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Republicans threaten businesses over abortion access

If you didn’t see stuff like this coming, you haven’t been paying attention.

With Texas poised to automatically ban abortion if the U.S. Supreme Court overturns Roe v. Wade, some Republicans are already setting their sights on the next target to fight the procedure: businesses that say they’ll help employees get abortions outside the state.

Fourteen Republican members of the state House of Representatives have pledged to introduce bills in the coming legislative session that would bar corporations from doing business in Texas if they pay for abortions in states where the procedure is legal.

This would explicitly prevent firms from offering employees access to abortion-related care through health insurance benefits. It would also expose executives to criminal prosecution under pre-Roe anti-abortion laws the Legislature never repealed, the legislators say.

Their proposal highlights how the end of abortion would lead to a new phase in — not the end of — the fight in Texas over the procedure. The lawmakers pushing for the business rules have signaled that they plan to act aggressively in the next legislative session. But it remains to be seen if they’ll be able to get a majority on their side.

The members, led by Briscoe Cain, R-Deer Park, laid out their plans in a letter to Lyft CEO Logan Green that became public on Wednesday.

Green drew the lawmakers’ attention on April 29, when he said on Twitter that the ride-share company would help pregnant residents of Oklahoma and Texas seek abortion care in other states. Green also pledged to cover the legal costs of any Lyft driver sued under Senate Bill 8, the Texas law that empowers private citizens to file lawsuits against anyone who assists in the procurement of an abortion.

“The state of Texas will take swift and decisive action if you do not immediately rescind your recently announced policy to pay for the travel expenses of women who abort their unborn children,” the letter states.

The letter also lays out other legislative priorities, including allowing Texas shareholders of publicly traded companies to sue executives for paying for abortion care, as well as empowering district attorneys to prosecute abortion-related crimes outside of their home counties.

Six of the 14 signers, including Cain, are members of the far-right Texas Freedom Caucus. How much political support these proposals have in the Republican caucus is unclear. House Speaker Dade Phelan, R-Beaumont, declined to comment. Lt. Gov. Dan Patrick and Gov. Greg Abbott did not respond.

Since the legislative session is more than seven months away, Cain said in an email that “a quickly drafted and sent letter can hardly be said to reflect the pulse of my Republican colleagues.” He was confident, however, that his ideas would find some support in the Senate.

“Knowing that chamber and its leadership, I’m willing to bet legislation targeting this issue will be promptly filed in January,” Cain said.

But doing so would likely mean targeting companies that the state has wooed as potential job creators. Tesla, for instance, announced this month that it would pay for employees’ travel costs when they leave the state to get an abortion. Abbott celebrated the electric car company’s move to Austin last year and this year urged its CEO, Elon Musk, to move Twitter’s headquarters to Texas, too, if he completes his purchase of the social media firm.

Joke all you want about how Republicans used to be the party of big business, because that hasn’t really been true for awhile. They’re the party of “give us your donations and keep your mouth shut about anything we don’t like regardless of what your employees and customers and stockholders say and maybe we’ll leave you alone and toss you a tax cut” now. You may say that it’s unthinkable that Republicans might actually chase large employers out of the state, but a lot of unthinkable things have been happening lately. Remember how the business community helped defeat the “bathroom bill” in 2017, and issued sternly-worded statements about voting rights and further anti-trans bills last year? How’s that been going?

We are living in Briscoe Cain’s Texas now. If he doesn’t get what he wants now – and mark my words, he wants to arrest people who have anything at all to do with abortion – he’ll get it next time, as long as his Republican Party is in charge. The business community needs to recognize that they are right in the crosshairs along with the rest of us. Daily Kos has more.

The coming fight over medical abortion

Sure is a good thing SCOTUS will leave this up to the states, isn’t it?

Republican-led states are moving swiftly to restrict access to medication abortion.

The efforts so far have focused on regulations around the pills, such as banning them from being shipped or prescribed. But can states ban the actual abortion pill itself, even though the Food and Drug Administration has approved it? That question could be the next frontier in the abortion wars.

The short answer comes down to this: The issue isn’t settled law and will likely be litigated in the courts. Some argue states may be hard-pressed to ban the federally approved medication, though antiabortion advocates disagree.

[…]

Some states have introduced bills focused on banning abortion pills, but they haven’t gotten a lot of traction, per Elizabeth Nash, an interim associate director at Guttmacher Institute, a research group that supports abortion rights. (A recent exception is Oklahoma, whose Republican governor is poised to sign legislation banning abortions – including medication abortions – from the moment of “fertilization.”)

Rather, states are banning the practice of medicine around the pills. For instance: At least 19 states ban the use of telehealth for medication abortion, and some states have additional restrictions, like prohibiting pills from being mailed.

Yet, if Roe v. Wade is overturned, some states may try to ban the actual medication. And states already have gestational limits and other abortion bans on the books that could kick in quickly if Roe is overturned — and those likely encompass limitations on the pills, experts said.

Can states ban a medication the FDA has signed off on?

There’s no clear precedent here.

Some states may argue they can ban medication abortion because states have the authority to regulate the practice of medicine. The FDA, on the other hand, is the acknowledged authority on medical products, such as the abortion pill. But the line between medical practice and medical products is not always clear.

And if a state squared off against the federal government over an FDA-approved drug … “We don’t know how the court would rule. It’s an open question,” Patti Zettler, an associate professor of law at Ohio State University and former associate chief counsel in the FDA’s Office of the Chief Counsel.

See here for some background. Reminder #1: The state of Texas has made it a felony to provide abortion medication after seven weeks, after having already banned anyone but doctors from dispensing such medication, and only via an in-person office visit – no telemedicine. You can be sure that Texas will take this to the next level in the next legislative session if it is in position to do so.

Reminder #2: The same medicine that is used for abortion is also used to treat miscarriages. Needless to say, women who are suffering through a miscarriage will face – and as that story notes, are already facing – barriers to medical care that could threaten their health, their future ability to get pregnant and carry a child to term, and even their lives. That’s our future, and if you think I’m being alarmist, go back and read all those soothing articles about how this Supreme Court was never ever going to overturn Roe v Wade because it would cause too much upheaval.

How will abortion bans be enforced?

The good news is that anti-abortion zealots don’t yet know how they’re going to force women to give birth. The bad news is we cannot count on that to continue to be true.

Right there with them

It took next to zero effort for pandering Republican state legislators to obtain cut-and-paste, ALEC-generated laws banning and criminalizing all abortions in their states, then brag and fundraise after such laws were passed by a willing Republican governor. But now that the Supreme Court is apparently set on overruling Roe v. Wade, the much harder part—as Republicans are about to find out—is figuring out how such laws terrorizing pregnant people will actually work in practice.

How do you go about catching and punishing someone who violates these laws? What tools of law enforcement will be necessary? How do you collect the evidence necessary for a prosecutor to charge someone with “aiding and abetting” an illegal abortion, for example? Can you dangle a lesser sentence if they agree to confess or cooperate against the suspect? And once the unrepentant offender has been apprehended, what sort of forensic examination methods or interrogation techniques should be utilized to prove their “crime?” Under what conditions?

[…]

None of the states that provide “exceptions” in cases, for example, involving rape or incest, or to protect the health and life of the mother could provide any guidance as to how such determinations would be made. As Einbinder and Kaskins point out, nearly two-thirds of rapes go unreported, so what type of evidence would be required to apply such an exception? Idaho, Mississippi, and Utah require that the rape be reported to law enforcement before an abortion will be “permitted,” while other states do not. Do prosecutors expect the rapist to voluntarily confirm his behavior?

And what type of medical testimony would be sufficient to establish that a person’s life was actually threatened by their pregnancy? Would there exist a ready cottage industry of experts used by prosecutors to rebut such a claim? Would doctors in a state that provides no such exception be forced to simply sit and watch the pregnant person die?

As Einbinder and Kaskins observe, no one in any of these states so eager to criminalize reproductive choices seems to know the answers to any of these questions. Most of Insider’s requests yielded no records (one district attorney from Shelby County, Tennessee, called their inquiries “political grandstanding”), or were met with bland statements that the agency was not involved in “enforcement”.

It seems clear to me that a big part of the playbook is just having laws that criminalize abortion in whatever form on the books. As we know from the SB8 experience, that by itself serves to intimidate and scare many women away from exploring whatever options they may still have, and also incentivizes fellow zealots to rat out anyone they suspect of engaging in behavior they don’t like – remember, it was someone involved in Lizelle Herrera’s medical care that reported her to law enforcement. If that’s not enough, the next step will be to make it easier for law enforcement to investigate the women in question, which will necessarily mean invasive searches of medical records, Internet and phone records, and who knows what else. Just look at the DFPS investigations of the families of trans kids for a preview of what that might resemble.

It’s likely that at least at first, enforcement of new anti-abortion laws will be uneven, as prosecutors will exercise their discretion as they can. The current Bexar County DA has already said he won’t prosecute abortion cases, and he won’t be alone in that. But DAs can lose elections, and with Ken Paxton actively seeking to bulldoze over DAs who refuse to go along with his agenda, authorizing the AG to pick up these prosecutions will be on the agenda if the zealots deem it necessary. There are no norms or traditions or existing laws that will stop them.

There do remain some ways for blue cities and suburbs to put up resistance even with all that.

Data. Immigration sanctuary cities responded to shifts in federal law during the Trump administration with a data management strategy. Do you need someone’s immigration status? If not, don’t write it down or put it in a database. Local hospitals, whether in red or blue states, should carefully consider what kind of records they must keep about people accessing care related to abortion or miscarriage, along with other kinds of soon-to-be-banned care. County hospitals can also commit to objecting to subpoenas requesting medical records, and instead force courts to compel their cooperation. They can choose not to question a patient’s narrative; they can decline to allow police to question a hospitalized patient.

Nonprosecution. Progressive district attorneys have won election in cities across the country in recent years, including in red states. Some in red states have already said they will refuse to prosecute criminal cases involving abortion. We need to demand that progressive prosecutors nationwide use their broad discretion to decline to prosecute doctors and patients for accessing abortion, for “suspicious” miscarriages, and for using types of birth control outlawed by state abortion laws that mistake pregnancy prevention for pregnancy termination. Even in states like Texas and Florida, it is often local elected prosecutors who will be making those determinations, at least for now.

On the flip side, advocates should be partnering with civil liberties organizations to scrutinize local police departments’ use of big data technologies, which could be used to identify and locate those who have accessed abortion care. Some cities, such as Oakland, California, have privacy task forces that must approve any new technology used for surveillance purposes. Such government bodies could, for example, refuse to approve any technology that makes use of data from period- or fertility-tracking apps. Cities might also consider directing their own police departments not to run searches of residents’ internet searches related to health care.

With the right resources, public libraries could also provide a space for residents to search for information related to self-managed abortion without leaving a search history on their personal devices. Blue cities in red states could provide funds to advertise the availability of library computers, purchase more devices if needed, and even set up the physical space in a way that affords computer users some degree of privacy.

Advice. Another important role cities play is giving advice to their agencies and hospitals and to the public at large. Cities can advise OB-GYNs concerned about their own vulnerabilities, particularly given laws that seek to criminalize routine care even when performed out of state and to deputize citizens to sue health care providers. These localities should develop a clear channel for providers to ask questions about how best to protect themselves while still providing care. Many local governments already have systems in place for disseminating information. During the pandemic, cities have used websites, automated texts, central phone lines, and more to make rapidly changing information and guidance available about COVID-19. Drawing on these strategies, local librarians and public health departments can play an important role in providing information about self-managed abortions. Cities need to think about how their employees might provide guidance, such as by handing out informational pamphlets or via websites and transit ads, and explore strategies for protecting employees and residents alike from liability.

These are all good ideas, but we’ve already seen in Texas that the Republican legislature and state leadership will not let cities stand in their way of anything. As long as they have the power to pass laws that overrule local ordinances or compel cities to do things, they will. It always comes back to the same truth that until we change who’s in charge of the state, we’re not going to be safe from this kind of abuse. We can brainstorm and strategize all we want, and we will have to for at least the short term, but in the long term that’s a losing battle. Winning more elections is the only way forward.

2022 Kinder Houston Area Survey

Lots of optimism in here.

Dr. Stephen Klineberg’s final survey of the Houston area leaves him with hope. Yes, residents are concerned about the economy and crime, and their mental health has not improved even as the COVID-19 pandemic has begun to wane, but it’s not all doom and gloom, according to the 2022 Kinder Houston Area Survey released Tuesday.

Shifting attitudes toward public education, diversity and Houston’s place in America’s growth, in particular, give Klineberg reason for optimism — and if there’s anyone here who can claim to be an expert on Houston’s population, it’s the man who has annually written the most comprehensive report on the city’s residents since the survey’s inception in 1981.

“It’s hard to be pessimistic over the long haul in Houston because there’s just so many things happening in Houston. Whatever you’re passionate about or whatever you care about, there’s wonderful things happening in the city, and a population that really cares about Houston and wants it to succeed,” Klineberg said.

Still, there’s no denying that Houstonians have real concerns about the state of the city. Twenty-eight percent of the survey’s 1,958 randomly selected respondents said that the economy was their biggest concern, and crime closely followed with 25 percent.

The pandemic also left lasting scars on residents’ mental health. Seventy-six percent of respondents said that their stress and anxiety have increased, and 57 percent reported feeling increasingly lonely and isolated since the pandemic started over two years ago.

[…]

Nearly two-thirds of Houston-area residents said they support a person’s right to an abortion for any reason, and more than 90 percent said they support it if the person’s health is endangered by the pregnancy.

Klineberg was glad to see, for the first time since the survey began, that a majority of non-Hispanic white people, 51 percent, agree that people of color don’t have the same opportunities as them — a 15 percent rise since 2020. Fifty-seven percent of Hispanic people now agree with that statement, and 17 percent of Black people.

“For the first time over the years of the surveys, majorities in all three of Houston’s largest ethnic communities now agree in acknowledging the racial inequities in access to economic opportunity in American society today,” the report states.

The survey later adds that “area residents of all ethnicities have been giving increasingly positive evaluations to relations among the ethnic communities, and they are more likely than ever before to say that they have close personal friends across the ethnic divides.”

