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Center for Reproductive Rights

And more people are travelling for abortions

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

SCOTx hears SB8 argument

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

SB8 lawsuit moves to SCOTx

Like I said, the fix was always in.

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

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

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

[…]

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

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

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

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

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

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

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

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

The fix was always in.

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

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

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

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

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

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

This is exactly what abortion opponents are hoping for.

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

SB8 plaintiffs want their lawsuit moved back to district court

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

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

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

[…]

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

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

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

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

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

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

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

SCOTUS finds another way to screw abortion rights

Surely you’re not surprised.

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

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

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

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

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

[…]

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

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

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

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

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

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

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

SCOTUS allows providers’ lawsuit against SB8 to proceed

There’s a lot to unpack here.

The U.S. Supreme Court on Friday ruled that the legal challenge brought forward by abortion providers against Texas’ abortion restriction law may continue, bringing new life into what has become the most significant effort to overturn the statute so far.

The court allowed the suit to continue on an 8-1 decision but did not stop the law’s enforcement. Instead, the suit will continue in a lower federal court where abortion providers will resume seeking to block the law, commonly referred to as Senate Bill 8.

Justice Sonia Sotomayor agreed with allowing the suit to continue but condemned the high court’s decision to leave the law in effect, saying it has had “catastrophic consequences for women seeking to exercise their constitutional right to an abortion in Texas.”

“The Court should have put an end to this madness months ago, before S. B. 8 first went into effect,” she wrote. “It failed to do so then, and it fails again today.”

In a separate decision, the court dismissed a separate challenge from the Biden administration.

The justices also allowed the abortion providers to sue some state licensing officials, but not state court clerks, citing difficulties surrounding sovereign immunity. This could make it difficult for providers to get the law’s enforcement blocked overall in court.

“By blessing significant portions of the law’s effort to evade review, the Court comes far short of meeting the moment,” Sotomayor said. “By foreclosing suit against state court officials and the state attorney general, the Court clears the way for States to reprise and perfect Texas’ scheme in the future to target the exercise of any right recognized by this Court with which they disagree. This is no hypothetical. New permutations of S. B. 8 are coming.”

[…]

The providers’ suit returns to U.S. District Judge Robert Pitman, who previously blocked enforcement of the law for two days. It was resumed by the 5th U.S. Circuit Court of Appeals, which is known as perhaps the nation’s most conservative appellate court.

The suit could now follow a similar trajectory as before: If Pitman blocks the law again, abortion opponents will likely appeal to the 5th Circuit as well — and then the case could land before the Supreme Court once more.

[…]

Katherine Franke, a professor of law at Columbia University and director of the university’s Center of Gender and Sexuality Law, said she was pleased that the Supreme Court allowed the provider’s lawsuit to continue — but the court continues to make concessions over a person’s right to an abortion.

“What the [Supreme Court] has done is reiterate what their earlier ruling was, which is that a majority does not see a constitutional emergency in this case, even though SB 8 clearly and intentionally violates established Supreme Court law,” she said.

Franke said allowing the law to stay in effect while court proceedings continue proves that abortion rights are in jeopardy more than something like religious freedom. Although Friday’s decision allows the fight against Texas’ law to continue, she said more should have been done to protect abortion rights.

“The decision could have been much worse than it was … but this decision takes place within a larger legal landscape where the underlying right that’s at stake — that the court has not even addressed yet — could very well be eliminated and overruled,” she said. “It’s not a complete loss. I wouldn’t say it’s a partial victory, but it’s not a complete loss.”

See here for the previous entry, here for this ruling, and here for the dismissal of the Justice Department lawsuit. I’d like to see some more commentary on that ruling, because I don’t like it at all. The most thorough analysis I’ve seen of the main ruling so far comes from Slate’s Mark Joseph Stern.

The upshot of Friday’s decisions is this: Abortion providers can now ask U.S. District Judge Robert Pitman to block S.B. 8. Pitman will swiftly grant their request by issuing an injunction against “executive licensing officials” tasked with enforcing the law, a decision that should stand in the 5th U.S. Circuit Court of Appeals. Texas’ clinics will presumably begin providing abortions again, though they are not fully protected from civil suits.

In the meantime, all parties will await the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, due by June, which may overturn Roe v. Wade and permit Texas to implement a more straightforward abortion ban. And other states may still pass S.B. 8–style laws that empower vigilantes to sue abortion providers, as long as they tweak the language to comply with Friday’s decision.

[…]

Now the court has issued the narrowest possible decision to let the providers’ suit proceed. Justice Neil Gorsuch’s opinion for the court rejected their primary theory: that providers could sue state court judges and clerks to prevent the docketing of S.B. 8 cases. Gorsuch held that these agents of the state enjoy “sovereign immunity,” the doctrine that states are generally immune from private lawsuits. There is an exception from this rule called Ex parte Young that permits individuals to sue state officials, but Gorsuch held that it does not apply to state court judges and clerks. “Usually, those individuals do not enforce state laws as executive officials might,” he wrote; “instead, they work to resolve disputes between parties.”

Gorsuch identified other roadblocks, asserting that there is “no case or controversy” between providers and state courts and no remedy that “permits clerks to pass on the substance of the filings they docket—let alone refuse a party’s complaint based on an assessment of its merits.” He also rejected the plaintiffs’ attempt to sue Texas Attorney General Ken Paxton, writing that Paxton has no authority to enforce S.B. 8. And even if Paxton did have such power, Gorsuch concluded, federal courts cannot “parlay” an injunction against an attorney general “into an injunction against any and all unnamed private persons who might seek to bring their own S.B. 8 suits.”

This part of Gorsuch’s ruling is a victory for providers—albeit an extremely limited one, for two reasons. First, it’s not clear that an injunction against licensing officials would stop bounty hunters from filing lawsuits under S.B. 8; it would only restrict the state’s ability to punish those clinics found liable under the law. Similarly, an injunction against licensing officials may not stop citizens from suing “abettors” who facilitate an abortion. Second, Texas and other states can easily work around Friday’s decision. Wary of that outcome, Chief Justice John Roberts—along with Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor—dissented from Gorsuch’s refusal to let providers sue state court clerks and the Texas attorney general. Roberts and Sotomayor wrote separate dissents, both focusing on Texas’ flagrant attempt to “nullify” rights protected by the federal Constitution.

Gorsuch did, however, identify one slim route around S.B. 8’s blockades: He allowed providers to sue the “executive licensing officials” who “may or must take enforcement actions against the petitioners if they violate” the law. These officials implement state law in a traditional manner, Gorsuch explained, and thus cannot claim sovereign immunity. They fall squarely into the Ex parte Young exception. And so there are no constitutional barriers stopping clinics from naming these parties as defendants in their federal lawsuit to freeze S.B. 8. Every justice except Clarence Thomas joined this part of Gorsuch’s decision; Thomas, alone, would have foreclosed all avenues of relief. So there are five votes to shield state court judges and clerks from federal suit, five votes to shield the attorney general from suit, and eight votes to let the suit against “executive licensing officials” proceed.

“Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review,” the chief justice wrote. “The clear purpose and actual effect of S.B. 8 has been to nullify this Court’s rulings.” And if legislatures can “annul the judgments of the courts of the United States,” then “the constitution itself becomes a solemn mockery.” He asserted that state court clerks and Paxton were “proper defendants” because both play a role in imposing “burdens on those sued under S.B. 8.” An injunction against such defendants, Roberts acknowledged, may be “novel.” But “any novelty in this remedy is a direct result of the novelty of Texas’s scheme.”

Sotomayor’s dissent was substantially fierier. She criticized the majority for failing to “put an end to this madness months ago, before S.B. 8 first went into effect.” By allowing for such limited relief, Sotomayor wrote, the majority “effectively invites other States to refine S. B. 8’s model for nullifying federal rights,” betraying “not only the citizens of Texas, but also our constitutional system of government.”

[…]

There is a vast chasm between the two blocs in this case. The five most conservative justices appear to view S.B. 8 as a one-off, a desperate attempt to evade a decision (Roe v. Wade) that they themselves probably view as illegitimate. The four other justices see S.B. 8 as a direct threat to the Supreme Court’s authority to “say what the law is” by shielding constitutional liberties from state infringement. It seems the majority is troubled just enough to carve a path around some of S.B. 8’s blockades—but its solution is a ticket good for one ride only. Texas can pass nearly identical legislation that eliminates the powers of “executive licensing officials” and, apparently, lock providers out of federal court once again. Copycat bills have already cropped up in four other states, and Gorsuch has given legislators a road map to ensure that they can fully insulate their legislation from federal court review. He and his hard-right colleagues appear to believe that blue states won’t have the spine to deploy these tricks against rights favored by conservatives, like the right to bear arms.

Not much I can add to that, though you should read Dahlia Lithwick’s companion piece about the pile of failure that is John Roberts as well. The state lawsuit has drawn some boundaries, and if we get another injunction from Judge Pitman that survives the chainsaw massacre of the Fifth Circuit, we’ll be in a somewhat better place than we are right now. But the damage has been done to the clinics, and even without the looming threat of the Dobbs ruling, they may never recover. Mother Jones, The 19th, The Nation, and the Observer have more.

Still waiting on SCOTUS

They’re in no rush.

More than two weeks have passed since the Supreme Court’s extraordinarily rushed arguments over Texas’ unique abortion law without any word from the justices.

They raised expectations of quick action by putting the case on a rarely used fast track. And yet, to date, the court’s silence means that women cannot get an abortion in Texas, the second-largest state, after about six weeks of pregnancy.

That’s before some women know they’re pregnant and long before high court rulings dating to 1973 that allow states to ban abortion.

There has been no signal on when the court might act and no formal timetable for reaching a decision.

The law has been in effect since Sept. 1 and the court has been unable to muster five votes to stop it, said Mary Ziegler, a legal historian at Florida State University’s law school. “While there is some sense of urgency, some justices had more of a sense of urgency than others,” Ziegler said.

[…]

The Texas law is doing what its authors intended. In its first month of operation, a study published by researchers at the University of Texas found that the number of abortions statewide fell by 50% compared with September 2020. The study was based on data from 19 of the state’s 24 abortion clinics, according to the Texas Policy Evaluation Project.

Texas residents who left the state seeking an abortion also have had to travel well beyond neighboring states, where clinics cannot keep up with the increase in patients from Texas, according to a separate study by the Guttmacher Institute.

The Supreme Court is weighing complex issues in two challenges brought by abortion providers in Texas and the Biden administration. Those issues include who, if anyone, can sue over the law in federal court, the typical route for challenges to abortion restrictions, and whom to target with a court order that ostensibly tries to block the law.

