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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.

Come watch Ken Paxton light your tax dollars on fire

I mean, Theranos would have delivered a greater return on investment than this.

Best mugshot ever

Texas Republican Attorney General Ken Paxton has been one of former President Donald Trump’s most reliable allies in spreading the myth of widespread voter fraud, particularly in the 2020 election, and frequently boasts that few states are as vigilant.

His office’s election integrity unit added two lawyers to the team in the last year, bringing it up to six staffers total, and worked more than 20,000 hours between October 2020 and September 2021. Its budget, meanwhile, ratcheted up from $1.9 million to $2.2 million during that time.

Yet records from the office show that the unit closed just three cases this year, down from 17 last year, and opened seven new ones. That includes the newly created unit focused on the 2021 local elections, which has yet to file a single case.

“This is an exorbitant amount of money that has resulted in no benefit for the average Texan,” said Austin Evers, executive director of American Oversight, a left-leaning nonprofit government watchdog that regularly files public information requests and files suits to force compliance with those requests. The organization shared some records it obtained from the Texas Attorney General’s Office with Hearst Newspapers for this report; others were obtained independently by Hearst Newspapers.

Evers added: “Taxpayers are funding a political stunt meant to fuel the false claim of a stolen election and justify voting restrictions.”

[…]

Richard L. Hasen, an election law professor at the University of California at Irvine, said there’s a more likely explanation, noting that Paxton, who is running for re-election, has “every incentive,” politically speaking, to vigorously go after voter fraud, as it’s an issue that energizes his party’s base.

“He’s finding very little of it despite spending a lot of money and using a lot of resources looking for it,” Hasen said. “The reason is not that such fraud is too hard to find. Those that commit voter fraud tend not to be brain surgeons. The reason he’s not finding a lot of it is because voter fraud is rare.”

Multiple academic studies and journalistic reviews have uncovered no evidence of widespread voter fraud, nor did a wide-ranging investigation of election fraud in 2020 conducted by the U.S. Justice Department.

There’s more, and the story does a good job of highlighting how Paxton takes the ridiculously small numbers involved in his crusade and exaggerates them to make them sound slightly less small, so read the rest. Just understand that facts have nothing to do with any of this, and won’t do anything to deter Paxton and his raving band of saboteurs. The argument here is exactly the same as the ones that Republicans have been using for at least the last 20 years for spending on “border security”: If they catch more cases of “vote fraud” it means that what they’re doing is working and so they need to get more money for it. If they catch fewer cases, it means that they’re falling behind and need to get more money to keep up. There are no circumstances under which spending less on this useless and harmful exercise makes sense.

One more thing:

While it’s true that the office has more cases pending this year over last year, 44 up from 38, that’s not because of a surge in new prosecutions. It’s because the vast majority of cases that were pending around this time last year are still making their way through the court system.

Among the cases pending include that of Hervis Rogers, a Black man from Houston who was charged this year with illegally voting while on parole, after he had made national headlines for waiting six hours to vote in the 2020 primary election.

A new ruling from the state’s highest criminal court Wednesday may afford legal relief to Rogers and potentially others, after it found that Paxton’s office does not have the constitutional right to prosecute voter fraud without the consent of local prosecutors.

Yes, given that recent ruling, one has to wonder how much of this activity is even legal at this point. I would suggest that attorneys for every one of the defendants in Paxton’s crosshairs, as well as all of those that have been convicted or pled guilty to something, start filing briefs to have cases and convictions tossed. Let’s expose this for the mockery it is.

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.

Justice Department sues Texas over redistricting maps

Add it to the queue.

The Department of Justice is suing Texas over its new redistricting maps, alleging that lawmakers intentionally discriminated against Latino and Black voters while redrawing the state’s political districts this year.

The lawsuit, filed in federal court in El Paso, takes aim at Texas’ new maps for Congress and the state House of Representatives. The Biden administration alleges that several of the districts were drawn “with discriminatory intent” to increase the electoral power of the state’s white voters despite massive population growth among racial minorities.

“Our complaint today alleges that the redistricting plans approved by the Texas State Legislature and signed into law by the governor will deny Black and Latino voters an equal opportunity to participate in the voting process and to elect representatives of their choice, in violation of the Voting Rights Act,” Associate Attorney General Vanita Gupta said in a news conference.

Texas’ new maps, redrawn this year to reflect the state’s population increases since 2010, are already facing seven legal challenges in state courts. Critics have assailed them as attacks on Texas’ minority voters, noting that the state’s GOP-led Legislature declined to add any new majority-minority districts even as people of color drove 95 percent of the state’s 4 million-person population growth. Hispanic Texans comprised roughly half of that total.

“Our investigation determined that Texas’ redistricting plans will dilute the increased minority voting strength that should have developed from these significant demographic shifts,” Gupta said.

She added that the new maps were adopted through a “rushed process” that allowed for “minimum” public participation. The department is asking the court to prevent any elections from taking place using the new maps; the state’s primaries are scheduled for March 1.