That’s especially important in Houston, says Klineberg, because U.S. census projections show that the rest of the country will mirror Harris County’s racially diverse demographic in the coming decades, according to the report.

“Houston is called upon to be a model for the rest of the nation, to take the lead in building something that has never existed before in human history—a truly successful, inclusive, equitable, and united multiethnic society, comprising virtually all the peoples, all the ethnicities, all the religions of the world, gathered here, in this one remarkable place,” the report states.

Among its most notable finds, for Klineberg, was a big jump in the percentage of people who support “significantly more money” for public schools, up to 67 percent from 55 percent in 2020. In 1995, that number was just 41 percent.

The steady rise in support for education funding signals to Klineberg that Houstonians may be moving away from the industrial mindset during the oil and gas boom of the 1960s and 1970s — when loose regulations, free enterprise and low taxes helped wealthy businessmen flourish, but left many others behind.

“Area residents, who have traditionally been opposed to government intervention of almost any sort, appear to be rethinking their basic assumptions about the nature and causes of poverty in America,” the report states.

See here for what I had on the 2020 Survey. I must have missed the 2021 Survey but I’ve blogged about several others in the past: 2013, 2016, 2017, and 2019. The Kinder HAS page is here, and I recommend you peruse it when you get a minute. As the story notes, Dr. Stephen Klineberg is retiring from Rice after doing this survey work for 40 years, which has been a huge boon for all of us. There’s a nice retrospective of his work here. Enjoy!

On the importance of the Democratic AG runoff

We have two good choices in this race. Whoever wins, we need to fully support them in November.

Rochelle Garza

Rochelle Garza locked hands with her mother and marched through Dallas at a reproductive rights rally this month to let voters know she could lead the fight for abortion care.

“Our mothers fought before and won. Now, it’s our turn to continue the fight and win for OUR daughters and everyone’s access to abortion care,” Garza wrote to her base on Twitter after the rally.

Reproductive care has always been central to Garza’s campaign as she vies to be the Democratic nominee for the Texas attorney general race in November. But with the recent leak of a U.S. Supreme Court draft opinion suggesting that the constitutional protection on abortion established in Roe v. Wade might soon come to an end, both Garza and Joe Jaworski, her opponent for the Democratic nomination in a May 24 primary runoff, are pitching themselves as the last line of defense for access to reproductive care in Texas.

“Really the last stand for reproductive rights are the attorney general of each state,” Garza told The Texas Tribune in an interview. “So now more than ever, having an attorney general in the state of Texas is going to be critical to protecting reproductive rights.”

Garza is a former American Civil Liberties Union lawyer from Brownsville. Jaworski is the former mayor of Galveston. Early voting began Monday and ends Friday.

The winner will face the victor of the Republican primary runoff in the general election — either Ken Paxton, the incumbent attorney general, or Texas Land Commissioner George P. Bush. Paxton is the frontrunner in that race, clinching twice as many votes as Bush in the primaries and the support of former President Donald Trump.

[…]

Joe Jaworski

Although they have never faced off in the ballot, Garza and Paxton have been on opposite sides of an abortion case. Garza made a name for herself in 2017 when she sued the Trump administration, seeking access to an abortion for an undocumented teenager held in detention. After a federal appeals court ruled in Garza’s favor, Paxton filed a brief in response, arguing that immigrants have no constitutional right to abortion. Garza also testified in 2018 against the Supreme Court nomination of Brett Kavanaugh, who ruled against the case as an appellate court judge.

The teen was able to obtain an abortion while the case was being litigated. The case was later dismissed after the federal government adopted a new policy under which it would not interfere with immigrant minors’ access to abortion.

“Having this nuanced understanding of what it takes to build a case like that and to fight for someone who the government believes is not powerful — that’s what I bring to this race and bring to this position,” Garza said.

Garza was nine weeks pregnant when the state’s controversial ban on abortions after about six weeks into a pregnancy went into effect in September. She was worried at the time about her limited reproductive health care options.

Garza, who balanced her newborn daughter in her arms as she spoke to the Tribune, is now arguing she’s the right choice to defend reproductive rights in the state.

She also stands a clear favorite among national and state abortion rights advocacy groups, garnering endorsements from EMILY’s List, NARAL Pro-Choice America, Planned Parenthood Texas Votes and Avow.

Both Jaworski and Garza have stated they would defend reproductive rights as Texas’ next attorney general, who can play a major role in the fight over abortion law in courts. The state’s top lawyer also determines how an abortion ban can be regulated and enforced.

But Jaworski has presented himself as the most experienced candidate. While Garza’s run for attorney general will be her first political race, Jaworski is an established local politician. He served three terms on the Galveston City Council and one term as mayor.

And while Garza’s reproductive rights bona fides stand on her well-known 2017 case, Jaworski points to his experience as a trial attorney for over 31 years. Jaworski has said he would use federal and state court channels to initiate litigation to preserve reproductive rights under both the U.S. and the Texas constitutions.

We can’t go wrong with either of these two, so make your best choice and then support the winner. I will let Paxton’s own runoff opponent remind you of what’s at stake here:

Who am I to disagree with that assessment? Someone be sure to grab a screenshot of that tweet for future reference.

DMN/UT-Tyler: Abbott 46, Beto 39

Here’s the story, which I currently can’t access. A very brief summary of it is in this Current article. The data is here and I’m going to riff on that, with references to the February version of this poll, for which the data can be found here. I will note that there are some primary runoff results in this sample, and I am ignoring all of them – that kind of polling is too tricky to be worth worrying about.

“In a race for Governor would you vote for Governor Abbott, Beto O’Rourke, or someone else?” I’ll generally be quoting the poll questions, which thankfully are the same in each sample. In May, as noted in the post title, it’s 46-39 for Abbott, basically identical to the 45-38 Abbott result from February. The shape of those numbers are a bit different. In February, possibly because both Beto and Abbott were in contested primaries, there was a considerable amount of crossover support for each, Dems were only 76-16 for Beto, while Rs were just 76-11 for Abbott. In May, those numbers were 82-9 among Dems for Beto and 85-7 for Abbott among Rs. Independents were 36-29 for Abbott in February and show as 16-6 for Abbott now, with 29% going to the Libertarian (there is a Green candidate named as well, who also gets 6%) and an astonishing 38% for “someone else”. This has to be a mangling of the data – among other things, given the size of the Indy subsample, it would have put the Libertarian candidate at nearly 10% overall, but the topline result gives him just 3%. Most likely, the 38 is for Abbott and the 29 is for Beto, or possibly all of these numbers are just wrong. I will shrug and move on at this point.

For approval numbers, President Biden checks in with 39-58 approval, which is obviously not good. Greg Abbott is also underwater at 46-50, while Beto has a 42-44 approval rating, which is the only one of the three to improve since last time. It was 39-57 for Biden, 50-46 for Abbott, and 40-46 for Beto in February.

Weirdly, Dan Patrick has 50-41 approval, and Ken Paxton has 42-41. Usually, Abbott does better in approvals than any other Republican, in part because fewer people have opinions about the rest of them. A separate question about Paxton asks “do you agree or disagree that he (Paxton) has the integrity to serve as attorney general?”, and it’s 30 for agree, 37 disagree, and 33 unsure. He was at 34-33-33 in February, so a bit of a dip there.

For some other questions of interest, the numbers are not bad for the Dems, and usually a little better than they were in February.

“If the general election was today, would you vote for a Republican candidate or Democratic candidate for the Texas House?” That was 49-48 for Republicans in May, 52-45 for Republicans in February.

“On orders from Governor Abbott, Texas Child Protective Services recently began investigating families who provide gender-affirming care to transgender children. Was this action” needed or unnecessary, with various reasons for each? There were three sub-options for each of those choices, and if you add them up it comes to 52-48 combined for “unnecessary”. Honestly, that’s better than I expected. There was no February comparison for this one, as that order had not yet been given at that time.

“Should the Supreme Court overturn its Roe v. Wade decision and allow states to decide abortion policy?” This was 53-46 for “no it should not be overturned” in May, and 50-47 in February. Again, a little better than I might have thought, and a tick up from before, which is to say before the draft opinion got leaked. Put those numbers in your back pocket for the next time someone claims that Texas is a “pro-life” state.

“Do you agree or disagree that K-12 teachers should be permitted to discuss how historical examples of discrimination in our laws apply to inequalities today?” Here, 61-24 strongly or somewhat agreed in May, and it was 59-22 for Agree in February. That means that for abortion, trans kids, and book banning, the Republican position is the minority one. Obviously, one poll and all that, but there’s nothing to suggest Dems should be running scared on any of this. Quite the reverse, in fact.

Now as we’ve said a zillion times, it’s one poll, opinions on issues often don’t drive voting behavior, and we’re still months away from an election where many other factors will affect the outcome. I’m quite scared of another COVID wave, especially if Congress doesn’t get some more funding for vaccines and treatments and whatever else passed in the very near future. But for now, and bearing in mind that it’s still a 7-point lead for Abbott, the numbers ain’t that bad. We’ll see what other polls have to say.

Republicans are not going to stop passing anti-abortion bills

It’s what they do. There is no finish line for them.

During their 20 years in control of the Texas Legislature, Republican lawmakers have steadfastly worked to chip away at abortion access.

Bound by the limits of Roe v. Wade, which stopped them from enacting an outright ban on the procedure, lawmakers got creative. They required abortion clinics to have wide hallways and deputized private citizens to sue providers in an effort to shut down facilities that offer the procedure.

Future lawmaking on the topic will likely not require such ingenuity. A leaked draft of a U.S. Supreme Court opinion, published last week by Politico, suggests the court will reverse the landmark abortion ruling in the coming weeks, allowing states to regulate abortion as they see fit. Texas has a “trigger law” that would make performing an abortion a felony, which would go into effect 30 days after the Supreme Court overturns Roe.

Their decadeslong goal achieved, Republican lawmakers said there’s still work to be done. Texas GOP leaders and members of the Legislature said it is now time to turn their attention to strengthening the social safety net for women and children and investing in foster care and adoption services.

“It only makes sense,” said Rep. Steve Toth, R-The Woodlands. “The dog’s caught the car now.”

At least some of the more conservative members of the House said they also want to ensure strict enforcement of the abortion ban and to prevent pregnant Texans from seeking legal abortions in other states.

“I think I can speak for myself and other colleagues that align with my policy beliefs — we’ll continue to do our best to make abortion not just outlawed, but unthinkable,” said Rep. Briscoe Cain, R-Deer Park, a member of the far-right Freedom Caucus.

Texas already has an arsenal of statutes to punish virtually anyone involved in the procurement of an abortion, said University of Texas at Austin law professor Liz Sepper. These include last year’s Senate Bill 8, which empowers private citizens to sue anyone who “abets” an abortion after six weeks of gestational age, as well as unenforced pre-Roe abortion statutes criminalizing a person who gets the procedure, which the Legislature never repealed — some dating to the 1850s.

“If Roe is overturned, there’s already a criminal ban, there’s already an aiding and abetting ban, there’s already a ban on mailing medication abortion,” Sepper said. “In terms of law’s ability to change behavior, they’ve almost filled all the gaps — with the exception of criminalizing the pregnant person involved in an abortion.”

And you better believe that’s where they’ll be going next, though to be sure there are plenty of other avenues for them to pursue as well. This is what gives creeps like Briscoe Cain their purpose in life. If somehow they do eventually run out of things to ban, next up after that is increasing penalties and making it easier for law enforcement to go after whoever the likes of Cain thinks are getting away with something. Listen to what they’re saying – they are not being coy at all about this.

Now as for the claims that maybe now it’s time to do a little something to “strengthen the safety net”, well, let’s just say that they are starting from a position of abolutely no credibility.

With a near-total abortion ban looming in Texas, advocates and experts say the state’s support systems for low-income mothers and children are already insufficient — and won’t easily bear an increase in need.

“When you say ‘social safety net’ in Texas, it sounds like a joke,” said D’Andra Willis of the Afiya Center, a North Texas reproductive justice group. “Everything they could have set up or increased to protect people if they really cared, they’re not doing it here.”

Pregnant women in Texas are more likely to be uninsured and less likely to seek early prenatal care than the rest of the country. They’ll give birth in one of the worst states for maternal mortality and morbidity. And low-income new parents will be kicked off of Medicaid sooner than in many other states.

This would make many Texans want to avoid pregnancy altogether. But learning about, let alone accessing, contraception can be a challenge in a state that does not require sex education and has narrowed family planning options in recent years.

Republican lawmakers, many of whom have focused on restricting abortion access in recent years, have said strengthening the state’s social safety net will now become a top priority. But advocates who have been working on these issues for years say any help will likely be too little, too late.

“People fail to realize that this is bigger than abortion access,” Willis said. “We’re going to be setting people up for generational poverty.”

As with so many other policy items, like boosting mental health care as their prescription to reduce mass shootings, the single biggest thing they could do to achieve that goal would be to expand Medicaid. More than 55% of all births in Texas are paid by Medicaid. I think you can guess how high that is on their priority list. But even if you want to give them a tiny bit of benefit of the doubt, note that it’s just now that they are on the verge of achieving an abortion ban that they’re even beginning to think about maybe doing something to benefit those who are pregnant and have given birth. Look at their priorities, that will tell you how much that counted for them. Why would you expect that to change going forward?

How will the evisceration of abortion rights affect the election in Texas?

I don’t know. You don’t know. Nobody knows.

Less than two hours after Politico reported Monday evening that the U.S. Supreme Court appeared ready to overturn Roe v. Wade, Beto O’Rourke leaped into action.

“It’s never been more urgent to elect a governor who will always protect a woman’s right to abortion,” the Democratic gubernatorial candidate tweeted.

The next morning, he hosted an Instagram Live with Cecile Richards, the former president of Planned Parenthood and the newest member of his campaign. By noon, he emailed supporters asking for a donation to help him fight for reproductive rights. He quickly scheduled abortion rights events in Austin and Houston through the end of the week.