Under Supreme Court precedents, it’s not clear whether a federal court can restrain the actions of state court judges who would hear suits filed against abortion providers, court clerks who would be charged with accepting the filings or anyone who might some day want to sue.

People who sue typically have to target others who already have caused them harm, not those who might one day do so and not court officials who are just doing their jobs by docketing and adjudicating the cases.

The justices’ history with the Texas law goes back to early September when, by a 5-4 vote, they declined to stop it from taking effect.

At the time, five conservative justices, including the three appointees of President Donald Trump, voted to let the law take effect. Chief Justice John Roberts joined the court’s three liberals in dissent.

The abortion providers had brought the issue to the court on an emergency basis. After they were rebuffed, the Justice Department stepped in with a suit of its own.

U.S. District Judge Robert Pitman granted the Justice Department’s request for an order that put the law on hold. Pitman wrote in a 113-page ruling that the law denied women in Texas their constitutional right to an abortion and he rejected the state’s arguments that federal courts shouldn’t intervene.

But just two days later, the 5th U.S. Circuit Court of Appeals overrode Pitman and allowed the law to go back into effect.

The Justice Department made its own emergency appeal to the Supreme Court. Rather than rule on that appeal, the court decided to hear the two suits just 10 days later and without the benefit of an appellate court decision.

You know the story. It’s hard to see this as anything but deliberate foot-dragging at this point. It would have been completely normal at the beginning for SCOTUS to put the law on hold while the litigation played out, but they chose not to do so in the most obsequious way possible. That they still haven’t sure looks like a choice to me. And barring an unexpected holiday week order, this atrocity of a law will remain in place as the Mississippi challenge to Roe v Wade gets its hearing. Stay mad, y’all. The Chron and Daily Kos have more.

SB8’s day before SCOTUS

The good guys appear to have the upper hand in this case. It seems unlikely that will last for very long, however.

The U.S. Supreme Court on Monday grilled attorneys for abortion providers, the federal government and Texas over the state’s near-total abortion ban — and possibly hinted at support for allowing at least one legal challenge to the law to stand.

The majority of justices pushed back on the enforcement mechanism that has allowed the law to skirt judicial review so far but seemed skeptical of the federal government’s claims that it had a right to sue the state over the law.

The Supreme Court heard hearings over Texas’ abortion law, also known as Senate Bill 8, as part of two lawsuits — one lodged by abortion providers and the other by the U.S. Department of Justice. Both focused on procedural technicalities surrounding the law and the suits challenging it, not on abortion rights nor the constitutionality of the law itself.

Those questions centered on whether Texas’ enforcement strategy for the law is allowable — which empowers private citizens to sue those who perform or help someone get an abortion disallowed by the law — and whether the United States has the right to sue Texas over the statute.

Notably, conservative Justices Amy Coney Barrett and Brett Kavanaugh seemed to push back on Texas’ unique enforcement mechanism. Their line of questioning and comments suggested they might side with abortion providers in condemning the “loophole” that the law exploits to thwart judicial review. Kavanaugh and Barrett, along with three other conservative justices, voted against temporarily blocking the law on Sept. 1, when the law took effect.

Texas’ law, which blocks abortions at about six weeks into a pregnancy, skirts constitutional precedent by forbidding state officials from enforcing it and instead relying on private citizens to sue those in violation. Typically, in suits aiming to overturn laws considered unconstitutional, courts don’t block the laws themselves — they block their enforcement. This is the reason opponents have struggled to name the right defendants to block the law.

Much of the discussion Monday centered around how that enforcement mechanism could be replicated to cast a chilling effect other rights protected by the Constitution: not just abortion rights, but also gun ownership, freedom of the press and same-sex marriage.

See here for the details about what was to be argued in the case. The 19th goes into more depth about how Monday’s hearing went.

The significance of SB 8’s unusual structure and what that might mean for constitutional rights more broadly was a key focus. It is a point newly confirmed Solicitor General Elizabeth Prelogar honed in on during the second argument of the day.

“If the state can just take this simple mechanism of taking its enforcement authority and giving it to the general public, backed up with a bounty of $10,000 or $1 million, if they can do that, then no constitutional right is safe,” Prelogar argued. “No constitutional decision from this court is safe. That would be an intolerable state of affairs and it cannot be the law. Our constitutional guarantees cannot be that fragile, and the supremacy of federal law cannot be that easily subject to manipulation.”

Three of the court’s conservative justices — Chief Justice John Roberts, Justice Brett Kavanaugh and Justice Amy Coney Barrett — indicated openness to the arguments made by Texas’ abortion providers, noting in particular that the law turns state officials into enforcement agents. Both Barrett and Kavanaugh previously voted the opposite way, joining the court’s conservative wing in a September 2 decision allowing SB 8 to take effect.

Barrett asked leading questions about the clinics’ inability to obtain constitutional relief in state court under SB 8, which reveals she might vote in the providers’ favor, said Joanna Grossman, a professor at Southern Methodist University’s Dedman School of Law.

Kavanaugh had already been deemed a likely swing vote. Kavanaugh showed particular skepticism of Texas’ argument and questioned whether the law could be used as a blueprint for other issues beyond abortion, such as restricting gun rights.

Those questions spoke to a deeper issue: Allowing the Texas law to stay in effect could weaken not only the federal government, but the Supreme Court’s overarching authority, by giving states a blueprint for writing laws that violate court precedent but circumvent judicial review.

That appears to be a powerful motivator, suggested Leah Litman, a constitutional law expert at the University of Michigan.

“The court is likely to protect its institutional authority, and that desire will probably unify and unite Democratic appointees and Republican appointees,” she said.

Focusing on the Whole Woman’s Health lawsuit could also allow the court to avoid some of the thornier constitutional questions raised in the U.S. government’s case, she added.

“The U.S. v Texas lawsuit might be — by asking what is the injury to the U.S. — that may be seen as teeing up bigger questions they don’t want to address,” [Melissa Murray, a reproductive law expert at New York University] said. “There may be more appetite for the provider suit.”

As both The 19th and Slate point out, whatever SCOTUS does here, they can clear a path for Texas to more cleanly ban abortion in the coming months.

In exactly one month, the justices will hear a more important case, Dobbs v. Jackson Women’s Health Organization, that gives them an opportunity to overrule Roe v. Wade. And if Roe goes, Texas will simply ban abortion outright, obviating the need for the convulated workaround at the center of today’s oral arguments. For the three justices who are torn over S.B. 8, the solution may be simple: Affirm the federal judiciary’s supremacy over states that undermine their authority, then hand those states the power to ban abortion whenever, wherever, and however they please.

[…]

Previously, the big stumbling block for the conservative justices was the question of who to sue; in their shadow docket decision, the justices sounded uncertain about whether abortion providers can sue state judges and clerks to halt S.B. 8 in its tracks. Under a doctrine known as Ex parte Young, plaintiffs can sue government officials tasked with enforcing a law, though it’s unclear whether judges qualify. On Monday, Kavanaugh seemed to propose a compromise: close the “loophole” that Texas has “exploited” by allowing providers to sue clerks but not judges. The case would then go back down to the district court, who could bar Texas clerks from docketing S.B. 8 cases, thereby defanging the law. As a result, the Justice Department’s lawsuit would become irrelevant, because abortion providers could protect their own interests in federal court.

The best part of this compromise, to the conservatives, is that it could become irrelevant to abortion within months. On Dec. 1, the court will hear arguments in Dobbs, which asks them to overrule Roe v. Wade. If the majority accepts this invitation, Texas won’t need to worry about S.B. 8 anymore; it has already passed a “trigger law” that will automatically ban abortion if Roe falls. At the same time, blue states will not be able to deploy S.B. 8–style schemes against disfavored rights like the Second Amendment. We may remember S.B. 8 not as the start of a new era in state supremacy over constitutional rights, but as a last gasp of defiance before the Supreme Court plunged us into a post-Roe world.

So yeah, keep the bigger picture in mind. Reform Austin, Daily Kos, TPM, and the Chron have more.

The SCOTUS hearing on SB8 is today

I have no idea what to expect.

The U.S. Supreme Court will take up on Monday the highest-profile legal challenges to Texas’ new abortion law. The Supreme Court previously declined to act on the near-total abortion ban, making next week’s proceedings the first time the high court is stepping in on lawsuits seeking to stop it.

The court will consider two suits against the law, commonly referred to as Senate Bill 8, which blocks abortions as early as six weeks into a pregnancy. One is waged by the federal government, the other by a group of abortion providers and advocates.

The Supreme Court’s review will focus on how SB 8 is enforced, not abortion rights themselves. It’s hard to predict what the court could decide, but its ruling will likely determine the future of abortion care in Texas and shape the legal battles to come.

See here for the more in depth look at the legal questions; the Trib story is a recap of where are are now. Like I said, I have no idea what to expect. There are too many members of this court that cannot be trusted. What they do with this case will tell us how deep that goes.

SCOTUS will hear SB8 appeals

Both of them, on November 1. The law remains annoyingly in effect until then.

The U.S. Supreme Court has agreed to fast-track two Texas cases involving the state’s near-total ban on abortion, but refused to halt the law from being enforced.

The high court has scheduled oral arguments for Nov. 1.

The court will take up the cases brought forward by abortion providers and the U.S. Department of Justice against the ban, according to a court opinion from Justice Sonia Sotomayor on Friday. It will review the procedural merits of both cases, rather than the constitutionality of abortion, while enforcement of Senate Bill 8 remains in effect.

In her opinion, Sotomayor offered a partial dissent of the Supreme Court’s decision to keep the law in place while the court deliberates over the two cases.

“By delaying any remedy, the Court enables continued and irreparable harm to women seeking abortion care and providers of such care in Texas—exactly as S. B. 8’s architects intended,” Sotomayor wrote.

The court’s decision to expedite its involvement was a rare move, brought upon by a law that has garnered national attention because of its extensive limits on abortions and its particular mechanisms of enforcement: not by state officials but by private citizens who are empowered to sue those who may help someone receive an abortion after fetal cardiac activity is detected.

“The last time [the Supreme Court] moved this quickly was Bush v. Gore,” said Josh Blackman, a law professor at South Texas College of Law Houston whose expertise includes constitutional law.

[…]

Normally, the Supreme Court considers getting involved in a case only after an appeals court has had a chance to make a decision on it. But abortion providers filed a request called a “certiorari before judgment,” a rarely used procedure in which the high court immediately reviews a district court’s ruling without waiting on an appellate court to take action.

