in Texas. The only reason that the public knows the precise vote — 5 to 4 — is that the four justices in the minority each chose to release a signed dissent.
Critics argue that judges in a democracy owe the public more transparency. “This idea of unexplained, unreasoned court orders seems so contrary to what courts are supposed to be all about,” Nicholas Stephanopoulos, a Harvard law professor, https://nl.nytimes.com/f/newsletter/M13LZ36Mg8n85xCMyKOyDQ~~/AAAAAQA~/RgRjFH4iP0TbaHR0cHM6Ly93d3cubnl0aW1lcy5jb20vMjAyMC8xMC8yNi91cy9zdXByZW1lLWNvdXJ0LWVsZWN0aW9uLWNhc2VzLmh0bWw_Y2FtcGFpZ25faWQ9OSZlbWM9ZWRpdF9ubl8yMDIxMDkwMyZpbnN0YW5jZV9pZD0zOTUxOSZubD10aGUtbW9ybmluZyZyZWdpX2lkPTkxNDgxNTIxJnNlZ21lbnRfaWQ9Njc5ODgmdGU9MSZ1c2VyX2lkPWIxN2IwMjRiN2ZjNmE3NWIxZWY4ZWUwYzI4MzU3OTlkVwNueXRCCmEwIvkxYf2JKo9SE3Nla2FyMTAyN0BnbWFpbC5jb21YBAAAAAA~. “If courts don’t have to defend their decisions, then they’re just acts of will, of power.”
During a House hearing on the shadow docket in February, members of both parties https://nl.nytimes.com/f/a/aJKIsihpRxD3BceplS-4ag~~/AAAAAQA~/RgRjFH4iP4QOAWh0dHBzOi8vd3d3LnNjb3R1c2Jsb2cuY29tLzIwMjEvMDIvbGF3bWFrZXJzLWNvbnNpZGVyLW51ZGdpbmctc3VwcmVtZS1jb3VydC10b3dhcmQtbW9yZS10cmFuc3BhcmVuY3ktb24tdGhlLXNoYWRvdy1kb2NrZXQvP2NhbXBhaWduX2lkPTkmZW1jPWVkaXRfbm5fMjAyMTA5MDMmaW5zdGFuY2VfaWQ9Mzk1MTkmbmw9dGhlLW1vcm5pbmcmcmVnaV9pZD05MTQ4MTUyMSZzZWdtZW50X2lkPTY3OTg4JnRlPTEmdXNlcl9pZD1iMTdiMDI0YjdmYzZhNzViMWVmOGVlMGMyODM1Nzk5ZFcDbnl0QgphMCL5MWH9iSqPUhNzZWthcjEwMjdAZ21haWwuY29tWAQAAAAA. “Knowing why the justices selected certain cases, how each of them voted, and their reasoning is indispensable to the public’s trust in the court’s integrity,” Representative Henry Johnson Jr., a Georgia Democrat, said. Representative Louie Gohmert, a Texas Republican, said, “I am a big fan of judges and justices making clear who’s making the decision, and I would welcome reforms that required that.”
The shadow docket also leaves lower-court judges unsure about what exactly the Supreme Court has decided and how to decide similar cases they later hear. “Because the lower-court judges don’t know why the Supreme Court does what it does, they sometimes divide sharply when forced to interpret the court’s nonpronouncements,” https://nl.nytimes.com/f/newsletter/JU6ho7bbg_HCPG5L5zmmCQ~~/AAAAAQA~/RgRjFH4iP0TnaHR0cHM6Ly93d3cubnl0aW1lcy5jb20vMjAxNS8wMi8wMy9vcGluaW9uL3RoZS1zdXByZW1lLWNvdXJ0cy1zZWNyZXQtZGVjaXNpb25zLmh0bWw_Y2FtcGFpZ25faWQ9OSZlbWM9ZWRpdF9ubl8yMDIxMDkwMyZpbnN0YW5jZV9pZD0zOTUxOSZubD10aGUtbW9ybmluZyZyZWdpX2lkPTkxNDgxNTIxJnNlZ21lbnRfaWQ9Njc5ODgmdGU9MSZ1c2VyX2lkPWIxN2IwMjRiN2ZjNmE3NWIxZWY4ZWUwYzI4MzU3OTlkVwNueXRCCmEwIvkxYf2JKo9SE3Nla2FyMTAyN0BnbWFpbC5jb21YBAAAAAA~, a University of Chicago law professor and former clerk for Chief Justice John Roberts. Baude coined the term “shadow docket.”
