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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.

State lawsuits against SB8 finally get a hearing

A long strange trip it has been.

Right there with them

A state district judge on Wednesday morning heard arguments from abortion rights groups challenging Texas’ restrictive abortion law in what seems to be the first court hearing to specifically tackle the statute’s constitutionality.

David Peeples, a retired state magistrate judge, presided over the eight-hour hearing. He didn’t make a ruling Wednesday but is expected to make one soon after he receives additional filings from both the abortion rights groups and Texas Right to Life, a prominent anti-abortion organization and a defendant in the suits.

Peeples is considering over a dozen cases filed in state court challenging Senate Bill 8, which effectively bans abortions after about six weeks. These lawsuits — filed by Planned Parenthood, doctors, social workers, abortion fund organizations, practical support networks and lawyers — were consolidated by Texas’ multidistrict litigation panel to be heard together.

Attorneys for the 14 cases argued that the law is unconstitutional. Planned Parenthood sought an order blocking the law, while plaintiffs in the 13 other suits asked the judge to issue declaratory judgment of the constitutionality of the law, a legal maneuver used to resolve legal uncertainty in a certain case.

“In short, SB8’s enforcement mechanism, created to subvert one constitutional right, violates the Texas and United States Constitutions,” wrote attorneys representing the plaintiffs in the 13 other suits.

The suits target Texas Right to Life, which helped draft Texas’ law and has vowed to sue violators, even though the group has not filed suits against anyone as of yet.

Texas Right to Life argued that the plaintiffs can’t prove they’ve been injured by the law, and even if they did, the court has no jurisdiction to issue an order blocking the law. Furthermore, since it hasn’t actually filed any suits against people who have violated Texas’ abortion law, the organization argued it isn’t a proper defendant in the case. Its attorneys also argued the abortion rights groups were asking for an overly broad declaration to block cases that might hypothetically be filed.

See here, here, and here for some background. There’s video of the hearing here. The argument made by Texas Right to Life about how they couldn’t possible be sued for any of this, and the plaintiffs’ argument that the law has to be stopped at its root because the piecemeal approach fundamentally deprives them of their rights has been a part of this from the beginning and was a key element in the federal hearing before SCOTUS earlier this month. As before, I have no idea what the court might do or how long it might take to do it, but in this case I feel confident saying that it won’t be the final word. One way or the other, this will end up before the state Supreme Court. They may have some guidance from SCOTUS by then, but they’ll still have to grapple with those questions on their own. The Chron has more.

SB8’s day before SCOTUS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

The SCOTUS hearing on SB8 is today

I have no idea what to expect.

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

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

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

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

SCOTUS will hear SB8 appeals

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

And Slate tries to read some tea leaves.

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

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

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

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

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

Texas takes its shot at Roe v Wade

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

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

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

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

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

[…]

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

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

Justice Department officially asks SCOTUS to halt SB8

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

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

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

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

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

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

[…]

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

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

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

Justice Department goes to SCOTUS over SB8

As expected.

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

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

[…]

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

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

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

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

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

Fifth Circuit does the expected with the SB8 appeal

Was it ever in doubt?

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

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

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

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

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

[…]

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

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

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

Justice Department files its brief with the Fifth Circuit

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

Right there with them

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

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

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

[…]

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

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

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

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

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

In case you missed it.

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

State appeals SB8 restraining order to Fifth Circuit

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

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

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

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

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

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

[…]

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

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

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

UPDATE: Room service indeed.

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

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

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

Federal judge blocks SB8

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

Slate provides some highlights from Judge Pitman’s opinion.

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

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

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

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

SCOTx denies Planned Parenthood emergency request

Not a surprise, I suppose.

Right there with them

The Texas Supreme Court denied a request Monday from Planned Parenthood to resume its lawsuit, filed in a state district court, that challenges the state’s near-total abortion ban.

Planned Parenthood asked the all-Republican court last week to overturn the Texas Multidistrict Litigation Panel’s decision to indefinitely pause its suit alongside 13 other lawsuits filed in Travis County district court. The panel of five judges stopped the cases from continuing at the request of Texas Right to Life, a prominent anti-abortion organization that helped draft Texas’ abortion restrictions.

The suit filed by Planned Parenthood asked the court to declare the abortion law, which bans the procedure as early as six weeks into a pregnancy, unconstitutional. A hearing was scheduled for this month, the organization said, before the panel of judges paused proceedings. In that case, the court temporarily blocked Texas Right to Life from being able to sue Planned Parenthood for potential violations of the abortion law.

