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Justice Department files its motion for an injunction against SB8

Let’s hope they get a quick win.

The Justice Department has asked a federal judge to grant a temporary restraining order or injunction that would prevent Texas from enacting a law that bans nearly all abortions in the state, heating up a battle between the Biden administration and Texas Republicans, led by Gov. Greg Abbott.

The department argued in a court filing late Tuesday that Texas had adopted the law, known as Senate Bill 8, “to prevent women from exercising their constitutional rights.”

The move comes less than a week after the Biden administration sued Texas to try to block the nation’s most restrictive abortion law, which bans the procedure as early as six weeks into pregnancy and allows private citizens to take legal action against anyone who helps someone terminate their pregnancy.

In Tuesday’s emergency filing, the department argued that even though the Supreme Court has ruled that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,” Texas has banned abortions months before viability — at a time before many people even know they are pregnant.

The brief said Texas had devised “an unprecedented scheme that seeks to deny women and providers the ability to challenge S.B. 8 in federal court. This attempt to shield a plainly unconstitutional law from review cannot stand.”

See here for the background, and here for a copy of the motion. For those of you who’d like to get the highlights, here you go:

By all accounts, the arguments being made by the Justice Department are strong. We’ll just have to see what the courts – specifically, the Fifth Circuit and SCOTUS – make of it. There was no indication as of the time of those tweets when the court would hear arguments or issue a ruling, but now there is:

After the United States Department of Justice filed a preliminary injunction/restraining order against Texas in another attempt to halt Senate Bill 8, a federal judge granted the Biden administration a hearing on Oct. 1 to review temporarily banning the anti-abortion law.

In the signed statement, Judge Robert Pitman stated that Texas shall file in response to the motion no later than Sept. 29, 2021 and the U.S. shall file its reply in response no later than the morning of the hearing.

Mark your calendars. You can see a copy of the judge’s order here, and as Steve Vladeck notes doing it this way rather than granting a temporary restraining order prevents the state from running to the Fifth Circuit and getting the TRO halted. The Trib, the Chron, and the Current have more.

UPDATE: 24 Dem AGs File Amicus Brief Backing DOJ Challenge To Texas Abortion Ban. Good.

Once again with the religious objection to a Texas anti-abortion law

Stepping up again.

The Satanic Temple has joined the legal wrangling to block or overturn Texas’ severe new abortion law. That law, which the U.S. Supreme Court refused to block this week, bans the medical procedure after six weeks, including in cases of rape and incest.

The Salem, Massachusetts-based Temple filed a letter with the U.S. Food and Drug Administration arguing that its Texas members should have legal access to abortion pills. The group’s attorneys contend that its status as a non-theistic religious organization should ensure access to abortion as a faith-based right.

In the letter, the Temple argues that abortion pills Misoprostol and Mifepristone should be available for its use through the the Religious Freedom Restoration Act, which protects Native Americans’ use of peyote in religious rituals. The Temple says those the same rights should apply to the drugs it uses for its own rituals.

“I am sure Texas Attorney General Ken Paxton — who famously spends a good deal of his time composing press releases about Religious Liberty issues in other states — will be proud to see that Texas’s robust Religious Liberty laws, which he so vociferously champions, will prevent future Abortion Rituals from being interrupted by superfluous government restrictions meant only to shame and harass those seeking an abortion,” said Lucien Greaves, the Temple’s spokesman and co-founder, in an emailed statement.

“The battle for abortion rights is largely a battle of competing religious viewpoints, and our viewpoint that the nonviable fetus is part of the impregnated host is fortunately protected under Religous Liberty laws,” Greaves added.

The U.S. Supreme Court last year declined to hear a case brought by the the Temple to overturn Missouri abortion laws.

I can’t find a copy of the letter, so it’s not clear to me if this is an attempt to challenge SB8, the so-called “heartbeat” bill, or the bill restricting access to medical abortion that was passed during the second special session. The Temple’s own website has some general language about its actions, but not much more than that. They had previously objected to the “fetal remains” law, though I don’t know if they took any legal action about it, and earlier this year they filed a lawsuit over the sonogram law; you can see their statement about that here. I think it’s an overbid to call this the last hope to stop SB8, and I don’t know of any past successes by the Temple in stopping anti-abortion laws, but I applaud their efforts.

Going after the snitch sites

I approve of this.

When an anti-abortion group last week created a “pro-life whistleblower” website encouraging people to anonymously report violations of Texas’ new six-week abortion ban, a group of politically active Texans noticed one potentially fatal flaw.

“They’re trying to use the internet to retaliate against people who were raised on the internet,” said Olivia Julianna, an 18-year-old student and activist from Sugar Land who is among the leadership of a group called “Gen Z For Change.” The group was formerly known as “TikTok for Biden.”

Olivia, who goes by only her first and middle names on social media due to safety concerns, said the goal was clear: “This website, if we can mess with them in any way, if we can stop even one woman from having a lawsuit filed against her or waste even a second of their time, we need to do it.”

The tip site was meant to help enforce Senate Bill 8, the Texas law that went into effect at the start of this month that prohibits abortions after six weeks of pregnancy, before most women know they’re pregnant.

The law has so far avoided being blocked by the courts because the government does not enforce it. Instead, it puts enforcement in the hands of any private citizen who wishes to sue an abortion provider or others who “aid or abet” someone getting an illegal abortion, with a possible reward of at least $10,000 per successful suit.

Olivia was one of several young left-leaning activists who immediately took to social media to sabotage the site by flooding it with false reports and other information — some suggested anti-Gov. Greg Abbott sayings. Others recommended off-the-wall responses or nonsense.

She and other members of Gen Z For Change — Generation Z is typically defined as those who are now 18 to 24 — quickly got to work.

“It would be really, really bad and morally wrong of all of you to go to ProLifeWhistleblower.com and send in an anonymous tip that is fake,” Olivia sarcastically told her more than 137,000 followers in an Aug. 23 video she posted on TikTok. “It would be even worse if your anonymous tip was about Greg Abbott.”

Another popular content creator and Deputy Executive Director of Gen Z for Change, Victoria Hammett, 22, saw her video and found it “absolutely brilliant” and encouraged her followers to do the same.

“Wouldn’t it be so awful if we send in a bunch of fake tips and crashed the site?” she said in a TikTok that’s been liked over 240,000 times.

Create a morally reprehensible website, you’re going to face some consequences. Three cheers for the activists who are giving them the response they deserve.

And it’s not just the Gen Z activists, too.

After a Texas law restricting abortion went into effect Wednesday, an antiabortion organization had hoped to out those involved in unlawful procedures by collecting anonymous tips online.

But Texas Right to Life’s website, ProLifeWhistleblower.com, which invited people to inform on those obtaining or facilitating abortions, has not stayed up for long, as website registration providers have said the online form to submit “whistleblower” reports violates their rules. On Monday, the organization confirmed that the website redirects to its main page as it seeks to find a new digital home for the form.

“We’re exploring various long-term plans for the domain registration,” the group’s spokeswoman, Kimberlyn Schwartz, told The Washington Post. “For now, ProLifeWhistleblower.com is redirecting to TexasRightToLife.com only while we move hosts.”

After hosting provider GoDaddy booted the group from its platform last week, the site’s registration changed to list Epik, a Web hosting company that has supported other websites that tech companies have rejected, such as Gab and 8chan. The site went offline Saturday, however, after the domain registrar told the Texas organization that lobbied for the abortion ban that it had violated the company’s terms of service.

After speaking with Epik, which never hosted the site, Texas Right to Life agreed to remove the form, Epik general counsel Daniel Prince said Monday. By late Saturday, the website had redirected to Texas Right to Life’s main page.

But Schwartz said the group still hopes to solicit tips.

“It will be back up soon to continue collecting anonymous tips,” she said, adding that the group is reviewing its options, including seeking another company to register the site’s domain.

Prince said Epik would no longer offer its services if the group continues to collect private information about third parties through its digital tip line.

I’m sure they will eventually find a hosting company that is sleazy enough to allow them to use their services. Putting all of the politics aside for a moment, however, that bit about “[collecting] private information about third parties” should raise some serious data privacy red flags. I guarantee you, the owners of the snitch site have no plan to protect any of that data, and any information they do get will be at serious risk of being abused. Merrick Garland, as you formulate your response, please take note of that as well. The Current has more.

Justice Department sues over “heartbeat” law

Good.

The Justice Department sued Texas on Thursday over its new abortion restrictions law, Attorney General Merrick Garland told reporters, a week after the U.S. Supreme Court refused to block the law.

Garland announced the lawsuit, filed in a federal district court in Austin, after abortion rights advocates, providers and Democratic lawmakers called for the Biden administration to act. Other legal challenges have been stymied due to the design of the law, which opponents say was engineered to flout a person’s right to an abortion established by Roe v. Wade in 1973.

“This kind of scheme to nullify the Constitution of the United States is one that all Americans, whatever their politics or party, should fear,” Garland said.

The Texas statute, which went into effect Sept. 1, is considered one of the most restrictive abortion laws in the nation. It prohibits abortions once a “fetal heartbeat” — a term medical and legal experts say is misleading — can be detected, which can be as early as six weeks into pregnancy, before many people know they’re pregnant. Providers say that the law prevents at least 85% of the procedures previously completed in the state.

Garland said Texas’ statute is “invalid under the Supremacy Clause and the 14th Amendment, is preempted by federal law and violates the doctrine of intergovernmental immunity.” He called the law a “statutory scheme” that skirts constitutional precedent by “thwarting judicial review for as long as possible.”

Previous laws aimed at restricting or stopping abortions have been struck down over the years by the Supreme Court. But this law uses the novel mechanism of relying on private citizens filing lawsuits to enforce the law, not state officials or law enforcement. This makes it especially difficult to strike down in court because there is not a specific defendant for the court to make an injunction against.

The law empowers any private citizen in the nation to sue someone found to be “aiding and abetting” an abortion, including providers, doctors and even Uber drivers.

The law has seemingly brought most abortions to a halt in the state. Major clinics canceled appointments, fearful of being inundated with lawsuits in which they’d have to pay a penalty of at least $10,000 if they are found to be in violation of the law. Some clinics have even stopped performing abortions allowed under the new restrictions — before fetal heart activity is detected — out of fear of getting hit with lawsuits.

“The United States has the authority and responsibility to ensure that Texas cannot evade its obligations under the Constitution and deprive individuals of their constitutional rights,” the lawsuit stated. “The federal government therefore brings this suit directly against the State of Texas to obtain a declaration that S.B. 8 is invalid, to enjoin its enforcement, and to protect the rights that Texas has violated.”

[…]

Abortion providers and advocates applauded the Justice Department joining the legal battle to overturn the statute.

“It’s a gamechanger that the Department of Justice has joined the legal battle to restore constitutionally protected abortion access in Texas,” Nancy Northup, president of Center for Reproductive Rights, said in a statement. “Right now, and every day this law is in effect, patients are being denied access to essential health care, and the hardest hit are people of color, those struggling to make ends meet, undocumented immigrants and others with pre-existing obstacles to access healthcare.”

Alexis McGill Johnson, Planned Parenthood Federation of America president, said in a statement the lawsuit was “a needed announcement” and thanked Biden and the federal government for the action.

Prior to Thursday’s announcement, legal experts expressed doubts as to how a federal lawsuit might work or how successful it might be. Because of the way the law is constructed, experts have been dubious about how the legal saga will play out in courts and those same challenges could impede efforts by the Justice Department. Federal lawmakers have also vowed to overturn the new restrictions by codifying Roe v. Wade in federal law, but those efforts likely face their own political challenges.

See here and here for some background, and here for a copy of the lawsuit. I am of course no legal expert, but I see this case in terms of two simple principles. One is that a state cannot abrogate a constitutional right. I think we all agree on that basic principle. Given that, and given that abortion is still a constitutional right under current law and precedent, this should be a slam dunk, despite SCOTUS’ cowardly and scurrilous hiding behind the “it’s too clever and complex for our wee little brains” dodge. And two, the targeting of completely unrelated people like Uber drivers is such an egregious overreach that it could be argued as an unconstitutional taking of their property. This law would still be unconstitutional if it didn’t put Uber drivers at risk, but their inclusion makes it extra special unconstitutional.

But really, we shouldn’t even be having this argument. This law is “clever” in the way that a grade schooler claiming that they can’t be made to do homework because it violates their religion is “clever”. It’s time that a court treated it with the contempt it deserves. The 19th, Mother Jones, Slate, Daily Kos, and the Chron have more.

More on the AG response to the “heartbeat” bill

Yes, like this.

Democrats on the U.S. House Judiciary Committee are calling on U.S. Attorney General Merrick Garland and the Department of Justice to prosecute people who are now empowered to file lawsuits against abortion seekers under Texas’ new abortion law.

In the letter signed by all Democratic members of the committee, including Texas Reps. Sylvia Garcia, Sheila Jackson Lee and Veronica Escobar, Committee Chairman Jerrold Nadler of New York urged the department to take legal action against “would-be vigilantes” and reiterated Supreme Court Justice Sonia Sotomayor’s dissent in the ruling.

“The Department of Justice cannot permit private individuals seeking to deprive women of the constitutional right to choose an abortion to escape scrutiny under existing federal law simply because they attempt to do so under the color of state law,” the Democrats’ letter said. “Indeed, the Department is fully empowered to prosecute any individual who attempts, ‘under color of any law,’ to deprive a United States citizen of ‘any rights, privileges, or immunities secured or protected by the Constitution.’”

The members went on to call the new Texas law a clear violation of women’s right to choose an abortion under the landmark Roe v. Wade decision.

[…]

This call for action comes after Garland issued a statement Monday saying law enforcement officials were exploring options to challenge the law “to protect the constitutional rights of women and other persons, including access to an abortion.”

Garland said DOJ officials have contacted U.S. attorneys and FBI field offices to “discuss our enforcement authorities,” but did not go into detail on specific enforcement measures.

That’s in line with what I wanted. There’s plenty of ideas out there. We need to see them get translated into action. Sooner rather than later would be nice. The Chron has more.

Three more lawsuits filed against the voter suppression law

It’s a law now, and the legal machines are humming to do something about it.

Though delayed by Democratic quorum breaks, Texas has officially joined the slate of Republican states that have enacted new voting restrictions following the 2020 election.

Gov. Greg Abbott on Tuesday signed into law Senate Bill 1, sweeping legislation that further tightens state election laws and constrains local control of elections by limiting counties’ ability to expand voting options. The governor’s signature ends months of legislative clashes and standoffs during which Democrats — propelled by concerns that the legislation raises new barriers for marginalized voters — forced Republicans into two extra legislative sessions.

SB 1 is set to take effect three months after the special legislative session, in time for the 2022 primary elections. But it could still be caught up in the federal courts. Abbott’s signature was both preceded and followed by a flurry of legal challenges that generally argue that the law will disproportionately harm voters of color and voters with disabilities.

On top of two federal lawsuits filed last week, three new lawsuits, including one in state district court, were filed Tuesday shortly after it became law.

[…]

The law already faces two legal challenges from Harris County and a coalition of community and advocacy groups that argue SB 1’s rewrite of Texas voting laws creates new hurdles and restrictions that will suppress voters and violates the U.S. Constitution and numerous federal laws.

Abbott’s signature Tuesday drew three more lawsuits that also argue the changes to elections in SB 1 are unlawful because they will disproportionately burden voters of color and voters with disabilities.

“SB 1 is an arduous law designed to limit Tejanos’ ability to exercise their full citizenship,” said Maria Teresa Kumar, CEO of Voto Latino, which is a plaintiff in a federal lawsuit filed in Austin on Tuesday. “Not only are we filing suit to protect the right to vote for all people of color, and the additional 250,000 young Latino Tejanos who will reach voting age in 2022, but to protect every Texan’s right to vote.”

Another legal challenge was filed in state district court in Harris County and raises claims that the law runs afoul of the the Texas Constitution, including its protection against racial discrimination.

[…]

As it worked toward getting the legislation across the finish line, the House also made changes Democrats had been pushing for, including requiring training for poll watchers. Republicans also ditched controversial provisions that would have restricted Sunday voting hours and made it easier for judges to overturn elections — both of which they tried to walk away from after Democrats first derailed the legislation in May during the regular legislative session.

Even with some of those changes, a group of plaintiffs in another federal lawsuit filed Tuesday in San Antonio, including Houston Justice and the Arc of Texas, say the legal intervention was needed to “ensure that the State does not continue to erect barriers” that have both the “intent and effect” of suppressing the votes of marginalized Texans.

“These provisions will harm all Texas voters, but consistent with Jim Crow era tradition, the burdens will be disproportionately borne by Black and Latino voters and voters with disabilities,” the plaintiffs said in their complaint. “S.B. 1 intentionally targets and burdens methods and opportunities of voting used by and responsive to the needs of voters of color, particularly Black and Latino voters, and other vulnerable voters, as evidenced by the 2020 elections.”

There are also questions on whether the U.S. Department of Justice will sue Texas over the new law, as it did Georgia earlier this year after lawmakers there passed a new law to tighten elections.

It remains unclear what, if any, Congressional action could affect the new law.

See here for more on the first two lawsuits. Before I get to the others, let me just say that if the John Lewis Act doesn’t have any effect on the new law, then either the authors of the bill are incompetent or the federal courts really have it in for us. But that assumes the damn thing can overcome the stupid filibuster, so let’s put that question off for later.

For the other lawsuits, here are the basics:

– The first lawsuit referenced is here, and it’s probably best just to print the announcement about it for the relevant details.

