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April 9th, 2020:

The Fifth Circuit sticks the shiv the rest of the way in

The worst court in the country does its thing again.

Right there with them

A New Orleans-based federal appeals court will, for now, allow Texas to enforce a ban on almost all abortions as the state battles the coronavirus pandemic.

Overturning the decision of a lower court, a three-judge panel on the politically conservative U.S. 5th Circuit Court of Appeals ruled Tuesday that the state may continue to prohibit all abortions except those for patients whose pregnancies threaten their lives or health — a restriction GOP state officials have insisted is necessary for preserving scarce hospital resources for COVID-19 patients.

Citing precedent from the U.S. Supreme Court, U.S. Circuit Judge Kyle Duncan, an appointee of President Donald Trump, wrote that “individual rights secured by the Constitution do not disappear during a public health crisis, but … Rights could be reasonably restricted during those times.”

“When faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some ‘real or substantial relation’ to the public health crisis and are not ‘beyond all question, a plain, palpable invasion of rights secured by the fundamental law,’” he wrote.

U.S. Circuit Judge James Dennis, appointed to the court by Bill Clinton, dissented.

Abortion providers have characterized the state’s lawsuit as political opportunism. Most abortions do not take place in hospitals, and according to providers, they generally do not require extensive personal protective equipment, like the masks and gloves in short supply for doctors and nurses fighting COVID-19.

[…]

Duncan said Yeakel was wrong to characterize Abbott’s order as an outright ban on abortions.

“Properly understood,” he wrote, the executive order is a “temporary postponement” of many procedures, like colonoscopies.

But Texas bans abortions after 20 weeks, meaning prohibiting the procedure for any length of time leaves many patients unable to terminate their pregnancies at all. Abbott’s order is set to expire April 21 but can be extended.

The case now heads back to federal court in Austin, where a hearing is scheduled next week. The 5th Circuit had already paused Yeakel’s order blocking the ban, but Tuesday’s opinion threw it out entirely.

Further litigation is all but guaranteed. States including Ohio, Oklahoma and Alabama have imposed bans similar to Texas’, and similar lawsuits are playing out across the country.

See here for the background. I don’t know why there’s any pretense that the Fifth Circuit is an unbiased arbiter of the law. They rubber-stamp these appeals on the flimsiest of pretexts. I don’t know if they honestly believe there’s no difference between an abortion and a colonoscopy or if they just think we’re too stupid to understand the difference. The sheer arrogance of it is breathtaking. If Democrats manage to beat Trump and take the Senate in November, I’d be in favor of appointing about a hundred new judges to this court, to ensure as best as possible there’s never another Republican majority on any three-judge panel. This crap cannot continue.

Another lawsuit filed over Abbott’s stay-in-jail order

There’s no slowdown in the litigation business, that’s for sure.

Gov. Greg Abbott’s order restricting the release of some jail inmates during the new coronavirus pandemic is facing a second court challenge arguing his order violates the constitutional separation of powers and discriminates against poor criminal defendants.

Harris County’s misdemeanor judges, criminal defense organizations and the NAACP of Texas sued Abbott and Texas Attorney General Ken Paxton Wednesday in Travis County district court. The plaintiffs are represented in part by the ACLU of Texas and the Texas Fair Defense Project.

Last month, Abbott issued an executive order that suspended much of the state’s bail laws and prohibited the release of people in jail accused or previously convicted of violent crimes without paying bail. The order largely banned judges across the state from releasing such defendants on no-cost, personal bonds, which can include conditions like drug testing and regular check-ins. The attorney general’s office has said no-cost release could be considered for individuals based on health or safety reasons after a chance for a hearing is given, which some attorneys said takes weeks.

But, under Abbott’s order, people accused of the same crimes with the same criminal history could still quickly be released from jail if they had access to cash. The lawsuit argues Abbott’s order ignores constitutionally-mandated separation of powers by taking away judges’ discretion. It also states the system put in place under the order creates an unconstitutional wealth-based system, similar to those that federal courts have slammed in Texas counties.

“The harms of this order are not abstract: poor people are being detained pretrial with no way to escape a possible jail outbreak,” said Amanda Woog, executive director of the Texas Fair Defense Project, in a statement announcing the lawsuit. “The governor has overstepped his legal authority, and this is causing significant harm on the ground.”

See here, here, and here for the background. A copy of the lawsuit is here and the full statement from the ACLU is here. I get that this lawsuit is over the authority Abbott has to suspend various criminal laws, but it’s a little unclear to me what the actual stakes are. The misdemeanor court judges, who are plaintiffs in this suit, have already said they will continue to abide by the bail lawsuit agreement, while the felony court judges are doing their own thing. I guess we’ll find out when we start having hearings. If you’re a lawyer and want to help clarify this for me, please do. Grits has more.

Coronavirus and beer

Houston’s craft breweries are adjusting to life with closed taprooms and beer-to-go sales.

The team at Saint Arnold Brewing sat down to taste some test beers one Wednesday morning, as its members do when they work on new releases. But their meeting didn’t happen in the usual conference room. Instead, the 10 staffers each sat at a separate table in the brewery’s 10,000-square-foot taproom, with ample social distance between them.