Politico adds some details.

The suit notes that Texas’ past redistricting maps have repeatedly been smacked down by courts over the last several decades. But [Attorney General Merrick] Garland acknowledged during the press conference that this case presents more challenges than past decades because the so-called preclearance requirement, which mandated that jurisdictions with a history of discriminatory election laws get changes approved by either the Department of Justice or a D.C.-based federal court, was gutted by a mid-2010s Supreme Court decision.

“There are two problems: One, it means that we don’t get a chance to look at these things before they go into effect, which is a very significant aspect of our tools, and instead requires that we challenge every case individually,” Garland said. “And second, it flips the burden of proof.”

[…]

The suit takes particular issue with the 23rd Congressional District — a sprawling West Texas seat now held by GOP Rep. Tony Gonzales — accusing Texas Republicans of intentionally eliminating its status as a district where Latinos could elect their candidate of choice.

More than 50 percent of the voting age population in the new 23rd District is Latino, but the Department of Justice claims — as it has in previous litigation against other iterations of this seat — that GOP mapmakers swapped out Latinos who vote regularly with low-propensity Latino voters.

The end result, the suit says, is “an effort to strengthen the voting power of Anglo citizens while preserving the superficial appearance of Latino control.”

The suit also noted the lack of a new Latino opportunity seat in Houston’s Harris County and accused the legislature of having “surgically excised minority communities from the core of the Dallas-Fort Worth Metroplex (DFW) by attaching them to heavily Anglo rural counties, some more than a hundred miles away.”

The suit also singles out the new 24th Congressional District, held by freshman GOP Rep. Beth Van Duyne. By reducing the district’s swath of northwest Dallas County, the mapmakers dropped the Latino citizen voting age population from 40 percent to 23 percent. The suit says the map again strengthens the Anglo voting bloc.

GOP mapmakers created three new deep blue seats — in Austin, Houston and Dallas — to accommodate a growing number of left-leaning voters and keep them from overwhelming the red-leaning districts surrounding them. None of those seats have a Latino-majority. Republicans will likely control at least two dozen of the state’s 38 seats under this new map.

In the Houston area, the suit notes that the new 38th Congressional District was drawn “to give Harris County’s shrinking Anglo population control of yet another Congressional seat” even though “most of that population growth occurred within the Latino community.” That seat leans heavily Republican, and the current frontrunner in the GOP primary, Wesley Hunt, is Black.

Garland also urged Congress to restore those preclearance requirements that were effectively stripped out of the Voting Rights Act by the Supreme Court in Shelby County v. Holder, which was decided in 2013.

As noted before, there are multiple lawsuits that have already been filed, and with the exception of the Gutierrez/Eckhardt suit, which raises different questions, have been combined into one action. Michael Li expects this lawsuit to be assigned to the same three-judge panel as the others as well. He also says this:

Not really much else to say here – if the Senate can ever get around to passing one of the voting rights bills that the House has sent them, it could make the plaintiffs’ case even stronger, but unless that happens it’s hard for me to have a lot of optimism, despite the glimmer that Michael provides. It’s barely possible that the panel could put the March primary on hold, but to say the least I don’t expect that. A copy of the lawsuit is here, and the Trib and the Texas Signal have more.

Fifth Circuit puts school mask order on hold

This effing court.

A federal appeals court has reinstated Gov. Greg Abbott’s executive order banning mask mandates as it weighs a federal judge’s ruling that the ban violates the rights of disabled students.

U.S. District Judge Lee Yeakel previously ruled that the order violated the Americans with Disabilities Act and the American Rescue Plan, which gives discretion to school districts to follow Centers for Disease Control and Prevention guidance on the virus. Yeakel, an appointee of former President George W. Bush, had banned state Attorney General Ken Paxton from enforcing the order, including suing school districts that required masks.

Texas appealed the judge’s ruling to the Fifth Circuit U.S. Court of Appeals in New Orleans, a court composed mostly of judges appointed by Republican presidents that has historically trended conservative in its legal decisions. Wednesday’s decision was made by a three-judge panel, two of whom were appointed by former President Donald Trump.

The lawsuit was brought by Disabled Rights Texas on behalf of a number of children with disabilities in Texas. Lawyers for those children argued the law banning mask mandates goes against CDC advice and that it doesn’t allow schools to consider mask mandates as an accommodation for kids with disabilities who are particularly vulnerable to COVID-19. They argued that it violates the ADA, which requires equal access to public goods for people with and without disabilities.

See here for the background. Other than the Bloomberg News story linked in the Chron piece, which says that the order was made by the court without any explanation, I can’t find any coverage of this, so this is what we know. But honestly, how much more do we need to know? As with the SB8 case and the detailed ruling given by the district court judge, the Fifth Circuit exists to enforce a partisan orthodoxy on whatever comes before it. When was the last time the state of Texas went running to them to ask for a stay on a ruling they didn’t like and got a No answer? All of the things that reformers want to do to the Supreme Court need to be done with even more urgency to this abomination.