O’Rourke, who is polling 11 points down from Gov. Greg Abbott, is seizing on a moment that Democrats have long feared was coming — the end of a constitutional protection for the right to have an abortion. But many Democrats said they’re hopeful that the looming threat of such a stunning political sea change could provide the strongest opportunity yet to energize their voters heading into an election year in which Republicans have been expected to dominate in Texas and beyond.

“Everyone’s got to pull their oar in the same direction, and we’ve got to do it with a common purpose,” said Wendy Davis, a former Democratic state senator who rose to prominence in 2013 for a 13-hour filibuster of a bill to restrict abortion access in Texas. “I know I intend to really lean into that message as we go into November — that we have a real opportunity to break through and elect Democrats at the statewide level from Beto O’Rourke down in a way that we haven’t before.”

The poll cited is one by the Texas Politics Project; It was from mid-April, so well before the draft opinion leaked. It was also the first poll result we’ve seen since mid-March, and looking at the Reform Austin poll tracker, it’s on the high end of results for Abbott. I suppose it made sense to cite the most recent polling data, but a little more context might have helped.

Beyond that, who knows? Maybe there will be a polling effect – the first national poll since the opinion leaked didn’t show much of an effect, but it’s very early days. It’s also important to remember that the words and actions, or lack of actions, by the various political actors will have their own effect, either to amplify or dampen people’s initial reactions. We also don’t know how long any of this may last, or if the official release of the opinion, whether toned down a bit or not, will stir everything up again or just get an echo of the current reaction since it will be in a sense old news. There’s a 100% chance that numerous red states will use the Dobbs ruling as a springboard for all kinds of crazy things, and who knows how that will go. Right now, there are big crowds attending protest rallies and Beto events that are doubling as protest rallies; Beto’s been drawing good crowds for months now, but the protest part of it is new. How long will that last? What will Greg Abbott and his team of dark artists do with the millions he’s been hoarding in response? What might come along to take attention away from what is happening now? Like I said, I don’t know. Neither do you, and neither does anyone else. We’ll all learn about it in real time.

Abbott sees another opportunity to hurt children

He is definitely making this a habit.

Gov. Greg Abbott wants to “resurrect” a court challenge over a 1975 Texas law withholding state funds from school districts for kids who were not “legally admitted” into the United States. That law was struck down by the Supreme Court in 1982.

He made the remarks in an interview Wednesday on the Joe Pags radio show.

“The challenges put on our public systems is extraordinary,” Abbott said before referencing Plyler v. Doe, the ruling that overturned the Texas law. “I think that we will resurrect that case and challenge this issue again because the expenses are extraordinary and the times are different than when Plyler v. Doe was issued many years ago.”

In that case, the court ruled that “education has a fundamental role in maintaining the fabric of our society,” and withholding it from the children of immigrants in the country without paperwork “does not comport with fundamental conceptions of justice.” People living without documentation in the country remain people “in any ordinary sense of the term” and are thus entitled to the same basic rights as anyone else in the country.

We’re going to see a lot more of this, because people like Abbott have realized that SCOTUS is now a cheat code for achieving whatever policy ends they want, without having to legislate them. You could say that the policy he seeks to achieve here is the reversal of one that had been done via the court and not the legislative process. The difference is that the litigants in the Plyler case had to win on the merits and could have lost. They didn’t get to count on having a majority on the court that was ideologically on their side and willing to use their power towards that end.

If you can’t see what a public policy disaster it would be, not to mention a moral catastrophe, to prevent children from getting an education, I’m really not sure what to tell you. As Stace says, it’s yet another reason to vote Abbott and the rest of his crew out of office in November. TPM, Daily Kos, the Texas Signal, and Amanda Marcotte have more.

The polling data on abortion in Texas

From the Trib:

At a time when Texas is poised to outlaw the vast majority of abortions if the nation’s highest court overturns constitutional protections for the procedure, a recent University of Texas at Austin poll shows most Texan voters think access to abortion should be allowed in some form.

Texas would make performing most abortions a felony if the U.S. Supreme Court overturns Roe v. Wade — a future that looks considerably more likely after a nonbinding draft opinion was leaked from the high court Monday. Constitutional protections for abortion could be struck down as soon as this summer.

The university conducted the poll in April before the court’s document was leaked. The survey found that 78% of respondents believe abortion should be allowed in some form while only 15% said it should be never permitted.

If Roe is overturned, Texas would allow doctors to perform abortions only to save the life of a pregnant person or if that person risked “substantial impairment of major bodily function.”

Around 39% of poll respondents said Texans should always be able to obtain abortions as a matter of personal choice, and 11% of respondents thought abortions should be available for other reasons in addition to pregnancy resulting from rape.

The poll shows that 28% of respondents believe abortions should be available only in cases of rape or incest or when a person’s life is endangered by their pregnancy. And 7% said they didn’t know.

Respondents fell mostly along party lines. Of the Republicans surveyed, 42% said abortions should be allowed only in cases of rape, incest or when a person’s life is in danger. The majority of Democrat respondents — 67% — said Texans should be allowed to seek an abortion as a personal choice.

But there were outliers. Among Republicans, 15% said Texans should always be allowed to seek an abortion and 12% said the law should allow Texans to seek abortions for reasons outside of just rape. On the flip side, 5% of Democrats said abortion should be completely outlawed and 13% said it should be allowed only in cases of rape or incest.

From the Chron:

The Texas Politics Project at the University of Texas at Austin has been tracking abortion trends for years. The researchers’ most recent poll, released in February, found that 53 percent of Texans oppose a complete ban on abortion if the Supreme Court overturns Roe v. Wade. (Thirty-four percent supported such a policy, and 13 percent didn’t know or had no opinion.)

“When we look at polling of Texas voters, what we find is an issue that people are, broadly, pretty split on,” said Joshua Blank, the research director of the Texas Politics Project. “But ultimately, you find most Texans supportive of at least some access. It’s much more nuanced to the electorate than, certainly, is being portrayed by elected officials looking to take victory laps.”

In February, 43 percent of Texans said they believed abortion laws here should be less strict, while 23 percent said they should stay the same. An additional 23 percent said they should be stricter, and 12 percent had no opinion. Texas banned abortions after roughly six weeks of pregnancy last September.

An overwhelming majority of Texans — 81 percent — believe abortion should be legal when a woman’s health is seriously endangered. About 73 percent support exceptions for rape or incest, and 58 percent say abortions should be legal if “there is a strong chance of a serious defect in the baby,” according to an October poll by the Texas Politics Project.

Texas’ six-week abortion ban provides no exceptions for rape, incest or severe fetal abnormality.

Ten years of aggregated polling data from Gallup estimates that 70 percent of Texans believe abortion should be legal at least in some circumstances. About 18 percent believe it should be legal under all circumstances, while 10 percent said it should be legal in most and 42 percent said it should be legal in only a few. An additional 26 percent said the procedure should be outlawed entirely.

That’s in line with most other GOP-led states, according to Gallup.

“Although technically a competitive or ‘purple’ state in terms of how it voted in the past two presidential elections, Texas is more closely aligned with ‘red’ — that is, strongly Republican — states when it comes to its residents’ views on abortion,” Gallup analysts wrote in October.

Another October survey, by researchers at the University of Houston and Texas Southern University, found that nearly 7 in 10 Texans believed the state’s six-week abortion ban was overly restrictive. Still, a majority of residents — 55 percent — supported the law, according to the poll.

At least since 2014, roughly equal portions of Texans have identified as “pro-choice” or “pro-life.” The Texas Politics Project is scheduled to release another poll Wednesday showing roughly similar trend lines, Blank said.

In February, 42 percent of voters said they were pro-choice; 38 percent said they were pro-life. Thirteen percent said they were neither, and 7 percent didn’t know.

“When we talk about abortion attitudes in the public, we’re talking about a set of opinions that, for the most part, are fixed and reinforcing,” Blank said. “Most people know what they think about abortion because they’ve been exposed to these arguments for much of their adult lives.”

But, he noted, most of those “opinions and attitudes” have been developed in a post-Roe world. That makes it difficult to predict how voters will feel or react if the high court does allow states to completely prohibit the procedure.

We’ve seen and talked about a lot of this data before. It’s important to remember three things: How the questions are worded really matters, people don’t always know exactly what the state of current abortion law is in Texas (in particular, lots of people don’t know everything about SB8), and people’s opinions on abortion may not affect how they vote or motivate them to vote.

The big question is whether this impending sea change will have a significant effect on voter behavior this year. One could argue that SB8 effectively banned abortion in Texas already and it didn’t seem to have much effect, but the confusing mechanisms of SB8 may have dampened any effect. The evisceration of Roe is a dominant national news story and will be again when the opinion in that Mississippi case is actually handed down, and there seems to be a big psychological effect in overturning Roe, as some national polls have shown that people had simply not believed that would ever happen. You could argue that the 2014 gubernatorial race was about abortion, at least to some extent, but the dynamics of that race and that year are just very different.

I don’t think we have any idea yet how this will play out, and we may not have even a vaguely decent guess at it for a few more months. We are truly in new territory, and we need to be very careful about what assumptions we make and what past events we extrapolate from. There’s clearly some energy on the Democratic side about this, but it’s May and we don’t know how long that might last. We just don’t know. But we can work to make what we want happen. Maybe now more people will be in on that. It’s our best hope.

I’m just going to say this one thing about the pending evisceration of abortion rights

Chris Tomlinson gets at the issue but doesn’t take it all the way.

The Supreme Court’s apparent decision to allow state lawmakers to make women’s health care choices puts chief executives in a tough spot, forcing them to choose between their employees’ rights and right-wing backlash.

Disney’s recent experience defending LGBT rights against Florida Gov. Ron DeSantis’s demagoguery will sadly encourage cowardice.

Millions of Texans are waiting to hear how their employee health insurance will handle abortion coverage when the procedure becomes a first-degree felony punishable by life in prison.

Texas Republicans have made banning abortion their marquee issue for decades. In addition to prohibiting government health insurance from paying for abortions, the Legislature also banned state-regulated plans from covering them.

Employers of 60 percent of Americans with company-sponsored health insurance, though, use self-funded plans. These are exempt from state regulations, according to the Kaiser Family Foundation, a health care research organization. Only 14 percent of self-funded plans exclude some or all abortions.

Polling shows 59 percent of Americans think abortion should be legal under all or most circumstances, according to Pew Research.

After Gov. Greg Abbott allowed Texans to privately prosecute other Texans who seek an abortion after six weeks of pregnancy, many companies stepped up. Amazon, Citigroup, Salesforce, Apple, Bumble, Levi’s, GoDaddy, Match, and Hewlett Packard Enterprise, have all promised to help employees get abortions outside Texas.

“We are pro-woman. We will support a woman’s right to make health care decisions for herself, even if that means traveling out of state. It’s an investment that’s not just right, but good business too,” Curtis Sparrer, a principal at Houston-based PR firm Bospar told me in an email.

The company will pay for travel and other expenditures should a Bospar staff member need reproductive health care banned in any state where they live, Sparrer added.

“We want other companies and PR agencies to join the fight, especially since many are composed of women and are led by women. The rights of women are not just on the line,” he added. “As someone who credits his same-sex marriage to the legacy of Roe, I am imploring my colleagues and friends to end their silence and speak truth to power.”

Taking a stand on anything, though, is becoming more perilous for corporations and executives who would rather generate profits than controversy. Employees, especially younger workers, expect their company’s leadership to reflect their values.

“More than half of consumers will buy or advocate for brands based on their beliefs, while six in 10 employees will choose employers based on shared beliefs and values,” according to Edelman, a global PR firm. “A stunning 81 percent of respondents want CEOs to be front and center discussing public policy.”

The first thing to realize is that the forthcoming overturn of Roe and Casey is the beginning, not the end. Next up will be a nationwide ban on abortion, for which Senate Republicans are already writing a bill. Now that they will no longer have to pretend that this has anything to do with women’s health, rape and incest exceptions will go away, and it won’t be just doctors who are targeted for arrest and prison. I guarantee you, lowlife creeps like Briscoe Cain cannot wait to throw women in jail for anything that looks like an abortion. Lizelle Herrera was not an aberraion.

If you think I’m being alarmist, go find a copy of that draft opinion and read it for yourself. Note carefully the section in which Sam Alito claims that this opinion is only about abortion and not all of those other things that people like him despise and want to get rid of, like the previous SCOTUS decisions on same-sex marriage and contraception and “sodomy”. I will remind you that most if not all of the justices who have signed onto Alito’s opinion also swore under oath during their Senate confirmation hearings that they considered Roe to be “settled law” and that they respected precedent. There’s no reason at all to believe anything that a known liar says.

So get mad, get organized, and get everyone you know who has the same concerns as you to vote. Businesses are going to have to do more as well, if they actually do care about their employees. But it’s on us, to vote and to put pressure on the people we’ve voted for to act. The clock has struck midnight. What are we going to do about it?

Providers’ federal lawsuit against SB8 is officially buried

From last week.

The 5th U.S. Circuit Court of Appeals on Tuesday ended a legal challenge to Texas’ nearly total ban on abortion brought by providers across the state, closing out a contentious court battle that reached the U.S. Supreme Court.

The appeals court dismissed the remaining challenge in the suit after the Texas Supreme Court in March said state licensing officials are not responsible for enforcing the abortion ban and therefore cannot be sued.

A three-judge panel of the 5th Circuit in January asked the state’s high court to resolve this central question to the case, an unusual move made at the request of attorneys for the state that was expected to significantly delay or end the challenge.

[…]

In December, a divided U.S. Supreme Court dismissed all but one challenge in the lawsuit brought by abortion providers. Justices allowed a narrower case, targeting state licensing officials, to proceed in Texas courtrooms.

But Tuesday’s action by the 5th Circuit officially dismisses the case.

It was all over but for the shouting when the State Supreme Court ruled that state medical licensing officials do not have authority to enforce SB8, but the real villain as always was the Fifth Circuit, which engineered the result it wanted. Like I said, the fix was in from the beginning.

As the story notes, there are two more active lawsuits to watch, one by abortion funds against several anti-abortion organizations and individuals, and one by Wendy Davis. I feel like the former is more promising than the latter, but who knows. A state judge had previously ruled that SB8 was unconstitutional but for reasons still unclear declined to issue an injunction against it; I suppose that could change at some point. Until then, here we are.