Minutes after Gov. Greg Abbott (R) signed voter suppression bill Senate Bill 1 into law on Tuesday, voting and civil rights groups sued to challenge the bill’s most disenfranchising provisions. The complaint, filed by LULAC Texas, Voto Latino, Texas Alliance for Retired Americans and Texas AFT, alleges that the new law imposes an undue burden on the right to vote in violation of the First and 14th Amendments, purposely intends to limit minority voters’ access to the ballot box in violation of Section 2 of the Voting Rights Act (VRA) and disproportionately impacts voters with disabilities and limited language proficiencies in violation of Section 208 of the VRA. The suit asks the court to prohibit the suppressive provisions from being enforced. This is the third lawsuit challenging S.B. 1, as two cases were filed last Friday before the bill was even signed into law.

The provisions challenged in this lawsuit include: criminalizing public officials’ efforts to encourage the submission of absentee ballot applications; additional ID requirements for absentee voting; the effective elimination of drop boxes, drive-thru voting and 24-hour early voting; new obstacles for voters to receive assistance to vote absentee or in person; and the empowerment of partisan poll watchers.

The complaint argues that the passage of S.B. 1 is in direct response to increased voter turnout in the 2020 election, particularly among voters of color, and is meant to “stem the growing tide of minority voter participation.” The lawsuit argues that “by surgically targeting election practices employed in Texas’s largest and most diverse jurisdictions—methods on which the State’s Black and Hispanic populations disproportionately rely—the [challenged provisions] were intended to disproportionately restrict access to the franchise for Black and Hispanic voters.” Furthermore, the suit alleges that certain provisions place an undue burden on the right to vote for elderly voters, voters with disabilities and voters with limited language proficiencies.

Read the complaint here.

All that is courtesy of Democracy Docket, which had promised litigation the minute that SB1 passed in the House.

– The other federal lawsuit comes from the NAACP Legal Defense and Educational Fund:

Today, the NAACP Legal Defense and Educational Fund, Inc. (LDF)Reed Smith LLP, and The Arc filed a federal lawsuit on behalf of the Houston Area Urban League, Houston Justice, Delta Sigma Theta Sorority, Inc., and The Arc of Texas challenging S.B. 1, a new Texas law targeting voting rights.  S.B. 1 includes a series of suppressive voting-related provisions that will make it much harder for Texas residents to vote and disenfranchise some altogether, particularly Black and Latino voters and voters with disabilities.The lawsuit, which was filed in the United States District Court for the Southern District of Texas, argues that S.B. 1 violates the First, Fourteenth, and Fifteenth Amendments of the United States Constitution and Section 2 of the Voting Rights Act by intentionally targeting and burdening methods and means of voting used by voters of color.

The Plaintiffs also claim that the law violates the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, and Section 208 of the Voting Rights Act by imposing voting barriers that will discriminate against voters with disabilities and deny people with disabilities full and equal opportunities to participate in the state’s voting programs.

The lawsuit challenges multiple provisions in SB 1, including:

  • Limitations on early voting hours and a ban on 24-hour voting.
  • The elimination of drive-thru voting centers.
  • The prohibition of mail-in ballot drop-boxes.
  • Limitations on the distribution of mail-in ballot applications.
  • Limitations and possible penalties for voter assistants, including criminal felonies.

Read the lawsuit challenging S.B. 1.

You can read the press release for statements from the plaintiffs.

– The state lawsuit comes from another group we’ve heard from before.

The Texas State Legislature’s SB 1 legislation violates provisions of the Texas Constitution that protect the right to vote, the right to freedom of speech and expression, the right to due process, and the right to equal protection under law, according to a lawsuit filed Tuesday by civil rights advocates against Gov. Greg Abbott, Attorney General Kevin Paxton, Deputy Secretary of State Joe Esparza, and the future secretary of state, once that position is filled.

Despite the hardships of voting during a global pandemic, during the 2020 general election, Texas saw one of its highest voter turnouts in decades, particularly among Black voters and other voters of color.  SB 1 was passed on the heels of the successful 2020 election, with the intent to suppress these votes. The legislation includes provisions that expand the power of partisan poll watchers, limit county election officials’ discretion to adopt safe and secure methods of voting, make it more difficult for voters to receive assistance, and place restrictions on absentee ballots, ballot drop boxes, and early voting.

The lawsuit, Texas State Conference of the NAACP et al. v. Abbott et al., was filed in state district court in Harris County, Texas. The Lawyers’ Committee for Civil Rights Under Law and Dechert LLP are representing the Texas State Conference of the NAACP, Common Cause Texas, three election judges, one voter assistant, and one registered voter in Harris County.

“The scourge of state-sanctioned voter suppression is alive and well, and Texas just became the most recent state to prove it,” said Damon Hewitt, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. “With the passage of this bill, Texas legislators know exactly what they are trying to do – use brazen tactics to disenfranchise Black voters, Latinx voters, and other voters of color who are a growing part of the electorate and who turned out and made their voices heard in 2020. This bill violates Texas’ own state constitution and does not advance any legitimate state interests that would justify this wide-ranging attack on the right to vote.”

SB 1 expands the power of partisan poll watchers by instituting criminal penalties for election officials who obstruct their actions, stripping local election officials of the power to take executive action in emergency situations, and exposing voter assistants to increased surveillance and administrative complexities. Furthermore, the legislation restricts nearly every method of voting overwhelmingly used by voters of color in 2020: It limits early voting and ballot drop boxes, curbs how absentee ballots can be distributed and who can vote by mail, and bans drive-thru voting. While the provisions of SB 1 will hinder the ability of all Texans to vote, these new restrictions intentionally and disproportionately impact communities of color.

“Texas’s new voting restrictions targeting voters of color are an affront to our democracy,” said Neil Steiner, partner with Dechert LLP. “We remain committed to ensuring that all eligible voters have a true opportunity to participate in our elections by casting a ballot safely, securely and conveniently, with confidence that their votes will be counted.”

I have only given a brief glance to each of these lawsuits – as you know, I Am Not A Lawyer, I just occasionally try to interpret lawyer-y things on the Internet for other non-lawyers. All of them are quite long and will take me some time to try to understand. I do not offhand know why this one was filed in state court, or why that might be a more promising avenue for redress. That has been a successful tactic in some other states, mostly but not entirely for the battle against partisan gerrymandering, but as far as I know it has not been used in this context here before, other than the unsuccessful challenges to Texas’ age restrictions for voting by mail in the runup to the 2020 election. It’s worth a shot – let a thousand flowers bloom and all that – but I cannot articulate a reason why this way and not that way. If someone else can, I’d love to hear it. I will make an effort to read through these documents and try to answer that myself, but you know how that goes. The Current, the Texas Signal, and the Chron have more.

Special session 3.0

Yeah, we knew it was coming. Still too soon.

Gov. Greg Abbott on Tuesday announced a third special legislative session that will begin on Sept. 20 and tackle redistrictingrestrictions on transgender student athletes and the ongoing COVID-19 pandemic.

“The Texas Legislature now has the opportunity to redraw legislative and congressional districts in accordance with the new census numbers,” Abbott said in a statement. “In addition to redistricting, there are still issues remaining that are critical to building a stronger and brighter future for all Texans.”

Lawmakers, who will meet in Austin for the fourth time this year, will also be tasked with allocating $16 billion in federal COVID-19 relief funds and with deciding whether state or local governments can mandate COVID-19 vaccines. Abbott also included on his five-item agenda a bill that would ban the tethering of dogs outside with heavy chains, which he had vetoed earlier this year. Abbott asked lawmakers to address concerns he had about the specificity of the bill and “over-criminalization.”

The Legislature just wrapped its second overtime round on Thursday, delivering on major conservative priorities like an elections law that restricts how and when voters cast ballots, a ban on how teachers can talk about race and history in classroomsbillions of dollars in additional border security funding and further restricting abortion access.

But lawmakers failed to deliver on two issues pushed by the GOP base: requiring transgender student athletes to play on teams based on the gender assigned to them at or near birth, and banning COVID-19 mandates.

Abbott had asked lawmakers to ban mask mandates in schools during the second special session but lawmakers could not get that proposal over the hump. Now, Abbott is asking the Legislature to decide whether state or local governments can mandate COVID-19 vaccines.

The bills about transgender student athletes and COVID-19 mandates will likely turn up the heat on an already contentious 30-day session. Lawmakers will take up their decennial redrawing of the state’s political maps, meaning some legislators will be fighting for their political lives. (Redistricting usually takes place during the first legislative session after the census, but it was delayed this year because of setbacks spurred by the coronavirus and the Trump administration’s handling of the census data.)

Like I said, we knew it was coming. I don’t know if the lawsuit that was filed by two State Senators to stop legislative redistricting will be successful, but I have to assume there will be a ruling of some kind before this session gets underway. The continued assault on trans kids is sadly unsurprising; the lack of a fraudit item is at least temporarily hopeful. I mean look, none of us want another special session. I’m sure that wearing us all down is part of the plan. But here we are anyway. Oh, and Abbott et al will try to do a bit of cleanup on the so-called “heartbeat bill” since none of them know how to talk about the lack of a rape or incest exemption. So we have that to look forward to as well.

The federal response to the “heartbeat” bill

I hope it amounts to something, and I hope they’re quick about it.

U.S. Attorney General Merrick Garland said Monday the Department of Justice is “urgently” exploring ways to challenge Texas’ strict new abortion law, but did not specify what options were being considered.

Garland’s statement in a press release comes days after the U.S. Supreme Court denied Texas abortion providers an emergency injunction against the new law banning abortions after fetal cardiac activity can be detected, which can occur as early as six weeks into pregnancy, when many don’t know they are pregnant.

The Supreme Court stated it was not ruling on the constitutionality of the law but was refusing to block it at this point.

Twenty abortion providers originally filed the lawsuit against the state in July to try and shield themselves from the law, which allows private citizens to sue providers and others suspected of helping women get what are now illegal abortions. Gov. Greg Abbott signed Senate Bill 8 into law in May, after abortion providers already began sounding alarms about its potential impacts.

In his statement Monday, Garland also said that federal officials will rely on the decades-old Freedom of Access to Clinic Entrances Act to “protect those seeking to obtain or provide reproductive health services.” That federal law bans threats of force or physical obstruction against those seeking such health services.

“The department will provide support from federal law enforcement when an abortion clinic or reproductive health center is under attack,” the statement said.

Garland said DOJ officials have contacted U.S. attorneys’ offices and FBI field offices to “discuss our enforcement authorities.”

[…]

President Joe Biden denounced the Texas law in a statement released on Wednesday, also without specifying a course of action.

“My administration is deeply committed to the constitutional right established in Roe v. Wade nearly five decades ago and will protect and defend that right,” Biden said.

We don’t know what the specifics of this will be, so let me state a general principle that I hope they follow: Roe v Wade remains the law of the land, abortion remains a constitutionally protected right, and any interference in the expression of that right will be met with the full force of the federal government. Bring the pain, scorch the earth, and don’t back down. Talking tough is easy, we need to see action. Slate and Daily Kos have more.

The silence of the businesses

What if they passed a law that effectively nullified Roe v Wade and no one reacted? And by “no one”, I mean the businesses that had previously stood up for abortion rights in 2019 when multiple state legislatures were trying to pass other onerous restrictions?

In 2019, almost 200 corporate leaders stood up for abortion rights. Amid a rash of antiabortion legislation throughout the U.S. South, they said: no more. Abortion restrictions are bad for business.

On Wednesday, Texas enacted an abortion ban stricter than the ones that proliferated two years ago, thanks to its unprecedented “bounty hunting” clause that allows private citizens to sue anyone who “aids and abets” an abortion conducted after six weeks of pregnancy. And yet this time around, the business backlash is missing.

“Their silence is shameful,” says Shelley Alpern, director of shareholder advocacy for Rhia Ventures who has worked to galvanize companies around reproductive rights. “Their very integrity is at stake.”

So why aren’t companies speaking up?

[…]

One reason companies have stayed silent is that—like their employees—firms have a lot on their plate in 2021. Their workforces are scattered remotely; the Delta variant is delaying return-to-office plans; COVID cases continue to rise. News about abortion bans didn’t dominate the news cycle leading up to this law in a way that pressured corporate leaders to respond. Texas’s abortion ban going into effect at midnight Wednesday—and the Supreme Court’s official decision not to intervene almost 24 hours later—took many people by surprise. “The overall level of corporate awareness around Texas is very slim,” says Jen Stark, senior director of corporate strategy for the Tara Health Foundation, an organization that advocates for gender equity and access to reproductive health care. “Some of this is pure bandwidth and capacity.”

But now that the Texas law is in effect, will companies finally speak up? Fortune reached out to about a dozen companies—from startups to Fortune 500 businesses—with a significant employee presence in Texas, including those that moved operations to the state over the past year. Most did not respond to a request for comment.

Bumble, the dating app business based in Austin, declined to comment but posted on Instagram that the company had created a “relief fund” to support people who seek abortions in Texas amid what the company called a “regressive law.” Bumble, led by CEO Whitney Wolfe Herd, is known for its outspokenness on issues of gender equity and has engaged in the Texas political process in the past, lobbying for legislation to penalize the unsolicited sending of lewd images.

The strongest Texas corporate response came from dating app competitor Match Group, which is headquartered in Dallas. Tinder, a Match company, signed the 2019 letter advocating against abortion restrictions. Match CEO Shar Dubey told employees on Wednesday that she would “set up a fund to ensure that if any of our Texas-based employees or a dependent find themselves impacted by this legislation and need to seek care outside of Texas, the fund will help cover the additional costs incurred.”

“The company generally does not take political stands unless it is relevant to our business,” Dubey wrote in a note to employees. “But in this instance, I personally, as a woman in Texas, could not keep silent.”

Employers are engaged on issues of gender equity; the challenge ahead for reproductive rights activists is to get companies to see abortion rights as part of their gender equity commitments. That’s a view already shared by large shares of their workforces; according to a new survey conducted in August by research firm PerryUndem, two-thirds of the college-educated workforce says Texas’s SB 8 would discourage them from taking a job in the state.

Companies that spoke out in favor of abortion rights in 2019 said that restricting access “threatens the health, independence, and economic stability of our employees and customers.”

Stark, of Tara Health, rallied companies to sign the 2019 letter on abortion bans but has had mixed success in the years since getting businesses to speak up for reproductive rights at subsequent junctures. “If they don’t feel the squeeze, they try to run out the clock as long as they can,” Stark said of the challenges of getting companies to join these efforts.

There’s a Times story along the same lines. Companies respond to pressure, and right now they’re not feeling enough of it. There’s a lot of other news out there – 2019 was before COVID, after all, so the environment was different – and people are dealing with a lot. But we could also talk about the lack of response following the passage of the voter suppression bill, whose introduction earlier this year generated a lot of pushback as well but nary a peep this time around. (Same for the various anti-trans bills, though at least they still have not passed.) It’s hard to maintain energy and focus against an enemy that never quits. It’s never too late to start responding – we will have elections next year, remember – and of course the federal government could respond as well – like the business community, they also act when they feel the heat. But we do need to put that heat on all of them, because the next thing you know we’ll be onto whatever the next thing is. Daily Kos has more.

Sine die’d

Special session 2.0 is over. And what a lousy thing it was.

The Texas Legislature adjourned its second special session Thursday evening, ending a nearly 30-day stretch that was called to pass a GOP elections bill after House Democrats carried out a weekslong quorum break to block the passage of that legislation during the summer’s first overtime round.

The two chambers gaveled out minutes apart after giving final approval to a number of Gov. Greg Abbott’s agenda items, including so-called critical race theory legislation and a bill that will, among other things, restore funding for the Legislature itself.

The House adjourned first, with House Speaker Dade Phelan, R-Beaumont, wishing members a happy Labor Day weekend before gaveling out.

Over in the Senate, Lt. Gov. Dan Patrick told senators he was proud of their work and nodded to another yet-to-be-called special session that will focus on the redistricting process in the coming weeks — where lawmakers will draw new political maps for the state’s congressional delegation, the Legislature and the State Board of Education.

“We’ll be back soon,” he said. “There’s a little bit of unfinished business yet to be done.”

Earlier Thursday, state lawmakers passed legislation that restores funding for the Legislature — including salaries and benefits for some 2,100 state employees — that was set to run out at the end of the month after Abbott vetoed those dollars earlier this summer. The governor’s veto was intended as retribution for House Democrats who walked out of the Capitol in the final hours of the regular legislative session to block a GOP elections bill in May.

In addition to restoring the funding, the Legislature this week passed a similar version of that controversial GOP elections bill. State lawmakers also reworked the process for releasing accused criminals on bail, beefed up border security fundingexpanded virtual learning for studentsrestricted use of abortion-inducing drugs and banned the storage or disposal of high-level radioactive waste in Texas.

The small bit of good news is that the transgender sports bill and the last-minute fraudit bill did not pass, though as noted there will be another shot at that. Redistricting is up next, and the rumor mill suggests we will have two weeks off before the machinery cranks up again. I suppose it’s possible there could be a temporary restraining order in the lawsuit filed against doing legislative redistricting, but as Congressional redistricting would still be on the menu that would not stop the session from being needed. Anyway, enjoy the brief respite before the next bout of madness begins.

No Roe roundup

I don’t have a good title for this post, but I do have a collection of stories.

Planned Parenthood files restraining order against Texas Right to Life.