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.

Federal judge blocks Abbott’s ban on school mask mandates

Excellent news.

A federal judge ruled Wednesday that Gov. Greg Abbott’s executive order prohibiting mask mandates in schools violates the Americans with Disabilities Act — freeing local officials to again create their own rules.

The order comes after a monthslong legal dispute between parents, a disability rights organization and Texas officials over whether the state was violating the 1990 law, known as the ADA, by not allowing school districts to require masks. U.S. District Judge Lee Yeakel barred Attorney General Ken Paxton from enforcing Abbott’s order.

“The spread of COVID-19 poses an even greater risk for children with special health needs,” Yeakel said. “Children with certain underlying conditions who contract COVID-19 are more likely to experience severe acute biological effects and to require admission to a hospital and the hospital’s intensive-care unit.”

The judge said the governor’s order impedes children with disabilities from the benefits of public schools’ programs, services and activities to which they are entitled.

The advocacy group, Disability Rights Texas, filed the federal lawsuit on behalf of several Texan families in late August against Abbott, Paxton and Texas Education Agency Commissioner Mike Morath. It states that the governor’s order and the TEA’s enforcement of it deny children with disabilities access to public education as they are at high risk of illness and death from the virus.

Kym Davis Rogers, litigation attorney with Disability Rights Texas, said in a statement that the court found that Texas is not above federal law and state officials cannot prevent school districts from providing accommodations to students who are especially vulnerable to the risks of COVID-19.

“No student should be forced to make the choice of forfeiting their education or risking their health, and now they won’t have to,” Rogers said.

Rogers said she doesn’t rule out the state appealing the decision in the 5th U.S. Circuit Court of Appeals because the state has done so before, most recently with its new law that bans abortions after as early as six weeks.

[…]

In court documents, Ryan Kercher, the attorney representing the state, argued that neither the attorney general nor the state education agency were enforcing the executive order so they couldn’t be sued.

But Disability Rights Texas attorneys said the three were enforcing the order and provided the court with a letter that the TEA sent to the attorney general’s office. In it, the education agency listed school districts that appeared to be operating in violation of the governor’s order. The plaintiffs also noted how Paxton sued several school districts over requiring masks and sent “threatening” letters to districts telling them that they were violating the order.

This isn’t the first time state attorneys argued that Paxton and Abbott didn’t actually enforce the law. In an August lawsuit against the state over the mask order, Paxton made the same argument and indicated that it was up to local county prosecutors to enforce the order.

See here, here, and here for the background, and here for a copy of Judge Yeakel’s ruling. As the story notes, the US Department of Education is also doing an investigation into Texas’ mask mandate ban; it’s not clear to me what effect this ruling, if it stands, could have on that. Also as the story notes, Paxton had filed multiple lawsuits against school districts that had mask mandates, getting most if not all of them to stop. We’ll see what happens next with that.

I do expect the state to appeal to the Fifth Circuit, and why wouldn’t they? The Fifth Circuit gives them everything they ask for pretty much all of the time, whatever the facts or merits of the case in question. This is still a significant ruling, and we should always take the opportunity to revel in any defeat suffered by Greg Abbott and Ken Paxton. May this be the start of a very long losing streak. The DMN and the Chron have more.

Justice Department sues Texas over the voter suppression law

Specifically, they are challenging a couple of specific provisions of the law.

The U.S. Justice Department on Thursday sued Texas over its new voting law, expanding its effort to challenge Republican-backed measures passed in state legislatures.

The lawsuit, brought by the DOJ’s civil rights division in the U.S. District Court for the Western District of Texas, challenges provisions in the Texas law, known as SB 1, that place new procedural requirements on voting by mail and restrict the assistance voters with disabilities or those who struggle to read and write are able to receive in filling out a ballot.

Those provisions “deny eligible voters meaningful assistance in the voting booth and require rejection of mail ballot materials for immaterial errors or omissions,” the department’s complaint alleges.

The lawsuit is the second one the DOJ’s civil rights division has brought this year challenging a state law placing new restrictions on voting. The department sued Georgia in June over a law the federal government alleged disproportionately harmed voters of color.

[…]

Unlike the case against Georgia, the DOJ’s suit against Texas was not brought under the section of the Voting Rights Act that focuses on voter discrimination based on race.

Rather, the complaint filed Thursday focuses on a section of the law requiring voter assistance for those who need it based on “blindness, disability or inability to read or write.” The suit was also filed under a provision of the Civil Rights Act of 1964 banning people from being denied the right to vote based on clerical errors or omissions that are “not material” in determining if someone is qualified to vote.

The complaint does mention the history of voting discrimination in Texas and the growth of minority populations in the state in recent years, but the claims based on race or ethnicity all have to do with the restrictions the law places on help made available to voters who speak languages other than English.