One of the abortion providers included in the challenge is Whole Woman’s Health, a provider with four clinics in Texas. Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, said Friday’s decision will mean Texans will continue to be denied safe and accessible abortion care.

“The legal limbo is excruciating for both patients and our clinic staff,” Miller said in a statement. “Lack of access to safe abortion care is harming our families and communities and will have lasting effects on Texas for decades to come.”

See here. here, here, and here for some background. The 19th adds some details.

The court will not specifically examine the constitutionality of a six-week ban. Rather, the justices will be looking at the legality of Texas’ private enforcement setup, as well as whether the Justice Department has the right to challenge the law. But regardless of the specific questions at play, a decision in favor of Texas could still signal to other anti-abortion lawmakers that a ban like Texas’ is a viable path to pursue.

The law has virtually eliminated access to the procedure in Texas. Many clinics have stopped providing abortions altogether. Those who can afford the journey and are past six weeks of pregnancy are seeking abortions in surrounding states, including Oklahoma, New Mexico, Arkansas and Kansas. But many others — particularly those without the time off, financial resources or child care to travel out of state — may end up carrying unwanted pregnancies to term.

Abortions are now virtually unavailable for minors in Texas, who are required to either get parental consent or go through a special judicial approval process that makes it very difficult to meet the six-week deadline. Undocumented teens who are seeking abortions have been sent to immigration facilities in other states, because most of them already past six weeks when they discover they are pregnant.

And Slate tries to read some tea leaves.

The plaintiffs got half a loaf on Friday, or maybe less. SCOTUS will hear both cases, holding oral arguments in just 10 days. (With these orders, the court acted at breakneck speed, which is nearly unprecedented in modern times; the closest analogue is Bush v. Gore.) But SCOTUS restricted the scope of its review in a curious and confusing way. The court will not consider the Justice Department’s request to rule on the merits of S.B. 8. Instead, it will ask only whether the United States may sue the state of Texas, as well as all “state officials” and “private parties,” to “prohibit S.B. 8 from being enforced.” The abortion providers’ application likewise focuses on procedural issues, asking the court to decide “whether a state can insulate from federal-court review a law that prohibits the exercise of a constitutional right” by delegating enforcement to the public.

Neither of these questions squarely presents the constitutionality of a six-week abortion ban to the Supreme Court. The justices could interpret the abortion providers’ request as an invitation to consider the merits by declaring that the court must decide whether abortion is “a constitutional right” before determining “whether a state can insulate” S.B. 8 from review. (If there’s no right to abortion, there’s no clear constitutional flaw in S.B. 8.) But that seems unlikely; after all, the justices took pains to avoid confronting this question in the Justice Department’s case, where it is directly presented. They also ignored Texas’ request to recast these cases as a direct challenge to Roe. It appears, rather, that the court is committed to deciding only whether private plaintiffs or the federal government can sue a state when it makes an end run around the Constitution, as Texas did with S.B. 8.

Several aspects of the court’s orders suggest that at least one justice has not made up their mind about this question. If a majority believed Texas’ scheme is permissible and federal courts cannot stop it, why would it rush to hear these cases? It could have let them languish on the shadow docket, or decline to intervene at this early stage, just as it did last time around. Conversely, if a majority believed Texas’ scheme is impermissible and federal courts can stop it, why would it let S.B. 8 remain in effect? Why not halt the law while the court prepares a formal ruling?

Friday’s orders thus read like a compromise. But for whom? Chief Justice John Roberts and the three liberals have already said they want to pause the law. No one seriously argues that the overtly anti-Roe justices—Clarence Thomas, Sam Alito, or Neil Gorsuch—would lift a finger to stop S.B. 8. That leaves Justices Brett Kavanaugh and Amy Coney Barrett, who probably want to overturn Roe but may want to move slower than their hard-right colleagues. It appears either Kavanaugh, Barrett, or both aren’t yet sure which way they’ll vote in the Texas litigation. Now they’ve preserved every option.

I don’t have anything to add to that. Hold your breath and hope for the best.

Texas takes its shot at Roe v Wade

We were always headed in this direction. It was just a matter of when we were going to get there.

Texas on Thursday asked the U.S. Supreme Court to keep in place a law that imposes a near-total ban on abortion and urged the justices that if they quickly take up a legal challenge brought by President Joe Biden’s administration they should overturn the landmark ruling that legalized the procedure nationwide.

Texas Attorney General Ken Paxton in a legal filing responded to the U.S. Justice Department’s request that the Supreme Court quickly block the Republican-backed state law while litigation over its legality goes forward.

The Justice Department on Monday suggested that the justices could bypass the lower courts already considering the matter and hear arguments in the case themselves. Paxton’s filing said that if the justices do that, they should overturn Supreme Court precedents including Roe v. Wade, the 1973 decision that recognized a woman’s right under the U.S. Constitution to terminate a pregnancy.

“Properly understood, the Constitution does not protect a right to elective abortion,” Paxton’s filing said, adding that the state law furthers “Texas’s interest in protecting unborn life, which exists from the outset of pregnancy.”

[…]

Paxton on Thursday also asked the Supreme Court to reject a bid by the abortion providers to have the justices immediately hear their case.

See here, here, and here for some background. The forced-birth fanatics on SCOTUS already have an opportunity to overturn or functionally eviscerate Roe in December with that Mississippi case, so this may at least tell us how screwed we all are. Just remember all this in 2022 when we get to vote out some of the zealots that got us here, starting with our felonious Attorney General. The Trib and CNBC have more.

Justice Department officially asks SCOTUS to halt SB8

The stakes are clear. Now we get to see if SCOTUS has any respect for the law.

The U.S. Supreme Court is considering whether to take up abortion providers’ challenge to Texas’ near-total abortion ban sooner than the high court usually would hear arguments.

While the clinics’ lawsuit has not been heard by a federal appellate court, the Supreme Court agreed Monday afternoon to expedite the request from several clinics and providers that the high court instead consider the case. Texas must respond by noon Thursday.

The move came just hours after the Biden administration — in a separate challenge to Texas’ Senate Bill 8 — asked the high court to halt the near-total abortion ban while the Justice Department’s legal challenge to the new restrictions goes through the courts.

In its request filed Monday, the Justice Department argued that allowing the law to stand would “perpetuate the ongoing irreparable injury to the thousands of Texas women who are being denied their constitutional rights,” it added. The Supreme Court previously declined to block the law from taking effect in a separate lawsuit, though it did not weigh in on Senate Bill 8’s constitutionality.

The U.S. Justice Department’s request comes after a series of federal court decisions flip-flopped on whether the law should remain in effect as its constitutionality is being challenged.

[…]

Texas, the Justice Department argued in its filing, crafted an “unprecedented” structure to thwart the courts. Senate Bill 8, which bans abortions as early as six weeks into a pregnancy, before many people know they are pregnant, has made abortion “effectively unavailable” after that time period, according to the Justice Department.

“Texas has, in short, successfully nullified this Court’s decisions within its borders,” the Justice Department wrote.

You can see the Justice Department filing here. The Justice Department had announced their intention to appeal late last week, so this was the actual filing and the request for relief from the ridiculous and lawless Fifth Circuit. The original lawsuit filed by the providers was in July, and we know what happened after that. Not really much to add here – even SCOTUS seemed to understand that SB8 had all kinds of questions surrounding it back when they first declined to step in. Now that we have seen the harm, not to mention the damage SCOTUS has done to its own standing, you’d think they would understand the need to do the normal thing and put that highly questionable law on the shelf while the courts do their thing. They have one chance to be seen as legitimate. I hope they take it. The Chron has more.

Justice Department goes to SCOTUS over SB8

As expected.

The Biden administration will ask the U.S. Supreme Court to stop enforcement of Texas’ near-total abortion ban, according to a Friday statement from a U.S. Department of Justice spokesperson.

Courts have pingponged back and forth on the law’s enforceability over several weeks. The Justice Department’s move comes after a panel of federal appellate judges ordered late Thursday that the ban will remain in place while its constitutionality is decided.

[…]

“The Supreme Court needs to step in and stop this madness. It’s unconscionable that the Fifth Circuit stayed such a well-reasoned decision that allowed constitutionally protected services to return in Texas,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement.

When Texas abortion providers originally made an emergency appeal to the U.S. Supreme Court before the law went into effect, the court denied their request to stop the law’s enforcement in a 5-4 vote.

Abortion advocates remain unsure of what the Supreme Court will do and if it will ultimately uphold the precedent of Roe v. Wade’s landmark decision in a case out of Mississippi that the court will begin hearing Dec. 1.

See here for the previous update. Not much to add here, either SCOTUS does the right thing or we continue to be screwed by a bunch of partisan hacks in robes who will always arrive at their preferred outcome regardless of the facts. What do you think all those references to the Fifth Circuit’s super-duper conservatism are telling us, anyway? And yes, the Fifth Circuit’s opinion here is highly questionable:

Click over to read the rest. The Current has more.

Fifth Circuit does the expected with the SB8 appeal

Was it ever in doubt?

Texas’ near-total abortion ban can continue to be enforced while the law’s constitutionality is decided, a panel of federal appellate judges ordered late Thursday.

The three justices of the 5th U.S. Circuit Court of Appeals — considered perhaps the most conservative appellate court in the nation — also agreed to hear oral arguments in the underlying lawsuit the Biden administration filed against Texas over the law.

A U.S. district court previously blocked enforcement of the law for two days before the 5th Circuit initially froze the order. The panel of 5th Circuit justices agreed in a 2-1 decision Thursday to let the law remain in effect until it considers the U.S. Department of Justice’s challenge. Judge Carl Stewart dissented.

The decision means the appellate court will take over the legal challenge to Senate Bill 8 that was being overseen by U.S. District Judge Robert Pitman.

Oral arguments before the 5th Circuit have not yet been scheduled, but it could be months before they take place.

[…]

The 5th Circuit already issued an emergency stay in late August to stop district court proceedings and cancel a hearing in another lawsuit challenging Texas’ abortion law. That case was brought on by abortion providers and also overseen by Pitman. The 5th Circuit is set to hear oral arguments in the abortion providers’ case no earlier than December.

The same panel of 5th Circuit judges will consider both cases.

See here, here, and here for the background, and here for a copy of the order. This was what we all expected – I mean, just look at who comprised the panel, if you know who these justices are – but it still sucks. The next logical step is an emergency appeal to SCOTUS, because it’s offensive and ridiculous to continue to allow this travesty of a law to remain in effect. No guarantees there, of course, but at least there’s a chance. This one was never really in question.