Right there with them

Planned Parenthood of Greater Texas and its affiliates filed a temporary restraining order with a Texas district court Thursday night against Texas Right to Life to stop the anti-abortion organization from suing abortion providers under a new law that all but bans abortions in the state.

[…]

Planned Parenthood, which has stopped providing abortion services in San Antonio but continues elsewhere in the state, refers to SB 8 as the “sue thy neighbor law.”

“Anti-abortion activists are already staking out our health centers, surveilling our providers, and threatening our patients,” said Helene Krasnoff, vice president for public policy litigation and law for Planned Parenthood Federation of America, in a news release. “The physicians, nurses, and clinic staff at Planned Parenthood health centers in Texas — and at abortion providers statewide — deserve to come to work without fear of harassment or frivolous lawsuits.”

This unprecedented enforcement framework essentially circumvents traditional judicial review. Typically, individuals or groups would legally challenge the state as the enforcer — but this law removes the state from the equation. In order for the Supreme Court to review the law, someone will have to sue someone who performed or assisted an illegal abortion; only then it can be challenged.

If the district court grants the restraining order, it would only apply to Planned Parenthood, its affiliates, and an individual Planned Parenthood Houston physician, Dr. Bhavik Kumar, who joined the order. This means other providers would likely still be subject to the law.

Texas Right to Life, which helped write the bill, set up a “whistleblower” tip line so people can report violations to the anti-abortion organization. An email seeking the organization’s comment on the restraining order was not returned Friday morning.

The Refugee and Immigrant Center for Education and Legal Services (RAICES) said on Twitter that it will defy the law.

“The ban on abortion in Texas is an abomination,” the nonprofit tweeted. “We want to send a very clear message: RAICES will not obey this archaic and sexist law. We’ve funded & supported access to abortions for immigrants in Texas for years and will continue to do so. Some laws are meant to be broken.”

You can see a copy of the lawsuit, which asks for a temporary restraining order as well as temporary and permanent injunctions against the defendants, “>here. The suit includes 100 “John Doe” defendants as “those individuals or entities who have expressed to other Defendants, whether by words or actions, their intention to enforce S.B. 8 against Plaintiffs”. I’m not exactly sure how that works, but I guess we’ll find out. It seems to me that in addition to the federal lawsuit, which is still ongoing despite the Supreme Court’s cowardly and corrupt ruling that allowed SB8 to take effect in the interim, every stakeholder who could reasonably foresee themselves as being on the wrong side of one of these nuisance vigilante actions should do the same thing and file their own pre-emptive lawsuit. We’ve already established that anyone can sue anyone over this, so who needs standing? KVUE has more.

On the subject of that federal litigation, it’s hard to say what comes next.

“This is all uncharted territory,” said Caroline Mala Corbin, a professor at the University of Miami School of Law. “So it’s really hard to say definitively what’s going to happen.”

What makes the law so unusual is its private enforcement, allowing nearly anyone to sue a doctor or other person who helps provide an abortion after six weeks, a point at which many women don’t yet realize they’re pregnant. Because the ban is not enforced by state officials, it’s difficult to know who abortion clinics can sue to challenge the law’s constitutionality.

The court’s conservative majority did not rule Wednesday on the law itself, and in fact acknowledged that abortion providers had raised “serious questions” about its constitutionality.

But the justices also expressed doubt about their ability to intervene in a privately enforced law such as the Texas law, Senate Bill 8, and experts said abortion proponents may have to think through other ways to get the issue before the court.

“The federal route is not dead, but the problem with it is it’s going to take some creativity on the part of federal courts to figure out why SB 8 and laws that may be like it are a real problem,” said Seth Chandler, a professor at the University of Houston School of Law.

“If SB 8 is OK, there’s nothing to stop Texas from passing a law that creates $10,000 private bounties for newspaper reporters who write things that are critical of the governor,” Chandler said. “Or for California to pass laws that may create a private bounty against people who own handguns in their home.”

Maya Manian, a visiting professor at the American University Washington College of Law, said the court could have at least temporarily intervened to allow for more time to review the claims.

“There is no question the Supreme Court could have found a way to overcome these procedural hurdles,” Manian said. “Yet they’re using this procedural cover to covertly overrule Roe v. Wade,” referring to the 1973 decision that established a constitutional right to abortion.

There’s no question that SCOTUS’ refusal to issue a stay against SB8 was an appalling and wholly political abandonment of their duty. Maybe the outcry that is now occurring will be enough to actually spur some federal action, both in terms of passing a law to enshrine Roe as the standard, and also to put some restraints on the increasingly overreaching Supreme Court. Just its abuse of the shadow docket is sufficient cause to reel them in. I’ll believe it when I see it happen, unfortunately. Beyond that, SB8 is so vague as well as unprecedented that no one really knows what its scope is. I suspect that was a feature of this abomination.

Back to the Chron story:

Several legal experts said the fastest way to challenge the law may be to openly defy it, a move Planned Parenthood and other providers have so far been reluctant to do.

“There will be someone mad enough to violate the law and happily serve as a test subject,” Mala Corbin said. “Because the women of Texas are not going to take this without a fight. This is their right to control their body at stake.”

Miriam Camero, vice president of social programs at RAICES, a group that gives legal aid to immigrants, said it was prepared to help women access abortion regardless of the law. Camero noted that the ban especially harms immigrants who already have a difficult time traveling to abortion clinics or out of state given their legal status.

“We will continue to assist clients, whether it be in Texas or Louisiana or Arkansas, Oklahoma, New Mexico,” Camero said.

It appears RAICES has already taken that step. We’ll see if they get hit with one of those lawsuits, in which case perhaps there will be a route to swifter action.

Doctors are also very unhappy with this new law.

The Texas Medical Association slammed the state Legislature on Friday, calling its passage of two anti-abortion bills “unconstitutional” and an interference with the fundamental patient-physician relationship.

“Enough,” the organization wrote in a statement. “The Texas Medical Association supports our physicians specializing in women’s health and opposes legislation in Senate Bill 8 of Texas’ 87th legislative session and Senate Bill 4 of this special session. SB 4 contains language that criminalizes the practice of medicine. Both bills interfere with the patient-physician relationship.”

[…]

On Wednesday, SB 8, which bans abortion after six weeks, including in instances of rape and incest, went into effect. The new law is a near-total ban on abortion and one of the strictest such measures in the country.

Hours before that, the Texas House passed Senate Bill 4, which would reduce access to abortion-inducing pills, the most common method for patients terminating a pregnancy. As sent to Gov. Greg Abbott’s desk, the bill would prevent physicians or providers from prescribing these medications to patients more than seven weeks pregnant.

Current Texas laws allow, and FDA guidelines suggest, practitioners to give these pills to patients who are up to 10 weeks pregnant.

“SB 8 and SB 4 go too far. Clearly these provisions are unconstitutional, in our opinion. TMA stands for the health care of all Texans and our profession. Enough is enough,” the statement continued.

[…]

“SB 8 allows for a bounty that encourages practically any citizen to file a cause of action against physicians, other health care professionals, and anyone who ‘aids or abets,’ based on a suspicion. If permitted to proceed, this law will be precedent-setting and could normalize vigilante interference in the patient-physician relationship in other complex, controversial medical or ethical situations.”

Meanwhile, the bill that was passed in the Texas House this week, SB 4, which limits access to abortion-inducing pills, would make it a criminal act for physicians to give these medications to patients more than seven weeks into a pregnancy.

“The physicians of Texas never thought the day would come when the performance of our oath would create a private cause of action for persons not connected to or harmed by the action. Yet, that day has sadly arrived in the state we love,” the TMA wrote.

Very heartfelt, and it’s easy to understand their outrage, but last I checked the TMA has been pretty supportive of Republican politicians, mostly because of tort “reform”. You want to convince me that you’re actually mad and not just having a minor snit, there’s an easy way to put your literal money where your figurative mouths are.

Finally, I mentioned the Texas Right to Life snitch site. As you may have heard, it has attracted some attention from folks who intend to disrupt it.

The Texas Right to Life organization created a website for those reports. But instead of citizens reporting on, say, the Uber driver who brought a woman to a clinic, critics of the law are spamming it with a barrage of fake information. Gov. Greg Abbott and Marvel’s Avengers are among those being reported receiving abortions, according to the New York Times.

Part of the flood of false info sent to the website appears to be aided by an activist and developer who posts under the social media alias Sean Black. In a viral TikTok first reported by Motherboard at Vice, Black explained that he wrote a script that anyone can access, which automates the process of letting them file fake reports. Each time they access Black’s script, new information is generated, theoretically making it harder for the Right to Life group to parse and ban people who are submitting fake reports.

As of September 2, not even 24 hours after the Supreme Court refused to halt the implementation of the law, Black told Vice the script had been clicked over 4,000 times.

Go get ’em, Sean Black.

UPDATE: One more story to add: Uber And Lyft Have Pledged To Cover Their Drivers’ Legal Fees If They Get Sued Under The Texas Abortion Law. Kudos to them for that.

UPDATE: TRO granted to Planned Parenthood. A hearing for an injunction will be September 13. No word yet about an appeal of the TRO.

Now we look to see what happens with Greg Abbott’s approval ratings

The first data point is bad for him. Which means it’s good for the rest of us.

Gov. Greg Abbott had the lowest approval rating since February 2016 and his highest disapproval numbers during his tenure as governor, The Texas Politics Project’s August polling found.

The poll queried 1,200 registered voters in Texas, finding that 50 percent disapproved of Abbott’s job performance and 41 percent approved. Nine percent didn’t know or did not have an opinion, the lowest such number of Abbott’s time in office. The margin of error was 2.83 percent, and the poll was conducted from Aug. 20 through Monday, Aug. 30.

The Texas Politics Project, which is housed at the University of Texas-Austin, has been conducting surveys since 2008, and has measured Abbott’s approval since November of 2015. Abbott’s previous high for disapproval was April 2021, at 45 percent.

The poll also found that 52 percent of respondents said Texas was “headed in the wrong direction,” the highest such number it has posted. A spokeswoman for Abbott did not immediately respond to a request for comment.

“Everywhere you look in the poll there’s just signs that the mood here is very dour. And when you have one party that owns the policy environment, that’s not good news,” said James Henson, director of the poll. “The Republicans have had a pretty easy ride for the two-decades-plus they’ve been in power in the state. And there’s now a convergence of factors that’s really going to test their ability to govern. And we’ve seen a very clear approach to that in this last legislative session, and it doesn’t seem to going over very well.”

[…]

The poll also asked whether respondents approved of Abbott’s handling of COVID-19 specifically, and the findings closely mirrored his overall approval numbers: 53 percent disapproved, 39 percent approved and the rest didn’t know or had no opinion.

“The election isn’t tomorrow, it’s not until next year, but it’s been a long time since there was a widespread sense in the state that things aren’t going well, and I think we’re seeing more indications of that,” Henson said.

The usual caveat about this being one data point applies. It’s also important to remember, as we have seen in UT/Trib polls (among others) that Abbott’s numbers tend to be the best among the officials whose ratings are being checked, with President Biden being the closest competition. This poll only tracks Abbott, so we lack that context. Given the dip in Biden’s poll numbers (which I think will be at least somewhat transitory, but I am an optimist), it’s reasonable to think that he may still compare well to others. We won’t know until we see more data.

Just looking at these numbers, the two things that stand out are just how far Abbott has fallen from his early COVID peak, and how the number of “don’t know/no answer” respondents have fallen. He was still in solidly positive territory as recently as February, and was at even levels in June, when we were still thinking we’d get a hot vax summer and everyone was feeling good. It’s not unreasonable to think that the right wing legislative onslaught has eroded his numbers a bit – remember, as we have discussed before, he used to poll decently for a Republican among Democrats – and my guess that the numbers now reflect his intransigence on COVID mitigations. Moreover, with more people having an opinion on him now, it’s likely the case that the fence-sitters have been making up their minds, and what they have decided is they don’t like him.

Again, this is one poll, and as Prof. Henson says, we’re a long way out from next November. Abbott also doesn’t have a Democratic opponent yet, and as we know that matters a lot. Intensity of feeling matters as well, especially in an off year election when turnout is critical. Abbott has been focusing exclusively on the hardcore base, mostly because he wants to win his primary but also because he wants to have a lot of “victories” to crow about to keep them engaged. Maybe this means Abbott’s stature will suffer. There’s plenty of reasons why that should be the case. It’s still too soon to tell for sure, that’s all I’m saying.

Killing Roe softly

Right there with them

Honestly, there’s not a whole lot to add here from yesterday. As of this writing, SCOTUS has still not acted on the emergency petition from Texas abortion providers over SB8. SCOTUS will issue a response to that request, but they can take their time about it if they want to. That right there tells you something.

Most of the stories out there that I’m seeing are further explainers of SB8 and how it works and what the current legal status is, some with a side helping of justified rage. They mention the state court injunction in passing, as it has a very limited effect. There are stories about the effect this law has already had on providers and patients, and stories about what SCOTUS has done by doing nothing and what we can do about it (nothing easy, unfortunately). There are reactions from politicians, with Democrats promising to fight, and calls to action from folks who understand that if you’re not ditching the filibuster, you really can’t fight effectively. And on and on.

And so we wait, and we try to figure out how to move forward, and we really better internalize the idea that 1) we need to win more elections, and 2) we need to effectively wield the power we have when we have it. This is what happens otherwise.

UPDATE: Welp.

A deeply divided Supreme Court is allowing a Texas law that bans most abortions to remain in force, for now stripping most women of the right to an abortion in the nation’s second-largest state.

The court voted 5-4 to deny an emergency appeal from abortion providers and others that sought to block enforcement of the law that went into effect Wednesday. But the justices also suggested that their order likely isn’t the last word on whether the law can stand because other challenges to it can still be brought.

The Texas law, signed by Republican Gov. Greg Abbott in May, prohibits abortions once medical professionals can detect cardiac activity, usually around six weeks and before many women know they’re pregnant.

It is the strictest law against abortion rights in the United States since the high court’s landmark Roe v. Wade decision in 1973 and part of a broader push by Republicans nationwide to impose new restrictions on abortion. At least 12 other states have enacted bans early in pregnancy, but all have been blocked from going into effect.

The high court’s order declining to halt the Texas law came just before midnight Wednesday. The majority said those bringing the case had not met the high burden required for a stay of the law.

“In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts,” the unsigned order said.

Chief Justice John Roberts dissented along with the court’s three liberal justices. Each of the four dissenting justices wrote separate statements expressing their disagreement with the majority.

Roberts noted that while the majority denied the request for emergency relief “the Court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue.”

The vote in the case underscores the impact of the death of the liberal Justice Ruth Bader Ginsburg last year and then-president Donald Trump’s replacement of her with conservative Justice Amy Coney Barrett. Had Ginsburg remained on the court there would have been five votes to halt the Texas law.

Justice Sonia Sotomayor called her conservative colleagues’ decision “stunning.” “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand,” she wrote.

I’m just sick.

The legal situation with the heartbeat bill

I’m writing this at eight PM, and will very likely be asleep before SCOTUS takes any action, if they do take action. So let’s start with what we have as of now:

That was in reply to this:

See here for the previous entry. If I see that SCOTUS has taken action when I get up in the morning, I’ll update this post. If not, you can assume that there’s basically no such thing as abortion in Texas until further notice. And that will include medical abortion.

Two days before one of the strictest abortion laws in the country is set to go into effect in Texas, the state Legislature tentatively approved another bill Monday evening that would restrict the procedure during the first term of pregnancy.

Senate Bill 4 remains identical to the version of the bill passed by the Texas Senate. Texas Democrats were unable to attach amendments to the bill, despite more than a dozen attempts, which means the bill will head straight to Gov. Greg Abbott’s desk if it is finally approved with no changes.

The legislation would limit patients’ access to abortion-inducing pills, preventing physicians or providers from giving abortion-inducing medication to patients who are more than seven weeks pregnant. Current law allows practitioners to give these pills to patients who are up to 10 weeks pregnant.

Notably, the U.S. Food and Drug Administration set its guidelines in 2016 advising that abortion-inducing pills are safe to use up to 70 days, or 10 weeks, after initial conception.

These pills have increasingly become the most common method for women to terminate a pregnancy if they are aware of their pregnancy early enough. According to the Guttmacher Institute, a reproductive health research institute that supports abortion rights, 60% of women elect to take a pill over having surgery.

It’s grim. This bill might have a chance of being knocked down by litigation, but who can even say at this point.

It should be noted that there is some state litigation happening, but that will not have the effect of blocking SB8.

Travis County District Judge Amy Clark Meachum issued a temporary restraining order barring the anti-abortion organization Texas Right To Life; John Seago, its legislative director, and others from “instituting any private enforcement lawsuits” under SB 8 against the plaintiff, a Dallas attorney, according to the order.

But the full scope of the order was narrow, and does not apply to a majority of providers or Texans.

“While the temporary restraining order issued by the Texas state court in Austin provides some relief to the two individuals and one nonprofit organization against lawsuits from the Texas Right to Life, it does not provide the full relief needed to ensure all Texans can access their constitutional right to an abortion,” said Julie Murray, staff attorney for Planned Parenthood Federation of America.

Here’s a bit more on that litigation from KXAN:

District Judge Amy Clark Meachum considered three cases on Tuesday morning: one, brought by an attorney and sexual assault victim’s advocate named Michelle Tuegel; another brought by Bridge Collective, a resource group for people seeking an abortion; and another brought by Allie Van Stean, a woman who regularly donates to women’s health clinics.