The Texas law confines the role of voting “assistors” to reading the ballot or helping to mark the ballot, barring individuals who provide help from “answering a voter’s questions, explaining the voting process, paraphrasing complex language, and providing other forms of voting assistance that some qualified voters require to cast an informed and effective vote,” according to the complaint.

The lawsuit also takes aim at measures that require voters to provide an identification number, such as a driver’s license or election identification certificate, in requesting a mail-in ballot.

“Conditioning the right to cast a mail ballot on a voter’s ability to recall and recite the identification number provided on an application for voter registration months or years before will curtail fundamental voting rights without advancing any legitimate state interest,” the lawsuit alleges.

It’s been a little while since the initial flurry of lawsuits against SB1, long enough that I had forgotten that there were already six lawsuits over this thing: Two lawsuits filed before the bill was signed, by Harris County and a coalition of voters, one filed in Austin and one in San Antonio; a trio of lawsuits filed right after it was signed, one each in federal court by Democracy Docket and the NAACP Legal Defense and Educational Fund, and one in state court by the Lawyers’ Committee for Civil Rights Under Law; and one a month later, which is to now say a month ago, by Mi Familia Vota. As I said at the time, it was not clear to me why the Lawyers’ Committee one was filed in state court. Those lawsuits were all presented as being broader claims about racial discrimination, much like that DOJ lawsuit against Georgia, while this one is more focused on a couple of specific items in the law. I don’t know if that was a strategic choice or just a recognition that the broader issues were already being addressed.

The Trib adds a few more details.

The state has long allowed voters who need assistance casting ballots to have someone help them, as long as those assisting don’t try to influence the actual votes. SB 1 places new constraints on what those assistants may do. They cannot answer questions, clarify translations, explain the voting process or paraphrase complex language, the federal lawsuit says.

The law also creates potential criminal penalties for people who assist voters. A person assisting a voter is required to fill out paperwork disclosing their relationship to that voter. They must also recite an expanded oath — now under the penalty of perjury — that states they did not “pressure or coerce” the voter into picking them for assistance.

The oath no longer allows explicitly answering the voter’s questions. Instead, an assistant must pledge to limit their assistance to “reading the ballot to the voter, directing the voter to read the ballot, marking the voter’s ballot, or directing the voter to mark the ballot.”

The limits on assistance will hit particularly hard voters with limited English proficiency and those with disabilities, the lawsuit contends.

“There is a history of discrimination against voters with disabilities in Texas,” the lawsuit claims, noting estimates that 28% of Texans have conditions impairing their mobility, cognition or vision.

The suit also takes aim at SB 1’s new rules for mail-in voting. Texas traditionally has placed more limits on mail-in voting than other states. The legitimacy of mail-in ballots was largely determined by comparing signatures on applications and ballots.

SB 1 created new ID requirements. Voters who want to be mailed a ballot must provide their driver’s license number or, if they don’t have one, the last four digits of their Social Security number when they send in an application for one.

They then must provide the same numbers on the envelope used to return their completed ballot. Critics point out that many voters — particularly elderly applicants — may have their votes thrown out simply because they didn’t remember which ID number they used the first time, or have lost their ID card.

The law, set to take effect in time for the 2022 primary elections, already faced legal challenges generally argue it will disproportionately impact voters of colors and voters with disabilities. Those challenges, along with Thursday’s lawsuit, could delay its implementation.

Here’s where I shrug and say that I have no idea what the courts will make of this. I will also remind everyone that the Texas voter ID law specifically excluded mail voters from needing to provide ID because at the time more Republicans voted by mail, and they had no interest in inconveniencing their own voters. Now that Democrats also use mail ballots, that consideration no longer applies. The Chron, Reform Austin, 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.

Federal lawsuit over mask mandate ban in schools has its hearing

A big case with potential national implications.

School district leaders should have the right to make decisions about mask mandates based on the needs of their students and local coronavirus spread data, attorneys argued Wednesday in federal court.

Lawyers with Disability Rights Texas, who filed the first federal lawsuit over the ban in mid-August, allege that Gov. Greg Abbott’s prohibition on mask mandates puts students with disabilities at risk.

The organization claims that Abbott’s executive order violates federal anti-discrimination law, which prohibits the exclusion of students with disabilities from public education programs and activities.

Disability Rights Texas represents students mostly younger than 12 with disabilities and underlying medical conditions “which carry an increased risk of serious complications or death in the event that they contract COVID-19″ including children who have Down syndrome, moderate to severe asthma, and chronic lung or heart conditions.

“Doctors that treat the plaintiffs told them to avoid places without universal masking,” attorney Scott Thomas said.

Their parents submitted testimony outlining their difficult choices about whether to prioritize their vulnerable children’s educational needs or their health.

“No parent should be forced to make a decision like this,” one said.

Ryan Kercher, arguing on behalf of the state, stressed that the lawsuit hinged on data, pointing to the relatively low number of COVID-19 cases in the schools of the students suing.

Judge Lee Yeakel interrupted Kercher, asking why the data mattered. If the odds of contracting COVID-19 were 10,000-1, it would matter to the one person, he said.