UPDATE: Yes, I’m aware of the leaked draft opinion that eviscerates Roe v Wade. I maintain that the Fifth Circuit is the prime villain of this story, given how they completely disregarded normal procedures, but SCOTUS’ villainy cannot be overstated either.

Wendy Davis sues over SB8

Interesting.

Wendy Davis

Former Texas State Sen. Wendy Davis, best known for her 13-hour filibuster of a 2013 abortion bill, has filed a federal lawsuit challenging Texas’ recent abortion law. The suit claims the law is “blatantly unconstitutional” and written to “make a mockery of the federal courts.”

The law, which went into effect in September and empowers private citizens to bring civil lawsuits against anyone who “aids or abets” in an abortion after fetal cardiac activity is detected, has led abortion clinics to stop providing the procedure after about six weeks of pregnancy.

Meanwhile, abortion funds — nonprofit advocacy groups that help pay for abortions and related expenses — have seen increased demand from pregnant Texans seeking care outside the state. This financial support has put these funds in the crosshairs of abortion opponents, who have claimed on social media and in legal filings that abortion fund donors, employees and volunteers are susceptible to lawsuits and criminal charges.

Davis, who was the Democratic nominee for Texas governor in 2014 and unsuccessfully ran for Congress in 2020, donates to and works with the Lilith Fund for Reproductive Equity, an Austin-based abortion fund, according to the lawsuit. She claims in the suit that these threats against donors and volunteers “have had a chilling effect” and stop her from associating with “like-minded people to express her views and achieve her advocacy goals.”

“Accordingly, she intends not to make any additional donations to Texas abortion funds until the Court provides clarity on this issue,” the lawsuit said.

She is joined in the suit by the Stigma Relief Fund, an abortion fund associated with abortion provider Whole Woman’s Health, and Marva Sadler and Sean Mehl, who both work for Whole Woman’s Health and serve on the board of the Stigma Relief Fund. Sadler and Mehl say in the suit that they have stopped donating to abortion funds “until the Court clarifies whether and to what extent [they] can face liability for doing so.”

They are suing state Rep. Briscoe Cain, R-Deer Park, and three private citizens who have made efforts to bring lawsuits against abortion funds. Cain recently sent cease-and-desist letters to all the Texas abortion funds, accusing them of criminal conduct.

The lawsuit claims that the law violates the plaintiff’s rights to due process and free speech and asks the court to declare both this law and Texas’ older abortion law unenforceable.

“We are asking the courts today to stop the unconstitutional harassment of abortion funds by confirming S.B.8 cannot be used to silence donors with bogus threats,” Davis said in a statement. “More than that, we are asking the courts to stop the nightmare S.B.8 has created for Texans if they need abortion services.”

[…]

Last month, two abortion funds filed federal lawsuits against the anti-abortion advocacy groups that had threatened to bring lawsuits against them.

Recently, Cain claimed that the abortion funds could also face criminal charges under a Texas abortion statute that was declared unconstitutional by the U.S. Supreme Court in 1973. Cain claimed in his cease-and-desist letter that the law, which was never repealed by lawmakers, was recently reaffirmed when the state passed the new abortion law.

Davis’ lawsuit asks the judge to affirm that the old criminal statute is unenforceable and that the newer law is unconstitutional.

See here and here for more on the abortion funds’ lawsuits against two anti-abortion organizations plus two individuals. Those two individuals, plus a third person in addition to the twerp Briscoe Cain, are also defendants of this lawsuit, which you can download as a PDF here from the Quorum Report. Cain had been sent a letter accusing him of defamation after his claims that abortion funds and their donors were breaking the law; I do not know if there have been any further developments in that story.

The plaintiffs allege violations of the First and Fourteenth amendments, among other things. The claims about the First Amendment were interesting:

Because of Defendants’ threats concerning enforcement of S.B. 8 and the Criminal Abortion Ban against Texas abortion funds and their associates, Plaintiffs Sadler and Mehl intend to cease donating money to Texas abortion funds, including the Stigma Relief Fund, until the Court confirms that these laws are unenforceable because they violate the U.S. Constitution.

[…]

By threatening to chill abortion funds’ relationships with their donors, employees, and volunteers, Section 3 of S.B. 8 violates the freedom of expressive association protected by the First Amendment.

This leans into the SCOTUS holding that political contributions are free speech. I don’t doubt the zealots’ ability to double-speak their way out of this, but it’s a reasonable approach. Or at least I, a non-lawyer, think it is. I haven’t seen any commentary on Twitter, and neither Wendy Davis nor the Stigma Relief Fund have tweeted about this. We’ll see what happens. CNN has more.

How the reproductive rights groups reacted to the Lizelle Herrera arrest

Respect. Deep, abiding respect.

Cathy Torres was ready to log off for the weekend and start celebrating her 26th birthday when she got a text message with a link to a local news story: A woman in the Rio Grande Valley had been arrested for a “self-induced abortion.”

“I was just completely sick to my stomach,” Torres said. “I couldn’t believe it. I was just panicking.”

But not for long. Torres is based in Edinburg and works as the organizing manager for the Frontera Fund, a nonprofit that helps people in the Rio Grande Valley access and pay for abortions. She sent the story to the group’s leadership, as well as other reproductive rights advocacy groups in the area.

Ten minutes later, they were on a Zoom call. Fifteen minutes later, they had plans for a protest at the Starr County Jail the next day. They contacted partner organizations around the state and country to draw attention to the case, created social media messaging and started working with legal aid groups to figure out how to post bail.

Their furious work was interrupted only when there was a knock on Torres’s door: her best friend, who had driven hours to celebrate her birthday with her.

“I opened the door and she was there with balloons and I was just like, ‘Thank you so much for being here, but you won’t believe what happened,’” Torres said. “She was so great, though. She was like, ‘OK, let’s go to work.’”

Over the next three days, a coalition of small, scrappy local reproductive rights advocacy organizations fanned the flames of a national firestorm that subsided only when Starr County District Attorney Gocha Ramirez agreed to drop the murder charges against 26-year-old Lizelle Herrera.

Many details of the case remain murky. But as whole regions of the country prepare to follow Texas’ lead in significantly curtailing abortion access, local organizers say they want this weekend’s activism to send a clear message:

“I hope that people get that we’re not just going to stand back and let all of this happen,” said Nancy Cárdenas Peña, the Texas director of policy and advocacy for the National Latina Institute for Reproductive Justice. “They can’t just mess with us. We’ll fight back. We’ve proved that time and time again.”

See here and here for the background, and of course read the rest. You might also listen to the May 17 edition of the What Next podcast, which featured an interview with Cathy Torres of the Frontera Fund. These folks deserve our respect and our support.

More on Lizelle Herrera

Listen to the advocates. They’re seeing this clearly.

A 26-year-old woman was arrested and jailed in South Texas last week over a self-induced abortion just months after the state banned most abortions and weeks before the U.S. Supreme Court could roll back 50 years of federal abortion protections.

The timing of the now-dropped murder charge amid such seismic policy shifts could be pure coincidence. But on Monday, legal scholars and abortion rights advocates said the implications of Lizelle Herrera’s ordeal could not be more timely.

“Ms. Herrera’s case is a terrific example of exactly what we expect to happen,” said Lynn Paltrow, executive director of National Advocates for Pregnant Women, a group that has defended women in abortion-related criminal cases. “You can’t continue to say over and over again that abortion is murder and not expect that police and prosecutors are going to not treat it as murder.”

[…]

But abortion researchers warn that as Texas and other states further restrict abortion access, more and more pregnant women will be driven to seek out the procedure themselves, leading to potential criminal investigations. In the past, abortion-related criminal cases have disproportionately affected women of color and poor women.

“When you don’t have anybody else to punish, do you just punish no one and let the abortion happen? Or do you punish the woman?” asked Mary Ziegler, a law professor at Florida State University who has studied the anti-abortion movement. “I don’t know what the state’s going to do with that, but that’s going to be the scenario sometimes. And I think this is sort of a harbinger of that debate to come.”

See here for the background. The anti-abortion zealots that forced SB8 on us insist that they don’t want women who seek abortions to be punished, but there’s no reason to trust them. There are Republican candidates who would very much like to punish women for getting an abortion. There’s no reason to believe that won’t become the mainstream Republican position, because the Republican mainstream has gotten more and more extreme over time. Allowing rape and incest exceptions for abortion used to be Republican mainstream, and now it’s not. This goes in one direction, and we can see that from here. Listen to what the advocates are saying. They’ve been right all along.

The “self-induced abortion” saga

This was quite the journey.

Starr County District Attorney Gocha Allen Ramirez said Sunday he has filed a motion to dismiss a murder charge against a woman for performing a “self-induced abortion.”

Ramirez said the Starr County Sheriff’s Department “did their duty in investigating the incident brought to their attention by the reporting hospital” but this was not a criminal matter under Texas law.

The Starr County Sheriff’s Office arrested 26-year-old Lizelle Herrera on Thursday and held her in custody on $500,000 bond. By Saturday night, Herrera was released from custody after an abortion rights advocacy fund posted bail on her behalf.

The specifics of the case and the strength of the case against Hererra were murky from the start.

Steve Vladeck, a professor at the University of Texas School of Law, said that based on the information available, the murder charge didn’t make sense.

“The Texas murder statute does apply to the killing of an unborn fetus,” he said, “but it specifically exempts cases where the person who terminated the fetus is the pregnant woman.”

Vladeck said Herrera’s situation showed what will happen as legal protections around abortion crumble. “I think what this case really is, is an ominous portent of what things are going to look like on the ground in states that have aggressive abortion restrictions,” he added.

Jessica Brand, a former prosecutor and founder of the WREN Collective, a criminal justice nonprofit organization, agreed. “We’ve had a lot of wake up calls in Texas for how far people are willing to go to prosecute women to strip women of their rights,” she said.

Melissa Arjona, who co-founded South Texans for Reproductive Justice, said the arrest is a consequence of SB 8, which criminalized abortion as early as six weeks and deputized private citizens to sue anyone who provides an abortion or “aids and abets” a procedure.

“I mean, they criminalized pregnancy, basically, and abortion access,” she said. “And so we knew something like this was bound to happen eventually.”

I saw this story hit on Friday night but didn’t have time to delve into it. By the time I did get to it, the charges had been dismissed. I’ll get to that in a minute, but first this AP story from Saturday does some legal analysis of what was then an arrest with not a whole lot else known.

It’s unclear whether Lizelle Herrera is accused of having an abortion or whether she helped someone else get an abortion.

Herrera was arrested Thursday and remained jailed Saturday on a $500,000 bond in the Starr County jail in Rio Grande City, on the U.S.-Mexico border, sheriff’s Maj. Carlos Delgado said in a statement.

“Herrera was arrested and served with an indictment on the charge of Murder after Herrera did then and there intentionally and knowingly cause the death of an individual by self-induced abortion,” Delgado said.

Delgado did not say under what law Herrera has been charged. He said no other information will be released until at least Monday because the case remains under investigation.

Texas law exempts her from a criminal homicide charge for aborting her own pregnancy, University of Texas law professor Stephen Vladeck told The Associated Press.

“(Homicide) doesn’t apply to the murder of an unborn child if the conduct charged is ‘conduct committed by the mother of the unborn child,’” Vladeck said.

A 2021 state law that bans abortions in Texas for women who are as early as six weeks pregnant has sharply curtailed the number of abortions in the state. The law leaves enforcement to private citizens who can sue doctors or anyone who helps a woman get an abortion.

The woman receiving the abortion is exempted from the law.

However, some states still have laws that criminalize self-induced abortions “and there have been a handful of prosecutions here and there over the years,” Vladeck said.

“It is murder in Texas to take steps that terminate a fetus, but when a medical provider does it, it can’t be prosecuted” due to U.S. Supreme Court rulings upholding the constitutionality of abortion, Vladeck said.

Lynn Paltrow, the executive director of National Advocates for Pregnant Women also noted the state law exemption.

“What’s a little mysterious in this case is, what crime has this woman been charged with?” Paltrow said. “There is no statute in Texas that, even on its face, authorizes the arrest of a woman for a self-managed abortion.”

Another Texas law prohibits doctors and clinics from prescribing abortion-inducing medications after the seventh week of pregnancy and prohibits delivery of the pills by mail.

Medication abortions are not considered self-induced under federal Food and Drug Administration regulations, Vladeck said.

“You can only receive the medication under medical supervision,” according to Vladeck. “I realize this sounds weird because you are taking the pill yourself, but it is under a providers’ at least theoretical care.”

At this point, we still don’t know a lot about what happened. One hopes we will learn more starting today, and one hopes that Lizelle Herrera will collect a ton of restitution against Starr County if the facts warrant it. I’ll turn this over to Twitter to fill in the rest for now, starting with Prof. Vladeck and a reminder that stupidity is often the simplest explanation for this kind of malfeasance. Which, to be fair, doesn’t make it any less scary or damaging.

Like I said, I hope we learn a lot more soon, because this stinks and it’s scary. MSN and the Trib have more.

Abortion funds accuse Briscoe Cain of defamation

This ought to be fun.

Earlier this month, Republican Texas House lawmaker Briscoe Cain sent Texas abortion funds cease-and-desist letters, threatening the funds, their donors and volunteers with criminal prosecution unless they stopped helping fund abortions in Texas.

Now, the Texas Equal Access Fund, a major abortion fund, has published a letter calling Cain’s statements false and defamatory, and threatening to “explore all legal options.”

“Your letters falsely accuse our clients of engaging in criminal acts by funding abortions in any situation in which the mother’s life is not in danger,” reads the response letter by attorneys with the Thompson Coburn law firm. “This accusation, which you have made public by publishing the letters on social media, is objectively false, and has been for almost 50 years.”

“Your unfounded criminal accusations are also defamatory,” the letter continues. “It is per se defamation to falsely accuse someone of criminal acts in Texas. You publicized these letters on social media and issued a press release in which you call our clients ‘criminal organizations.’ Therefore, the false and defamatory statements have been published to a potentially unlimited number of third parties. Your decision to publish these statements on social media demonstrates that the defamatory effect of your words is intentional. Therefore, it is imperative that you immediately retract and/or clarify your defamatory statements.”