“The Texas Supreme Court’s decision to allow the stay to remain in effect is extremely disappointing and will likely deprive Planned Parenthood of its day in court, once again,” Helene Krasnoff, Planned Parenthood’s vice president for public policy litigation and law, said in a statement.

Elizabeth Myers, a Dallas-based attorney who represents plaintiffs for the other 13 lawsuits blocked, said Monday’s ruling was disappointing, but she called the stay a temporary setback.

“We’ll present our arguments and the defendants will ultimately have to attempt to defend SB8 on the merits,” Myers said. “That is something the defendants are obviously scared and unwilling to do, so it’s not surprising that they continue to try to delay it. At some point, their delay tactics will no longer work and our clients look forward to that day.”

See here for the background. I still don’t understand what the norms are for the Texas Multidistrict Litigation Panel, so I don’t know if outrage, annoyance, or a shrug of the shoulders is the appropriate reaction. I’m going to go with “annoyance” anyway, because this whole situation is some kind of bullshit. Let’s please get a favorable ruling in the federal case ASAP, shall we?

Planned Parenthood files emergency request to SCOTx

From the inbox:

Right there with them

On Wednesday, Planned Parenthood affiliates in Texas filed an emergency request asking the Texas Supreme Court to intervene in an ongoing case against Texas Right to Life (TRTL), challenging Senate Bill 8, the state’s six-week abortion ban. Earlier this month, Planned Parenthood was granted a temporary injunction against the group and its associates, which blocked TRTL from suing abortion providers and health care workers at Planned Parenthood health centers in Texas under S.B. 8.

However, in yet another attempt to deprive Planned Parenthood of its day in court, at TRTL’s request, the Texas Multidistrict Litigation Panel stepped in and stayed all ongoing challenges to S.B. 8 in state court indefinitely. This comes despite the fact that a hearing in Planned Parenthood’s case, where it asked the court to declare S.B. 8 unconstitutional, was already scheduled for Oct. 13. Intervention by the Texas Supreme Court is urgently and immediately needed. S.B. 8 continues to cause unprecedented harm on the ground, blocking Texans from accessing their constitutional right to abortion.

[…]

The U.S. Supreme Court allowed S.B. 8 to take effect nearly one month ago, disregarding nearly 50 years of precedent by denying an emergency request to block the law’s unconstitutional pre-viability abortion ban. S.B. 8 has decimated abortion access in the state, as providers are forced to turn people away under the six-week abortion ban. Historically, the overwhelming majority — between 85 and 90% — of Texans who obtain abortions in the state are at least six weeks into pregnancy. Under S.B. 8, the first six-week abortion ban allowed to take effect since the Roe v. Wade decision, few are able to receive care in the state, forcing patients to bear the financial and emotional cost of traveling elsewhere for essential care, all during a pandemic. For many Texans, particularly those who are Black or Latino, who have low incomes, or who live in rural areas, abortion is unattainable.

Since S.B. 8 took effect, abortion has been virtually inaccessible for the 7 million women of reproductive age living in Texas. Some of the devastation caused by the law in Texas and beyond are detailed in recent declarations from Planned Parenthood Gulf Coast President & CEO Melaney Linton, Planned Parenthood of the Rocky Mountains President & CEO Vicki Cowart, and Planned Parenthood of Arkansas and Eastern Oklahoma physician Dr. Joshua Yap in support of the U.S. Justice Department’s request for a preliminary injunction to stop the enforcement of S.B. 8.

See here for a bit of background. I wasn’t sure what the context of this was until I remembered that I had seen this:

With more than a dozen lawsuits challenging Texas’ near-total abortion ban stalled in state court, Planned Parenthood has asked the all-Republican Texas Supreme Court to step in and allow the cases to proceed.

Last week, the Texas Multidistrict Litigation Panel, which is made up of five judges, indefinitely paused 14 lawsuits filed in Travis County district court at the request of Texas Right to Life, a prominent anti-abortion organization that helped draft Texas’ abortion restriction. The panel of judges typically steps in to take action on a group of similar cases. The judges didn’t list a reason for the stay, and said the cases will remain paused until the panel makes another order.

One of the suits was filed by Planned Parenthood. It asked the court to declare the abortion law, which bans the procedure as early as six weeks into a pregnancy, unconstitutional. A hearing was scheduled for Oct. 8, the organization said, before the panel of judges paused proceedings.