Kercher pushed back, saying it is important to examine the number of cases to see if a real risk existed should masks not be mandated. Holding up Fort Bend Independent School District, which does not require masks, as an example, Kercher said the district near Houston had case totals that are on par with districts that do not require masks.

But Yeakel also questioned why not search for the most safe option to prevent the spread of coronavirus.

“That’s not a choice anyone gets,” Kercher said, noting that the speed limit isn’t 5 miles per hour everywhere. He and his co-counsel did not wear face coverings during the hearing.

Yeakel did not rule on the case Wednesday but said he would work to do so as quickly as possible. He alluded to the national interest and impact such a decision could have as states across the country are also in the midst of their own mask battles. No matter what he decides, appeals appear likely.

See here, here, and here for the background. The Justice Department got involved in the case on the side of the plaintiffs earlier this week. I think they have a strong case, and of course I’m rooting for Greg Abbott to be handed a loss, but we’ll see. I do think this one will eventually make its way to SCOTUS, perhaps quickly if there’s a question about staying a favorable ruling for the plaintiffs. KVUE 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.

Justice Department gets involved in federal lawsuit over mask mandate ban

Missed this over the weekend.

The Justice Department signaled its support on Wednesday for the families of children with disabilities in Texas who are suing to overturn Gov. Greg Abbott’s ban on mask mandates in the state’s schools.

The department filed a formal statement on Wednesday with the federal district court in Austin that is hearing one of the lawsuits, saying that the ban violates the rights of students with disabilities if it prevents the students from safely attending public schools in person, “even if their local school districts offered them the option of virtual learning.”

The move signals a willingness by the federal government to intervene in states where governors and other policymakers have opposed mask mandates, using federal anti-discrimination laws like the Americans with Disabilities Act. The Justice Department has often used similar statements of interest to step in to cases involving civil rights.

“Frankly I’m thrilled,” said Juliana Longoria, 38, of San Antonio. Her daughter, Juliana Ramirez, 8, is one of the plaintiffs in a suit against the ban filed in August by the advocacy group Disability Rights Texas. “It gives me a lot more hope that the federal government is serious about protecting our children,” Ms. Longoria said.

[…]

Dustin Rynders, a lawyer for Disability Rights Texas, said the department’s position put schools in Texas and beyond on notice that they had an obligation to accommodate people with disabilities, including through the wearing of masks.

“It would be discrimination for a state to prohibit ramps to enter in the school,” Mr. Rynders said. “And for many of our clients, people wearing masks to protect our clients’ health is what is required for our clients to be able to safely enter the school.”

Because masks are not required at her school, Juliana Graves, 7, has not been back to school in Sugar Land this year, according to her mother, Ricki Graves. The Lamar Consolidated Independent School District did not immediately respond to requests for comment.

Juliana has had a heart transplant, and the medication she takes to prevent rejection suppresses her immune system, her mother said. As a result, respiratory infections as simple as the common cold have landed Juliana in the hospital more than a dozen times, Ms. Graves said, adding that she worries that Covid-19 could kill her daughter.

Instead of going to school, Juliana has been receiving four hours a week of instruction from a teacher through homebound school services, Ms. Graves said. Her daughter is repeating first grade, she said, and might now be falling even further behind.

“She’s missing all her social interaction, she’s not able to go to school in person and be with her teachers and have recess and go to lunch,” Ms. Graves said. “It’s hard for her.”

See here, here, and here for the background. The story says that a hearing for the lawsuit is scheduled for this week, but I couldn’t find what the date of that hearing is, so I guess I’ll know when I see a story about that. I would like to think that an injunction barring Abbott from banning mask mandates would be in the offing, but I think a narrower ruling that would require schools that have a student that meets some definition of “disabled” to have a mandate is more likely. But I Am Not A Lawyer, so what do I know? ABC News and the Trib have more.

Medicaid and the “heartbeat” law

Of interest.

Texas’ new abortion ban makes no exceptions for pregnancies that result from rape or incest. Nearly a month after it was enacted, state health officials still won’t say whether that includes Texans on Medicaid, a small but critical population that they are required to help access the procedure.

Under federal Medicaid rules, states are obligated to cover abortions in rare circumstances, including for victims of sexual abuse. The new Texas law prohibits abortions after six weeks of pregnancy and allows nearly anyone to sue those who defy the restrictions. It is at least temporarily in place while state and federal courts review whether it is constitutional.

The law appears to have forced the state Health and Human Services Commission into a predicament: either it flouts the state ban or it violates the longstanding federal guidelines.

The agency has not said how it is complying with either directive; a spokeswoman declined to comment, citing the pending litigation. In its Medicaid handbook, the agency still provides instructions for submitting abortion claims for reimbursement.

The Department of Justice pointed to the Medicaid impact in a lawsuit it filed earlier this month against the Texas ban. A hearing on that suit is scheduled for Friday.