On Tuesday morning, the judge granted temporary restraining orders (TROs) in all three instances, against the group Texas Right to Life. According to attorneys for these three plaintiffs, the TRO’s prevent Texas Right to Life from filing lawsuits under the new fetal heartbeat law, until the court can conduct a full-scale temporary injunction hearing later in September.

Their attorneys say the ruling is significant for their clients because they had to prove “probable right to relief” to get the TRO — meaning they were able to show the judge evidence supporting their challenge to the law’s constitutionality.

KXAN spoke to Van Stean earlier this month, who explained, “Simply donating to places like Planned Parenthood count as aiding and abetting an abortion… If I’m donating to Planned Parenthood, I’m not necessarily giving with the intent to assist women in getting an abortion. Planned Parenthood and other places provide necessary and needed services like birth control at a lower cost, affordable option for women who can’t afford it.”

A spokesperson for Texas Right to Life told KXAN on Tuesday, the judge’s ruling was “narrow” and does not block the Texas Heartbeat Act from being broadly enforced at midnight.

Rewire wrote a story about Michelle Tuegel, who had filed a lawsuit in Dallas. In that one she sued a whole lot of people, mostly legislators. I don’t know what happened to that suit or if it is related in some way to this one. You should read that story, which links to this one about how Tuegel won a big judgment against US Gymnastics over the Larry Nassar case. If nothing else, I’m glad to have someone like that fighting the good fight.

And that’s all I know right now. If there’s any news in the morning, I’ll include it here. Daily Kos has more.

UPDATE: No word from SCOTUS, so SB8 officially became law at midnight last night. They can – and some people think they will – still act today. But SB8 is in effect until and unless they do.

The “heartbeat” bill is about to become law

There’s nothing standing in the way.

Right there with them

A Texas law that would ban abortions after as early as six weeks is poised to take effect Wednesday, after a federal appellate court’s rulings stymied efforts to block the law.

On Friday night, the 5th U.S. Circuit Court of Appeals canceled a hearing planned for Monday, at which more than 20 abortion providers had hoped to persuade a federal district court in Austin to block the law from taking effect.

Providers have sued to overturn the law, which they say is the nation’s strictest and would create what they call a “bounty hunting scheme” in allowing members of the general public to sue those who might have violated the law. The law, Senate Bill 8, would prohibit abortions after a fetal heartbeat can be detected without specifying a time frame, before many women know they are pregnant.

Late on Saturday, provider groups, including Planned Parenthood Center for Choice and Whole Woman’s Health Alliance, filed emergency motions with the 5th Circuit, essentially asking it to send the case back to district court or for the appellate court itself to issue a stay that would temporarily block the law’s enforcement.

The 5th Circuit denied the emergency motions Sunday afternoon.

“If this law is not blocked by September 1, abortion access in Texas will come to an abrupt stop,” Marc Hearron, senior counsel at the Center for Reproductive Rights, which represents providers, said in a statement. The state’s strategy, he said, has been to “circumvent the court system and the constitution itself,” he said, in order to “push abortion out of reach for as many Texans as possible.”

[…]

Abortion providers and supporters have braced for SB 8 for months. Texas women could completely lose access to abortions for a time, warned Helene Krasnoff, vice president of public policy litigation and law at Planned Parenthood Federation of America.

“It’s quite possible that it could create chaos and problems on the ground, including the closing of health centers,” Krasnoff said.

Even if clinics stay open, the law could affect most of the abortions now being performed in Texas. Whole Woman’s Health, which also provides gynecological care for women, said in a press release that 90% of the abortions they perform are after the six-week mark.

“To be clear: our health centers remain open, and Planned Parenthood providers will see as many patients as they can, as long as they can within the law. But without the courts stepping in, on Wednesday, Texans will be denied their constitutional right to abortion in violation of fifty years of precedent,” said Julie Murray, senior staff attorney for Planned Parenthood Federation of America.

Marva Sadler, one of the named plaintiffs in the abortion providers’ lawsuit and senior director of clinical services for Whole Woman’s Health, said the appellate decisions make it much more likely SB 8 will go into effect Sept. 1.

On Sunday, she said she was rushing to her organization’s clinic in Fort Worth, where at least eight patients were seeking abortions before they become illegal.

Cancellation of the hearing “was definitely a surprise,” Sadler said.

“I’ve been really focused on how things will look on Wednesday, when we have to start turning most patients away,” she said.

See here and here for the background. I confess, I don’t understand the machinations of the appellate court canceling a district court hearing. I figured we’d get the usual procession of the lower court issuing a restraining order and then the Fifth Circuit tossing it aside. The plaintiffs have now petitioned SCOTUS to step in on the grounds that the Fifth Circuit canceling the hearing was an abuse of their discretion. It’s the only card they have to play, but I would not get my hopes up. I wish I had something optimistic to say here, but I don’t. We need to vote these people out, there’s no other way forward at this time. The Chron, the 19th, and Slate have more.

UPDATE: Here’s a Trib story about the SCOTUS appeal. Let’s see if I have to update this draft again before it publishes in the morning…

UPDATE:

In other words, we won’t hear anything from SCOTUS until the last minute tonight at the earliest.

The abortion ban chaos is coming

It’s already ugly.

Right there with them

The National Abortion Federation has told doctors in Texas it will stop referring patients and sending money to clinics that offer abortions after about six weeks of pregnancy.

In North Texas, the Texas Equal Action Fund will likely “pause” its ride share program that helps women reach abortion appointments.

Dr. Bhavik Kumar, an abortion provider for Planned Parenthood, has cleared his schedule to fit in as many patients as he can before the end of the month.

And online, the group Texas Right to Life has launched a website for whistleblowers who want to potentially help sue Kumar and doctors just like him, beginning Sept. 1.

With only days left until the country’s first six-week abortion ban rolls out in Texas, abortion clinics and their supporters are bracing for a virtual shutdown of legal access to the procedure, at least for several weeks. Some clinics in the state are preparing not only to abide by the new guidelines, but to go beyond them, shuttering their abortion offerings entirely.

“This law is senseless, it’s not in the best interest of the people of Texas,” said Kumar. “But it is the law, and if it passes, we have to comply.”

What unfolds over the coming weeks could have broad ripple effects. Even a brief pause in access in Texas, the second most populous state, could affect thousands of pregnant women and encourage similar laws across much of the South and Midwest, where abortion care is already limited.

[…]

“I have one physician who’s for sure willing to provide abortions and comply with S.B. 8,” said Amy Hagstrom Miller, the chief executive of Whole Woman’s Health. “But the rest of my 16 physicians are still trying to figure out where their risks stop and start, and if they’re willing to provide.”

There is a lawsuit against the “heartbeat” law, but I presume there won’t be any action on it until right around September 1, when the law begins to take effect. There’s also no particular reason to believe that the law will get put on hold, given the nature of the Fifth Circuit. We could moot laws like this via federal legislation, but if we can’t get a voting rights bill passed due to the filibuster, then there’s no reason to think other things that are not able to be shoved through the reconciliation process will get passed, either. I do believe that at some point there will be a way to go on offense against this sort of atrocity, but I don’t know when that may happen. In the meantime, it’s the same prescription as it’s ever been: We need to win more elections, and now that laws like this are in place that bar is even higher, because now we have to repeal existing laws and not just block new ones. It’s a crap job, but we have no other choice.

Special Session 2.0: Still no quorum yet

We’ll see how long that lasts.

Texas Democrats on Saturday blocked a quorum in the House for the third time this year as the Legislature kicked off its second special legislative session called to pass the GOP elections bill, among other legislation — though it’s unclear this time whether those members intend to remain absent for the entire overtime round.

Both the House and Senate convened at noon, a day after gaveling out from the first 30-day special session, which began in July and ended in an impasse when over 50 Democrats in the lower chamber left the state for Washington D.C. to prevent the passage of a elections bill. That departure meant the House could not have a quorum to conduct official business. Democrats broke quorum for the first time in May when they walked out of the chamber in the final hours of the regular session to prevent passage of a similar version of the bill.

[…]

On Saturday afternoon, at least 26 House Democrats announced that they intend to remain in D.C. to continue pushing Congress to act on a federal voting bill, but that number alone is not enough to break quorum in the Legislature.

“Texas Republicans can only succeed in their nationally coordinated assault on our democracy if Democrats are present at the state capitol,” read a statement from state Reps. Trey Martinez Fischer of San Antonio, Gina Hinojosa of Austin, Alma Allen of Houston and others. “26 Texas House Democrats will be part of an active presence in Washington maintained for as long as Congress is working and making progress on federal voting rights legislation to see this fight through.”

The House adjourned for the day minutes after gaveling in on Saturday afternoon, but they did not yet adopt what’s known as a “call of the House,” a procedural move that would lock the chamber doors and enable lawmakers to send law enforcement after the Democrats who don’t show up. During the first special session that ended Friday, the chamber voted overwhelmingly to issue the call, though it carried little weight since state authorities lack jurisdiction outside of Texas. Ultimately, no Democrats were arrested.

Two of 57 Democrats who left during that first special session were on the House floor Saturday — Eddie Lucio III of Brownsville and Bobby Guerra of Mission.

After the chamber adjourned, Lucio told reporters he returned to Austin for both professional and personal reasons. He said he anticipated several of his Democratic colleagues to also come back to the chamber in the coming days, which could help the House make quorum “as early as this week.”

“I made my personal choice to bring the fight back to the Capitol, and I think everyone needs to make that decision for themselves,” Lucio said. “For those that are gone, I applaud them.”

See here, here, and here for some background. Whatever happens with the Democrats happens at this point. They did what they could in DC, and I doubt there was much value in staying around while Congress is on recess. And at least in the short term, there’s another factor that will limit what the House can do:

Looking at the picture (a copy of the official summary is here), I see seven names that I know are Republicans who are not present, and another four or five that I don’t recognize and would have to check. Doesn’t mean they are in quarantine, though one of them surely is, but that could be another delaying factor.

Also of interest from this story: Senate shenanigans.

The Republican-dominated Senate then pushed through two rule changes that indicate the chamber’s desire to move through its agenda quickly. The first change takes away the “tag rule,” which is a delaying tactic for Democrats in the minority party because it allows members to demand 48 hours of written notice before a bill gets a hearing. The other change allows committees to skip public hearings on House bills that have the same subject as Senate bills the committee had already considered.

Sen. Charles Schwertner, R- Georgetown, said the temporary rule change, which will be in effect for the entire special session, would benefit senators by expediting the legislative process during the 30-day period. But Democratic lawmakers said it could deny constituents the opportunity to express their opinions on important issues.

“We are not giving people the opportunity to be heard,” said Sen. Roland Gutierrez, D-San Antonio.

Schwertner said the move allowed the Senate “maximum flexibility” to complete its work, particularly because it is unclear when the House will regain its quorum and many of the bills on the special session agenda were heard before during two earlier legislative sessions this year.

The Senate then suspended its rule requiring 24-hour notice before a committee hearing and announced three committee meetings on Saturday that immediately started hearing bills without public testimony.

The Senate did not immediately take up the elections bill, which was one of the main drivers for the special session. That bill is scheduled for a hearing on Monday at 9 a.m. in the Senate State Affairs committee.

Hey, the Senate and Dan Patrick were never interested in public input on any of their crappy bills, that much has been clear from the beginning. As for the rest:

Yeah, that’s your Texas Senate and your Lite Guv, Dan Patrick. What are you going to do about it? (Hint: It should involve getting way involved in the 2022 elections.)

Day 2 quorum busting omnibus post

Gonna round up a few stories here. Don’t know how often I’ll be this energetic, or how often there will be this many stories that I see that are worth commenting on, but it is Day Two. We’re just getting started, and there’s lots of people still paying attention.

The cops are almost certainly not coming for the wayward Dems. I mean, come on.

A showdown in the Texas House was locked into place Tuesday after the chamber voted overwhelmingly to send law enforcement after Democrats who left the state a day earlier in protest of a GOP priority elections legislation.

More than 50 House Democrats left Monday for Washington, D.C., to deny the chamber a quorum — the minimum number of lawmakers needed to conduct business — as it takes up voting restrictions and other Republican priorities in a special session.

That agenda, set by Gov. Greg Abbott, includes House Bill 3 and Senate Bill 1, the election legislation at hand that would make a number of changes to Texas’ voting system, such as banning drive-thru and 24 hour voting options and further restricting the state’s voting-by-mail rules. Over the weekend, both House and Senate committees advanced the election bills.

The impact of the House move is unclear since Texas law enforcement lacks jurisdiction in the nation’s capital.

Meeting shortly after 10 a.m., the House quickly established that it lacked the two-thirds quorum required to do business, with only 80 of 150 members participating in a test vote.

Then Rep. Will Metcalf, R-Conroe, chair of the House Administration Committee, moved to issue what is known as a “call of the House” to try to regain quorum. That motion passed 76-4. Metcalf offered another motion, asking that “the sergeant at arms, or officers appointed by him, send for all absentees … under warrant of arrest if necessary.” That motion also passed 76-4.

Metcalf’s motions were opposed by four Democrats who were present on the House floor Tuesday morning: Reps. Ryan Guillen of Rio Grande City, Tracy King of Batesville, Eddie Morales Jr. of Eagle Pass and John Turner of Dallas.

Axios noted Greg Abbott on Fox News shaking his fist and threatening arrest as well. It’s noise – remember, a big part of this is about the PR for both sides – and in all honesty, it’s what I’d do in the Republicans’ position. Let’s just say I will be extremely surprised if anyone is met at the airport by police on the way back.

If 58 Dems went to DC, then there were nine who did not. We know four of them, at least, and they make sense – Guillen and Morales represent districts carried by Trump in 2020, King’s district trended redder in both 2016 and 2020, and Turner is not running for re-election. I’ll be interested to see who the others are. Everyone will have their reasons for their choices, and bear in mind that family responsibilities may well be among those reasons.

The Chron adds a few tidbits.

Rep. Morgan Meyer, R-Dallas, asked [Speaker Dade] Phelan on the floor Tuesday whether Democrats could be removed from committee chair positions for breaking quorum. The speaker said they could not.

Morales, whose gargantuan district spans an area from Eagle Pass nearly to El Paso, said he chose to stay in Texas because he believes it was what his constituents, who tend lean more conservative even among Democrats, wanted from him.

“I felt, and I think what my constituents expected, was for me to be in the Capitol, to make sure that I’m fighting for their rights, and that I fight in opposition to this voter suppression,” he said. “Everyone can fight and they can fight differently. My way of fighting is being here because that’s what my constituents expect.”

Morales said it is clear Democrats would be “steamrolled” when the Republican majority did not give them 24 hours after a House committee hearing this weekend to offer amendments based on the testimony they heard.

“It was just fanfare. They had no intention of actually working and actually coming to play and actually making those modifications necessary to the bill,” he said. “ That is why Democratic leadership decided to take the actions that they did.”

Morales said he expects that Phelan will allow members who ask permission to be excused to leave the chamber on an individual basis. He’ll need to do so to be at work at his day job as a city attorney on Tuesday night.

The process of asking for permission to leave the chamber will likely be repeated every day.

Troopers will now go to the missing members’ homes in their districts and in Austin, and places of work and family and friends’ houses, Morales said.

The Texas Senate, meanwhile, had a quorum of 22 members and was expected to debate its version of the voting bill later Tuesday.

The home visits were a part of the 2003 walkouts as well. You never know, someone might try to sneak home for some reason.

The bit about the Senate having a quorum feels a little surprising even though it obviously isn’t. I don’t know how much incentive Senate Dems have to do anything other than screw around and try to make trouble as they can. As for the likely death of other bills, well, that was priced into the decision to break quorum.

Bills to restrict pretrial release from jail, ban critical race theory in schools and prohibit transgender public school students from competing on teams that correspond with their gender identity were up in the air after dozens of Democratic lawmakers chartered flights to Washington, D.C. But their departure also left in jeopardy more widely-supported measures, like giving more money to retired teachers and restoring vetoed funding for more than 2,100 legislative employees who could potentially go without paychecks starting in September.

[…]

Beside bills on voting and bail, other Republican priorities that are now in danger during Abbott’s 30-day session include efforts to stop social media companies from blocking users for their viewpoints, limiting pill-induced abortions and adding money for policing efforts at the Texas-Mexico border. But the governor also tagged lawmakers to tackle less partisan issues — like adding funds for foster care, property-tax relief and retired teachers. On Monday, he slammed Democrats for leaving those on the table.

One piece of legislation would provide what is known as a “13th check” to retired teachers across Texas. The bills would direct the Teacher Retirement System of Texas to distribute a one-time supplemental payment of up to $2,400 by January of next year.

Committees in the House and Senate unanimously advanced the legislation Friday in some of the earliest committee votes of the special session.

Tim Lee, executive director of the Texas Retired Teachers Association, said its members “desperately need help,” especially after the economic stresses caused by the coronavirus pandemic.

“I think there are mixed feelings,” Lee said of the potential demise of the 13th check proposal due to Democrats leaving the state. “I think that educators care about voting rights, educators care about the truth, they care about working together and compromising and listening — so that’s what they hope both sides of this policy spectrum will ultimately yield, that people will work together.”

As far as legislative employees — who earn a median salary of $52,000 per year — some staffers and a legal representative said there may be other ways to pay the employees of elected officials and those who help all lawmakers write bill drafts and provide cost estimates for legislation.

Lawmakers could potentially roll over money from the current fiscal year, if they have any, to pay their staffers. Or the Texas Supreme Court may rule in favor of the employees and House Democrats in a lawsuit arguing Abbott’s veto was a gubernatorial overreach. And Abbott has used his emergency power to move money around before, as he did by directing the transfer of $250 million from Texas prisons to a border wall down payment.