Justice Department files its brief with the Fifth Circuit

Good luck. They’re going to need a lot of it.

Right there with them

The Biden administration urged the courts again to step in and suspend a new Texas law that has banned most abortions since early September, as clinics hundreds of miles away remain busy with Texas patients making long journeys to get care.

The latest attempt Monday night comes three days after the 5th U.S. Circuit Court of Appeals reinstated the nation’s most restrictive abortion law after a brief 48-hour window last week in which Texas abortion providers — following a blistering ruling by a lower court — had rushed to bring in patients again.

The days ahead could now be key in determining the immediate future of the law known as Senate Bill 8, including whether there is another attempt to have the U.S. Supreme Court weigh in.

[…]

“If Texas’s scheme is permissible, no constitutional right is safe from state-sanctioned sabotage of this kind,” the Justice Department told the appeals court.

In wording that seemed to be a message to the Supreme Court, the Justice Department raised the specter that if allowed to stand, the legal structure created in enacting the law could be used to circumvent even the Supreme Court’s rulings in 2008 and 2010 on gun rights and campaign financing.

It is not clear when the 5th Circuit court will decide whether to extend what is currently a temporary order allowing the Texas law to stand.

See here and here for the background. Yesterday was the deadline for the briefs to be filed for the Fifth Court to consider whether to allow the restraining order put in place by Judge Pitman to remain or to continue to stay it and thus allow the extremely unconstitutional SB8 to be enforceable. You know my opinion of the Fifth Circuit. I figure they only bothered to ask for briefs so they’d know how to customize their order allowing SB8 to stay in place. We have to go through the motions regardless. Whatever they do, this will go to SCOTUS next. In the meantime, maybe the court should consider and address the state’s true motives, for then at least we might have some clarity. Axios has more.

We wait until at least Tuesday for a chance at justice with SB8

In case you missed it.

The 5th U.S. Circuit Court of Appeals late Friday temporarily allowed Texas’ near-total abortion ban — the strictest in the nation — to again be enforced after freezing a federal judge’s temporary block of the law. The state appealed the order just two days after it was issued.

A panel of 5th Circuit justices restored enforcement of the law hours after Texas asked the court to step into a lawsuit that the U.S. Justice Department filed against the state. Enforcement of the law will be allowed to continue until at least Tuesday, when a response from the Justice Department is due. After the court considers arguments from both sides, the court can decide whether to continue allowing enforcement of the law or allow a lower court to once again temporarily block it.

The court would not be determining the overall case’s outcome at this point — but it would decide whether the law could continue to stand while court proceedings unfold.

[…]

The abortion law allows for retroactive enforcement — meaning those who helped someone get an abortion while the law was blocked for two days can now be sued.

A day after Pitman’s order, at least one major provider in the state — Whole Woman’s Health — had quickly begun performing abortions that Texas lawmakers sought to outlaw. It appears the clinics and doctors who performed abortions outlawed by the statute would now be vulnerable to lawsuits after Friday’s order.

“We do understand that it does open us up to some risk. We have to wait and see,” said Amy Hagstrom Miller, CEO of Whole Woman’s Health. “We have a lot of lawyers on speed dial these days.”

Miller said her organization and physicians in her clinics are on edge.

“But not for a second do we question that it was the right thing to do,” she said. “People need our help, and they shouldn’t be put through this.”

The organization will comply with the law once again, she said. Already several appointments had been made for Monday, so clinics will have to cancel them.

“Unfortunately, there’s going to be a lot of phone calls we have to make,” she said.

See here for the previous entry, which had an update at the end for the Fifth Circuit action. The Justice Department may wait for a ruling from the Fifth Circuit before it appeals (because we all know what the lawless Fifth Circuit is going to do) to SCOTUS, or it may just file an emergency petition with SCOTUS and hope for a faster ruling. SCOTUS has a Mississippi abortion case on its docket this term, so one way or another it’s going to be dealing with the larger issues. It’s just a question of whether they want to allow for a de facto overturning of Roe v Wade before they rule in that case or not. Maybe take a closer look a those approval numbers, guys.

In the meantime, there’s a real danger that it won’t much matter anyway what happens.

Abortion providers have said they are hoping they get more permanent relief from the U.S. Supreme Court.

The nation’s highest court was asked to intervene when the law was first going into effect, but justices declined. Since the law has been in effect, abortion providers have petitioned the court, again. So far, the court has not responded.

Abortion providers have said one of the longer-term concerns is what will happen to their clinics if the law continues to stay in effect. Hagstrom Miller said providers are facing serious financial strains as they turn away the majority of people seeking an abortion.

She said access to abortion in the state could be permanently altered if the law isn’t blocked as the legal challenges move through the courts.

“If clinics close because SB 8 is enforced long enough,” Hagstrom Miller said, “the damage will be done, even if it’s eventually struck down.”

Abortion providers have been begging for relief from this ludicrously unconstitutional law, to no avail so far. The danger that they’ll be forced out of business for financial reasons while they wait is real, and is exactly what happened with the TRAP law that was struck down in a few years ago. Fully half of all clinics went under in the interim, and I guarantee you that was no accident. If it happens again, we may never recover. And again, that was the plan all along.

State appeals SB8 restraining order to Fifth Circuit

I’m sure they expect the usual room service from the appeals court. It’s just a matter of how quickly they can get it.

Texas asked a federal appeals court Friday to step in “as soon as possible” to restore the state’s near-total abortion ban.

The state filed its emergency request for an appeal two days after U.S. District Judge Robert Pitman temporarily blocked the new abortion law in response to a lawsuit brought by the Biden administration. The state quickly filed a notice of its intent to appeal after Pitman’s order on Wednesday night.

In Friday’s request, state attorneys argue that Pitman’s order to temporarily block the law at the United States’ request “violates the separation of powers at every turn.” They ask the 5th U.S. Circuit Court of Appeals — considered to be perhaps the nation’s most conservative appellate court — to stop Pitman’s order.

State attorneys argued the U.S. overstepped by suing the state since it will never be subject to one of the lawsuits allowed by the law and since the state does not enforce the law directly.

“This Court’s immediate intervention is necessary to vindicate Texas’s sovereign interest in preventing a single federal district court from superintending every Texas court,” attorneys wrote in Friday’s request.

[…]

“I think there is a very good chance the court grants a stay [to block Pitman’s order],” Josh Blackman, a constitutional law professor at South Texas College of Law Houston, said in an email. He said Pitman already faced many barriers to issuing his temporary order.

“Congress never authorized the United States to sue a state in this context,” Blackman explained. “And there is no history of previous suits by the federal government against an allegedly unconstitutional law. The federal government lacks a ‘cause of action’ to sue Texas.”

See here for the background. I dunno, I figure if a law can be passed to take away a right in such a way that it’s basically impossible to challenge it in court, then it wasn’t actually a right to begin with. And if a state can take away a federal right like that, it sure seems like a design flaw in the system. I don’t expect the Fifth Circuit to give a damn about that, but someone had to say it. By the way, even with this initial court ruling, the right that was taken away still hasn’t really been restored, and who knows when it might be. Like I said, if that can happen to someone’s rights, then was there ever really such a thing as “rights”?

UPDATE: Room service indeed.

The U.S. Court of Appeals for the 5th Circuit granted a temporary emergency stay in the United States v. Texas, the federal government’s suit against the state. As a result of the 5th Circuit’s ruling, a preliminary injunction — which halted the SB 8 from being enforced — no longer stands, and the vast majority of all abortions are once again banned in Texas.

The 5th Circuit has given the federal Justice Department until 5 p.m. CT on Tuesday to respond to Friday night’s action. The Justice Department will need to prepare its argument to counter Texas’ request that such a stay be a permanent one.

When I said that the Fifth Circuit already had an order printed and ready to go staying Judge Pitman’s order? I was only half-joking. Next, we’ll get to see if SCOTUS meant what they said about “procedurally proper challenges” maybe being more successful. The Chron has more.

Federal judge blocks SB8

Some justice for now, but we’ll see how long it lasts.

A federal judge temporarily blocked Texas’ near-total abortion ban Wednesday as part of a lawsuit the Biden administration launched against the state over its new law that bars abortions as early as six weeks of pregnancy.

But it’s unclear how U.S. District Judge Robert Pitman’s order may affect access to abortions in the state — or if it will at all. The state of Texas quickly filed a notice of appeal and will almost definitely seek an emergency stay of Pitman’s order in the 5th Circuit Court of Appeals, which is known as perhaps the nation’s most conservative appellate court.

In a press release, the ACLU of Texas pointed to the uncertainty on how Wednesday’s order and the state’s appeal will affect procedures in the state.

“Though the court’s ruling offers a sigh of relief, the threat of Texas’ abortion ban still looms over the state as cases continue to move through the courts. We already know the politicians behind this law will stop at nothing until they’ve banned abortion entirely,” Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project said in a statement. “This fight is far from over, and we’re ready to do everything we can to make sure every person can get the abortion care they need regardless of where they live or how much they make.”

Until Pitman’s order, Texas’ new law successfully flouted the constitutional right to have an abortion before fetal viability established by Roe v. Wade in 1973 and subsequent rulings. That’s because it leaves enforcement of the new restrictions not to state officials but instead to private citizens filing lawsuits through the civil court system.

The order from Pitman — a 2014 Obama nominee — forbids state court judges and court clerks from accepting lawsuits that the law allows. Pitman ordered the state to publish his order on all “public-facing court websites with a visible, easy-to-understand instruction to the public that S.B. 8 lawsuits will not be accepted by Texas courts.”

He called the case “exceptional” and ordered that the state and “any other persons or entities acting on its behalf” be blocked from enforcing the statute. He acknowledged that his order could be appealed in another court and added: “this Court will not sanction one more day of this offensive deprivation of such an important right.”

[…]

Pitman gave a scathing response to Texas’ request that the court allow it to seek an appeal prior to blocking the law’s enforcement.

“The State has forfeited the right to any such accommodation by pursuing an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right,” Pitman wrote in his order. “From the moment S.B. 8 went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution.”

Despite the threat of retroactive lawsuits, the Center for Reproductive Rights said the clinics and doctors it represents “hope to resume full abortion services as soon as they are able.” The organization acknowledged that the order is temporary and expected the state would appeal — but called the ruling a “critical first step.”

“For 36 days, patients have been living in a state of panic, not knowing where or when they’d be able to get abortion care,” Nancy Northup, president & CEO of the Center for Reproductive Rights, said in a statement Wednesday. “The cruelty of this law is endless.”