“The statute arbitrarily denies Medicaid beneficiaries coverage of a procedure for which Medicaid coverage is mandatory,” lawyers for the department wrote in their complaint.

See here and here for some background on the DOJ lawsuit. The subject of Medicaid did come up in oral arguments on Friday, but it didn’t appear to be a main topic of interest. As this story notes, the main lever the federal government has to enforce this is to threaten to withhold Medicaid funding, but that would mostly hurt Medicaid recipients, and it is not at all clear that Greg Abbott would be inclined to give an inch. Some states like South Dakota have routinely violated this law, without consequence. Maybe it matters in this lawsuit and maybe it doesn’t, I don’t know. But there it is.

The “abortion bans are good for interstate commerce, actually” defense

I can never tell when Ken Paxton is trolling or sincere.

In briefs filed Wednesday in the Justice Department’s challenge to Texas’ abortion ban, Texas Attorney General Ken Paxton touted the trips Texas women are making out of state to obtain abortions as a point in his favor in defending the law.

Paxton was addressing an argument that the Biden administration had made for why it should be allowed to challenge the six-week abortion ban in federal court. The Justice Department said that the way the ban affects interstate commerce gives the United States the authority to bring a lawsuit challenging it.

Paxton shot back on Wednesday in his brief by arguing that the Justice Department did not cite any “actual evidence that the Texas Heartbeat Act burdens interstate commerce.”

“What evidence that does exist in the record suggests that, if anything, the Act is stimulating rather than obstructing interstate travel,” Paxton said, pointing to an increase in Texas women seeking to travel to Kansas and Oklahoma to obtain the procedure.

In an earlier court filing, the leader of the clinic organization Trust Women told a court that call volume for appointments at its clinics in Kansas and Oklahoma had doubled, and a significant portion of those patients were from Texas.

“About two-thirds of our [Oklahoma City clinic] patient appointment calls now come from Texas patients seeking abortions that are unavailable throughout their home state,” the provider said, noting that typically only a quarter of the clinic’s patients are from Texas. In Kansas, where in 2019 only 25 abortion patients were from Texas, approximately half of the calls to its Wichita clinic are now coming from Texas patients, according to the filing.

That’s not how I have understood the Justice Department’s case, but what do I know? Ken Paxton is a ninth-level legal ninja and we must bow before his superior wisdom.

Be that as it may, yesterday was the hearing for the motion for an injunction against SB8, which we have all been waiting for:

A federal judge Friday expressed doubt about Texas officials’ argument that the state’s virtual ban on abortion is constitutional and must stay in effect while the courts determine whether it violates the right to access the procedure.

Lawyers for the state say the law is immune from being temporarily blocked in the meantime because it is enforced by civilians who sue over violations, not the state.

“If the state is so confident in the constitutionality of the limitations on women’s access to abortion, then why did it go to such great lengths to create this very unusual private cause of action rather than simply doing it directly?” U.S. District Judge Robert Pitman asked Texas’ attorneys. “If the state had done this directly, would you still defend the constitutionality of these limitations on their merits?”

After a three-hour hearing, Pitman did not give a timeline for when he would rule on the Justice Department’s request to halt the law temporarily while its lawsuit is ongoing. Texas has indicated in court filings that it will immediately appeal any temporary block placed on the law.

“I will give careful consideration to very important issues that you have raised and argued, and we will get to work on the appropriate order in this case,” said Pitman, an Obama appointee.

[…]

The Justice Department filed the suit last month after the U.S. Supreme Court denied an emergency request to block the law as it took effect Sept. 1, citing procedural constraints because of the law’s unique construction. The high court did not weigh in on the substance of the case.

Pitman acknowledged the challenge he would face in issuing an injunction because state officials do not enforce the law.

“What would you believe that would obligate you to do, if anything?” Pitman asked Will Thompson, deputy chief for special litigation for the Texas attorney general’s office.

“Honestly, Your Honor, I’m not sure,” Thompson answered. “I think that’s part of the problem.”

The federal government is asking Pitman to specify that his order would apply to private individuals who may wish to file suits for violations of the law, Senate Bill 8, “such as by requiring Texas to post the injunction on court websites and inform all state court judges and judicial employees about the injunction.” The state has urged Pitman to be specific about who would be restricted by any order he makes, and how.

Brian Netter, a lawyer for the Justice Department, argued that the state can’t hide behind the law’s unique construction to help it “unambiguously violate” the Constitution.

“The state resorted to an unprecedented scheme of vigilante justice that was designed to scare abortion providers and others who might help women exercise their constitutional rights while skirting judicial review,” Netter said. “So far, it’s working. … Women have been left desperate, forced under sometimes harrowing circumstances to get out of Texas, if they even can.”

“The facts on the ground are quite clear and make an unambiguous case that SB 8 has already had the effect of materially diminishing the opportunity of women in Texas to exercise a constitutional right.”

Those who can travel face a difficult journey: On average, patients are traveling 650 miles each way to reach abortion clinics in the Southwest, court filings stated.