“If you do not issue this retraction, our clients will have no choice but to explore all legal options,” the letter concludes, threatening to seek injunctive relief requiring a retraction or clarification of Cain’s statements, or damages to compensate the defamation, damages to clients, and legal fees.

The letter was sent on behalf of several abortion funds in Texas; The North Texas Equal Access Fund, Lilith Fund for Reproductive Equity, The Afiya Center, Frontera Fund, The West Fund, Clinic Access Support Network, and Fund Texas Choice.

You can see a self-incriminating tweet from Cain in the post, and the response letter is here. It also reminded him that the funds are represented by counsel and by state law you’re supposed to only communicate with them via their lawyers, which he did not do. They demanded that he confirm in writing whether he was acting in his role as a State Rep, as an attorney representing someone, or as a private citizen, by five PM yesterday. I suspect they might not have gotten an answer by then, so we’ll see what comes next.

The demand to retract his accusation of criminal activity is the biggie, though. When I blogged about that big WaPo article about the lawsuits filed by the abortion funds, there was a quote from Cain in which he explicitly called it a “crime” to pay for another person’s abortion in Texas and that anyone who donates to these funds will be prosecuted. That’s not only not true, if it were true it would defeat the whole evading-judicial-review aspect of SB8, since the district attorneys and probably Ken Paxton would be obvious defendants to be sued for an injunction. I’m honestly not sure if Cain is too dim to realize that or if he does know and just doesn’t care. Either way, there’s no shortage of evidence for when the inevitable lawsuit against him gets filed. The Trib has more.

Oklahoma preps to ban abortion

This was just a matter of time.

Oklahoma’s state House on Tuesday voted 78-19 to pass a near complete ban on abortions, legislation that far surpasses Texas’ six-week ban. The bill is now headed to the Senate and, if passed, will be the strictest anti-abortion bill in the country.

The legislation — known as House Bill 4327 — bars a physician from performing or inducing an abortion at any point in the pregnancy unless it is “to save the life” of the pregnant person. Similar to Texas’ six-week abortion ban, the new legislation would allow private citizens to pursue civil actions of up to $10,000 against anyone who performs or “aids and abets in the provision of such an abortion.” An “emergency clause” adopted means that, if the bill is signed into law, it would take effect immediately.

“Abortion rights activists have been warning of this nightmare for months: These bounty hunter laws will have a domino effect across the country, as more and more states ban abortion entirely while Roe v. Wade is still the law of the land,” Elisabeth Smith, director of state policy and advocacy for the Center for Reproductive Rights, said in a statement.

[…]

Oklahoma’s lawmakers relied heavily on Texas as an example for their bill, with the Republican sponsor of HB 4327, Rep. Wendi Stearman, repeatedly citing the leading role that Jonathan Mitchell, a former Texas solicitor general, played in drafting Oklahoma’s legislation.

Abortion restrictions in states like Oklahoma, which has become a critical access point, would cause a ripple effect across the region. Oklahoma was one of several surrounding states that reported a massive influx of people crossing state lines after Texas’ law went into effect last September.

According to Planned Parenthood data collected between September and December, health centers in Oklahoma, New Mexico, Kansas, Colorado and Missouri saw a nearly 800 percent increase in abortion patients from Texas when compared to the same period one year prior. Some providers in Oklahoma have even reported a 2,500-percent increase in the last six months, and more than half of the total number of abortion patients had a Texas ZIP code.

Lots of people had been travelling to Oklahoma from Texas for abortion care, but it was obvious that was not going to last for long. We’ll have to see if this has the effect of reducing the number of abortions, or if it causes an equivalent increase in demand for abortion pills. Oh, and while I doubt anyone from Texas or anywhere else had been going to Idaho for an abortion, they just passed their version of SB8. It’s going to get a lot worse before it gets any better. Daily Kos has more.

More on the abortion funds’ lawsuits

Good overview in the WaPo.

The Texas law has so far withstood multiple court challenges by employing a highly controversial legal strategy: empowering private citizens to sue anyone who helps facilitate an abortion after the legal limit. Abortion rights advocates have tried to sue a long list of people in federal court in hopes of overturning S.B. 8, including Texas law clerks, judges and medical board officials — but, in each case, courts found that they were going after the wrong people.

After a month of fielding threats from these antiabortion groups on social media, the abortion funds argued in several lawsuits filed last week that the groups targeting them have identified themselves as the ones enforcing the law — and, therefore, the ones for abortion rights advocates to hold to account in federal court.

In these cases, the Lilith Fund and the North Texas Equal Access Fund are suing the America First Legal Foundation and the Thomas More Society, two antiabortion legal groups, in federal court, as well as two private citizens in Texas state court. Abortion funds, which raise money to help low-income patients seeking abortion care, have been instrumental in helping patients reach abortion clinics in other states since the Texas ban took effect.

The Thomas More Society’s “invocation of, and intent to enforce, S.B. 8 poses imminent and existential threats to the fundamental and constitutional rights of Plaintiffs, their staff, their volunteers, and their donors,” the abortion funds wrote in their court filing on Wednesday.

The Lilith Fund and the North Texas Equal Access Fund are filing these lawsuits to “protect themselves, their staff, their volunteers and their donors from the coordinated efforts by people and organizations across the country that have made it clear they intend to enforce S.B. 8 by filing lawsuits against abortion funds,” said Elizabeth Myers, one of the lawyers representing the abortion rights groups.

[…]

Some legal scholars think the new lawsuits by the abortion funds could pose a threat to S.B. 8 now that various people and organizations have made their intentions clear, said Steve Vladeck, a professor at the University of Texas School of Law, who specializes in the federal courts and has closely followed the Texas abortion ban.

“This case is not hypothetical because these particular defendants are in the process of pursuing various kinds of enforcement actions,” said Vladeck. After six months of trying to block the Texas law, abortion funds are probably thinking: “Now we finally have someone. Get out of our way, let’s go,” Vladeck said.

David Cohen, a law professor at Drexel Kline School of Law who specializes in gender and constitutional law, called the latest lawsuit a “brilliant move.” The abortion funds have built a legal case that “avoids many of the challenging legal problems of the previous lawsuits,” he added.

Even if a federal court judge does block the law, Vladeck said, the injunction will probably only apply to the particular defendants listed in the case. While those specific people and organizations would no longer be able to sue under S.B. 8, any other private citizen could still file a lawsuit.

At that point, Vladeck said, Texas abortion providers will have to decide whether they are comfortable resuming abortion care after six weeks of pregnancy. Abortion clinics and funds could still face other lawsuits, Vladeck said, but a favorable ruling in this case would make them more confident that they would win.

With these cases, Vladeck added, abortion rights groups are “building the defensive position.”

“They’re going to court to obtain a judgment that won’t be completely effective, but will make it easier to defend the lawsuits they will still face.”

See here and here for some background. I found that story on Tuesday, and on Thursday, the Trib had this to add.

“We are hopeful that any judge who looks at this will recognize the civil enforcement mechanism for what it is … and say these cases aren’t really about abortion,” said Elizabeth Myers, an attorney representing the abortion funds.

Instead, she said, their legal challenge is about stopping the “millions of bounty hunters who can sue in a very rigged one-sided court system” under the law’s private enforcement mechanism.

Aspects of this argument have already succeeded in state court, where a Texas judge found the law to be unconstitutional but declined to block it from being enforced. Now, the same lawyers are taking the case to federal court, where challenges to the law have faltered before.

But this attempt will have an advantage that those did not: The federal suits are filed in Chicago and Washington, D.C., rather than Texas, which allows the plaintiffs to avoid the extremely conservative 5th U.S. Circuit Court of Appeals.

The other two suits are filed in state court and have been added to ongoing multidistrict litigation, where all legal proceedings are stayed while the case is appealed.

South Texas College of Law Houston professor Rocky Rhodes said there are potential obstacles to this approach in federal court, but it’s the “best bet” to block the law that he’s seen yet.

“This is a better procedural mechanism to get the case before the [U.S.] Supreme Court … and it addresses many of the issues from the previous challenges,” he said. “And then, of course, a Supreme Court ruling is binding on all state and federal courts.”

[…]

When the Lilith Fund tweeted a request for donations, the Thomas More Society responded by saying “donors could get sued under SB8” and linking to the press release about its efforts to depose the funds’ leaders.

This makes it clear that the anti-abortion groups intend to bring lawsuits under the Texas abortion law, the new filings argue, and thus the groups can be sued proactively to stop them from doing so.

Neither the Thomas More Society or the America First Legal Foundation responded to requests for comment.

Rhodes has argued in several papers that this is a strong angle to challenge the law.

“This mechanism of ‘wait until you know someone is going to sue you, and then sue them in federal court first,’ is one of the best ways to get an offensive challenge teed up to [the law],” he said.

The filings argue that the abortion law violates advocates’ right to free speech by limiting how they talk to clients, advocate for abortion access and spend their donations, which could be considered political speech. In addition, they argue it is so vague that plaintiffs may not know what conduct is allowed or prohibited; it creates special rules that only apply to these lawsuits, which violates plaintiffs’ rights to equal protection under the law; and allows lawsuits to be brought by people who do not have standing because they have not been directly injured.

If a federal judge agrees with some aspects of these arguments, they could grant an injunction, stopping the Thomas More Society and the America First Legal Foundation from bringing lawsuits against the two abortion funds. The lawsuit also seeks a declaration that the law is “unconstitutional, void, of no effect and therefore not usable” — by anyone.

That wouldn’t stop anyone besides these two groups from bringing lawsuits, but it would create federal court precedent that could be cited in future litigation, Rhodes said.

[…]

Unlike previous legal challenges to the abortion law, these lawsuits deliberately sidestep the most highly politicized aspects of the law.

“This [case] is not really about abortion,” said Myers. “We’re not challenging the six-week ban.”

Myers said that’s not because they believe the six-week ban is constitutional, but rather because the courts may be more open to hearing arguments as to why other aspects of the law are also unconstitutional.

You gotta do what you gotta do, and if this can lead to taking the bounty hunting out of the picture, it will be a lot better. Indeed, that would allow abortions to continue in Texas, at least until SCOTUS can do more violence to Roe v Wade. But that day hasn’t happened yet, and with other states adopting similar bounty hunter laws, we have to deal with the immediate threat. Let’s hope for the best.

Abortion funds file their own lawsuits

It’s good to fight back. I hope it can be successful.

This week, the Lilith Fund and Texas Equal Access Fund, two of Texas’ oldest abortion funds, announced legal action (available to view hereherehere, and here) against two private individuals in Texas and two organizations based outside the state seeking to enforce Senate Bill 8, which has been in place for more than six months.  The Texas bill deputizes private citizens to sue anyone who assists someone with getting an abortion – a move designed to intimidate abortion funds, providers, and the people they serve.

The lawsuits, filed in state and federal courts, would protect abortion funds and the people they support from being sued by anti-abortion extremists in the state and outside organizations.

The filings come as Texas’ abortion ban – the most extreme in the country – has almost entirely cut off access to abortion in a state of more than 29 million people, disproportionately harming people of color and those working to make ends meet who can’t afford to travel for care. Since the ban first took effect, nearly 1,400 Texans have left the state every month and traveled thousands of miles to get their abortions in states as far as Illinois, Washington, Ohio, and Maryland.

“We are yet again being forced to protect the work we do and show up for Texans who need abortions and the people who love them,” said Amanda Beatriz Williams, Executive Director of Lilith Fund. “We won’t be harassed or intimidated out of serving our community, in the courts or anywhere else. We are proud to fight back, even when we have no choice.”

In the face of criminalization and legal attacks, abortion funds have never stopped showing up for their communities. Senate Bill 8, along with the endless restrictions anti-abortion politicians in the Texas legislature have enacted over the last 10 years, has created an unprecedented and unsustainable situation in Texas. Now, with other states passing Texas copycat abortion bans, the impact is permeating far and wide.

“These attacks against our fund are meant to stigmatize funding abortion and prevent us from supporting Texans seeking care,” said Kamyon Conner, Executive Director of Texas Equal Access Fund. “The work we do to help people access abortion helps communities thrive. We will not be intimidated. We’ll continue to stand up to the bullies who have launched this attack on our work, our rights, and our communities.”

Anti-abortion extremists, many of whom don’t even reside in Texas, have one goal to cut off access to abortion, and have targeted abortion funds who help Texans get care. With this legal action, Texas abortion funds are fighting back  to ensure their work and the privacy of the people they serve is not threatened.

I found a DMN story and a Bloomberg Law story about this, but both are paywalled. The two organizations the suits are filed against are the America First Legal Foundation (with a name like that, you know they’re evil) and the Thomas More Society (ditto), and the two individuals are Ashley Maxwell of Hood County and Sadie Weldon of Jack County. If all of those names sound familiar, it’s because those people and those groups had previously filed petitions in state court to be allowed to depose the leaders of the Lilith Fund and the TEA Fund. I don’t know if we can call this a standoff – among other things, we’re in uncharted legal territory, so who knows how the law is going to be interpreted by the various courts – but it’s very much a seismic battle, with unknowable implications.

In the wake of the SCOTx dismissal of the abortion providers’ lawsuit, I noted that injunctions against individuals would need to be on the menu of options for abortion providers going forward. My initial reaction to this was that we were seeing the first of those, but on closer inspection that’s clearly not the case. I do think we will see a whole lot more suits and countersuits in the near future, at least until there’s some more clarity about what will and won’t work in the courts. All I can say for now is that I wish Lilith and TEA all the best, and if you’d been thinking about donating to them, now would be a good time.

Why the business response to the state’s right wing assault has been so muted

A really good in depth article on the subject from the tech press, which is a source I hadn’t thought about for this before.

When Republican Gov. Greg Abbott in February directed state agencies to investigate anyone who provides gender-affirming treatment to transgender children for alleged “child abuse,” he drew a swift and vocal backlash from civil rights groupsmedical organizations and the White House.

Tech companies also spoke up, signing pledges or reiterating offers to help employees affected by the order. South by Southwest, the world-renowned tech, music and film festival slated to start in Austin on Friday, condemned Abbott’s order. “The governor’s latest directive puts trans children in harm’s way once again and we unequivocally condemn this action,” SXSW told local newspaper The Austin American-Statesman.