There was another difference from normal times, of course: The vast taproom, typically bustling with people, had not seen a single customer inside since the coronavirus-related stay-at-home order. Across Houston, craft brewers have shut off their taps and closed their beer halls, gardens and patios. But they want Houstonians to know that they’re still brewing.

“Our production side is operating at full strength,” says Brock Wagner, founder and brewer of Saint Arnold.

The team has stopped kegging, but has shifted to canning and bottling more beer than usual in order to ramp up to-go sales, something they had never really focused on before, being a destination brewery. They have also seen an uptick in grocery and liquor store sales as more people hunker down at home.

“Everybody’s consumption of alcohol has probably gone up a little bit,” says Wagner. “I know that mine has.”

These new sources of revenue aren’t even close to making up for the loss of business usually generated from Saint Arnold’s taproom being open, their bar and restaurant orders, and other big buyers such as the Minute Maid stadium. But every little helps, a sentiment many local brewers echo. As taprooms — a major source of revenue for these businesses — lay empty, to-go and off-premise sales, even if a drop in the bucket, have become crucial to the survival of the industry.

Brody Chapman, founder and CEO of Spindletap Brewery, says big stores like H-E-B, Kroger and Spec’s have moved a lot of inventory, which has helped local breweries immensely. He’s also been amazed at how many loyal customers have been supporting their business by taking advantage of Spindletap’s new curbside and drive-through beer sales.

“Without the local support, honestly, we would be dead in the water,” he says.

[…]

There are also efforts to lobby state and local governments for relief, spearheaded by the Texas Brewers Guild. While Gov. Greg Abbott issued a temporary waiver last month relaxing liquor laws for bars and restaurants, breweries are still not able to offer services like direct-to-consumer delivery.

“When breweries are fighting for their lives, it would be nice to have more opportunities to get product out to people,” says Chapman. However, he says that a Houston-based start-up called HopDrop, a craft beer delivery service, has been instrumental to propping up local breweries during this time.

The craft brewing boom in Houston, with its lively on-premises social scene and great dining options, has truly been one of the best things to happen in my thirty-plus years in this town. These guys are huge supporters of school and charitable/non-profit fundraisers as well, which we’re going to need a lot more of in the coming months. There are many good reasons to stock up on your favorite brews at this time, which you can do via curbside pickup at the breweries – It’s Not Hou It’s Me has a handy guide to what’s available – or at the grocery store. As with so many other things, let’s make sure this part of our lives is still there when we get to have a life again.

Oh, and for sure let’s remind the Legislature again that the existing laws we have regarding beer distribution were ridiculous in the best of times and super anti-business in the worst. Let’s hope that our archaic and bizarre beer laws are among the things we learned we could do just fine without when this crisis is over.

(Turns out I was a little skeptical of home beer delivery in general and HopDrop in particular when it first came out. Shows how much I know.)

Texas blog roundup for the week of April 6

The Texas Progressive Alliance remains committed to flattening the curve as it brings you this week’s roundup.

(more…)

The NBA tries to look forward

Hope + uncertainty = where we are right now.

While expressing a hope that bordered on determination that the NBA would be able to salvage its season in some form, commissioner Adam Silver also said the unknowns in the COVID-19 crisis are greater than even three-plus weeks ago when he suspended the season and that no decisions will be coming soon.

“Essentially, what I’ve told my folks over the last week is that we should just accept that for at least the month of April we won’t be in a position to make any decisions,” Silver said in a Twitter interview with TNT’s Ernie Johnson on Monday. “I don’t think that necessarily means on May 1 we will be.

“That doesn’t mean internally and in our discussions with our players and the league we aren’t looking at many different scenarios for restarting the season. But I think it is just honestly too early, given what is happening right now, to be able to project or predict where we’ll be in a few weeks.”

Silver said he hopes “to try to finish a regular season in some form and then move on to the playoffs” but that the league has not made any decisions.

He said the NBA initially was considering options for regular and postseason schedules based on potential restart days but has learned that even hypotheticals were relying on excessive guesswork.

“We just have too little information to make those sorts of projections,” Silver said. “I will say, though, as we look out into the summer, there does come a point we would start impacting next season. Even there, a few weeks ago nobody thought we were talking about a potential impact on next season independent on what we might choose to do to finish our regular season and playoffs.

“I don’t want to leave anybody under the impression we’re not trying to do everything we possibly can under the right circumstances. Player safety and the health of everyone in the NBA family has to come first. That may mean there is a scenario we can play without fans. That’s something we look a lot at.”

As we know, MLB is also thinking about when it can begin again. Both of these followed a meeting of multiple sports commissioners with Donald Trump, who would really really like it if this coronavirus thing went away ASAP. Again, I’m happy that the leagues are thinking about how this might work for them, but I think May is an aggressively early timeframe for it. The NBA is in some ways more constrained than MLB precisely because they have to start worrying about their next season, which would start in September. If they’re not able to begin playoffs soon, who knows where they’ll be in the fall. It’s just that none of this is really within their control.