One minor, who was raped by a family member, traveled eight hours from Galveston to Oklahoma to get an abortion, the Justice Department alleges.

Another patient traveled six hours one way to get to Oklahoma by herself because she was worried that asking someone to come with her would leave that person open to a suit filed under SB 8.

Not much more to do right now but wait and hope. Zoe Tillman from Buzzfeed News has a long thread from the hearing, while law professor Leah Litman throws some water on the state’s defense. The 19th has a broader look at the legal landscape and the various cases against the “heartbeat” law, and Daily Kos has more.

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.

Texas takes its potty obsession to court

Oh, brother.

Texas Attorney General Ken Paxton is suing the Biden administration over recent federal guidance issued to protect LGBTQ people in the workplace, including a directive that says employees should be allowed to use the bathrooms, locker rooms and showers that correspond with their gender identity.

The guidance also clarifies that misuse of a person’s preferred pronouns could be considered harassment in certain circumstances.

The lawsuit, filed Monday in the Northern District of Texas federal court, Paxton claims that the U.S. Equal Employment Opportunity Commission violated Title VII of the Civil Rights Act of 1964 when it issued a technical assistance document outlining the impact of a landmark U.S. Supreme Court ruling last year. That ruling prohibited employer discrimination on the basis of sexual orientation and gender identity. Title VII prohibits discrimination against employees on the basis of sex.

Defendants in the lawsuit include the EEOC, commission Chair Charlotte A. Burrows and U.S. Attorney General Merrick Garland.

The EEOC guidance, released on June 15, specifies that employers must not prohibit transgender employees from dressing in correspondence with their gender identity or using bathrooms, locker rooms or showers that are consistent with their gender identity.

In a statement, Paxton called the guidance “illegal” and an “unacceptable” attempt “to force businesses, including the State of Texas, to align with their beliefs.”

“If the Biden Administration thinks they can force states to comply with their political agenda, my office will fight against their radical attempt at social change,” Paxton said.

In the lawsuit, Paxton also argued that the EEOC violated the First and Eleventh Amendments, as well as the Administrative Procedure Act, which specifies how government agencies issue regulations.

The EEOC said in an email on Monday that it does not comment on pending litigation, but that it will be represented by the Department of Justice, which declined to comment Monday.

For a variety of reasons, not the least of which being my searing contempt for the walking dirtbag that is Ken Paxton, it’s hard to take his nakedly political lawsuits seriously. We’ve certainly seen plenty of examples of shoddy lawyering on his part, not to mention him lying about court actions in a way that makes him look good to his knuckle-dragging base, and that always makes me think he’s in this more for the publicity (which he can get immediately) than the (often years-off) results. That said, if there’s one thing Ken Paxton is unquestionably good at, it’s picking federal judges who are likely to give him what he wants. As such, we have no choice but to take this seriously. Daily Kos has more.

Justice Department files its motion for an injunction against SB8

Let’s hope they get a quick win.

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

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

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

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

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

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

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

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

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

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

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

Justice Department sues over “heartbeat” law

Good.

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

More on the AG response to the “heartbeat” bill

Yes, like this.

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

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

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

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

[…]

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

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

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

The federal response to the “heartbeat” bill

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

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

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

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

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

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

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

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

[…]

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

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

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

Abbott’s migrant roundup order still blocked

Good.

A federal judge in El Paso on Friday extended her order blocking Gov. Greg Abbott’s directive to state troopers to pull over drivers transporting migrants “who pose a risk of carrying COVID-19.”

U.S. District Judge Kathleen Cardone lengthened her restraining order by another two weeks after a hearing Friday, according to a court filing. Her original order on Aug. 3 was set to expire Friday.

In July, Abbott ordered state troopers to pull over civilian drivers giving rides to recent immigrants who may be infected with the virus and redirect the drivers to their origin point. If the driver didn’t comply, the troopers should seize their vehicles, the order said.

Soon after, the U.S. Department of Justice sued Texas and Abbott, describing the governor’s executive order as “dangerous and unlawful.”

In the lawsuit, the DOJ said Abbott’s order would disrupt federal immigration officials’ network of contractors and nongovernmental organizations that help host recently arrived migrants while their legal cases are pending.

See here and here for background on the suit filed by the Justice Department. There’s also now another lawsuit filed by the ACLU on behalf of several groups; as far as I know there has not yet been a hearing for that. In keeping with my earlier posts, I don’t know how this is likely to play out, but as a rule any time Greg Abbott and Ken Paxton lose in court, it’s probably a good thing.

Still no quorum, and no Dem legislators rounded up yet

And I’m still not sure what exactly will happen when and if a law enforcement officer stumbles across one of the wayward legislators.

The hunt for missing Democratic Texas House members escalated late Thursday and Friday, as the sergeant-at-arms and law enforcement visited some of the absentees’ homes with the aim of bringing them to the Capitol.

Earlier this week, Republican House Speaker Dade Phelan issued civil arrest warrants for 52 Democrats who have refused to report to the House for a month now, depriving the Republican majority of the 100-member quorum needed to vote on legislation during two special sessions.