But that’s done nothing to budge Abbott or his supporters from accelerating the shift further to the right in Texas politics.

Indeed, the governor’s directive about trans youth was just the latest in a series of laws and orders targeting social issues, including voting, reproductive and gun rights. But for a state that has seen such an influx of new voices — Texas has the ninth-largest economy in the world, is the third-fastest growing state and has added more people than any other state in the past decade — the overall public response to this slew of laws and orders affecting individual rights has not been as resounding as political observers expected. That’s especially the case when it comes to the booming tech community, which has played a key role in the state’s expansion in recent years.

That dynamic underscores the tradeoff that tech companies — and the liberal employees who have moved to Texas — must reconcile as their values collide with their wallets.

Tech and Texas have become intrinsically linked. It’s no coincidence that the so-called Texas Miracle, which refers to a decade-long period of economic expansion after the Great Recession, has continued as technology companies relocate or expand in the Lone Star State. The companies include the likes of TeslaOracleHewlett PackardAppleGoogle and Amazon.

“Businesses are having a really difficult time deciding how to position themselves on these issues of social justice and public policy,” Joshua Blank, research director of the Texas Politics Project at the University of Texas at Austin, said over Zoom.

The reason? Taking a stand on social issues is hard when you are benefiting from a fiscal and regulatory agenda that makes Texas a business haven, according to several experts. Compared with other states, especially California, doing business in Texas is much less expensive. Texas has no state income tax or capital-gains tax on individuals and has fewer business regulations. By moving to Texas, tech companies are “escaping high taxes and a regulatory environment,” Bill Fulton, director of the Kinder Institute for Urban Research at Houston’s Rice University, said over Zoom.

[…]

Indeed, the hard turn right in Texas politics hasn’t taken a toll on the state’s economic growth prospects or even on recruitment efforts of tech companies located in the state, especially those in the ever-expanding and liberal-leaning metropolitan areas of Austin, Dallas and Houston.

That doesn’t mean, however, that the radicalization of Texas social policies won’t have an impact on the state’s economic or social future. Political experts, academics and business leaders interviewed by CNET expressed concern that the trend — assuming it continues — will eventually tarnish the Texas brand and make it increasingly difficult for companies to attract and retain top talent.

But also at stake is the role that corporate America can play in society at a time when consumers and employees expect business leaders to advocate for social responsibility.

“Texas will become a textbook example of what happens when social policy and marginalized, underserved, underrepresented communities become the collateral damage of corporate political giving,” Jen Stark, senior director of corporate strategy at Tara Health Foundation, a nonprofit focused on engaging private companies to advance gender and racial equity, said over Zoom. “Companies have been complicit in setting up an extremist government in Texas and other states.”

I found this article in a completely serendipitous fashion. The Sunday print edition of the Chron carried an excerpt from the New York Times story about how the 2030 Census might be done, and when I did a Google search for it I also got this story among the results. You never know.

The story goes into demography, the fact that some actions companies had taken in the past had little effect even among their own employees, data about people not wanting to move here because of our wingnut politics is more anecdotal than anything else, and because living in mostly Democratic urban areas provides some illusion of comfort. The somewhat ironic good news is that if these current trends continue, which have among other things contributed greatly to the fast growth in Democratic and Dem-trending urban and suburban areas, we really will turn the state blue in a few more years. Of course, a lot of damage can be done in the meantime, and as we well know by now, waiting for demography to do your work for you is at best a deeply frustrating experience. My takeaway from all this is that nothing will beat good old fashioned organizing, the kind we’ve been getting better at lately. Lord knows, there’s no time to spare. Read the rest and see what you think.

SCOTx puts the last nail in the federal lawsuit against SB8

The fix was in from the beginning.

The Texas Supreme Court dealt a final blow to abortion providers’ federal challenge to the state’s latest abortion restrictions Friday.

The court ruled that state medical licensing officials do not have authority to enforce the law, which bans abortions after about six weeks of pregnancy. This was the last, narrowly cracked window that abortion providers had left to challenge the law after the U.S. Supreme Court decimated their case in a December ruling.

The law has a unique private-enforcement mechanism that empowers private citizens to sue anyone who, in the law’s language, “aids or abets” an abortion after fetal cardiac activity is detected, usually around six weeks of pregnancy.

The law is designed to evade judicial review, a goal at which it has been largely successful so far. Abortion providers have tried to argue that the law is actually enforced by state officials — the clerks who docket the lawsuits, the attorney general and medical licensing officials who could discipline doctors, nurses or pharmacists who violate the law — which would give them someone to bring a constitutional challenge against in court.

The U.S. Supreme Court disagreed with all of those arguments but one, allowing a challenge against the medical licensing officials to proceed. That case then went back to the 5th U.S. Circuit Court of Appeals, which sent it to the Texas Supreme Court to weigh in on.

In a hearing last month, Texas Solicitor General Judd Stone argued that there was no “ordinary English interpretation that entertains any possibility of public enforcement.”

On Friday, the justices issued a ruling that seemed to agree with Stone’s “ordinary English interpretation” of the law.

“The Court concluded that Texas law does not authorize the state-agency executives to enforce the Act’s requirements, either directly or indirectly,” they wrote.

Abortion advocates, including those who brought this challenge, were unhappy with the ruling.

“We have been fighting this ban for six long months, but the courts have failed us,” Amy Hagstrom Miller, president and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance, said in a statement. “The situation is becoming increasingly dire, and now neighboring states—where we have been sending patients—are about to pass similar bans. Where will Texans go then?”

See here for the background and here for a copy of the ruling. I don’t have a good answer to Miller’s question. I don’t have much of anything to say because it’s hard not to feel numb. This is the best I can do:

See here and here for more on the Justice Department’s lawsuit, and here for more on the state lawsuit; you may recall that the judge ruled SB8 unconstitutional but declined to issue a statewide injunction. Maybe the plaintiffs can ask him to reconsider that, I dunno. Vladeck’s option 1 above involves individual providers getting injunctions against individual potential plaintiffs, which should be pursued as a stopgap but is obviously inadequate and unsustainable. That’s where we are today, and you can see why I don’t have much to add. The Chron, the Statesman, WFAA, The 19th, Reform Austin, and Daily Kos have more.

And more people are travelling for abortions

The number of abortions performed in Texas has declined greatly since the passage of SB8. But the number of Texans seeking abortions has remained the same, which is what abortion advocates have always said would be the case.

The number of women leaving Texas to obtain abortions has grown tenfold since lawmakers here banned the procedure after early pregnancy, according to new research from The University of Texas at Austin.

The findings, coupled with a huge uptick in online orders for abortion pills, suggest that the state’s widespread crackdown has not yet led to a large decline in procedures. While abortions at Texas clinics did fall by about half after the new restrictions took effect in September, many women still sought out to end their unwanted pregnancies through other, often more challenging paths.

The law “has not reduced the need for abortion care in Texas. Rather it has reduced in-state access,” said Dr. Kari White, lead investigator at the university’s Texas Policy Evaluation Project.

More than 5,500 Texans traveled to abortion clinics in six surrounding states between September and December of last year, according to the study. That’s nearly 1,400 trips per month, up from about 130 per month in the same period in 2019. The latest tally is likely an undercount, since some clinics did not participate and the study did not include trips to states farther from Texas.

[…]

Abortion rights advocates are already preparing for states to cut access in more than two dozen states across the South and Midwest, and providers are rushing to build out clinic space in northern and coastal states more friendly to abortion rights.

The new findings from Texas may be an early picture of the scramble to come for women in other states. The vast majority of trips out of Texas were to Oklahoma and New Mexico, where clinics are on average several hundred miles from most Texans. Oklahoma has its own “trigger” abortion ban in place if the Supreme Court overturns Roe v. Wade, the 1973 decision protecting the right to abortion until about 23 weeks of pregnancy.

Women interviewed in the study said they faced heavy obstacles in seeking out abortions since the law took effect, including delays at clinics in and out of Texas. One in four said they had visited crisis pregnancy centers, which often discourage women from getting abortions. Researchers interviewed 65 women in total.

See here for the TexPEP news release, and here for the full report. You can consider this a bookend to the other recent report about the increase in demand for abortion-inducing medication. It may seem like a bit of comfort that there are still options available, but one is much more time consuming and expensive, not to mention about to get more so as states like Oklahoma and Louisiana follow in Texas’ cursed footsteps, and the other is also heavily restricted under state law, with the great likelihood of further restrictions coming in future legislative sessions if Republicans remain in control. It’s just a matter of time before the emphasis changes from “ways to make abortion more illegal” to “ways to increase enforcement of anti-abortion laws and increase the penalties for violating them”. Do not think for a minute that locking up people who seek abortions, and the people who help them, is off the table. I guarantee you, it is not.

In the “I hate it when I’m right” department, later the same day that I wrote this, I saw this on Twitter:

Don’t ask how that could be legal, or how it could possibly be enforced. The terror of it is the point. Scare people into thinking they can be locked up for seeking a legal abortion elsewhere, and you’re done.

And on that cheery note, we have this update about the largely futile efforts so far to stop this travesty in the courts.

In its 1973 ruling in Roe v. Wade, the U.S. Supreme Court created a constitutional protection for abortion through viability, the point at which a fetus could likely survive outside the womb, usually around 24 weeks.

Since then, states, including Texas, have been stopped by the federal courts when they’ve tried to ban abortions before that point in pregnancy.

But Texas’ law has so far managed to evade a similar fate. The U.S. Supreme Court declined to stop the law from going into effect before Sept. 1, instead allowing lawyers for the abortion providers to bring a pre-enforcement challenge, which was heard in November.

The U.S. Department of Justice also tried to challenge the law, and succeeded in getting it temporarily enjoined by a federal district judge. That ruling was swiftly overturned by a higher court and the U.S. Supreme Court eventually threw out the DOJ’s challenge.

In December, the Supreme Court also threw out the vast majority of the abortion providers’ legal challenge, allowing only one narrow aspect to proceed. That remaining challenge is slowly wending its way through the courts, but even if it is granted, it would not allow abortion providers to resume providing the procedure after six weeks of pregnancy.

Marc Hearron, senior counsel for the Center for Reproductive Rights, which is representing the abortion providers, said Thursday that their challenge in federal court “no longer stands a chance” of stopping these lawsuits from being filed.

“The Supreme Court greenlit this law’s unprecedented vigilante scheme and essentially said that federal courts are powerless to stop it,” he said. “There is no end in sight to this nightmare.”

Abortion providers have had more luck in Texas courts, where state District Judge David Peeples ruled in December that the law is unconstitutional. His judgment did not block lawsuits from being filed under the law, and is currently being appealed.

[…]

Immediately after Texas’ latest abortion restrictions went into effect Sept. 1, one San Antonio doctor, Alan Braid, announced in a Washington Post op-ed that he had provided an abortion after cardiac activity was detected.

“I fully understood that there could be legal consequences,” Braid wrote, “but I wanted to make sure that Texas didn’t get away with its bid to prevent this blatantly unconstitutional law from being tested.”

Three people sued Braid, including two disbarred attorneys who indicated they were more interested in seeing the law tested and getting the money than actually taking a stand against abortion.

Hearron, who is also representing Braid, said Thursday that they have filed a countersuit in federal court against the three claimants, seeking to have the law declared unconstitutional and the suits thrown out.

Beyond those initial three claims, no lawsuits have been brought against anyone for aiding or abetting in a prohibited abortion. But just last week, a group of anti-abortion lawyers asked a judge to allow them to depose the leaders of two abortion funding nonprofits to gather information for potential lawsuits.

So things are bad, and there’s no clear path to them being less bad. If you want something to happen at the federal level, we’re going to need to add at least two more Democratic Senators, which might give us enough to make changes to the filibuster, and we need to hold onto the House as well. If not, well, as the story says, there’s no end in sight.

More people are choosing the medical abortion option

It’s not like there are good alternatives right now in Texas.

The demand for abortion-inducing medication spiked in the month after Texas significantly limited abortion access and has remained high since, according to new data from a researcher at the University of Texas at Austin.

The study reviewed requests for abortion-inducing medication made to Aid Access, an international nonprofit that provides the medication via the internet to people who cannot otherwise legally access the procedure. Prior to September 2021, the organization typically received an average of 10.8 requests a day from Texans.

Then, the Texas Legislature passed Senate Bill 8, which prohibits abortions after about six weeks of pregnancy, a point at which many people do not know they are pregnant. In the first week after the law went into effect on Sept. 1, Aid Access received an average of 137.7 daily requests from Texas, an increase of over 1000%.

“That big of a spike in requests shows us the uncertainty and chaos created by Senate Bill 8 going into effect,” said Abigail Aiken, the lead researcher on the study. “If it’s not certain that you can go to a clinic and get the care that you need, people will be looking around for what other options they have.”

The demand for the medication has remained higher than normal in the months since, Aiken found.

Medical abortion is typically a two-drug regimen of mifepristone and misoprostol that has been shown to be effective at terminating a pregnancy through the first 10 weeks of pregnancy. In December, the federal government lifted a requirement that the medication be dispensed in person, allowing it to be prescribed by telemedicine and sent through the mail.

But Texas law does not allow the medication to be prescribed through telemedicine or mailed and has limited its use to the first seven weeks of pregnancy.

[…]

Aiken, the researcher behind the study, said it’s impossible to know how and when patients use the medication they access through Aid Access — or how many patients are terminating pregnancies through other means.

But as the U.S. Supreme Court considers whether to overturn the constitutional protection for abortion, Aiken said this Texas data serves as a snapshot of what whole swaths of the country may be facing.

“It’s clear from this research and many studies that just because you make abortion harder to get, it doesn’t mean the need for abortion goes away,” she said. “And many people, they will look for other ways of doing that.”

See here and here for some background. The forced-birth contingent is of course not happy with this and murmuring about ways to pursue “legal action” against international and out of state groups like Aid Access. Not sure how they could do that without being extremely invasive, but I have no doubt that such a thought does not bother them at all. On the assumption that SCOTUS is going to gut Roe v Wade in some significant way, the main question is whether people will mostly still be able to get abortion pills freely, or whether they will have to rely on more evasive options. Both seem very much in play. The Chron has more.