The court’s six Republican-appointed justices are driving the growth of the shadow docket, and it is consistent with their overall approach to the law. They are https://nl.nytimes.com/f/newsletter/AkfxoU3wKO_ilyjK5-9XlQ~~/AAAAAQA~/RgRjFH4iP0TfaHR0cHM6Ly93d3cubnl0aW1lcy5jb20vMjAyMS8wNy8wNi9icmllZmluZy9zdXByZW1lLWNvdXJ0LWRvbmFsZC10cnVtcC5odG1sP2NhbXBhaWduX2lkPTkmZW1jPWVkaXRfbm5fMjAyMTA5MDMmaW5zdGFuY2VfaWQ9Mzk1MTkmbmw9dGhlLW1vcm5pbmcmcmVnaV9pZD05MTQ4MTUyMSZzZWdtZW50X2lkPTY3OTg4JnRlPTEmdXNlcl9pZD1iMTdiMDI0YjdmYzZhNzViMWVmOGVlMGMyODM1Nzk5ZFcDbnl0QgphMCL5MWH9iSqPUhNzZWthcjEwMjdAZ21haWwuY29tWAQAAAAA willing to be aggressive, overturning longstanding precedents, in campaign finance, election law, business regulation and other areas. The shadow docket expands their ability to shape American society.
The three Democratic-appointed justices, for their part, have grown frustrated by the trend. https://nl.nytimes.com/f/a/Ax1qAIZ10wN-yl4uU5qnag~~/AAAAAQA~/RgRjFH4iP0TOaHR0cHM6Ly93d3cuc3VwcmVtZWNvdXJ0Lmdvdi9vcGluaW9ucy8yMHBkZi8yMWEyNF84NzU5LnBkZj9jYW1wYWlnbl9pZD05JmVtYz1lZGl0X25uXzIwMjEwOTAzJmluc3RhbmNlX2lkPTM5NTE5Jm5sPXRoZS1tb3JuaW5nJnJlZ2lfaWQ9OTE0ODE1MjEmc2VnbWVudF9pZD02Nzk4OCZ0ZT0xJnVzZXJfaWQ9YjE3YjAyNGI3ZmM2YTc1YjFlZjhlZTBjMjgzNTc5OWRXA255dEIKYTAi-TFh_Ykqj1ITc2VrYXIxMDI3QGdtYWlsLmNvbVgEAAAAAA~~, Justice Elena Kagan wrote, “The majority’s decision is emblematic of too much of this court’s shadow-docket decision making — which every day becomes more unreasoned, inconsistent and impossible to defend.” In https://nl.nytimes.com/f/newsletter/2JPtisNqQStOU_OeuYJSeg~~/AAAAAQA~/RgRjFH4iP0TvaHR0cHM6Ly93d3cubnl0aW1lcy5jb20vMjAyMS8wOC8yNy91cy9wb2xpdGljcy9qdXN0aWNlLWJyZXllci1zdXByZW1lLWNvdXJ0LXJldGlyZW1lbnQuaHRtbD9jYW1wYWlnbl9pZD05JmVtYz1lZGl0X25uXzIwMjEwOTAzJmluc3RhbmNlX2lkPTM5NTE5Jm5sPXRoZS1tb3JuaW5nJnJlZ2lfaWQ9OTE0ODE1MjEmc2VnbWVudF9pZD02Nzk4OCZ0ZT0xJnVzZXJfaWQ9YjE3YjAyNGI3ZmM2YTc1YjFlZjhlZTBjMjgzNTc5OWRXA255dEIKYTAi-TFh_Ykqj1ITc2VrYXIxMDI3QGdtYWlsLmNvbVgEAAAAAA~~, Justice Stephen Breyer said: “I can’t say never decide a shadow-docket thing. … But be careful.”
Roberts also evidently disagrees with the use of the shadow docket in the Texas abortion case. In his dissent, joining the three liberal justices, he said the court could instead have blocked the Texas law while it made its way through the courts. That the court chose another path means that abortion is now all but illegal in the nation’s second-largest state.
The justices are likely to settle the question in a more lasting way next year. They will hear oral arguments this fall in a Mississippi abortion case — the more traditional kind, outside the shadows — and a decision is likely by June.
For more on the Texas abortion law:
I formed thee in the belly I knew thee; and before thou camest forth
out of the womb I sanctified thee, and I ordained thee a prophet unto
the nations.” King James Version
to the woman getting an abortion — is entitled to at least $10,000 in
damages if they prevail in court.” AP
So how do you reconcile these two? IF the law states, in essence, that the plaintiff could be anyone, that is at odds of your assertion that, for example, only the father and grandparents could sue as the only ones with standing.
technicalities. That is a ruling on the law, and decides the case. Anything they said in addition to that is dicta. Also according to that article, the ruling said that there were “serious questions regarding the constitutionality of the Texas law”. That has no legal effect, but suggests that the court will probably rule that it is unconstitutional if the case is brought again without the procedural issues.
“Using the terms ‘pro-choice’ and ‘pro-life’ is almost a party ID term; it’s meaningless in policy terms,” said Daron Shaw, a government professor at the University of Texas at Austin and co-director of the poll. “But you get some insight in the four-part question.”
The survey found 40% of voters label themselves “pro-life” and 41% as “pro-choice.” Among the pro-life group, 56% would permit abortions in cases of rape, incest and when the life of the mother is threatened; and another 10% would allow them in other cases. And among the pro-choice respondents, 76% would permit abortions with no restrictions and 20% would put some limits on when the procedure is legal.”