Whole Woman’s Health said it was making plans “as soon as possible” to resume abortions outlawed under Texas’ law.

“This is AMAZING. It’s the justice we have been seeking for weeks,” Amy Hagstrom Miller, CEO of Whole Woman’s Health, said in a statement.

See here for the previous update. We didn’t have to wait long for this ruling, but it will be likely even less time before the rogue Fifth Circuit steps in and does its damage. After that, we’ll see if SCOTUS still claims to be confused by this issue, or if they have decided to care about the constitution.

Slate provides some highlights from Judge Pitman’s opinion.

The DOJ’s bet that agents of the state could be subject to suit paid off, particularly in the face of mounting evidence that pregnant Texans had been materially harmed as a result of the law. Pitman’s decision has moments of powerful rhetoric, but it is largely devoted to the “complex and novel” threshold issues the majority of the Supreme Court was too exhausted to probe when they allowed the law to stand. “There can be no doubt that S.B. 8 was a deliberate attempt by lawmakers,” he wrote, to “preclude review by federal courts that have the obligation to safeguard the very rights the statute likely violates.” This effort failed, he noted, because the United States has standing to represent its citizens in their effort “to vindicate federal rights.” On behalf of these citizens, it also has authority to enforce the 14th Amendment against a state attempting to “supersede” it. As Pitman put it, “when the machinations of the state effectively cut off private access to the federal courts,” the scheme warrants “equitable action by the United States.”

Because the DOJ clears these hurdles, Pitman wrote, it had properly challenged S.B. 8. And on the merits, there is no question as to foundational facts: Texas’ law plainly violates Roe because it outlaws abortions well before fetal viability. In order to block the law, Pitman crafted an injunction to “halt existing S.B. lawsuits and prevent new suits from being maintained by the state judiciary.” He forbade state judges and clerks from “accepting or docketing” these cases, and, for good measure, barred “private individuals who act on behalf of the state” from filing them. Finally, he ordered Texas to “publish this preliminary injunction on all of its public-facing court websites with a visible, easy-to-understand instruction to the public that S.B. 8 lawsuits will not be accepted by Texas courts.”

Notably, Pitman denied Texas’ request for an immediate stay of his decision. “The State has forfeited the right to any such accommodation by pursuing an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right,” he explained. To be clear, this hardly means Texas clinics will begin providing constitutionally protected abortions services tomorrow. If Pitman’s decision is eventually overturned, doctors who perform abortions in the interim can still be sued. But at least for now, the playing field tilts against the states too-clever-by-half effort to harm women while skirting judicial review.

I’ll be shocked if the Fifth Circuit allows this to stand going into the weekend, but for now we’re in a better place. Daily Kos, The 19th, the Chron, and the Trib have more.

If in Texas you can’t get justice…

Try somewhere else.

An abortion provider in Texas took the unusual step Tuesday of asking a federal judge in another state to declare unconstitutional the six-week-ban on the procedure that took effect last month in Texas.

Lawyers for Dr. Alan Braid, a San Antonio physician who acknowledged performing an abortion after the state’s legal limit, wants a judge in Illinois to block three lawsuits filed against him under the ban, which has halted almost all abortions in the nation’s second-most-populous state.

Abortion providers and advocates say they are in “legal limbo,” after twice asking the Supreme Court to intervene to block enforcement of the law, which bars abortion as early as six weeks into pregnancy with no exception for rape or incest.

They are awaiting action in the three lawsuits against Braid, as well as word from a federal judge in Austin, who could rule at any time on the Justice Department’s request for an injunction to restore abortion access in Texas.

“Dr. Braid filed suit today to stop the vigilante plaintiffs and get this extreme abortion ban declared unconstitutional once and for all,” Nancy Northup, president of the Center for Reproductive Rights, said in a statement.

“He should never have had to put himself at legal risk to provide constitutionally protected abortion care. This legal limbo has gone on long enough and needs to be stopped.”

[…]

Braid came forward last month, announcing in a Washington Post column that he had performed an abortion past the legal limit and essentially inviting a lawsuit so he could directly challenge the constitutionality of the ban.

Three individuals — one in Arkansas, one in Texas and another in Illinois — quickly filed lawsuits against Braid in state court in Texas.

The Center for Reproductive Rights, representing Braid, now wants to consolidate the “competing claims” in those cases in federal court in Illinois.

Braid’s lawyers say they can take this step because three different people in three different states have filed similar claims to an award of at least $10,000.

“The likelihood of strangers filing multiple, overlapping lawsuits against a provider is a feature of SB8, and not an accident,” the court filing states, making reference to the law, which was formally classified as Senate Bill 8.

Braid said that none of the individuals has a right to damages because the law is unconstitutional under the Supreme Court’s Roe v. Wade decision guaranteeing the right to abortion before viability, usually around 22 to 24 weeks.

Braid also has a right, the filing states, “to avoid wasteful, vexatious and duplicative litigation and potentially conflicting rulings.”

See here, here, and here for some background. I knew about the Arkansas and Illinois lawsuits against Dr. Braid, but had not been aware of the third one. Looking at the defendants named in the filing, it appears that the third litigant is one of the frequent commenters here. I’ll let him explain himself about that.

These lawsuits are all in state court. There is also the bottleneck imposed by the Texas Multidistrict Litigation Panel (supported by the Supreme Court) on lawsuits by providers to get injunctions against other potential litigants, but from my read of the lawsuit that does not appear to be at issue here. The larger point is that not just Dr. Braid but every abortion patient and provider and clinic employee and volunteer and many other people have a right to their day in court, and to have a clearly unconstitutional law be put on hold while legal questions surrounding it are being decided. That’s what is being asked for here, and that is what has been denied all these people by SCOTUS, the Fifth Circuit, and the Supreme Court of Texas. If this is what it takes to finally bring a (temporary) halt to this travesty then so be it, but it should never have come to this in the first place.

UPDATE: Late in the day yesterday, the judge in the federal lawsuit filed by the Justice Department against the state of Texas issued a temporary restraining order that blocks any SB8 lawsuits from being filed. We all know that the Fifth Circuit already has an order ready to block that, but for now that would seem to moot this action. I’ll post about this ruling tomorrow.

How the “heartbeat” lawsuits may proceed

The recent “Amicus” podcast from Slate had a bonus segment on the many lawsuits that have been filed in relation to and challenge to SB8, the so-called “heartbeat” bill. For all the normal people out there who don’t follow this sort of thing obsessively, here’s their guide to keeping track of them all.

Dahlia Lithwick: I think the question you and I have probably received the most in the last two weeks is: “How do I even watch SB 8 unfold?” I think there was a collective sigh when Dr. Alan Braid admitted in the pages of the Washington Post that he had in fact performed an illegal—under SB 8—termination of a pregnancy, inviting litigation. Two helpful litigants, both out of state, came forward to sue him.

I think there are a lot of lanes here and folks are confused about timing. So let’s walk through it:

-We’ve still got the ongoing challenge by the providers that the Supreme Court refused to enjoin. That’s going to be heard in December at the Fifth Circuit.

-We have the Biden Administration—the Justice Department has brought a suit that has not resulted in immediate injunction. That is to be heard next week.

-We have a new suit, filed Thursday night by the same group of providers who filed the Fifth Circuit case, saying they’re seeking this extraordinary relief, a petition for cert before judgment.

-We have these two civil suits against Dr. Braid.

-And then after all, we have Dobbs v. Jackson Women’s Health Organization.

Mark, can you please draw a map of the world of SB8 and what is going to happen first, if you can, and what, if anything, is going to happen before Dobbs?

Mark Joseph Stern: Sure. So let’s start with the state lawsuits. Two different out-of-state lawyers have filed suits in Texas state court against Dr. Alan Braid, who wrote a piece in the Washington Post acknowledging that he performed an abortion after six weeks in Texas in violation of SB8. Those cases are now going to be litigated in Texas state courts, and the doctor is going to raise as a defense, among other things, the fact that Roe v. Wade is still the law of the land. And so it is just not constitutionally permissible for him to be punished for performing an abortion that is legal under binding Supreme Court precedent.

Let’s assume that both of these state courts are on the level and are going to acknowledge Roe as binding precedent. In that case, they will presumably throw out the lawsuits, but that doesn’t mean that SB 8 is over or that it’s enjoined. Because the way this law is written, it’s essentially impossible for any Texas state court to block it across the state. It has to be litigated in each individual case. And so no matter the outcome of these particular Texas lawsuits, SB 8 will still be in effect.

This particular doctor may be off the hook because he’ll raise the constitutional right to an abortion as a defense, but everybody else in Texas will still be under the thumb of SB8. It will continue to work its way through the Texas court system, probably very slowly.

Then we have the Justice Department lawsuit. The Justice Department lawsuit, I think, is one of the stronger suits we’ve seen, because the Justice Department representing the United States can sue Texas directly. It can say “We are filing suit against the state of Texas, including all of its agents,” which would presumably encompass anyone who sued under SB8. That’s something a private plaintiff can’t do. Only the United States gets to sue an individual state because the Supreme Court has said sovereign immunity is not a problem in this context. And so that case is currently sitting before a federal judge in Texas, and that judge will soon hold a hearing on whether or not to issue a preliminary injunction blocking SB 8 throughout the entire state of Texas by issuing a decision directly against Texas. But we have to sit on our hands and wait for that because the federal judge is not rushing it. The Justice Department asked him to rush it, but he said, ‘No, I’m going to take my time on this.” And so we’re all waiting for early October, when that case will move forward.

Then we have the petition before the Supreme Court, which is really part of the same case that we all freaked out about in early September. This is the same lawsuit that was filed against state court judges and clerks in Texas. That was the first bite at the apple, the first effort by abortion providers to block SB8. As you recall, they went to a federal judge, the same judge who’s hearing the DOJ suit, and they said, “Please block this law.” The Fifth Circuit swooped in before the judge could do anything and prevented him from doing anything. The providers went to the Supreme Court and by a 5-4 vote, the Supreme Court threw up its hands and said, “We can’t do anything later.” A couple weeks later, the Fifth Circuit issued a decision saying, “Well, we really think you sued the wrong people. We don’t think that you can sue state judges and state court clerks. And so we are going to hold onto this case and will decide this question formally in a couple of months.”

So now, the providers have gone back up to the Supreme Court and said, “Look, we get that you ruled against us last time and we’re not asking for ruling on the merits. We’re not asking you to issue a shadow docket decision just saying up-or-down vote, whether SB8 can be blocked and should be blocked. All we’re saying, all we’re asking is for you to say that we sued the right people, that some of the folks we sued can be sued, and thus bring this case back down to the original federal judge who was hearing it in the first place and clear away all of these obstacles so that he can decide on the merits, whether to issue an injunction.”