SCOTx hears SB8 argument

I’ll be honest, I had not realized this was on the calendar.

The Texas Supreme Court got its first chance to weigh in on the state’s new abortion law Thursday, hearing arguments in a narrow challenge to the restrictions, which have blocked access to abortions after about six weeks of pregnancy for nearly six months.

This hearing before the nine-justice high court is an interim step in the ongoing federal lawsuit brought by abortion providers trying to challenge the law. The 5th U.S. Circuit Court of Appeals asked the Texas Supreme Court to weigh in on a question of state law before the appeals court proceeds with its own ruling in the case.

The law, passed as Senate Bill 8, is designed to evade judicial review, a goal at which it has so far been successful. It specifically precludes state officials from enforcing it, instead deputizing private citizens to bring civil lawsuits against anyone who “aids or abets” an abortion after cardiac activity is detected in an embryo, usually around six weeks of pregnancy.

Lawyers representing the abortion providers are trying to prove that the state itself actually will enforce the law, which would open a legal window for them to seek an injunction on some aspects of the law. They argued that the law is enforced by court clerks who docket the lawsuits, judges who hear them, the attorney general and others.

The U.S. Supreme Court threw out most of those arguments in a December ruling that allowed the law to remain in effect. The justices did allow one question to proceed, over whether state medical licensing officials play a role in enforcing the law.

Those agencies would potentially be responsible for disciplining or revoking the licenses of doctors, nurses and pharmacists who violate the law; an injunction would stop them from doing so, but would leave the crux of the law in place.

[…]

At Thursday’s hearing, Texas Solicitor General Judd Stone argued that there was no “ordinary English interpretation that entertains any possibility of public enforcement.”

The justices questioned whether doctors might be obligated by the rules of the state’s medical licensing board to report any lawsuits brought against them for violating the abortion law, and whether that would constitute state enforcement.

Stone said the board could simply make a rule saying that it has no role in enforcement, so even if a report was made, it would be precluded from taking further action, like revoking a doctor’s license.

That argument, and the narrowness of the challenge more generally, presented a problem for lawyers representing the abortion providers, who found themselves in the tricky position of arguing against themselves.

Their current argument is that the state’s enforcement authority, through medical licensing officials, contributes to the chilling effect on abortion providers. If the state Supreme Court decides that medical licensing officials do not have enforcement authority — or the boards add language to their rules confirming that — that chilling effect is lifted.

Justice Evan Young asked Marc Hearron, senior counsel for the Center for Reproductive Rights, whether that would be a win for the abortion providers.

“If you were to do that, that would, at a minimum, provide our clients some certainty,” Hearron said. “It would, however … essentially end our challenge.”

Without state enforcement, there is no one to bring a constitutional challenge against, and the law would remain in effect.

[…]

Abortion providers and advocates are fighting the law on several fronts, including in state court, where a judge in Austin declared the law unconstitutional. He did not enjoin the law from being enforced, though, and that ruling is being appealed.

It is possible that case will eventually return to these same chambers. The justices acknowledged that Thursday’s hearing is unlikely to be the last time they are asked to rule on this unprecedented new law.

Thursday’s case before the Texas Supreme Court is a question of whether the abortion providers can bring a federal “pre-enforcement” challenge.

If that option is foreclosed to them, one option would be to do what a San Antonio doctor did immediately after the law was passed: violate the law, get sued and challenge the statute on its merits in court.

See here, here, here, and here for some background. Perhaps the timing of this hearing on Thursday explains the forced-birthers’ move earlier in the week. I have no idea what SCOTx will do, and there’s no indication from them as to when they’ll do it, but I do know what they should do, and that’s what the federal district court did and would have done again if the Fifth Circuit hadn’t shredded normal practice to put this case before them: Issue a temporary restraining order against any SB8 activity until the matter is resolved in the courts. It’s ridiculous and infuriating how the Fifth Circuit and SCOTUS have played politics with this case. Do what is clearly the right thing under the law, and let the matter proceed from there. I don’t expect them to do this, but they should. The Chron and the Texas Signal have more.

Anti-abortion zealots make their move under SB8

This is where it really starts to get scary and ugly.

For nearly six months, as Texas’ novel abortion law has wended its way through the courts, abortion providers and opponents have been locked in a stalemate.

The law, known as Senate Bill 8, empowers private citizens to sue anyone who “aids or abets” an abortion after about six weeks of pregnancy. With one exception as soon as the law went into effect, abortion providers in Texas have stopped performing these prohibited procedures — so opponents haven’t tried to bring one of these enforcement suits.

But that could be changing. A group of anti-abortion lawyers have taken steps to potentially bring lawsuits under SB 8, claiming in state court petitions that the leaders of two abortion funds have information about illegal abortions they helped patients procure.

This is a significant escalation on the part of abortion opponents, who have so far seemed satisfied with the chilling effect that even just the threat of lawsuits has had on abortion providers and their affiliates.

The petitions were filed by two women, Ashley Maxwell of Hood County and Sadie Weldon of Jack County. They are represented by Jonathan Mitchell, the architect of SB 8 and a former solicitor general for Texas; state Sen. Bryan Hughes (R-Mineola), the law’s chief legislative advocate; and lawyers from the right-wing Thomas More Society and America First Legal Foundation.

Maxwell and Weldon are asking a judge to allow them to depose the executive director of the Texas Equal Access Fund and the deputy director of the Lilith Fund before any lawsuits are filed.

If granted, the depositions will allow the petitioners to discover “the extent of involvement of each individual that aided or abetted post-heartbeat abortions in violation of SB 8” so they can “better evaluate the prospects for legal success.”

While abortion providers have reported significant declines in patient loads since the law went into effect, abortion funds have seen a surge in demand from clients trying to access abortions before the deadline or leave the state to seek the procedure.

“What [these petitions] mean to do is chill pregnant people from seeking out the help of abortion funds,” said Elizabeth Sepper, a law professor at the University of Texas at Austin. “If someone thinks that their identity and circumstances are going to be revealed to the world at large by a lawsuit … they’re going to hesitate before they pick up the phone and call for help.”

The petitions seek to depose Kamyon Conner, executive director of the Texas Equal Access Fund, and Neesha Davé, deputy director of the Lilith Fund for Reproductive Equity, two nonprofit abortion funds that provide financial assistance to patients seeking abortions.

Conner and Davé both admitted, in sworn affidavits in state court, that their organizations helped fund abortions “after the period in which cardiac activity is usually detectable.” That would put them in violation of SB 8, also known as the Texas Heartbeat Act, and open them up to potential lawsuits.

The organizations helped fund these abortions during a brief period last fall in which a federal district judge had enjoined the law from being enforced. A higher court quickly overturned that ruling; SB 8 specifically notes that an injunction that is later overturned is not a protection from future lawsuits.

That aspect of the law hasn’t been tested in court, and experts say it’s unclear whether it would hold up.

“In part, this attempt to get a deposition is also an attempt to figure out if claims can be brought based on the abortions performed in those few days where SB 8 was not in effect,” said Sepper.

The depositions are also seeking to identify who, in the language of the law, “aided and abetted” in these abortions — and the petitions indicate they’re taking a very wide view of that term. According to the filing, they’re seeking information on the funds’ role in facilitating abortions, the identity of individuals that they collaborated with and access to documents on the funds’ sources of financial support.

See here for the background on the state lawsuit, and here for the federal suit, which as we now know was routed to SCOTx by the Fifth Circuit precisely to keep it from being enjoined again. Make no mistake, the ultimate goal here is not just to go after people like Conner and Davé (who is a friend of mine), but everyone who donated to their organizations. The point of this awful law was to stop abortion, but the cherry on top for them was the chance to get rich doing so. I’m too disgusted to say any more.

Using the Texas model to protect voting rights

Some blue state needs to do this.

In the midst of the ongoing debate over Republicans’ siege on voting rights in states they control, here’s an unconventional suggestion: Democratic state legislators should take a page from the Republican playbook and empower private citizens to sue people who are “aiding and abetting” voter suppression efforts.

After all, that’s exactly what the Texas GOP has done with the abortion bill it enacted last year, which effectively bans abortions after six weeks of pregnancy, despite the fact that our Supreme Court has ruled that women have a constitutional right to abortion until a fetus is viable, which is generally about 24 weeks into pregnancy. As the Supreme Court declared in 1992 in its ruling in Planned Parenthood v. Casey, there’s a “constitutionally protected liberty of the woman to decide to have an abortion before the fetus attains viability and to obtain it without undo interference from the State.”

[…]

While personally I believe this law is atrocious, if the GOP is going to use that legal model to infringe on the rights of women, why can’t Democrats use that same tactic to accomplish a monumental goal of their own: protecting voting rights? Democrats cannot simply roll over and let the GOP suppress the vote — and potentially rig elections — because new federal voting rights legislation was recently blocked by way of the filibuster in the U.S. Senate. Democrats need to be tenacious fighters on this all-important issue — and that means using every single tool available.

One way to show that commitment would be for states with Democratic governors and legislatures to enact laws that enable private citizens to sue anyone who is found “aiding and abetting” making it more challenging to vote. And if the person wins, they would be rewarded with $10,000 plus the cost of their legal fees from the defendant for each action they took that “aided and abetted” in restricting voting.

For example, New York could enact a law that enables people to sue any person in the state who is found “aiding and abetting” the GOP’s voter suppression efforts. This arguably would include elected New York Republican officials, such as Rep. Elise Stefanik, who championed former President Donald Trump’s election lies that have been used to justify the voter suppression laws in other states. That includes Stefanik claiming that President Joe Biden’s win in Georgia was because “more than 140,000 votes came from underage, deceased, and otherwise unauthorized voters — in Fulton County alone.” And in May, she was on Steve Bannon’s podcast, where she continued to further Trump’s “big lie.”

Lawsuits could also be potentially filed against GOP donors living in New York who give to organizations like the Republican National Committee, which has been vocally opposing federal laws to protect voting rights and continues to recognize Trump as its standard-bearer. This could all arguably be considered “aiding and abetting” the GOP’s voter restriction efforts.

The law could even be crafted so that Republicans in other states who engage in “aiding and abetting” the restriction of voting and do “business” in New York can be sued in the Empire State since it would arguably fulfill jurisdictional requirements. For example, when Florida Republican Gov. Ron DeSantis — who touted and signed into law sweeping voting restrictions in his state — traveled to New York in September for a political fundraiser, he was in effect “doing business” in New York by targeting New Yorkers for their donations. And he would be fair game to catch a lawsuit under this hypothetical anti-voting restriction law.

Further justifying this law is that voter restrictions in any state ultimately affect those in blue states since they impact races for federal office, and those federal officeholders in turn can enact laws that impact the entire nation — such as on climate change and gun safety.

I get that this sounds unconstitutional and insane — but it’s built in the exact image of the Texas abortion law. A women’s right to abortion in the first 24 weeks of pregnancy is a constitutional right — just like freedom of speech. Given that the GOP-controlled Supreme Court didn’t swiftly strike down the Texas abortion law, it would be hard-pressed to strike down these “protect the vote” laws without exposing itself as being nothing more than an arm of the Republican Party.

I have no doubt that this Supreme Court is up to the challenge of justifying the Texas abortion law while knocking down this hypothetical statute, but having the fight and making them do it would definitely be worth the effort. I also agree that it’s all ridiculous, but given all that’s happened it’s hard to avoid the conclusion that this is the most feasible path available at this time. New York and California, y’all are the best bets for this. Someone please get the ball rolling on it.

SB8 litigation will stay with SCOTx

Another game of Calvinball, same result.

The U.S. Supreme Court denied on Thursday abortion providers’ latest request to intervene in the ongoing legal challenge against Texas’ restrictive abortion law, cutting off one of their few remaining paths to a speedy victory.

The case is currently before the 5th U.S. Circuit Court of Appeals, which sent the case to the Texas Supreme Court. That is expected to add months to the legal proceedings.

Abortion providers were hoping the U.S. Supreme Court would direct the 5th Circuit to send the case to federal district court, where a judge previously blocked the law.

[…]

“It breaks my heart every time our clinic staff are forced to deny pregnant people care and turn them away,” said Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, which operates four Texas abortion clinics. “This law is cruel and unconstitutional, and I am deeply disappointed that our judicial system has done very little to stop it.”

The fix is in. The law means nothing. It’s about to get worse. Have a nice day.

SB8 lawsuit moves to SCOTx

Like I said, the fix was always in.

The 5th U.S. Circuit Court of Appeals on Monday sent the legal challenge to Texas’ restrictive abortion law to the state’s Supreme Court, a move that is expected to significantly delay the case and that abortion opponents had hoped would occur.

“This decision now keeps the case in limbo — and abortion after 6 weeks in the nation’s second-largest state — a dead-letter, indefinitely,” wrote Steve Vladeck, a University of Texas School of Law professor, on Twitter.

The U.S. Supreme Court has largely declined to intervene in the Texas case three times, most recently in December when justices kept the ban in effect while allowing a legal challenge to move through a lower state court.

[…]

A divided Supreme Court found that most challenges against the Texas law should be dismissed, except for one filed against medical licensing officials. That case was sent that to the 5th Circuit, one of the most conservative appellate courts in the country, rather than a federal district court as abortion providers and supporters had hoped.

The three-judge federal panel, based in New Orleans, wrote in their 2-1 decision Monday that the Texas Supreme Court must certify the case and decide whether the U.S. Supreme Court was correct in allowing a challenge to proceed against the licensing officials. Circuit Judges Edith H. Jones and Stuart Kyle Duncan, both appointed by Republicans, said the state’s highest court should determine whether the Texas attorney general, the Texas Medical Board and other licensing officials can enforce the law if it is violated.

Judge Stephen A. Higginson, a Democratic appointee, argued the U.S. Supreme Court had already decided that matter.

“This further, second-guessing redundancy, without time limit, deepens my concern that justice delayed is justice denied, here impeding relief ordered by the Supreme Court,” he wrote in his dissent.