For Odus Evbagharu, chief of staff to state Rep. Jon Rosenthal, D-Houston, the onus to restore his and his colleagues’ wages is on Abbott.

“I don’t believe it’s on the House Democratic Caucus to answer for that. I think that’s going to be an answer that Governor Abbott’s gonna have to answer himself,” Evbagharu said. “My best guess is you hope he doesn’t further punish staff for decisions that lawmakers are making.”

Most of these bills are garbage, and their death (however fleeting) is a bonus as far as Dems are concerned. The legislative funding issue is entirely on Abbott for his temper-tantrum veto, and I hadn’t even thought about him using emergency powers to override himself. That’s if the Supreme Court doesn’t settle this, AS THEY SHOULD. The extra paycheck for teachers is a genuine shame, but it could be handled in any subsequent special session.

Again I want to emphasize, Greg Abbott has the primary responsibility here. He pushed these divisive, red meat issues, he called the special session to try again on the ones that failed, and he broke all precedent by vetoing the legislative funding. This is his mess.

One thing, though, seems clear: this comes at a very bad time for Governor Greg Abbott, who was already having a pretty bad week. Abbott is facing, so far, three challengers to his right in the Republican primary for governor. The charge from his Republican opponents is that he’s feckless and weak. The quorum break, which is designed to deny passage of one of his priority pieces of legislation, fits neatly into a narrative that he is getting outfoxed by an ostensibly powerless Democratic opposition. That the narrative is largely untrue—Democrats certainly believe they got the shaft this session—doesn’t matter much.

If the crisis resolves by offering concessions to the exiled Democrats, or otherwise weakening the bill, Abbott will catch hell. The best case for him is to “break” the Democrats and win the fight, but taking a hard line could also prolong the crisis. At first, messaging from his camp was uncharacteristically soft, perhaps because it’s not clear what he could say. In a statement Monday, Abbott said Democratic absences were standing in the way of “property tax relief” and other issues, a sign that the governor’s office was uncomfortable centering the election bill that’s the problem here. On Tuesday, he started talking tough, threatening them with arrest and “cabining” in the Capitol if they return to Texas, but both those threats reflect his underlying powerlessness. The main talking point so far, at least on social media, is that the Democrats brought beer with them.

[…]

Abbott’s predicament is one he seems uniquely unfit to solve. Unlike his predecessor, Rick Perry, he has never had much in the way of personal relationships with lawmakers. He has no credibility with Democrats to coax them back. But even Republican legislators don’t trust him very much. Abbott did not help the situation with his decision after Democrats walked out on the last day of the regular session to veto funding for the Legislature in retribution. He is holding Republican staffers and state employees hostage in order to coerce Democrats back to the chamber. That may make Abbott look “tough,” but hurting your allies to spite your enemies isn’t sensible politics.

The one thing Abbott does have going for him here is that the Dems will eventually come back, one way or another, and he will always have to call at least one more special session to deal with redistricting. He could just decide to wait and let the Dems figure out what they’re doing and mostly ignore them until they return. I don’t think he’ll do that, but he does do best when he mostly stays out of sight.

Whatever Abbott does or doesn’t do, things are happening in the Senate.

As Democrats fled the state to avoid voting on a GOP priority elections bill that would restrict voting rights in the state, the Texas Senate approved the bill Tuesday with a party-line vote of 18-4.

[…]

[Bill author Sen. Bryan] Hughes amended the bill to drop requirements for curbside voting that troubled advocates for people with disabilities. The original version of the bill required any person other than the voter using curbside voting to leave the car while the voter was casting their ballot.

Hughes removed that provision to “avoid confusion and not create hardship for anyone with a disability.”

Another amendment by Sen. Angela Paxton, R-McKinney, was intended to bring the bill into compliance with federal laws on voter assistance. It removed provisions from the bill that required people assisting voters to specify under oath how they were providing assistance to a voter and that they were doing so because the voter had a disability.

Sen. Brian Birdwell, R-Granbury, also amended the bill to allow for tents to be used as temporary polling places if a regular polling place sustained physical damage that rendered it unusable. The permission would only grant the temporary permission for one election and would have to be approved by a county commissioners court.

Another amendment by Sen. Paul Bettencourt, R-Houston, required poll watchers to be provided training manuals to educate them about their duties.

Note that eight Senate Democrats are also in DC, with a ninth on the way. That’s not enough to break quorum in the Senate, so on they go with that wretched business.

Meanwhile, what are the Dems trying to accomplish? I’ll give you a hint, it has to do with that other Senate.

At a press conference Tuesday in Washington, DC, the group of Democrats specifically called on Biden and Congress to demonstrate “the same courage” they had shown by traveling to the nation’s capital during a special legislative session that had been called by Texas Gov. Greg Abbott, who has since threatened to arrest the more than 50 Democrats who fled. As they did in a statement confirming their plans to boycott the session before hopping aboard two private planes on Monday, the group once again hailed both the John Lewis Voting Rights Act and the For the People Act as examples of model legislation for protecting voting rights at the federal level and implored Congress to pass them.

“We were quite literally forced to move and leave the state of Texas,” Texas Rep. Rhetta Bowers said in a press conference flanked by some of her fellow state Democrats. “We also know that we are living right now on borrowed time in Texas. And we can’t stay here indefinitely, to run out the clock, to stop Republican anti-voter bills.” Bowers said that although Texas Democrats would use “everything in our power to fight back,” they ultimately needed Congress to act with the same urgency.

“We are not going to buckle to the ‘big lie’ in the state of Texas—the ‘big lie’ that has resulted in anti-democratic legislation throughout the United States,” Rep. Rafael Anchia added.

[…]

Tuesday’s press conference came hours ahead of President Biden’s much-anticipated speech on voting rights in Philadelphia, where he’ll make a forceful condemnation of Republican efforts to enact voter suppression laws. His message, however, is not expected to include support for ending the Senate’s filibuster rules, which advocates say stand in the way of passing meaningful protections for voting rights.

They did get to meet with numerous key Senators, though not yet the two that hold this legislation in their hands. As Slate’s Christina Cauterucci puts it for when and if they do, what the Dems have is an emotional appeal.

The emotional appeal may be the only route left for [Rep. Senfronia] Thompson, her colleagues, and other Democrats who see this moment as a turning point for U.S. democracy. Manchin and Sinema already have all the facts. They’ve shown no willingness to budge. Now, they’ll have to tell a crowd of fugitive Texan legislators singing a civil-rights protest song that their extreme measures to protect the franchise will be for naught.

Like I said yesterday, that is the ultimate grand prize. I hope it has better odds than a Powerball ticket.

Finally, Houston Matters spoke to State Reps. Penny Morales Shaw, who is in DC, and Garnet Coleman, who is not because of health issues, though he is not in Austin. They also spoke to US Rep. Lizzie Fletcher about the subject, for which a YouTube clip is here. And here is the note I think we can all agree it would be best to end on:

Couldn’t have said it better myself.

Lawsuit filed against “heartbeat” abortion law

Normally, I’d say this has an excellent chance of success, given that all previous litigation over such bans have been wins for the plaintiffs. But we are in uncharted territory here.

Two months after Gov. Greg Abbott signed a law banning abortion as early as six weeks, more than 20 abortion providers responded with a lawsuit against top Texas officials aimed at stopping one of the country’s strictest abortion measures to date.

The suit was filed Tuesday in the U.S. District Court for the Western District of Texas.

Known as the “heartbeat bill,” Senate Bill 8 was heavily criticized because it limits abortion to two weeks after a missed menstrual cycle, a time when some women don’t yet know they’re pregnant. It aims to ban abortion after a fetal heartbeat has been detected, which is considered a misnomer as a fetus doesn’t possess a heart at six weeks’ gestation.

Around 85% of those who obtain abortions in Texas are at least six weeks into their pregnancy, according to a press release from the Whole Woman’s Health Alliance, a lead plaintiff in the suit.

“We’ve beaten back these attacks before. We can and we will do it again,” Amy Hagstrom Miller, executive director of Whole Woman’s Health, said at a press conference. “These are dark days, and it’s easy to feel like the extremists in the Texas Legislature are running the table.”

A particularly controversial provision of the law allows private citizens to sue abortion providers and others who help someone get an abortion after six weeks.

Republican legislators removed responsibility for enforcement from state officials; instead, the law allows any Texan to sue providers they think are not complying with state abortion laws, thus pushing enforcement to the civil court system. This is intended to make the bill harder to block in courts.

Marc Hearron, senior counsel for the Center for Reproductive Rights and lead attorney on the suit, said this provision could produce “endless lawsuits,” leave abortion clinics vunerable to harrassment and possible closure, intimidate pregnat women, and leave them with fewer avenues of help.

“It allows complete strangers, anti-abortion activists, to sue and interfere with the patient’s decision,” Hearron said. “Those people may try to essentially hijack the courts for their ideological agenda.”

Citizens who file such suits would not need to have a connection to an abortion provider or a person seeking an abortion or even reside in Texas. Those who win lawsuits would be awarded a minimum of $10,000 in damages, as well as attorney’s fees.

This isn’t the first time a private-citizen suit provision has been included in a Texas abortion law.

It was first tested in Lubbock, with a voter-approved city ordinance that outlaws abortions and empowers “the unborn child’s mother, father, grandparents, siblings and half-siblings” to sue for anyone who helps another person get an abortion. A federal judge dismissed a lawsuit seeking to overturn the ordinance last month, finding that Planned Parenthood of Greater Texas, the plaintiff, did not have standing to sue the city.

Hearron said that his organization hopes to overcome that obstacle in the suit against the state law by naming state officials as defendants. Eight state officials were sued in the new lawsuit, including Attorney General Ken Paxton, Texas Board of Nursing Executive Director Katherine A. Thomas, and Texas Health and Human Services Commission Executive Commissioner Cecile Erwin Young.

Plaintiffs’ attorneys said they named officials who are not charged with directly enforcing Senate Bill 8 but still have authority to enforce related laws.

“If this is not blocked, if this is successful, it would set a truly dangerous precedent, because states could eviscerate their own citizens’ federal constitutional rights by creating a private lawsuit to do what their own officials couldn’t do,” Hearron said.

See here and here for more on that Lubbock situation. I don’t know if this approach will be any more successful, but I trust these folks know what they’re doing. It’s nuts to think there could be no proactive remedy against such a law, but who knows what the courts will do.

The Chron adds some details.

[Whole Woman’s President and Chief Executive Officer Amy] Hagstrom Miller said the Texas law has already impacted her facilities, making it harder to recruit new staff who worry about the near-term viability of the work and creating aggressive interactions between patients, employees and anti-abortion rights activists.

She described one scenario in which activists entered a clinic and began soliciting for whistleblowers who could provide information for future civil suits. The lawsuit names the director of Right to Life East Texas, Mark Lee Dickson, as a defendant in the case, and includes a letter purportedly distributed at one of the Whole Woman’s Health four clinics in the state.

[…]

The litigation filed Tuesday could face a difficult legal path.

Earlier this year Planned Parenthood, which has several clinics in the state, sued to block a new Lubbock ordinance that uses a similar enforcement strategy. The suit was dismissed after a judge ruled that the provider had not shown it was harmed yet by the measure. Planned Parenthood has since asked the court to reconsider, and says it has stopped providing abortions in Lubbock.

Hagstrom Miller said she and others involved in the suit, including fellow abortion providers, abortion funds, clinic staff and clergy, have been following the Lubbock case closely, and are preparing for all outcomes. While some legal scholars have suggested that providers could protest the law by continuing to perform post-six-week abortions come September, Hagstrom Miller said that would be logistically difficult, and she was not willing to ask her staff to defy a law that could leave them vulnerable to malpractice claims.

Like I said, I have no idea what to expect. I am fervently hoping for success for the plaintiffs, but to say the least it’s a tough road they have ahead of them. The Press has more.

UT/Trib: More polls that say permitless carry is not popular

The UT/Texas Tribune polling machine did a whole bunch of issue polls following the end of the legislative session. That’s a long article that gives the highlights on each question – they covered a wide range of topics, some of which the respondents knew more about than others – and I will focus on three of them.

Texans had split reactions to the state’s actions on abortion policy, with 42% disagreeing with the state’s policies and 32% agreeing. Those sentiments fell largely along party lines, with 78% of Democrats disapproving and 56% of Republicans agreeing.

Voters were sharply divided over whether to ban most abortions after six weeks except in medical emergencies. Lawmakers passed a bill to implement that policy in Texas, creating one of the strictest abortion laws in the nation.

Forty-four percent of voters supported such a policy, while 46% opposed it. The policy fell predictably along party lines, but independents broke against it with 34% supporting the ban and 46% opposing it.

A majority of Texans opposed automatically banning all abortions if the U.S. Supreme Court overturned the landmark abortions case Roe v. Wade, an idea which lawmakers passed into law this session. Fifty-three percent of voters said they opposed the move, while 37% supported it. Again, independents broke against the policy, with 58% saying they strongly opposed the automatic ban and 20% saying they supported it.

“It’s a very small minority of voters who would ever ban abortion outright in all circumstances,” Blank said. “Generally speaking, Texans are open to some limited restrictions on abortion. You start to see pushback when you get to the point of restricting access outright.”

Voters disapproved of the Legislature’s handling of gun violence, with 43% saying they disapproved of legislative actions on the subject, while 32% said they approved.

Voters showed particular disapproval for allowing legal gun owners over the age of 21 to carry handguns in most places without a license or training, a policy conservatives call “constitutional carry.” Fifty-seven percent of voters said they disapproved of that policy, which lawmakers passed into law during the session. Thirty-six percent said they supported it.

That policy had 59% support among Republicans and a disapproval rate of 86% among Democrats.

Conversely, voters showed strong support for requiring criminal and mental health background checks for all gun purchases. Seventy-one percent of voters supported the policy, while only 21% opposed. Bills on that subject were not passed by the Legislature despite bipartisan support from 88% of Democrats and 61% of Republicans.

This is the seventh time the poll asked about background checks and it has received support from more than 70% of voters each time, Blank said.

Among Republicans there was majority support for both background checks and allowing legal gun owners over the age of 21 to carry handguns without a license or training.

“You can be a Republican who is happy with the way the Legislature addressed protecting Second Amendment rights but also think that maybe they could have done more to address gun violence, and those two things are not necessarily inconsistent,” Blank said.

Sixty-seven percent of Texans support Medicaid expansion, giving overwhelming support to an issue that’s been soundly rejected by Republican state leaders since the passage of the Affordable Care Act during Barack Obama’s presidency. Only 22% of voters opposed the policy.

Supporters included 50% of Republicans and 90% of Democrats.

“As long as it’s not directly tied to Barack Obama, generally people are more open to it than you think,” Blank said. “It just requires us to update our thinking about Republican orientations towards health care.”

Only 13% of voters think marijuana should not be legal under any circumstances. Twenty-seven percent believe it should be legal for medical purposes, 31% believe small amounts should be legal for any purpose and 29% believe any amounts should be legal for any purpose.

Support for some sort of marijuana legalization spans across party lines. Younger people between 18 and 29 are the most supportive of its legalization with only 4% saying it should not be legal under any circumstance. Fifty-one percent of those in that age group said any amount of marijuana should be legal for any reason.

Not sure why Medicaid expansion and marijuana reform were lumped together in that last section, but whatever. The point is that all of these results are consistent with other polls done in the past, though there is some range in the outcomes, as the much stronger opposition to permitless carry from that Quinnipiac poll shows. The campaign themes for 2022 couldn’t be clearer. The Republicans prioritized their own little hot-button issues over more important business like fixing the electric grid. Democrats support the things that voters actually want. The ads truly write themselves.

The poll also included questions about the voter suppression bill, and that got its own separate story.

Despite ceaseless Republican assertions that Texas’ voting rules must be tightened to prevent electoral fraud, only a small slice of the state’s registered voters believe ineligible voters often cast ballots in Texas elections, according to the University of Texas/Texas Tribune Poll.

In a June UT/TT poll, just 19% of voters indicated they think ineligible people frequently cast ballots. A bulk of voters — 42% — believe ineligible votes are rarely or never cast. Even among Republicans, a minority of voters — 31% — believe ineligible votes are frequently cast.

[…]

During the regular legislative session that wrapped up in May, Republican lawmakers attempted to reframe their legislative proposals by offering that even one instance of fraud undermines the voice of a legitimate voter.

“At some point, I think Republicans have run into the lack of evidence … and so they have gone to this ‘anything is a taint’,” said James Henson, co-director of the poll and head of the Texas Politics Project at UT-Austin. With 25% of voters believing ineligible people sometimes vote in elections, he said Republican leaders have “something to work with” as they adjust their messaging.

“The Republican argument has had to make adjustments as they run into, frankly, evidentiary problems and dissonance caused by a lack of evidence for some of their response, so that may be part of the explanation here,” Henson said.

[…]

Heading into that special legislative session, 35% of registered voters say they would make voting rules more strict, while 29% would leave them as is and 26% would loosen them. Among Republicans, a large majority of voters (60%) want the rules to be more strict. A majority of Democrats (54%) want less strict rules. Almost the same share of both Republicans (30%) and Democrats (29%) would maintain the status quo.