The warrants allow law enforcement to order, and even escort, members back to the chamber. But given that they are not guilty of a crime, members are not at risk of going to jail.

The first step in the search came Wednesday, when the sergeant-at-arms stopped by the Democrats’ Capitol offices and left copies of the warrants with their staffs.

On Thursday and Friday, law enforcement visited the homes of at least a few Austin Democrats, with the aim of bringing them back to the chamber, but found none of them.

[…]

Rep. Jon Rosenthal, D-Houston, returned to Texas last week but has not disclosed his location. He said Friday that he was unaware of any widespread effort to “physically collect folks” and was for the most part going about his life.

“I’m certainly not running around wearing Jon Rosenthal campaign gear or anything like that,” he said. “But I feel comfortable being outside and doing the things that normal humans do.”

An engineer by training, Rosenthal said he was still having meetings with constituents by phone or Zoom, as he has throughout much of the pandemic.

“I wouldn’t engage in anything like this if it wasn’t such an important, fundamental core issue,” he said.

Also Friday, Derrick Johnson, president and CEO of the National Association for the Advancement of Colored People, urged the Justice Department in a letter to intervene in Texas and determine that Abbott and Republican lawmakers were engaging in a civil rights conspiracy and violating Democratic members’ constitutional rights by using the threat of a civil arrest to compel attendance. The process for restoring a quorum is outlined in rules of the House that were unanimously adopted by members, including the Democrats, in the spring.

Johnson said he’d spoken with Black lawmakers — Reps. Jasmine Crockett of Dallas, Joe Deshotel of Beaumont and Ron Reynolds of Missouri City — and all of them supported Justice Department intervention.

See here and here for some background. The NAACP intervention is spurred in part by some yahoos offering a bounty to police officers for catching the Dems, which is very much the sort of thing no one should be encouraging. Again, I have no idea how this all plays out. How much does law enforcement even care about this? And what is the plan if and when they find someone? I don’t think anyone knows. I think when a police officer happens to encounter one of the quorum busters, no one has a clear idea of what happens next. I mean, given that it’s not a criminal warrant and there’s no threat of arrest, what is to stop the legislator from just walking away? All of this is completely half-baked, and is headed for a farce. Whatever the Republicans think they’re going to get out of this, I doubt they will be satisfied.

Another lawsuit filed against Abbott’s migrant transport order

Bring them on.

Immigrant rights groups backed by the American Civil Liberties Union filed a federal lawsuit against Texas Governor Greg Abbott over his executive order restricting the transportation of migrants, claiming it goes against federal law and amounts to racial profiling at the southern border.

The legal challenge was brought by the nonprofit Annunciation House, a migrant shelter provider in El Paso, along with immigrant advocacy groups Angry Tias & Abuelas of the Rio Grande Valley and FIEL Houston,. They are represented by attorneys with the ACLU’s Immigrants’ Rights Project and the ACLU of Texas.

This lawsuit, filed late Wednesday in El Paso federal court, comes six days after the U.S. Department of Justice sued Abbott to block the order. On Tuesday, a federal judge in that case issued a temporary restraining order blocking enforcement of the order until a hearing on an injunction can be held.

Echoing the DOJ’s claims, the ACLU and immigration groups allege that the order violates the supremacy clause of the U.S. Constitution by attempting to regulate the movement of migrants, which is for the federal government to decide. They also say the order unlawfully attempts to regulate the federal government.

[…]

In Wednesday’s lawsuit, the ACLU argues the order will directly impact people who have been released from the federal government’s custody into the country to await their immigration hearing. Those people will be unable to get any form of transportation after being released from CBP custody, according to the complaint, which points out that state law enforcement officials would be taking migrants back to CBP after the agency released them.

The groups also claim the order allows Texas police to racially profile travelers along the border region.

“It directs state officers to make their own determinations about passengers’ immigration status, wholly independent of the federal government, and to impose harsh penalties based on those unilateral immigration decisions,” the lawsuit states. “It opens the door to profiling, standardless detention, questioning, vehicle seizure, rerouting, and heavy fines. The executive order is already having a profound chilling effect on people’s movement in border communities and throughout the state.”

In addition, the immigrant advocacy organizations say they will be directly affected by the order if it is allowed to be enforced. Annunciation House transports migrants who have been released from federal immigration custody to its facility, which houses migrants in the El Paso area. Angry Tias funds numerous services for migrants, including a taxi service that is kept on retainer. Both groups say they would be unable to provide such services under the governor’s order, would face having their vehicles impounded and would be left with no way of assisting migrants.

See here and here for background on the suit filed by the Justice Department. As before, I don’t really know enough to say much of value – I’m not fully clear on the differences in the claims made by the two groups of plaintiffs. It may be that this suit winds up getting combined with the other one, as often happens. Whatever the case, I’m rooting for the plaintiffs. The Texas Signal and Daily Kos have more.