State supreme courts do not have to take up cases that are sent to them by federal courts, but it’s likely Texas will this time. Lawyers said it’s unusual to ask the Texas Supreme Court to make this decision after the U.S. Supreme Court has already weighed in.

See here, here, and here for the background. I still don’t have anything to say that I haven’t said before. I’m fresh out of invective. The following is part of a longer thread, but these two tweets sum it up nicely:

SCOTUS doesn’t even care about the insult to their authority, because in the end it serves their larger goal. Burn it all down. The Chron has more.

Fifth Circuit gets set to put the final nail in SB8 legal challenges

The fix was always in.

In a contentious hearing Friday, a federal appeals court indicated it is likely to send Texas’ restrictive abortion law to the state supreme court, a move that could add months or longer before the case is resolved.

Since Sept. 1, abortions after about six weeks of pregnancy have been banned in Texas through a novel law that empowers private citizens to sue anyone who “aids or abets” in a prohibited procedure. The law explicitly removes enforcement authority from state officials, making it extremely difficult to challenge in court.

In December, the U.S. Supreme Court threw out most challenges to the law and left only state medical licensing officials as possible lawsuit targets because they can revoke a doctor, nurse or pharmacist’s license if they violated the law.

On Friday, a three-judge panel from the New Orleans-based 5th U.S. Circuit Court of Appeals heard arguments about where the case goes next. Judges Edith H. Jones and Stuart Kyle Duncan indicated they believe there are state law questions that must first be resolved by the Texas Supreme Court, while Judge Stephen A. Higginson strongly disagreed, arguing the case should be remanded to federal district court.

In a move that surprised court watchers, Jones also raised the idea of taking no action on the case for months, until the U.S. Supreme Court has ruled on a Mississippi abortion case that could overturn the constitutional protection for the procedure.

Lawyers for the abortion providers believe the federal district court route is the best hope to getting the law, originally passed as Senate Bill 8, struck down. If the case is sent to the Texas Supreme Court, it could take months to return to the federal level, leaving the law in effect.

This is exactly what abortion opponents are hoping for.

See here and here for the background. There’s nothing I can say that I haven’t already said. The only way forward is winning more elections, both to change the laws in Texas and to get some court reform at the federal level. I wish I had something more hopeful, but this is all I’ve got. The 19th and the Chron have more.

SB8 plaintiffs want their lawsuit moved back to district court

As is usually the case, the lawless Fifth Circuit is the problem, with a generous assist from SCOTUS.

With the 5th U.S. Circuit Court of Appeals set to hear arguments about Texas’ restrictive new abortion law Friday, abortion providers have asked the U.S. Supreme Court to again intervene and instead send the case to a lower court.

Abortion providers filed the request Monday, along with a motion to expedite the high court’s ruling on the matter ahead of Friday’s hearing. Lawyers for the providers argue that the 5th Circuit should send the case to district court, which in October temporarily blocked enforcement of the law.

[…]

In December, the Supreme Court threw out most of the providers’ challenges to the law and allowed only one narrow challenge, against medical licensing officials, to proceed. The court also allowed the restrictions on the procedure to remain in place.

Then, in an additional blow to abortion providers, the Supreme Court sent that one remaining challenge to be reargued before the 5th Circuit, considered one of the most politically conservative circuit courts in the nation. Providers had been expecting it to be sent to the district court, which was seen as a more favorable venue. They argued in Monday’s filing that district court is the proper venue for the case to proceed.

“It’s unconscionable that the Fifth Circuit Court of Appeals is defying the Supreme Court’s ruling last month by refusing to send our case back to the district court so that we can continue fighting Texas’ six-week abortion ban,” Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, said in a statement. “The Supreme Court must step in to prevent the appeals court from needlessly delaying our lawsuit against Texas’ bounty-hunting scheme and compounding the harm this ban has already inflicted on Texans.”

Rather than remanding the case to the district court, though, the 5th Circuit decided in a split decision to hear arguments in the case on Friday and will consider whether the case should be sent to the Texas Supreme Court to proceed. Legal experts say certifying a case to the state supreme court can extend the appeals process by months, if not years.

Circuit Judge Stephen A. Higginson dissented from the majority, arguing that the Supreme Court’s ruling does not require reargument before the 5th Circuit and should not be sent to the Texas Supreme Court. Higginson also wrote that he believes the Supreme Court ruling indicates that the medical licensing officials should be blocked from enforcing the law.

But Higginson noted that he had been “unpersuasive,” and unless the Supreme Court weighs in before Friday, the case is likely to proceed at the 5th Circuit. Abortion providers argue that this delay is harming women seeking abortions.

See here for the background. The plaintiffs had also asked the Fifth Circuit to just send this back to the district court, but they declined and instead scheduled this hearing, which is not a thing that appellate courts normally do. It’s clear that the purpose of this is to just flat-out delay if not deny sending the case back to the district court judge, who will surely enjoin it for the duration of the lawsuit, and wait for SCOTUS to officially throw out Roe v Wade in the Mississippi case. The Fifth Circuit is rogue and lawless and needs to be gutted. Simply calling it some variation of “very conservative” does not accurately describe it. The news media needs to wake up and get with the program. The 19th has more.

What Harris County could maybe do to counter SB8

From last week. I have my doubts much of it will happen, though.

Three months after Democrats on Harris County Commissioners Court sought advice on how to counter Texas’ new abortion ban, policy analysts for the court on Tuesday advised County Judge Lina Hidalgo the county could spend public money to support groups that aid those seeking abortions — and perhaps even to directly fund abortion care.

The memo to Hidalgo and her top aides detailing the county’s options came in response to a resolution passed by Commissioners Court in September, two weeks after the abortion law took effect, that directed their policy analysis office to investigate how the county could “support individuals impacted by” the ban or “otherwise mitigate the law’s negative effects.”

The county is free, the analysts wrote, to send local and federal funds to groups that provide support services — including transportation, lodging and child care — to those seeking abortions outside the state. Austin officials have approved funding for similar usage, the memo noted, to get around a 2019 state law that bars local governments from sending taxpayer funds to abortion providers — a move that has withstood legal opposition.

The policy analysts said that while the 2019 law, known as Senate Bill 22, prevents Harris County from spending local taxpayer funds on abortion services, the county’s expected $915 million allotment of federal COVID-19 relief money may be eligible for that purpose.

[…]

Hidalgo, who is running for re-election next year and has drawn more than a dozen challengers, has been fiercely critical of the abortion law, known as Senate Bill 8, since lawmakers approved the measure this spring. One of the nation’s strictest anti-abortion policies, it bans the procedure in almost all cases once cardiac activity is detected — often around six weeks into a pregnancy, when most women do not know they are pregnant.

Hidalgo has been especially critical of the law’s enforcement mechanism: lawsuits filed by private citizens, who can collect $10,000 cash and recoup their legal fees if the challenge is successful. Hidalgo on Tuesday said the provision — which is aimed at shielding the law from court challenges — “creates a culture of vigilantism in the community.”

Facing criticism during Tuesday’s meeting, however, Hidalgo noted the memo had appeared on court agenda merely to be “transmitted” to the court from the Harris County Commissioners Court’s Analyst’s Office, which prepared the document. County departments routinely use the process to formally communicate with the court, which did not vote on any of the “policy considerations” outlined in the memo.

“It is not a proposal that is in front of Commissioners Court,” Hidalgo said. “I know some folks have been saying that. And with campaign season, these kind of accusations, misleading statements are only the first of many.”

I support any reasonable measures that Harris County can take to abet reproductive health care. I also have no doubt that anything the county does will spark a huge outcry from the forced birthers, and unless there is a change in state government from the 2022 election, there will be legislative reprisals in 2023, just as Harris County’s efforts to make it easier to vote were targeted in the voter suppression law. Doesn’t mean we should shy away from the fight, just that we should be clear about what we hope to accomplish, what we are potentially risking and who might be directly affected by it, and which fights are the best to pick. It’s good to have the discussion and know what our options are. Now let’s choose well.

SCOTUS finds another way to screw abortion rights

Surely you’re not surprised.

The Supreme Court has formally returned a lawsuit over Texas’ six-week abortion ban to a federal appeals court that has twice allowed the law to stay in effect, rather than to a district judge who sought to block it.

Justice Neil Gorsuch on Thursday signed the court’s order that granted the request of abortion clinics for the court to act speedily. But the clinics wanted the case sent directly to U.S. Judge Robert Pitman, who had previously though briefly blocked enforcement of the Texas abortion ban known as S.B. 8.

When Pitman ordered the law blocked in early October, the appeals court countermanded his order two days later.

Texas has said it will seek to keep the case bottled up at the appeals court for the foreseeable future.

Marc Hearron, the Center for Reproductive Rights lawyer who represented the clinics at the high court, said, “The Supreme Court left only a small sliver of our case intact, and it’s clear that this part of the case will not block vigilante lawsuits from being filed. It’s also clear that Texas is determined to stop the plaintiffs from getting any relief in even the sliver of the case that is left.”

[…]

In last week’s majority opinion written by Gorsuch, the Supreme Court limited who can be sued by the clinics in their effort to win a court order preventing the law’s enforcement and allowing them to resume providing abortions without severe financial risks.

The court held that only state licensing officials can be sued, an outcome the clinics said would not stave off the filing of lawsuits against providers if abortions were to resume.

Gorsuch wrote that “it appears” the licensing officials can be sued. “Of course, Texas courts and not this one are the final arbiters of the meaning of state statutory directions,” he wrote.

The state told the justices it plans to ask the appeals court to, in turn, seek a definitive ruling from the Texas Supreme Court over the role the licensing officials play in enforcing the abortion ban.

The appeals court would decide whether to involve the state high court, which would put the case on hold.

See here for the background. I’m going to outsource the commentary, as it’s hard for me to form the right words here.

I suppose it’s possible that the Fifth Circuit will do the right thing and hand this back to the district court so the process can play out. And I suppose that if they try to hand it to SCOTx that they will refuse to take it, on the grounds that they don’t like having to deal with messy political questions. Or either the Fifth Circuit and/or SCOTx just sits on the ball until SCOTUS officially drives a spike through Roe v Wade and moots the whole thing. I’m going to go scream into a pillow now. The Trib has more.

FDA lifts restrictions on medical abortion

Long overdue

The Biden administration on Thursday ended a long-standing restriction on a medication used to terminate early stage pregnancies, even as politicians across the United States intensified efforts that represent the most serious challenge to abortion rights in decades.

The elimination of the rule by the Food and Drug Administration means abortion pills can be prescribed through telehealth consultations with providers and mailed to patients in states where permitted by law. Previously, the pills could not be mailed, though that regulation had been temporarily suspended by the FDA.

In large swaths of the nation, however, strict state rules will dampen the impact. Several states ban sending abortion pills by mail and impose other restrictions.

The medication, mifepristone, was approved by the FDA in 2000 for what’s known as medication abortion. It is used with a second drug, misoprostol. The FDA required patients to pick up mifepristone in person at a hospital, clinic or medical office. There is no FDA requirement that the medication, also known as RU-486, be taken in a clinical setting, and most patients take it at home.

In April, the FDA waived the in-person dispensing requirement during the pandemic, saying research showed the action did not raise “serious safety concerns.” It then launched a scientific review to see whether restrictions on mifepristone should be lifted permanently, with Thursday as the deadline.

The agency, writing to a medical group that had sued the FDA over the rule, said it was dropping the in-person dispensing requirement “to minimize the burden on the health care delivery system” and “to ensure that the benefits of the drug outweigh the risks.” The FDA did not give an effective date for the change.

[…]

Loosening the federal restrictions will not change abortion access in many states with stricter regulations on the pills. Nineteen states have banned receiving the drugs through telehealth appointments, making the relaxed FDA rules irrelevant in places including Alabama, Arizona and Missouri. Some states impose other limitations on medication abortion, including allowing only physicians to prescribe the drug and mandating that patients take the pills under a doctor’s supervision rather than at home.

As federal officials have moved to ease restrictions on the drug, many states have tightened access. At least 16 states have proposed new restrictions on medication abortions this year, said Elizabeth Nash, state policy analyst for the Guttmacher Institute.

“State legislatures have been watching very carefully what happens at the federal level,” Nash said.

The highest-profile limitations were enacted in Texas, where lawmakers made it a felony to provide abortion pills after seven weeks of pregnancy and outlawed sending the drugs through the mail. Texas also banned nearly all abortion within the state by making any form of abortion illegal after about six weeks of pregnancy, though that law is being challenged in the courts.

The differing rules have the potential to widen disparities in abortion access, Nash said.

“Access looks very different depending on where you live,” Nash said. “Abortion access will continue to be very limited in states in the South, in the Plains and in the Midwest, and more accessible in states along the West Coast and the Northeast. … That’s problematic in and of itself, and could become an even bigger divide.”

Yeah, it sure is an issue here in Texas. The main question I have is how effectively will Texas be able to enforce its restrictions. It seems to me that there will be a lot of effort put into avoidance, and as such the only way to really make that law work as intended is to be pretty darned invasive. I don’t know how that will work.

Restrictive state laws are spurring an increase in some areas of what’s known as “self-managed abortions” in which patients buy illegal medication on the Internet and terminate pregnancies without interacting with the health-care system.

While some see this as a dangerous trend, others say the situation is sharply improved from decades earlier — because of the abortion pills.

Abigail Aiken, assistant professor of public affairs at the University of Texas at Austin, said she is often asked whether the country is headed to “back-alley abortions and infections” if Roe v. Wade is struck down.

“One of the things we have that we didn’t have in the ’60s and ’70s is access to abortion pills that are very safe, very effective if you have the right instructions,” Aiken said. “Self management is a safety net. And it’s also an ability to take your health care into your own hands when the state legislature is trying to block access.”

That sounds logical to me. And it should be known, this way around the law has been in use for some time. Again, the question to me is how vigorously Texas will try to crack down on that, and how heavy-handed such enforcement will be. I feel very confident saying that the zealots who pushed the bounty hunter law will not be satisfied by anything other than an all-out crackdown, whatever the consequences. If you think I’m being alarmist, look at where we are now and tell me honestly it’s not far worse than you thought it would be. The 19th and Mother Jones have more.