That’s the lay of the land for SB8 and all the while, we’ve got Dobbs in the background, which is a completely different case, not directly related to the Texas case at all. That’s a challenge to Mississippi’s 15 week abortion ban. The Supreme Court will hear oral arguments in that case on Dec. 1 and probably issue a decision in June of 2022.

Couple of things. In re: the courts that will hear the two lawsuits against Dr. Braid, both lawsuits were filed in Bexar County. One is known to have been assigned to a Democratic judge, the other filing didn’t have a court assigned to it at the time of my posting. I don’t feel like checking the partisan label on every Bexar County civil district court judge, but I can say confidently that the odds are that judge is also a Democrat. They still have to follow the law, of course, but if Dr. Braid’s defense is “this law is unconstitutional and cannot be enforced” as we expect, they can make that ruling. They may be limited in how much of SB8 can be struck down, however, based on the way the law was written and a related case currently before SCOTx, as noted in the comments to that post. Someone more versed in civil procedure than I will have to explain what happens from there if that is the result in at least one of these cases. As a reminder, both of the plaintiffs have expressed some level of opposition to SB8.

There are also the various state court lawsuits against specific parties, in which groups like Planned Parenthood have sought (and so far gotten) temporary restraining orders preventing those parties from filing SB8 lawsuits. These actions are very limited in scope and will not affect the long-term future of SB8, they will just potentially create some obstacles to the lawsuits against the people that SB8 targets.

As noted later, the Fifth Circuit will get another chance to stick its nose in once Judge Pitman makes a ruling in the Justice Department lawsuit. I think we can all take a guess as to why they might do. That’s down the line, and we have plenty to occupy ourselves with until then. Hope this clarifies things. You can listen to that episode of “Amicus” at the link above, but you need to be a Slate Plus member to hear this segment.

Trying again to get SCOTUS to stop SB8

Good luck.

A coalition of Texas abortion providers went back to the Supreme Court Thursday, asking the justices to expedite a review of the state law that bars abortions after six weeks of pregnancy.

The law has been in effect for 23 days, but the federal appeals court hearing the challenge has only set a tentative hearing schedule for December. The providers are asking the justices to — in effect — step in and decide a key issue in the case now, instead of waiting for a federal appeals court to rule on the issue.

The new court papers mark the latest furious attempt on behalf of providers to stop a law that bars most abortions before a woman even knows she is pregnant. The law, which challengers say was drafted with the specific intent to evade judicial review, is now being challenged by providers in federal and state courts, as well as by the Department of Justice.

In the new brief, the providers say the law is written in a way that makes it almost impossible to challenge because it bars Texas officials from enforcing it and instead allows private individuals to bring suit against anyone who may assist in helping a person obtain an abortion performed after six weeks. The clinics are asking the Supreme Court to decide “whether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.”

Separately, they have filed papers asking the court to put their request on a fast track. Under normal circumstances supporters of the law would have had about 30 days to respond, and the process could drag into the winter months. Instead, the clinics want the justices to consider the case October 29 and hear oral arguments in December.

That timing would coincide with the Supreme Court hearing another, completely separate challenge to a Mississippi law that bars most abortions after 15 weeks. Mississippi is asking the court to overturn Roe v. Wade and the court has set arguments for December 1.

If the court were to grant the request from the Texas providers, it could hear the two challenges in the same month.

[…]

In making the unusual request, the clinics noted that providers in neighboring states have reported increases of patients traveling across state lines and other states have begun to push copycat laws.

The clinics had previously asked the justices to block the law before it went into effect, but the high court declined to do so on September 1.

Back then, in an unsigned 5-4 order, the majority wrote that while the clinics had raised “serious questions regarding the constitutionality of the Texas law,” they had not met a burden that would allow the court to block it due to “complex” and “novel” procedural questions. Chief Justice John Roberts joined the three liberal justices in dissent.

Just as a reminder, as this is another one of those situations where there’s so many lawsuits it’s hard to keep track, these are the plaintiffs who had originally sued in July and had to appeal to SCOTUS in late August after some serious shenanigans from the Fifth Circuit. This time they’re asking the court to rule on constitutional grounds, not just allow for a temporary restraining order. I have no idea what their odds of success are, but it can hardly hurt. Maybe now that SCOTUS has seen the sharp downturn in the public’s opinion of them following their cretinous and cowardly refusal to block SB8 in the first place they’ll have a bit of a rethink. We’ll see. Reuters and The 19th have more.

First “heartbeat” lawsuit filed

Didn’t take long.

A San Antonio physician is facing a lawsuit after he admitted performing an abortion considered illegal under Texas’ new law.

Why it matters: The civil suit, filed by a convicted felon in Arkansas, against Alan Braid is the first such suit under the law that allows private citizens to sue anyone who helps a pregnant person obtain an abortion after six weeks.

What he’s saying: Braid said he acted “because she has a fundamental right to receive this care.”

  • “I fully understood that there could be legal consequences — but I wanted to make sure that Texas didn’t get away with its bid to prevent this blatantly unconstitutional law from being tested,” he wrote in a column in the Washington Post.

Driving the news: Oscar Stilley, a former lawyer from Arkansas who was convicted of tax fraud in 2010, said he does not personally oppose abortion but decided to file the suit to test the Texas law’s constitutionality.

  • “If the law is no good, why should we have to go through a long, drawn-out process to find out if it’s garbage?” Stilley after filing the complaint in state court in Bexar County, Texas, according to the Post.

See here for the background, and here for a copy of the lawsuit. Oscar Stilley is certainly the plaintiff the forced birth crowd deserves. If I’m reading his comment correctly – the WaPo article is paywalled, so I’m somewhat limited in what I can see – it sounds like he wants to give SB8 opponents a chance to get it thrown out. There’s nothing funny about any of this, but for the first lawsuit under this atrocity to be an utter farce would be entirely fitting.

One other angle, which I noticed in the stamp of the Bexar County District Clerk. This lawsuit was assigned to the 438th Civil Court in Bexar County, whose judge is a Democrat. Judges are compelled to follow the law, of course, but to whatever extent she has discretion, I would think she might not be terribly inclined to give any such plaintiff the benefit of the doubt. Do keep in mind, this law enables the bounty hunters to file their garbage lawsuits in any state court in Texas. For sure, the reason for that was to allow all of the greedy little fortune seekers the opportunity to file in Republican counties, where they can expect a higher level of service. I don’t think any of this was according to the plan these jackals had in mind, but it’s still chaos and attention for them, and I’m sure they’ll take it. Best wishes, and I hope a good supply of Advil and Maalox, to the judge. CBS News and NBC News have more.

UPDATE: Per the Trib, there are actually now two lawsuits against Dr. Braid.

At least two lawsuits have been filed against Braid, both by disbarred attorneys. One was filed by Illinois resident Felipe N. Gomez, who identified himself as a “Pro Choice Plaintiff” and aligns himself with Braid in the lawsuit, KSAT reported. Gomez does not ask for monetary damages in the suit, but asks “the Court to declare that the Act is Unconstitutional, and in violation of Roe v Wade,” according to the TV station.

There’s more in there about Oscar Stilley, whose motivations are all over the place. Gomez’s lawsuit was also filed in Bexar County, but the copy that was included in that KSAT story did not indicate which court. The lawsuit is also one page long and it’s not clear to me it meets the legal definition of a “lawsuit”. I guess the lucky judge will get to make that call. As they say, play stupid games, win stupid prizes.

“Heartbeat” lawsuit bait

Something like this was going to happen sooner or later.

A Texas doctor stepped forward Saturday to say he had performed an abortion that is illegal under the state’s restrictive new law to force a test of its legality.

“I understand that by providing an abortion beyond the new legal limit, I am taking a personal risk, but it’s something I believe in strongly,” Alan Braid, a San Antonio OB/GYN, said in an op-ed in The Washington Post. “I have daughters, granddaughters and nieces. I believe abortion is an essential part of health care. . . . I can’t just sit back and watch us return to 1972.”

Braid said he performed a first-trimester abortion on Sept. 6, just a few days after the law known as Senate Bill 8 went into effect in Texas, making nearly all abortions illegal after a woman is about six weeks pregnant ­— with no exceptions for incest or rape. The doctor said he acted because he had “a duty of care to this patient, as I do for all patients.”

[…]

John Seago, legislative director for Texas Right to Life said that group “is exploring all of our options to hold anyone accountable who breaks the (Texas) law.”

“This is obviously a stunt to move forward with other legal attacks on the law,” he said of Braid’s column. “This was always something that we expected — that someone would essentially try to bait a lawsuit. So we’re just moving into the next phase of Senate Bill 8 right now.”

But the leader of another Texas-based anti-abortion-rights group, said it has no plans to sue Braid at this time.

Braid “is willfully conducting illegal abortions right now,” said Chelsey Youman, national director of public policy for Human Coalition, which operates crisis pregnancy centers across the country. “He knows he’s currently incurring liability and he may face repercussions for that . . . but for the most part that’s a choice the larger abortion clinics have not made. They’re saying they’re going to comply. We should celebrate that lives are being saved in the interim.”

Abortion rights advocates, meanwhile, praised Braid for stepping forward.

“The situation has become untenable,” said Kristin Ford, acting vice president of communications for NARAL Pro-Choice America, an abortion rights advocacy group. “Roe v. Wade has been rendered meaningless in the second biggest state in the country, and we can’t continue in that limbo,” she said.

The op-ed is here, if you have access to it. This was in fact the scenario that was predicted after SB8 was passed, that to gain a legal foothold in court a provider would need to be sued to effectively challenge the law in court. It’s a common path for such action – the groundbreaking Lawrence v Texas case began as an arrest and conviction for sodomy, which was then appealed until SOCUTS invalidated Texas’ law banning gay sex. There are other paths being taken now, from the state lawsuits that have gained injunctions on behalf of specific plaintiffs and against particular groups to the initial federal lawsuit that named defendants other than Greg Abbott and Ken Paxton – you know, the one that the Fifth Circuit stopped before it could get a hearing and which SCOTUS punted on – and the lawsuit filed by the Justice Department that names the state of Texas as defendant. The first as noted is limited in scope while the other two have yet to be tested in court.

Any or all of these could work, or not. We don’t know yet, and the two federal cases are novel in their own way. The point is that this was the path that legal experts were able to visualize from the beginning. It too may not work – SCOTUS is still SCOTUS, after all – but no one would question the ability of the provider who was targeted by the action authorized by SB8 to fight it by challenging the legality and/or constitutionality of the law.