Couple things here. One is that apparently there are some limits to lying your ass off. Who knew? Doesn’t mean that will be enough to stop the bullshit legislation said lies are built on, but at least it’s a rougher road. Two, the stricter/easier/same numbers on voter restrictions are pretty close to the numbers we have seen in previous polls about abortion. There may be a slight plurality for “stricter”, but a far larger number opposes that. Again, that is an issue you can run on.

Finally, while there is a partisan divide in all of these issues, there is also a difference in intensity in many of them. For some, Republicans are far more unanimous in their position while Dems are more diffuse, and for others it is the reverse. Whether there is an overall majority for one position, and if so which one, is usually determined by this difference in intensity. Sometimes, the level of intensity is about the same each way (and that may mean that neither side is all that worked up about it), and when that happens you have an even split, with at best a small plurality for one position. I find this to be the most useful way of thinking about this sort of poll. It’s still not clear how much any of these results translate into voter persuasion or enthusiasm, but it does at least give you some idea of where you are or are not out of step, and how much resistance you may get on a particular subject. As I said, on these issues (and some of the others that I didn’t comment on), the arrow is pointing clearly in the direction Dems should want to go.

Quinnipiac: Permitless carry and total abortion bans are not popular in Texas

More Q-poll data.

One week after Texas Governor Greg Abbott signed a bill into law allowing Texans to carry unlicensed handguns, voters say 74 – 24 percent that they oppose allowing anyone 21 years of age or older to carry handguns without a license or training, according to a Quinnipiac (KWIN-uh-pea-ack) University poll of Texas registered voters released today.

Democrats oppose this 94 – 6 percent, independents oppose this 73 – 26 percent, and Republicans oppose this 58 – 36 percent.

By an overwhelming majority, voters in Texas say 90 – 8 percent that they support background checks for all gun buyers.

Voters are split about the level of difficulty of buying a gun in Texas, with 46 percent saying it is too easy and 46 percent saying it’s about right. Only 4 percent say it’s too difficult to buy a gun in Texas.

When it comes to assault weapons, a majority (52 – 44 percent) oppose a nationwide ban on the sale of assault weapons.

A majority of Texas voters say 56 – 42 percent that they do not think stricter gun laws would help to decrease the number of mass shootings. This compares to a 2019 survey when voters said 50 – 45 percent they did not think stricter gun laws would help decrease the number of mass shootings.

Voters say 49 – 42 percent that they oppose banning abortion after a fetal heartbeat is detectable, which is usually around 6 weeks of pregnancy, and 10 percent did not offer an opinion. Democrats oppose the ban 65 – 25 percent, independents oppose the ban 54 – 37 percent, and Republicans support the ban 63 – 32 percent.

A majority of voters in Texas say 58 – 35 percent that they agree with the 1973 Roe v. Wade Supreme Court decision that established a woman’s right to an abortion.

Asked to imagine if Roe v. Wade is overturned and the issue of abortion is left up to the states, voters shared whether they thought abortion should be legal in all cases, legal in most cases, illegal in most cases, or illegal in all cases in Texas. A majority (55 percent) say it should be legal in either all cases (23 percent) or legal in most cases (32 percent). Nearly four in ten (39 percent) say abortions should be illegal in most cases (29 percent) or in all cases (10 percent). These findings are similar to other Quinnipiac University Texas polls since 2018.

See here for the other Quinnipiac poll post. I mean, the permitless carry numbers sure make this look like a winning campaign issue, and it’s one where Dems could use quotes from a bunch of law enforcement officials opposing this law in their ads. It’s hard to say how much a single issue will move voters, and plenty of people who tend to vote Republican will continue to do so for other reasons even if they opposed this law, but it sure couldn’t hurt to lean on this.

There are also questions about the Republican voter suppression bill, which basically split along partisan lines, and about COVID vaccinations, which is the focus of this Chron story (and how I found the rest of the poll). This is from the poll memo, which notes that this part of the sample includes adults who aren’t registered voters:

More than two-thirds of adults in Texas (68 percent) say they’ve either received or are planning to receive a COVID-19 vaccine. Close to 3 in 10 adults (29 percent) say they do not plan to receive a COVID-19 vaccine.

There are sharp differences among political parties. Among Republicans, 45 percent say they do not plan to receive a COVID-19 vaccine. Among independents, that number is 28 percent. Among Democrats, it is 13 percent.

In the same week that workers at a Houston hospital either resigned or were fired for refusing to receive a COVID-19 vaccine, Texans weighed in about COVID-19 vaccination mandates in hospitals. Just over half of Texans say 51 – 45 percent that they think hospitals should be allowed to require their employees to get a COVID-19 vaccination.

Two-thirds of Texans say 66 – 30 percent that businesses should not be allowed to require proof of a COVID-19 vaccination from their customers.

However, a majority say 57 – 40 percent that cruise lines should be allowed to require proof of a COVID- 19 vaccination from their passengers.

A slim majority say 51 – 45 percent that public schools should be allowed to require mask wearing.

Not sure how you get from a 68% “vaxxed or will be vaxxed” rate to “45 percent [of Republicans] say they do not plan to receive a COVID-19 vaccine”, but here we are. You want to feel the herd immunity, you need to avoid places with too many Republicans.

Lawsuit against Lubbock “abortion sanctuary city” ordinance dismissed

This is gonna get weird.

Right there with them

A federal district judge dismissed on Tuesday a lawsuit to block a voter-approved abortion ban from taking effect in Lubbock, saying Planned Parenthood did not have standing to sue the city.

The decision comes just weeks after Planned Parenthood filed a lawsuit to stop the Lubbock ordinance, which outlaws abortions and empowers “the unborn child’s mother, father, grandparents, siblings and half-siblings” to sue for damages someone who helps others access an abortion. The “sanctuary city for the unborn” ordinance was passed by voters in May, after being shot down by city council members who said it conflicted with state law and could be costly to defend. It took effect June 1.

Abortion rights advocates typically sue to prevent government officials from enforcing an unconstitutional abortion restriction. But the Lubbock ordinance is solely enforced by private citizens, not state or local actors. That enforcement structure has not been extensively tested in the courts, but the judge said his rulings could not prevent private parties from filing civil lawsuits in state court.

“Because the ability to remedy a plaintiff’s injury through a favorable decision is a prerequisite to a plaintiff’s standing to sue — an ability absent here — the Court dismisses the case for lack of jurisdiction,” Judge James Wesley Hendrix wrote.

[…]

The ruling is a window into how courts may receive lawsuits about a newly passed state law that bans abortions as early as six weeks. It follows the same blueprint as the Lubbock ordinance by barring state officials from enforcing the law. But it is far broader, allowing anyone to sue those who assist with an abortion after a fetal heartbeat has been detected, like by driving someone to a clinic or paying for the procedure. People who sue do not have to be connected to someone who had an abortion or be residents of Texas. The law is set to take effect in Sept. A legal challenge is expected.

See here for the background. I confess, when I blogged about this before, I totally missed the part about this law being enforced via private lawsuits and not the city, which as all of the coverage has noted it can’t enforce because of Roe v Wade. The Lubbock ordinance only allows family members to file suit, while the state law gives that power to any rando who has a weird desire to meddle in the personal affairs of complete strangers. What this ruling says to me is that we won’t be able to begin answering questions about these two laws until someone uses one of them to file such a lawsuit. This is assuming that the reproductive rights groups in Texas don’t come up with an argument to fight the state law in federal court; I’ve not seen any writing yet to suggest a strategy, but that doesn’t mean one isn’t being developed.

In the meantime, the ordinance has had the effect its advocates envisioned, at least for now. It’s a certainty that someone will eventually sue, either there or somewhere else in Texas after the state law is put into effect. After that, who the hell knows. The Lubbock Avalanche-Journal has more.

Lawsuit filed against Lubbock “abortion sanctuary city” ordinance

Looks like this kind of tactic will finally be tested in court.

Right there with them

Planned Parenthood and the American Civil Liberties Union of Texas sued the city of Lubbock on Monday over a voter-approved “sanctuary city for the unborn” ordinance that seeks to outlaw abortions in the West Texas city’s limits.

The ordinance — which the lawsuit says is unconstitutional — was passed by local voters in May over the opposition of City Council members who warned it could not be enforced and would prompt a costly legal fight.

The lawsuit was filed in a federal district court and seeks to stop the abortion ban from taking effect on June 1.

Some two dozen cities have sought to ban abortions in their limits. Most of them have been in Texas but Lubbock is the largest and the first to have an abortion provider — making it a legal test case for the burgeoning “sanctuary city for the unborn” movement. Planned Parenthood opened a clinic to offer birth control and other services there last year, and began providing abortions this spring.

The American Civil Liberties Union of Texas previously sued seven East Texas towns that passed similar measures, but those cities weren’t home to abortion providers and had differently worded ordinances. The lawsuit was dropped.

The Lubbock ordinance would not be enforced by the government unless the Supreme Court overturned the landmark Roe v. Wade decision, or made other changes to abortion laws. It instead relies on private citizens filing lawsuits. Family members of a person who has an abortion can sue the provider or someone who assists them in getting an abortion, like by driving them to a clinic, under the ordinance.

The ordinance does not make an exception for people pregnant as a result of rape or incest.

See here for some background. As things stand now, it seems likely Lubbock will lose this lawsuit. Not that such a loss will dissuade the ordinance’s fanatical supporters of anything – among other things, they won’t be on the hook for the legal bills – but it’s something. Of course, a fresh new challenge to Roe v. Wade is now on the SCOTUS docket, so how things are now may not be how they will be as of sometime next year. It’s a lot of not great.

Abbott signs massive anti-abortion bill

We’ll see who sues who first.

Right there with them

Gov. Greg Abbott signed into a law Wednesday a measure that would prohibit in Texas abortions as early as six weeks — before some women know they are pregnant — and open the door for almost any private citizen to sue abortion providers and others.

The signing of the bill opens a new frontier in the battle over abortion restrictions as first-of-its-kind legal provisions — intended to make the law harder to block — are poised to be tested in the courts.

Abortion rights advocates have promised to challenge the new law, which they consider one of the most extreme nationwide and the strictest in Texas since the landmark Roe v. Wade decision. It would amount to an outright ban on abortions, as the six-week cutoff is two weeks after a missed menstrual cycle, opponents say.

The law takes effect in September.

[…]

Instead of having the government enforce the law, the bill turns the reins over to private citizens — who are newly empowered to sue abortion providers or anyone who helps someone get an abortion after a fetal heartbeat has been detected. The person would not have to be connected to someone who had an abortion or to a provider to sue.

Proponents of the new law hope to get around the legal challenges that have tied up abortion restrictions in the courts. While abortion providers typically sue the state to stop a restrictive abortion law from taking effect, there’s no state official enforcing Senate Bill 8 — so there’s no one to sue, the bill’s proponents say.

“It’s a very unique law and it’s a very clever law,” said Josh Blackman, a constitutional law professor at South Texas College of Law Houston. “Planned Parenthood can’t go to court and sue Attorney General [Ken] Paxton like they usually would because he has no role in enforcing the statute. They have to basically sit and wait to be sued.”

Legal experts have been divided on the strategy, and abortion rights advocates have said they plan to fight regardless.

Elisabeth Smith, chief counsel for state policy and advocacy at the Center for Reproductive Rights, which has represented abortion providers who have sued Texas officials, said it and other abortion rights organizations are “not going to let this six-week ban go unchallenged.”

Drucilla Tigner, policy and advocacy strategist of the American Civil Liberties Union of Texas, said the “governor’s swipe of a pen can’t change the Constitution.”

While the law amounts to the most extreme abortion ban in the country, “abortion is both legal in Texas and supported by the majority of Texans,” Tigner said.

Abortion rights advocates and lawyers say the new law would allow for a cascade of lawsuits against abortion providers, that would sap their time and money even if they ultimately won in court.

Family members, abortion funds, rape crisis counselors and other medical professionals could be open to lawsuits, under the broad language in the bill, according to legal experts and physicians who opposed the measure. People who sued would be awarded at least $10,000, as well as costs for attorney’s fees, if they won.

“Every citizen is now a private attorney general,” Blackman said. “You can have random people who are against abortion start suing tomorrow.”

See here for the previous update. Not really much else to say until someone files a lawsuit one way or the other. Either this law as designed is a diabolically clever tactic for which there is no good countermove and thus gets replicated in states across the country, or it gets blocked and the zealots have to go back to the drawing board. In the meantime, winning more elections so laws like these don’t get passed in the first place would be nice. The Chron and the Texas Signal have more.

Massive anti-abortion bill heads to Abbott

And from there to the courts, in one form or another.

Legislation that would ban abortions after as early as six weeks — before many women know they are pregnant — and let virtually any private citizen sue abortion providers and others was given final approval by lawmakers Thursday and is headed to Gov. Greg Abbott, who has signaled he will sign it into law.

Senate Bill 8, a Republican priority measure, is similar to “heartbeat bills” passed in other states that have been mostly stopped by the courts. But proponents of the Texas legislation believe it’s structured in a way that makes it tougher to block.

The bill was denounced by hundreds of lawmakers and doctors — in letters circulated by opponents of the measure — who said its broad legal language could open the door to harassing or frivolous lawsuits that could have a “chilling effect” on abortion providers and leave rape crisis counselors, nurses and clinic staff “subject to tens of thousands of dollars in liability to total strangers.” Abortion rights advocates say it is among the most extreme restrictions nationwide.

The bill, which would take effect later this year, bans abortions after a fetal heartbeat can be detected without specifying a timeframe. A legislative analysis and the bill’s proponents have said that can be as early as six weeks, though state Rep. Donna Howard, D-Austin, in a floor debate cited medical experts who say there is no fully developed heart at that gestational age and that the sound referred to as a heartbeat is actually “electrically induced flickering” of fetal tissue.

The bill makes an exception allowing for abortions in the case of a medical emergency but not for rape or incest.

It would be enforced by private citizens empowered to sue abortion providers and others who help someone get an abortion after six weeks, for example, by driving them to an abortion clinic.

Those private citizens would not need to have a connection to an abortion provider or a person seeking an abortion, and would not need to reside in Texas.

See here for the previous update. The bright idea behind this is that the state won’t be enforcing the ban, private citizens who file a gazillion lawsuits against clinics and doctors will be the enforcers. As such, the state can’t be sued to overturn the law, since they’re not enforcing it. It’s clever, and it’s never been tried before, so who knows how that will play out. (You know what they say about “clever”.) Six week abortion bans have been universally blocked by federal courts so far, for what it’s worth. I’m not dumb enough to predict what might happen here. We’ll have to wait and see, and hope for the best.

Massive anti-abortion bill passes the House

I’m just resigned to this shit at this point.

Texas lawmakers are poised to enact sweeping restrictions on access to abortions, prohibiting the procedure before many women know they are pregnant, and opening the door for a potential flood of lawsuits against abortion providers.

The House on Wednesday gave initial approval to a priority “heartbeat” bill passed by the Senate earlier this spring, which was authored or sponsored by nearly every Republican senator and more than 60 members of the House. The legislation must still get another vote in the lower chamber before it’s sent to the governor, who has signaled that he is looking forward to signing it into law.

Abortion rights advocates say the legislation is among the most “extreme” measures nationwide and does not exempt people pregnant because of rape of incest. Beyond the limitations on abortion access, the bill would let nearly anyone — including people with no connection to the doctor or the woman — sue abortion providers, and those who help others get an abortion in violation of the proposed law. People who support abortion funds and clinics could also be hit with lawsuits, and lawyers warn those sued would not be able to recover some of the money they spent on their legal defense.

The “unprecedented,” “extraordinary,” and exceptionally broad” language in the bills means “family members, clergy, domestic violence and rape crisis counselors, or referring physicians could be subject to tens of thousands of dollars in liability to total strangers,” nearly 400 Texas lawyers told House lawmakers in an open letter circulated by abortion rights advocates.

In a separate letter, more than 200 physicians said the bill would place doctors “at risk of frivolous lawsuits” and create a “chilling effect” where providers are reticent to give information “out of fear of being sued.”

See here, here, and here for the background, and here for more on what the doctors and lawyers had to say. This Legislature hasn’t been terribly interested in these folks have said about other bills, like the various anti-trans bills, so it’s not likely they were going to make any headway here, but you gotta try. We have known from the beginning of the session that this was coming and it was going to be terrible, and so here we are. Public polls show more opposition than support for this kind of legislation, with a level of confusion thrown in, so while some of this can likely be beaten back in the courts, we are once again at the point of acknowledging that the only action that will matter – that will ever matter – is winning more elections. There’s just not much else to say about it. The Austin Chronicle has more.

Trib polling roundup, part 2

The issues polling is mostly on our side, for what that’s worth.

A solid majority of Texas voters don’t think adults should be allowed to carry handguns in public places without permits or licenses, though the idea is popular with a 56% majority of Republicans. Overall, 59% oppose unlicensed carry — a number driven up by the 85% of Democrats who oppose it. On the Republican side, the gun questions revealed a gender gap. Among Republican men, 70% said they support unlicensed carry; 49% of Republican women oppose that position.

More people carrying guns would make the United States safer, according to 34% of Texas voters, while 39% said that would make the country less safe. Another 16% said more armed Texans would have “no impact on safety.”

Almost half of Texas voters (46%) would make gun laws stricter, while 30% would leave them alone and 20% would loosen them. The partisan lines were sharp: 85% of Democrats would make gun laws stricter, while 53% of Republicans would leave them as they are and another 29% would loosen them. That GOP gender gap appeared again here: 20% of Republican women would make gun laws more strict, while only 10% of GOP men would; 19% of Republican women would loosen those laws, while 41% of GOP men would.

Three-fourths of the state’s voters believe Texas should require criminal and mental background checks before any gun sales, including those at gun shows and private transactions. Only 18% oppose such checks.

“A lot of the [legislative] agenda right now seems at odds with public opinion,” said James Henson, co-director of the poll and head of the Texas Politics Project at UT-Austin. He said Republican lawmakers are pursuing some ideas that “come from the most conservative wing of the majority party.

[…]

Most Texans (54%) oppose automatically banning all abortions in Texas if the U.S. Supreme Court overturns Roe v. Wade — what’s known as a “trigger” law that would take effect in the event of such a ruling — but about a third would support a ban.

Nearly half of the state’s voters (49%) support making abortions illegal after 6 weeks — except in the case of a medical emergency. That includes the support of 74% of Republicans. Among Democrats, 67% oppose the idea.

For all of that, there’s no consensus about changing the state’s current abortion laws: 33% would make them stricter, 33% would make them less strict and 22% would leave them alone. The partisan break is evident in those answers, too: 55% of Republicans would tighten the state’s abortion laws and 63% of Democrats would loosen them.

See here for part 1, and here for polling data. These numbers are consistent with the results we have gotten from UT-Tyler and from Data for Progress. It’s good to get more data, but the bottom line remains that 1) people’s voting behavior doesn’t always line up with their stated policy preferences, and 2) until Democrats start winning more elections in Texas, the Republicans have no incentive to back off from their only-popular-with-the-wingnuts agenda. I think there’s a lot here to campaign on, but that’s just the beginning. There’s a lot of work to be done.

Other May election results

Roundup style, mostly.

San Antonio Mayor Ron Nirenberg easily wins a fourth term.

Mayor Ron Nirenberg

Mayor Ron Nirenberg vanquished the ghost of repeat challenger Greg Brockhouse in Saturday’s City election and secured his third term in office with a win of historic proportion.

Nirenberg is now on course to become the city’s first four-term mayor since his mentor, former Mayor Phil Hardberger, led a successful campaign in 2009 to relax term limits from two, two-year terms to four, two-year terms.

That longevity in office should give Nirenberg the time and space to forge the kind of legacy established by Hardberger and Julián Castro before him.

Hardberger can point to completion of the San Antonio River’s Museum Reach, acquisition of Hardberger Park, redevelopment of Main Plaza, and jump starting the transformation of Hemisfair Park after it lay idle for 50 years. He recruited Sheryl Sculley to become city manager. Her long tenure led to the modernization of the city’s financial practices, ambitious five-year bond cycles to address critical infrastructure needs, and a new level of professional standards for city staff.

Castro, then the youngest mayor of a Top 50 city, led efforts to bring early childhood education to the forefront, well in advance of national trends, with successful passage of Pre-K 4 SA. He launched SA2020 and with it, the Decade of Downtown. Castro joined forces with Sculley to take on the powerful police union and address runaway health care costs. His growing national profile earned him a cabinet seat as Housing and Urban Development Secretary in the Obama administration.

Nirenberg is poised to establish his own legacy. Voters chose him by a 31-point margin, 62% to 31%, over Brockhouse, with the remainder going to a dozen other names on the ballot, a definitive verdict on Nirenberg’s second-term record. A Bexar Facts poll conducted with the San Antonio Report and KSAT-TV in late March accurately predicted as much. The reason: Nirenberg’s strong leadership through the pandemic.

Nirenberg won by a much wider margin against Brockhouse this time. When I look around at current Mayors for future statewide potential, Nirenberg certainly belongs on the list, but for whatever the reason I haven’t heard his name bandied about. Maybe that will change now.

San Antonio had a high-profile ballot proposition, which would have stripped the city’s police union of it collective bargaining power. It was narrowly defeated, but its proponents are encouraged they did as well as they did, and expect to continue that fight.

Austin had its own slew of ballot propositions, with a particularly contentious one that would outlaw the public camps that homeless people are now using. That one passed, and we’ll see what happens next.

The folks behind Proposition B, the citizen initiative to re-criminalize public camping in Downtown Austin and near the UT Campus, got the victory they sought for the more than $1 million they spent. With all votes counted Saturday night, the measure backed by Save Austin Now prevailed by 14 points, 57.1%-42.9%.

That’s a slightly weaker showing than was predicted before polls closed by SAN co-founder Matt Mackowiak, also chair of the Travis County Republican Party, but a win’s a win:

Those who have been paying attention will note that Mayor Steve Adler and much of Council have already decided that the June 2019 vote that Prop B reverses was a failed experiment, and have moved on to other strategies to house Austin’s unsheltered poor. Perhaps SAN will catch up soon. Whatever its merits as policy, the campaign for Prop B did almost certainly boost turnout, which all told was 22.55% countywide (just under 90% of that was city voters). That’s the highest Austin’s seen in a May election since 1994.

Even CM Greg Casar, the politician most directly rebuked by tonight’s results, is looking ahead: “I do not believe Austin is as divided as this election makes it seem. The overwhelming majority of Austinites share a common goal, no matter how folks voted on Prop B. We all want to get people out of tents and into homes,” Casar said in a statement. “Our community must come together after this election & house 3,000 more people.”

I’ll leave it to the Austin folks to figure this out from here, but from my vantage point one obvious issue here is the ridiculously high housing prices in Austin, which is fueled in part by way more demand for housing than supply. I hope the city can find a way forward on that.

Fort Worth will have a new Mayor, after a June runoff.

Fort Worth voters will chose a new mayor for the first time in a decade in June with Mattie Parker and Deborah Peoples apparently headed to the runoff.

Mayor Betsy Price’s decision not to seek an unprecedented sixth term sparked 10 candidates to run, including two council members, the Tarrant County Democratic Party chairwoman and a slew of political newcomers.

According unofficial results in Tarrant County, Peoples, a former AT&T vice president, led with 33.60% of the vote Saturday night while Parker, a former Price chief of staff, had 30.82%, with all 176 vote centers reporting. Council member Brian Byrd was in third place with 14.75%.

Parker and Peoples maintained the upper hand with results for Denton County. There, Parker took 35.17% of the vote compared to 16% for Peoples. In Parker County, Parker had 42% of the vote followed by Byrd’s 23.3%. Peoples had 12.5%.

The runoff will be June 5.

Here are the Tarrant County results – scroll down to page 21 to see the Fort Worth Mayor’s race. There were 1,106 votes cast in total in this race in Denton County, and 176 total votes cast in Parker County, so Tarrant is really all you need to know. In 2019, Peoples lost to Mayor Betsy Price by a 56-42 margin. Adding up the votes this time, counting Ann Zadeh as progressive and Brian Byrn and Steve Penate as conservative, the vote was roughly a 55-42 margin for the Republican-aligned candidates. We’ll see how it goes in the runoff.

And then there was Lubbock.

Lubbock voters on Saturday backed a “sanctuary city for the unborn” ordinance that tries to outlaw abortions in the city’s limits, likely prompting a lawsuit over what opponents say is an unconstitutional ban on the procedure.

The unofficial vote, 62% for and 38% against the measure, comes less than a year after Planned Parenthood opened a clinic in Lubbock and months after the City Council rejected the ordinance on legal grounds and warned it could tee up a costly court fight.

The passage of the ordinance makes Lubbock one of some two dozen cities that have declared themselves a “sanctuary … for the unborn” and tried to prohibit abortions from being performed locally. But none of the cities in the movement — which started in the East Texas town of Waskom in 2019 — has been as big as Lubbock and none of them have been home to an abortion provider.

It’s unclear when the ordinance will go into effect, and if it will be challenged in court.

The push to declare Lubbock a “sanctuary city for the unborn” began in the last two years and was galvanized by the arrival of a Planned Parenthood clinic in 2020. Anti-abortion activists gathered enough signatures to bring the ordinance to the City Council — where it was voted down for conflicting with state law and Supreme Court rulings — and to then put it to a citywide vote.

Ardent supporters of the measure, who liken abortion to murder, say it reflects the views held by many in conservative Lubbock. They believe the ordinance would stand up in court and say they have an attorney who will defend the city free of charge if it is challenged.

But the strategy of bringing the abortion fight to the local level has divided even staunch anti-abortion activists, and Texas towns like Omaha and Mineral Wells have voted down similar ordinances or walked them back under advice from city attorneys.

The American Civil Liberties Union of Texas, which previously sued seven East Texas towns that passed similar ordinances, has said they were watching the vote closely and hinted at a lawsuit in a statement Saturday.

Drucilla Tigner, a policy and advocacy strategist with the organization, said the “ACLU has a long history of challenging unconstitutional abortion bans and will continue to fight to protect the fundamental rights of the people of Lubbock.”

[…]

The Lubbock ordinance outlaws abortions within the city, and allows family members of a person who has an abortion to sue the provider and anyone who assists someone getting an abortion, like by driving them to a clinic.

There isn’t an exception for women pregnant as a result of rape or incest.

The ordinance would not be enforced by the government unless the Supreme Court overturned the landmark Roe v. Wade decision, or made other changes to abortion laws.

It instead relies on private citizens filing lawsuits.

Richard D. Rosen, a constitutional law professor at Texas Tech University, expects someone would sue Planned Parenthood and the legal fight would go from there.

“As long as Roe is good law I think these suits will ultimately fail, but it [could make] abortion providers … expend money for attorneys fees and it takes time,” he said.

See here and here for the background. The lawsuit that was filed against those seven towns was later dropped after the ordinances to remove language that declared the Lilith Fund and the Texas Equal Access Fund “criminal entities”. The language banning abortions in those towns remains, however. Lubbock is in a much different position than those tiny little towns, and I have no idea what happens from here. It can’t be long before someone files a lawsuit for something.

Finally, I’m sorry to report that Virginia Elizondo lost her race for Spring Branch ISD. I wish her all the best in the future.

Poll shows opposition to the extreme anti-abortion bills in the Lege

From the inbox:

Today, the Trust Respect Access coalition is releasing data from polling on abortion laws and anti-abortion bills in the Texas Legislature. The poll includes approval ratings as well as opinions on legislative priorities and House Bill 1515/Senate Bill 8, companion bills that would ban abortion at six weeks gestation, before many people even know that they are pregnant. HB 1515/SB 8 would also allow anyone to sue an abortion provider or anyone who helps someone obtain an abortion.

The poll jointly commissioned by Trust Respect Access partners offers insights by Texans from across the political spectrum. The following are key findings:

Across the political spectrum, Texans are united against extreme proposals

A majority of all respondents – including a majority of ideological subgroups – are opposed to anti-abortion measures currently being considered in the Texas Legislature. These unpopular proposals include HB 1515/SB 8, a six-week abortion ban that would allow out-of-state people to sue Texans who help someone access abortion. HB 1515/SB 8 also includes a “rapist rights” provision that would allow rapists to sue a doctor who performs an abortion on their victim.

It is worth noting that it is rare to see Trump voters, Democrats, and Independents on the same side of an issue – this survey shows that the combined opposition transcends ideology.

“Texans from across the political spectrum are categorically rejecting these extreme anti-abortion measures,” said Diana Gómez, advocacy manager at Progress Texas. “Roe v. Wade is still the law of the land, but extremist politicians are hoping to challenge existing law with dangerous bills like HB 1515 and SB 8. Not only would these bills ban abortion before most people know they’re pregnant, but they would allow for anyone to enforce the rule, meaning a rapist could sue their victim’s doctor and reap a cash reward. Texans deserve better than these attacks on our rights. If passed, these laws would be some of the most extreme abortion restrictions in the country. Texans want our legislators to protect access to essential health care, and that includes abortion.”

Double-digit opposition

Texans have differing ideologies and opinions, but when it comes to the anti-abortion measures currently under consideration at the Legislature, voters expressed opposition by wide margins. In the bipartisan survey, only 33% of respondents identified as Democrats while 68% identified as a Republican or Independent. Even so, the poll found the combined opinions as follows:

Measure to ban abortion: 51% oppose, 36% favor, 12% not sure
Out-of-state lawsuits: 63% oppose, 19% favor, 18% not sure
“Rapists rights”: 76% oppose, 12% favor, 13% unsure
Carrying non-viable pregnancies to term: 64% oppose, 20% favor, 15% unsure

“These polling results reveal that Texans overwhelmingly reject extreme anti-abortion bills,” said Caroline Duble, political director at Avow. “HB 1515/SB 8 is so egregious that it allows ‘any person,’ Texan or not, to sue another person for providing abortion care or helping someone access abortion care. This means that a neighbor could sue a mother for driving their child to an abortion procedure, or a classmate could be sued for giving a friend $20 to help pay for an abortion. The bill is written so broadly that it would even allow rapists to sue their victim’s doctors and loved ones — something that 76% of Texans from across the political spectrum oppose.”

Misplaced priorities by the Legislature

When asked what they think the number one priority should be for the Legislature, the top issue voters chose was ensuring a stable energy grid. That was followed by public schools and healthcare (covid response, hospitals, and vaccines). Texans do not believe that abortion should be a top priority in the Legislature.

“The evidence is loud and clear, Texans want access to safe abortion care,” said Carisa Lopez, policy director for Texas Freedom Network. “For years, data consistently shows that people all over Texas from all-sides of the political spectrum don’t want additional barriers to safe reproductive health care. Legislators need to align themselves with the priorities of the voters who gave them their seat at the legislature. If not, they won’t have that seat for long.”

To emphasize just how distant abortion restrictions are from Texans’ minds, when asked what the Legislature’s top priority should be, 17% responded “not sure” whereas only 10% said abortion regulations. Getting outranked by “not sure” is not good in any poll.

“By trying to ban abortion in Texas, the Legislature is pandering to anti-abortion extremists and ignoring the will of the majority of Texans,” said Drucilla Tigner, Policy & Adocacy Strategist, ACLU of Texas. “Most Texans want our leaders to focus on the real issues they face every day and are tired of elected leaders playing political games. Instead of insisting on banning abortion, the Texas Government should focus on trying to keep the lights on for everyone.”

Black and Brown voters continue leading the way in progress on reproductive rights

When breaking down responses to the poll by race, there is more support for abortion rights and a greater opposition to restrictions amongst Black and Brown Texans in many of the questions.

63% of Hispanic/Latino respondents and 58% of Black respondents say abortion laws should be less restrictive or stay the same, compared to 49% of white respondents. 60% of both Hispanic/Latino voters and Black voters also oppose HB 1515/SB 8’s measure banning abortion compared to 46% of white voters.

“Abortion restrictions disproportionately harm Black Texans and other Texans of color, folks in rural communities and those with lower incomes. Texas legislators are fixated on advancing their political interests rather than fighting for the will of the people,” said Marsha Jones, executive director at The Afiya Center. “Texans want access to safe abortion care and the polls show Texans reject harmful anti-abortion bills like HB 1515/SB 8. This political grandstanding continues to put lives at risk and the weird obsession with the relentless attempts to deny bodily autonomy and healthcare harms the state’s most marginalized populations, especially Black women. If Texas legislators want to focus on abortion legislation, let it be only to ensure the safety of those seeking abortions and increase opportunities for quality care.”

Voters want the state to move on from this issue

By a combined total of 54%, voters say that Texas abortion laws should stay the same or be less restrictive, while only 33% are interested in more restrictions. This is consistent with findings from a Progress Texas poll in March that showed that 52% of Texans generally support abortion rights. If conservatives aren’t listening to the will of the voters, exactly who are they listening to?

“Pushing forward the most extreme abortion bans in the country is a purely political move that is not supported by the majority of Texans,” said Dyana Limon-Mercado, Executive Director of Planned Parenthood Texas Votes. “These bills are part of a nationwide, extremist strategy to ban abortion by pushing access to care completely out of reach. HB 1515/SB 8 would outright ban abortion at six weeks — before many Texans even know they are pregnant — with no exceptions. For decades, politicians who have created medically unnecessary barriers to abortion access have simultaneously ignored the real health needs of every day Texans, such as Medicaid expansion, providing COVID-19 relief or addressing Black maternal mortality.”

Poll results: Full poll results including questions, responses, and crosstabs

The survey was conducted by Public Policy Polling from April 23-24, evenly divided between landline and text message, and includes responses from 593 registered Texas voters with a +/- 4% margin of error.

About Trust Respect Access The Trust Respect Access coalition envisions a Texas where everyone — regardless of their age, income, zip code, gender identity, immigration status, or whether they are incarcerated or detained — has access to all reproductive health care options including abortion.

The coalition includes: ACLU of Texas, The Afiya Center, Avow, Counter Balance, Deeds Not Words, Fund Texas Choice, Jane’s Due Process, Lilith Fund, National Latina Institute for Reproductive Justice, Planned Parenthood Texas Votes, Progress Texas, Texas Equal Access Fund, Texas Freedom Network, West Fund, Whole Woman’s Health, Whole Woman’s Health Alliance, Dr. Bhavik Kumar, and Dr. Ghazaleh Moayedi.

You can see the polling data here. The sample seems reasonable – they reported voting 51-45 for Trump over Biden, and they give Biden a 43/48 approve/disapprove mark. The first abortion-related question asked was “Generally speaking, do you think that laws regarding abortion access in Texas should be more restrictive, less restrictive, or kept the same as current state law?”, and “more restrictive” was the plurality choice, with 33% picking that answer, to 31% for “less restrictive” and 23% for “kept the same”.