And here in this story, we see the limit of this approach, which is that it required someone to sue the doctor (or other “abetter”) in order to get it into court in the first place. The thing is, the pro-forced-birth advocates who pushed SB8 don’t need to sue Dr. Braid. Strategically, they don’t really care if there are individual doctors who do one-off abortions. That’s a small piece of the pie. Their goal was to shut off abortion access at the big clinics, the Planned Parenthoods and Whole Women’s Health and so on. And they’ve succeeded! The number of abortions being performed in Texas is near zero. People have already internalized the idea that abortion is functionally illegal, or at least nearly impossible to get, in Texas. Sure, they want that number to be zero, but this was such a huge step in that direction they can afford to coast.

To that extent, filing those $10,000 bounty lawsuit doesn’t serve their purposes at all. They just introduce the risk that SB8 could someday be thrown out, in the same way that the omnibus TRAP law of 2013 (it was HB2 in that session and often referred to as HB2 in stories of the lawsuit against it) was eventually tossed. The thing is, though, that long before HB2 was thrown out, it had caused half of all clinics that offered abortion services to quit doing so, and thus greatly reduce access in the state. They lost their big hammer, but by then they’d pounded in so many nails it hardly mattered.

I hadn’t really thought about it before writing this post, and I haven’t seen anyone else touch on this, but I think this explains the very laid-back reaction that Texas Right to Life has had to the state lawsuit Planned Parenthood filed against them, and why they’re basically shrugging their shoulders here. The status quo at this point suits them just fine. The bounty lawsuits were never the main point of SB8. They were a means to an end, and they have already achieved that end. Why mess with success?

Now, someone who hasn’t gotten this memo could still sue Dr. Braid, and that will kick all the legal machinery that people had expected into gear. Once there is a case for the courts to act on, all of the high-powered lawyers from all of the main players will get involved, and on to SCOTUS we will march. Similarly, if one of the big clinics decides to go back to business as usual, the forced birthers will take action, because they will have to. Until then, they’re happy to wait and see what happens with the existing lawsuits. They’re playing with house money, and they know it. Slate has more.

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.

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.

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.

SCOTUS declines to outlaw abortion for now

You may have heard about this from the other day.

Right there with them

The U.S. Supreme Court struck down a Louisiana law Monday that would have curtailed access to abortions in the state and that was nearly identical to a measure the court overturned in Texas in 2016.

The ruling is a win for advocates of abortion access, who feared the case could quickly pave the way for states to impose greater restrictions on the procedure. But legal and legislative battles over the procedure are sure to continue, including in Texas, where there are more than 6 million women of reproductive age. More than 53,800 abortions were performed in Texas in 2017, including 1,1,74 for out-of-state residents, according to government data.

Chief Justice John G. Roberts Jr. joined the liberal justices in a 5-4 decision that struck down a Louisiana law that would have required doctors who perform abortions to have admitting privileges at a nearby hospital. Roberts had dissented in the 2016 decision that found Texas’ restrictions placed an undue burden on a woman’s constitutional right to an abortion. He did not agree with the liberal justices’ reasoning Monday, instead citing the precedent set by the previous case.

“The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law,” Roberts wrote.

[…]

While advocates for abortion access celebrated the ruling, they expressed worry about future fights over the procedure.

“We’re relieved that the Louisiana law has been blocked today, but we’re concerned about tomorrow,” said Nancy Northup, head of the Center for Reproductive Rights, a nonprofit that represented the Louisiana abortion providers. “Unfortunately, the court’s ruling today will not stop those hell bent on banning abortion.”

See here for a bit of background. I hate to be the party pooper, but after reading what Dahlia Lithwick has to say, I’m going to keep any celebrations of this ruling to the minimum.

Roberts’ concurrence is classic Roberts—cloak a major blow to the left in what appears to be a small victory for it. Four years ago in Whole Woman’s Health, the court struck down the Texas admitting privileges law by assessing that such a law would constitute an “undue burden” on a woman’s right to terminate a pregnancy—a standard that in Justice Stephen Breyer’s formulation called for a careful balancing of the stated benefits of an abortion restriction against its burdens. Reading Roberts’ concurrence carefully, one sees that in June Medical, he managed to claw back that standard, replacing it with a much more deferential one that asks only whether the proposed regulation is unduly burdensome without requiring any consideration of the benefit. Not only that, he goes further and does essentially what he did in last year’s census case and last week’s challenge to the DACA rescission: He hints that essentially any old pretextual defense of an abortion law will serve; he just doesn’t like when lazy litigants offer up sloppy pretexts.

The problem for Roberts in June Medical is that the state of Louisiana offered up demonstrably bad reasons for insisting on admitting privileges for abortion providers at local hospitals, and then the 5th U.S. Circuit Court of Appeals offered up sloppy reasons for disturbing the findings of the trial court showing that two out of three clinics would close and women would be burdened. As was the case in the census litigation, and the DACA litigation, the outcome here is correct, but one can easily reverse-engineer the chief justice’s opinion to say, “Come back to me with the right road map and I’m all yours,” and in fact, he actually grabs your pencil, flips over the napkin, and sketches the map out at no extra cost.

As Mark Joseph Stern and I wrote this time last year, “Lie better next time” could easily be the holding of June Medical, and states seeking to restrict abortion rights can now do precisely that, without running afoul of this ruling, so long as they ground the laws in better pretextual arguments about maternal health and fetal life and women’s need to make better choices. Roberts has turned a substantive constitutional right into a paper-thin debate about regulatory justifications. His scrupulous review of the many abortion restrictions that were permitted in Casey is a useful reminder that nothing is truly an “undue burden” if it comes dressed in the right language of solicitude and benign concern for mothers’ healthy choices. After today, Roberts is telling states wanting to impose all sort of needless regulations that it doesn’t matter if they are utterly without health benefits, so long as the burdens on women are not that bad.

Mark Joseph Stern arrived at a similar conclusion earlier. It was correct to throw out this ridiculous Louisiana law, but the door is still very much open for a similar law to flip Roberts back to his natural inclination. It’s just a matter of time. Mother Jones has more.

One thing our state loves spending money on

Defending unconstitutional anti-abortion laws in the courts.

As Texas defends abortion laws in federal court that mandate fetal burials and seek to outlaw certain medical procedures, the state has been ordered to pay pro-abortion attorneys $2.5 million — fortifying women’s reproductive rights groups that have repeatedly sued over restrictions passed by the state Legislature.

The August order from a federal judge in Austin is seemingly the final decision in a high-profile battle over a 2013 Texas abortion law the U.S. Supreme Court eventually struck down as medically unnecessary and thus unconstitutional. The law, which was in effect for three years, required abortion providers to comply with all the regulations for ambulatory surgical centers, forcing many to undergo expensive renovations, and required their physicians to obtain admitting privileges at a nearby hospital.

The judge’s order brings the state’s total cost for defending those now-defunct pieces of the law to an estimated $3.6 million.

“Passing regulations that are blatantly unconstitutional, and then wasting people’s resources to fight them, costs money and precious resources and time. And people are harmed in the process,” said Amy Hagstrom Miller, CEO of Whole Woman’s Health, an abortion provider and lead plaintiff in the case who notes that half of the state’s abortion clinics closed before the Supreme Court’s 2016 ruling. “That is a precious resource of Texans’ dollars being used toward that.”

Because the state lost the case, U.S. District Judge Lee Yeakel ruled it must pay the plaintiffs $2,297,860 attorney’s fees, $170,142 in nontaxable expenses and $95,873 in other costs. The amount represents nearly half of the $4.7 million in costs the plaintiffs say they incurred preparing and trying the case. The Texas attorney general’s office did not contest the judge’s ruling.

The award for the opposing attorneys is more than double the nearly $1.1 million the attorney general’s office reported spending on its own attorney’s salary, overhead, travel expenses and other costs associated with defending the law, according to open records obtained by the Texas Tribune in 2016.

Hardly the first time – that 2016 SCOTUS ruling cost the state even more – and until we get a different government, hardly the last time. The AG’s office declined to comment for the story, but we both know that Ken Paxton would gladly spend down the entire Rainy Day Fund in defense of these laws. It’s not really a cost, as far as they’re concerned. It’s an investment.

On a related note:

[Joe Pojman, executive director of the Texas Alliance for Life which advocates for stiffer abortion regulations,] said anti-abortion advocates need to think long-term if they want to overturn Roe v. Wade, which established legal precedent protecting a woman’s right to an abortion. The long-time activist said he is not confident the makeup of the U.S. Supreme Court is favorable to overturning Roe v. Wade — but it could be in a few years.

“We are telling our people that they need to stay focused on re-electing President Donald Trump because he has a track record of nominating justices who are possibly willing to take an honest look at Roe v. Wade,” said Pojman.

I’ve lost count of the number of times that people who voted for Ralph Nader in 2000 and people who voted for Jill Stein in 2016 have ridiculed the notion of judicial appointments as an electoral issue. Joe Pojman would like to thank them for their dedication to their principles.

Fifth Circuit wants to see how much it can gut abortion rights before it acts

That’s the takeaway you should have from this.

A Texas law banning a common second-trimester abortion procedure will remain blocked after federal judges Wednesday postponed a decision until the Supreme Court takes action on a similar case.

A federal district court in 2017 struck down the ban, which was passed as part of state Senate Bill 8. Attorney General Ken Paxton and other officials then appealed the decision to the Fifth Circuit Court of Appeals.

[…]

But the Supreme Court has yet to decide whether it will take up that case, which was launched by abortion provider June Medical Services. The case challenges a Louisiana law that required doctors who perform abortions to have hospital admitting privileges.

See here for some background. Rewire brings the details.

In November 2017, a federal district court declared the provision of SB 8 that bans D and E abortions unconstitutional and permanently blocked the measure from taking effect. The decision, authored by Judge Lee Yeakel, was a rock-solid win for abortion rights. Yeakel determined that Texas had failed to offer any evidence to support its claims that banning D and E abortions promoted its interest in fetal life without unduly burdening a patient’s right to choose. According to Yeakel’s findings, the evidence failed to show that the other methods advanced by the state for terminating an abortion were available and safe. Therefore, Yeakel ruled, the D and E ban had the effect of banning most second-trimester abortions and was an undue burden on abortion rights.