We have discussed before the challenges in polling about abortion – while basic attitudes towards Roe v Wade have been remarkably stable over time, you can get a lot of variance in polls by how questions are worded, and people can give answers that may appear to be contradictory. The questions in this poll accurately reflect what is in the bills that have been put forth, and I think the numbers are also an accurate reflection, but it’s important to remember two things. One is that in real life, the side that favors these bills gets a chance to describe them in terms they believe are more accurate (and thus favorable to them), and that will have an effect on how people perceive them. Two, even if people do ultimately reject the premise of these bills even after they are fully informed, that doesn’t mean they’ll vote in a manner that is consistent with that belief. People can and do put a higher priority on other things. Making them care enough about your thing, enough to change their voting behavior, is a tall, tall task.

I say this not to be a bummer, but to be a realist, and believe it or not to be a bit of an optimist for the longer term. The realist says that just because we may have opinion on our side on this issue doesn’t mean we’ll win the next election because of it. It’s more complicated than that, and while there are definitely people we can sway with this kind of argument, we need to be attuned to what is of higher value to them as well. There are two pieces of good news to accompany that. One is that public opinion is on our side of some other hot button issues, like permitless carry and voting restrictions and Medicaid expansion, so we have plenty of options to sway the folks who need to be swayed. The other is that once Democrats do have power in Texas, they can and should feel free to repeal these laws in bulk, for the same reason why the Republicans feel empowered to pass them: For the most part, it’s not what the voters will act on when they next express their preferences. We already know that to be true, and I expect it will still be true when we are in a position to act on it.

More interesting questions from that Matthew McConaughey poll

Let’s try this again.

By 58% to 26%, Texans oppose a bill the House approved — and sent to the Senate Friday — that would allow people to carry handguns without a permit. Last month, opposition was greater — 64% to 23%.

[…]

In two polls by The News and UT-Tyler early last year, a majority of Texas registered voters endorsed a national ban on the sale of semiautomatic assault weapons. This month, that slipped to support by a plurality, 48% for and 33% against.

[…]

At the same time, confidence that elected officials are doing enough to prevent mass shootings has ebbed. In early 2020, not long after Trump, Abbott and Lt. Gov. Dan Patrick mused publicly about possible gun law changes in the wake of the August 2019 slaughters in El Paso and Odessa-Midland, up to 47% of Texans agreed that elected officials were doing enough to avoid repetition of the tragedies.

This month, 38% agreed and 59% disagreed — including 86% of Black people, 65% of Hispanics and 46% of Republicans.

See here for yesterday’s post, here for my blogging on the March poll (I didn’t comment on the gun control aspects of it), here for the April poll data, and here for the March poll data. I cut out a couple of quotes from people about the gun question because I didn’t care about them. I don’t know if the change in the numbers from March are just normal float or perhaps the result of recent Republican messaging, but in either case that’s still a solid majority against the permitless carry bill. Maybe that should be a bigger campaign issue in 2022 than it has been in the past. Lots of other issues to talk about as well, to be sure, but there sure looks to be a lot of upside here.

Nearly half a century after the U.S. Supreme Court in Roe v. Wade established a woman’s right to an abortion, at least in the first three months of pregnancy, a majority of Texans — and Republicans, if barely — said the court should not overturn Roe.

Among all Texas registered voters, 61% said Roe should not be overturned, while 37% said it should be. Republicans split 51%-49% against overturning, as did women, 63%-35%. White evangelicals favored voiding the controversial ruling, 56%-43%

Both GOP-controlled chambers of the Legislature are advancing a half dozen measures to restrict abortion.

In The News and UT-Tyler’s poll, a plurality of Texas registered voters (42%-37%) supported a Senate-passed bill that would ban virtually all abortions once a fetal heartbeat is detected, usually about six weeks into pregnancy, except in medical emergencies. Texas law currently bans abortions after 20 weeks of pregnancy — or up to 22 weeks from the last menstrual period.

Though about two-thirds of Republicans and white evangelicals support the so-called “heartbeat” bill, women narrowly oppose it, 40%-38%, as do Democrats, 47%-31%.

The problem here of course is that heartbeat bills, which have been passed in other states and blocked by the courts, are a direct challenge to Roe. The main point to take away from all this is that voters are often confused on this issue because there’s a lot of jargon and misdirection involved in bills like these.

While a plurality of Texans approve of the overall job Biden is doing as president (48%-41%), a slight majority — 52% — disapprove of his performance at handling immigration at the border. Just 30% approve.

Abbott enjoys a higher job-approval rating among Texans than does Biden: 50% approve, 36% disapprove. But it’s Abbott’s lowest showing in eight tests by The News/UT-Tyler poll since January 2020 — and down from a high of 61% in April 2020. That’s when, near the beginning of the coronavirus pandemic, Texans appeared to rally around his shutdown orders.

Asked if they trusted the leaders to keep their communities healthy and safe during the public health crisis, Texans narrowly said they trust Biden, 51%-44%.

However, a narrow plurality now distrusts Abbott to protect their communities from COVID-19: 46% trust the Republican governor, 47% do not. It’s the first time in six polls that Abbott has sunk underwater on the question. In this month’s poll, he’s especially lost ground among independents (30% trust him, 59% distrust him) and Black people (20% trust, 71% distrust).

You can look at the baseline approve/disapprove numbers in the poll data, they’re on page 2 in each case. Not much has changed since March. The polls included the same questions for Dan Patrick and Ken Paxton, but so many people answered “Neither” to the approve/disapprove question for those two (37% for Patrick, 36% for Paxton), which I interpreted as mostly “don’t know”, that I don’t think there’s much value in those numbers. The main point here is that Biden continues to be above water in approval polling, and as long as that remains the case I believe Dems will have a more favorable climate in 2022 than they had in 2010 or 2014. Whether it’s as favorable as it was in 2018 is a different matter.

As for activities during the pandemic, Texans are more comfortable gathering with friends now: 44% are extremely comfortable, while only 23% felt that way in April 2020.

Texans are not as comfortable, though, being in crowds: 16% are extremely comfortable now, very close to the 15% who said they were extremely comfortable last April.

Sixty percent of Texans say they have been or definitely will be vaccinated against COVID-19, up from 57% last month. An additional 14% say they probably will get immunized. If they all do, as many as 74% could be inoculated, approaching the level many experts say is needed to achieve “herd immunity.” If all the state were Democrats, combining the three responses would produce an 89% acceptance rate, compared with 69% among Republicans and 66% among independents.

Could be worse. Given the data from some national polling, could be much worse. In the end, I think we’ll just have to see where we end up. If we get to over 70% in Texas, I’ll be pretty happy.

Assault on abortion advances in Senate

I have four things to say about this.

The Texas Senate gave initial approval Monday to a half-dozen bills that would restrict access to abortion, including a priority measure that could ban abortions before many women know they are pregnant.

The measures are among the earliest bills to be debated by the full Senate — whose presiding officer, Lt. Gov. Dan Patrick, has given two abortion proposals top billing this session. Each piece of legislation must be voted on again in the upper chamber and then go through a similar process in the House before becoming law.

Senate Bill 8 would ban abortions after a fetal heartbeat has been detected, which can be as early as six weeks, according to a legislative analysis. The bill has an exception for medical emergencies but not for rape or incest.

The bill would also let anyone in Texas sue an abortion provider if they believe they violated state laws, regardless of whether they had a connection to someone who had an abortion or to the provider. A person who knowingly “aids or abets” others getting abortions prohibited under state law could also be hit with lawsuits, according to a bill draft.

“We’re setting loose an army of people to go sue somebody under a bill that will likely be held unconstitutional,” state Sen. Nathan Johnson, D-Dallas, said. “They could be sued over and over and over again having to pay $10,000” which is the minimum proposed damages in the bill.

Similar “heartbeat bills” have been passed in other states but have been blocked by the courts.

State Sen. Bryan Hughes, R-Mineola, the lead author of SB 8, said unique legal language in the bill makes him believe it will be upheld. It’s intended to “protect our most vulnerable Texans when the heartbeat is present,” he said.

Senate Bill 9, another Patrick priority, would bar nearly all abortions if the U.S. Supreme Court overturned the Roe v. Wade decision or otherwise altered abortion laws. It would create a possible fine of $100,000 for doctors who perform abortions after the law goes into effect. Sen. Carol Alvarado, D-Houston, said the fine for sexual assault in Texas has a $10,000 maximum.

Other legislation given initial approval Monday would bar later-term abortions in the case of severe fetal abnormalities — closing what the bill’s authors have likened to a “loophole” and forcing people to carry ill-fated or unviable pregnancies to term, according to experts and advocates. Women in that situation would be provided with information about perinatal palliative care, or support services, which they may not have been aware of, the bill’s author said.

Another bill, Senate Bill 394, would bar pill-induced abortions after seven weeks. Guidelines from the Food and Drug Administration approve the use of abortion pills up to 10 weeks. Nearly 40% of abortions performed on Texas residents in 2019 were medication-induced, according to state statistics.

1. I’m sure the anti-choice wingnuts are delighted by all this, but I wonder if any of them have ever said to themselves “Hey, wait a minute, we’ve had total control over the state government in Texas for 20 year. Why are we just getting all of this now, after all this time?” I doubt they have that level of self-awareness, however.

2. Most if not all of this would have been clearly illegal following the Whole Women’s Health ruling, but thanks to Anthony Kennedy’s retirement and John Roberts’ controlling opinion in the Louisiana case where a nearly identical law that had been struck down was tried again, most of the teeth from Whole Women’s Health were blunted, if not extracted. I have no idea what the courts will do under the newer ruling, but let’s just say I’m not optimistic.

3. The law that would allow basically anyone to sue any abortion provider for any reason is going to be a real rainmaker for a certain type of lawyer in this state. The odds that at least one such lawyer will end up running an elaborate grift based on this and eventually get busted for it are basically 100%.

4. In theory, federal legislation could overrule much of this, but there’s basically zero chance of that happening in the current Congress. As is so often the case, the real long-term remedy is Democratic control of Texas’s government. Needless to say, that ain’t gonna be easy. The starter agenda for when we finally get that is getting longer and longer.

The Chron and the Signal have more.

The next frontiers in anti-abortion law

Why not attack the legal system while you’re at it?

Right there with them

Texas lawmakers — pushing to drastically restrict abortion access — have included language in a priority bill meant to make it harder to block the law from taking effect and easier to sue abortion providers.

The provisions seem intended to reshape the legal landscape, while many federal courts stop restrictive abortion laws that have passed out of conservative statehouses.

Proponents of the bill told lawmakers its “unique drafting” could make it the first of its kind that can’t be held up in the courts before it takes effect. But legal experts and abortion rights advocates say the proposals amount to a gambit meant to drive abortion clinics out of business.

“Regardless of how you try to dress up an unconstitutional bill, it is still unconstitutional,” said Elisabeth Smith, chief counsel for state advocacy and policy at the Center for Reproductive Rights.

The proposed bill would strip Texas officials of their typical enforcement role — and open the door for any Texan to sue providers they thought weren’t complying with state abortion laws. By pushing enforcement to the civil court system, anti-abortion activists hope to make it harder to sue state officials to stop an unconstitutional law.

The bill also tries to give state actors immunity from lawsuits.

[…]

Versions of the law have been passed in other states and have all been blocked by the courts, said University of Texas at Austin law professor Elizabeth Sepper.

What’s different in Texas “and what the Texas Legislature is sort of pinning its hopes on — are the procedural maneuvers,” she said.

SB 8 would let anyone in Texas sue an abortion provider if they believe they violated state laws. The person would not have to have a connection to someone who had an abortion or to the provider.

Someone who knowingly “aids or abets” others getting abortions prohibited under state law could also be hit with lawsuits, according to a draft of the bill.

Advocates of abortion rights say the provisions would upend “the judiciary’s check on the Legislature” and could leave doctors — or even families of those who receive abortions — to face harassing and frivolous litigation.

Legal experts also said provisions in the bill represent a big break from how the law normally works.

“It’s an extreme departure from current law that someone [doesn’t have] to be connected to a problem in order to sue,” said David S. Cohen, a law professor at Drexel University’s Thomas R. Kline School of Law.

“It really opens up for almost endless liability, which is one way that the anti-abortion folks, including the Texas Legislature, strategize to shut down abortion clinics,” he said.

Smith said the idea that anyone could sue abortion providers makes a “mockery of the legal system, which requires the person suing to have actually sustained a harm that provides the basis of the lawsuit.”

SB8, one of Dan Patrick’s priority bills, is one of many that have already been passed out of committee. It’s safe to say that most if not all of these bills will be passed because there’s nothing that can stop them other than time or the Republicans themselves choosing not to proceed for whatever the reason. From there, it’s a matter of what the courts will do. We know that Chief Justice John Roberts is a stickler for who does and does not have standing to file lawsuits, but we also know that there are five other SCOTUS justices who don’t believe in reproductive freedom, so it’s anyone’s guess what happens next. I see no reason to doubt that some, probably most, of what’s in these bills will survive. I sure hope I’m wrong about that.

Dan Patrick’s priorities

They haven’t changed. He might have had to shoehorn in a thing or two because he’s not stupid and he knows he had a close call in 2018, but the essence of Dan Patrick is eternal.

Lt. Gov. Dan Patrick on Tuesday unveiled his top 31 priorities for the 2021 legislative session, a mix of newly urgent issues after last week’s winter storm, familiar topics stemming from the coronavirus pandemic and a fresh injection of conservative red meat into a session that has been relatively bland so far.

Patrick said in a statement that he is “confident these priorities address issues that are critical to Texans at this time” and that some of them changed in recent days due to the storm, which left millions of Texans without power. After his top priority — the must-pass budget — Patrick listed his priorities as reforming the state’s electrical grid operator, as well as “power grid stability.”

Patrick’s specific plans for such items remain unclear, however. Almost all of his priority bills have not been filed yet, and the list he released refers to the issues in general terms.

The priorities echo much of the agenda that Gov. Greg Abbott laid out in his State of the State speech earlier this month, including his emergency items like expanding broadband access and punishing local governments that “defund the police.” Fourth on the list is a cause that Patrick himself prioritized recently — a “Star Spangled Banner Protection Act” that would require the national anthem to be played at all events that get public funding.

However, besides the fresh focus on the electrical grid, perhaps the most notable takeaway from Patrick’s agenda is how far it goes in pushing several hot-button social conservative issues. Patrick’s eighth and ninth priorities have to do with abortion — a “heartbeat bill” that would ban abortion once a fetal heartbeat is detected, as well as an “abortion ban trigger” that would automatically ban the practice if the U.S. Supreme Court overturned Roe v. Wade.

Abbott said he wanted to further restrict abortion in his State of the State speech but did not mention those two proposals specifically.

Abortion is not the only politically contentious topic on Patrick’s list. As his 29th priority, Patrick put “Fair Sports for Women & Girls,” an apparent reference to proposals that would ban transgender girls and women who attend public schools from playing on single-sex sports teams designated for girls and women. He also included three items related to gun rights: “Protect Second Amendment Businesses,” “Stop Corporate Gun Boycotts,” and “Second Amendment Protections for Travelers.” It was not immediately clear what specifically those three bills would entail.

Coming in at 10th is another proposal that was left unmentioned in Abbott’s speech despite popularity with the GOP base: banning taxpayer-funded lobbying. That is considered one of the big pieces of leftover business for conservatives after the 2019 session.

You can see the list here. And yes, that Star Spangled Banner Protection Act slots in at number 4, behind the budget (the one bill the Lege is required to pass) and the two hastily-added power grid items. Which means that in the absence of last week’s freeze and blackouts, that would have been Dan Patrick’s top legislative priority. And that, even before you get to the rest of the garbage on his list, tells you all you need to know about Dan Patrick.

Actually, there is one more thing to point out. Note that tenth item, about the capability for cities and counties and school districts to hire lobbyists to advocate for their issues at the Legislature. As we have discussed, the power companies have plenty of well-paid lobbyists at the Capitol representing their interests. Those lobbyists are funded by your power bills. Dan Patrick is just fine with that. This is what he’s about. The Chron has more.

Abortion’s going to get more illegal

It’s just a question of how much.

Republican lawmakers, buoyed by a conservative majority on the U.S. Supreme Court and the trouncing of state-level Democrats in the November election, are pushing to reclaim Texas’ role as the vanguard among states restricting access to abortion this legislative session.

Legislators have promised to back a so-called “heartbeat bill” that would bar abortions before many women know they are pregnant. Anti-abortion advocates have urged them to challenge the Roe v. Wade decision that established the right to an abortion. And Republican Gov. Greg Abbott said at a “Texas Rally for Life” event in January that there is more “we must do to defend the unborn.”

With the GOP in control of state government and “a favorable backstop from the courts, it’s going to be a no-holds-barred approach for Republicans on abortion,” said Brandon Rottinghaus, a political science professor at the University of Houston.

They’re wasting no time.

On one of the first days of the session, a freshman lawmaker attempted to stop the House from naming bridges or streets without first voting to abolish abortion. The amendment failed, but was supported by more than 40 lawmakers, about half of the Republicans in the House.

At a committee hearing in December, state Sen. Bryan Hughes, R-Mineola, who chairs the powerful Senate State Affairs committee, said 10 states had already passed “heartbeat bills” and it was time for Texas to catch up.

And on Jan. 22 — 48 years after the landmark Roe v. Wade decision — two “trigger” bills were filed that would ban abortion in Texas if the Supreme Court overturned the case or otherwise altered abortion laws. Another bill could ban abortion after 12 weeks.

I mean, they have the votes, they believe they have the mandate since they didn’t lose a bunch of seats, and they believe the Supreme Court will basically let them do whatever they want. What did you expect?