Naturally, the state of Texas appealed Yeakel’s decision. During oral arguments in November, it was clear the conservative members of the Fifth Circuit were looking for a way to reverse Yeakel’s decision and allow the D and E ban to take effect. But then came the Roberts Court’s order in [June Medical Services v.] Gee in February: a reprimand, of sorts, to the Fifth Circuit for trying to unilaterally overturn a district’s court factual findings in order to allow a patently unconstitutional abortion restriction to take effect. The judges on the Fifth Circuit are conservative and bold, but they are not stupid. They are not going to risk setting themselves up for another opportunity for the Roberts Court to reel them in, just a month later.

At issue in Gee—the case the Fifth Circuit is waiting on the Roberts Court to resolve—is Act 620, a Louisiana law that would require any physician providing abortion services in Louisiana to have admitting privileges at a hospital within 30 miles of the procedure. Act 620 was specifically modeled after one of the provisions in Texas’ HB 2 that was eventually declared unconstitutional in 2016 in Whole Woman’s Health v. Hellerstedt.

A federal district court blocked Act 620 from taking effect following a six-day trial, issuing detailed findings of fact as to the undue burden Act 620 would place on abortion rights. But the Fifth Circuit disagreed and reversed the district court, ruling the law should take effect.

[…]

When the Supreme Court decided in February to stay the Fifth Circuit’s decision in Gee, it likely did so not because it disagreed with the court on the merits of its decision, but to send a message. The Fifth Circuit had so wildly and intentionally flouted abortion rights jurisprudence in its application of Whole Woman’s Health to uphold Act 620 that Chief Justice John Roberts joined with his liberal colleagues to temporarily block their ruling. Roberts’ voting record makes it clear he is no fan of abortion rights. So it’s reasonable to interpret his decision as a message to appellate courts like the Fifth Circuit that if anyone is going to be rewriting abortion rights jurisprudence, it will be the conservative justices on the Supreme Court under his guidance.

All this could explain Wednesday’s short order in Whole Woman’s Health v. Paxton delaying any decision in that case pending an outcome at the Supreme Court in Gee.Gee is allowed to take effect. Presumably, the Fifth Circuit would rule in short order to allow Texas’ D and E ban to take effect as well.

Should the Roberts Court take Gee, then the outcome of the Whole Woman’s Health v. Paxton remains in limbo until Gee is resolved.

I noted this in passing when I wrote about how whatever else happens, some new bit of anti-abortion legislation will pass this session. It’s just a matter of whether things get worse from there, and if so by how much.

Second trimester lawsuit appeal heard at the Fifth Circuit

Elections or no elections, the world keeps spinning.

The federal Fifth Circuit Court of Appeals heard arguments Monday morning about whether Texas should be able to ban doctors from performing the most common second-trimester abortion procedure, called dilation and evacuation.

In a nearly hourlong hearing, attorneys for Texas and lawyers for the Center for Reproductive Rights and Planned Parenthood argued in front of a panel of three judges.

At issue was Senate Bill 8, a law signed by Republican Gov. Greg Abbott in 2017 but blocked by a federal judge that would ban abortions in which a doctor uses surgical instruments to grasp and remove pieces of fetal tissue. The law would only allow the procedure to be done if the fetus is deceased.

[…]

Janet Crepps, senior counsel for the Center for Reproductive Rights, argued that the state’s proposed law was “invasive, medically unnecessary and poses a dangerous risk” to women. She said injections with potassium chloride using a three-to-four-inch spinal needle puts women at risks for infection and hospitalization.

“Just the idea the state thinks that’s what’s within its power is contrary to the whole idea that women have a right to autonomy, dignity,” Crepps said after the hearing.

The appeals case comes nearly a year after Judge Lee Yeakel said the provision imposed an “undue burden” on women seeking second-trimester abortions in Texas. The Center for Reproductive Rights and Planned Parenthood filed suit last summer on behalf of several women’s health providers in the state. Yeakel issued a temporary restraining order on enforcing the measure in August, a day before the ban’s effective date.

Throughout the hearing the three judges asked questions around how to best interpret a Eleventh Circuit Court of Appeals ruling that blocked Alabama’s dilation and evacuation ban from going into effect; how the injections work; and who are the women likely to need these services.

Medical professionals deem the dilation and evacuation method the safest way to perform an abortion, and reproductive rights groups have said this ban would subject women to an unnecessary medical procedure.

See here for the previous update. I don’t have any faith in the Fifth Circuit or the Supreme Court interpreting “undue burden” in a meaningful fashion, but I’ll be happy to be surprised. Whatever the outcome of this case, if we don’t have a federal law protecting access to abortion on our near-term goals, we’re doing it wrong.

“Fetal remains” law tossed

Very good.

U.S. District Judge David Alan Ezra struck down a Texas law on Wednesday that would have required hospitals and clinics to bury cremate fetal remains, causing another courtroom setback for state leaders and anti-abortion groups.

Under Senate Bill 8, passed in 2017, health care facilities including hospitals and abortion clinics would be required to bury or cremate any fetal remains — whether from abortion, miscarriage, stillbirth, or treatments for ectopic pregnancy regardless of patients’ personal wishes or beliefs. Legislators passed the bill following a ruling that year by U.S. District Judge Sam Sparks that struck down a similar rule implemented by the Texas Department of State Health Services. At the time Sparks said it was vague, caused undue burden on women and had high potential for irreparable harm.

Over the course of a nearly 30-minute hearing at a federal court in Austin on Wednesday, Ezra gave a synopsis of the ruling, calling the case “a very emotional topic.” The requirement would have been challenging for health providers, in part because it would be difficult to find medical waste vendors willing to participate. In addition, Ezra expressed wariness about the state having to reach out to private cemeteries to help with fetal remain disposals.

“The implementation of this law, as I have pointed out, would cause and, if allowed to go into effect, would be a violation of a woman’s right to obtain a legal abortion under the law as it stands today,” Ezra said.

[…]

Multiple doctors and health advocates who testified said women often don’t ask what happens to their fetal tissue, since they assume it’ll be treated like medical waste. Providers also said they have experienced challenges trying to find medical waste vendors willing to work with their clinics. A top reason, they said, is that vendors are unwilling to endure backlash and harassment from anti-abortion advocates.

See here, here, and here for the background. I’m terribly amused by the fact that the zealotry of the anti-abortion movement was cited as a reason that this law they supported is illegal. If there’s a Greek goddess of irony, she’s pouring herself a glass of wine right now. Of course the state will appeal, and we know that the Fifth Circuit and soon SCOTUS are places where hope goes to be strangled in a back alley. But until then we have this, so let’s celebrate while we still can. The Observer has more.

“Fetal remains” trial ends

Now we wait for a ruling.

State and reproductive rights attorneys wrapped up a five-day trial in federal court on Friday that will determine whether a Texas law requiring health providers to cremate or bury fetal remains can go into effect.

U.S. District Judge David Alan Ezra told attorneys on Friday that he has “not made up my mind on how I’m going to rule on this case” and is awaiting written closing arguments due on Aug. 3.

He’s expected to rule around the end of August.

The law at the center of the case is Senate Bill 8, passed in 2017, which requires the burial or cremation of fetal remains. Legislators passed the bill following a ruling that year by U.S. District Judge Sam Sparks that struck down a similar rule implemented by the Texas Department of State Health Services. Sparks said that rule was vague, caused undue burden on women and had high potential for irreparable harm.

Throughout the five-day trial, a wave of patients, health providers, state agency officials, bioethicists, cemetery directors and religious leaders flowed through the witness stand.

Before dismissing attorneys Friday morning, Ezra rattled off a list of questions and concerns he wanted both sides to answer in his closing arguments, including: What authority does Texas have to pass laws around giving dignity to the unborn? What would happen to women’s access to care — for abortions and miscarriages — if health providers did not have a facility to handle fetal remains? And how many facilities — secular or otherwise — have committed to helping with burials and cremation?

Ezra noted that the case is unique because state attorneys waived the argument that SB 8 protects the health or safety of patients and plaintiff’s attorneys waived arguments about costs to patients and providers.

The dynamics involved “makes this case extremely unique in many ways and makes finding precedent all the more difficult because those issues are generally not only present in these kind of abortion-related cases — they’re often paramount in those cases,” Ezra said.

See here for the background. The judge’s questions, which the Observer examined in more detail, are the key to the case. During the trial, there was testimony by Blake Howard Norton, the daughter of State Rep. Donna Howard, about how she felt coerced by the Catholic hospital where she was going through a miscarriage into making a decision about disposing of the fetus, and there was more useless testimony from paid state witnesses who lacked any expertise in the subject matter and the law. I feel like the judge is skeptical of the law, but we’ll see what he has to say about it. The Chron has more.

“Fetal remains” lawsuit trial underway

Here we go.

State and reproductive rights attorneys are going head to head again in federal court on Monday to argue whether Texas should require health providers to cremate or bury fetal remains.

“It’s a tough case for everybody,” U.S. District Judge David Alan Ezra said Friday during a pretrial hearing. In January, he had granted an injunction blocking a state fetal remains burial rule, but he said last week that the previous decision is no indication of how he would rule in the trial.

“It’s a very emotional case, and so I would ask counsel to do the best job they can to try and tamp down some of the more zealous individuals in your respective camps so that we don’t get a lot of extraneous stuff going on,” Ezra said to attorneys for the state and the Center for Reproductive Rights, who are representing the plaintiffs.

Arguments in the trial are expected to run all week.

[…]

Ezra listened as both sets of attorneys spent nearly two hours going over logistics of the trial and other issues including whether certain witnesses would be allowed to testify about the emotional trauma of abortions and fetal remain burials and keeping information about vendors confidential for safety reasons.

Throughout Friday’s pretrial hearing, Ezra laid out for attorneys what was on the court’s mind about the case, including: if women may face an undue burden if there aren’t enough providers or facilities statewide; the logistics of how doctors and clinics would deal with the law if it went into effect; and if Texas has enough facilities available statewide to help dispose of the fetal remains.

“I have to deal with this as a law in Texas that will affect every woman in the state of Texas,” Ezra said.

Another point of contention during the hearing was what to do about a 5th U.S. Circuit Court of Appeals decision on whether the Texas Catholic Conference of Bishops would have to turn over confidential internal documents to the Center for Reproductive Rights and Whole Woman’s Health for the fetal remains trial. Ezra had previously ruled it would, but in the middle of the pretrial hearing the 5th Circuit informed him it had reversed his decision.

See here for the previous update. I have no idea how this one may go, but I’ll be keeping an eye on it. There’s certainly a chance that none of this will matter given the likely future composition of SCOTUS, but we have to go through the process anyway. The Chron has more.