In that case, the court temporarily blocked Texas Right to Life from being able to sue Planned Parenthood for potential violations of the abortion law.

“Texas Right to Life championed this blatantly unconstitutional law, but now it is doing everything it can to prevent those challenging S.B. 8 from having their day in court because TRTL knows it will lose,” Helene Krasnoff, vice president for public policy litigation and law at Planned Parenthood Federation of America, said in a statement. “We’re urging the Texas Supreme Court to step in and move this critical case along so we can restore access to abortion across the state.”

Got to say, I had never heard of the Texas Multidistrict Litigation Panel before now. I can understand why it exists, but at least in this instance it seems maddeningly opaque and unaccountable. I have no idea what the rules are here, or what PP’s odds of success are, but it seems they had no other choice if they wanted to be able to pursue this kind of legal remedy. So while we all have our eyes on the federal court, this is what’s happening at the state level.

How the “heartbeat” lawsuits may proceed

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Trying again to get SCOTUS to stop SB8

Good luck.

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

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

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

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

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

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

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

[…]

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

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

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

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

Planned Parenthood gets injunction against Texas Right to Life

It’s a start.

Right there with them

A district court in Travis County granted a temporary injunction on Monday, which will stop an anti-abortion group from being able to sue Planned Parenthood centers under SB 8, the so-called “heartbeat bill.”

Planned Parenthood affiliates in Texas filed a request for a temporary injunction on Sept. 2 against Texas Right to Life, an anti-abortion nonprofit and its associates. Planned Parenthood wanted to stop the group from suing abortion providers and health care workers at its centers in Texas.

The court ruled Monday that Texas Right to Life has “not shown that they will suffer any harm if a temporary injunction is granted” and that Planned Parenthood has “shown that they have a probable right to relief on their claims that SB 8 violates the Texas Constitution.” Planned Parenthood also has “no other adequate remedy at law,” the court said.

The court said the injunction will remain in effect until a final ruling; a trial on the merits of the case was set by the court for April 2022.

See here for the background. CNN has some more details.

This order applies only to Texas Right to Life and is part of a larger — and piecemeal — approach by abortion rights advocates to try to blunt the effect of the law. Other short-term temporary restraining orders are in place against other anti-abortion advocates, and more permanent injunctions are being sought in those cases.

[…]

In a court hearing Monday, Julie Murray, the attorney for Planned Parenthood Federation of America, told the judge that the organization is currently “complying with SB8 precisely because of the overwhelming threats of litigation” and that a temporary injunction “will not restore abortion services … but it will prevent and reduce the litigation exposure and constitutional harms that [Planned Parenthood] will experience.”

The parties spent nearly two hours coming to an agreement about the terms of the injunction.

I would like to know more about the “other short-term temporary restraining orders in place against other anti-abortion advocates”. I was going to suggest a massive wave of litigation by pretty much every provider, doctor, affiliate, advocate, and anyone else who felt threatened by SB8, but maybe that is already happening. Obviously, we want to get a sweeping federal injunction against this travesty, which would cover all of the contingencies, but who knows how long that could take, and it would be at the mercy of the Fifth Circuit, so fire away on all cylinders in the meantime. If these guys want to live by the lawsuit, let’s see how they like being on the other end of it. Axios 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.

No Roe roundup

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

Planned Parenthood files restraining order against Texas Right to Life.

Right there with them

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Back to the Chron story:

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

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

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

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

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

Doctors are also very unhappy with this new law.

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

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

[…]

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

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

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

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

[…]

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

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

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

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

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

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

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

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

Go get ’em, Sean Black.

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

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

The legal situation with the heartbeat bill

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

That was in reply to this:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The “heartbeat” bill is about to become law

There’s nothing standing in the way.

Right there with them

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

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

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

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

The 5th Circuit denied the emergency motions Sunday afternoon.

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

[…]

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

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

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

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

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

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

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

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

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

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

UPDATE:

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

The abortion ban chaos is coming

It’s already ugly.

Right there with them

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

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

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

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

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

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

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

[…]

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

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

Lawsuit filed against “heartbeat” abortion law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Chron adds some details.

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

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

[…]

The litigation filed Tuesday could face a difficult legal path.

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

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

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

Lawsuit against Lubbock “abortion sanctuary city” ordinance dismissed

This is gonna get weird.

Right there with them

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

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

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

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

[…]

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

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

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

Lawsuit filed against Lubbock “abortion sanctuary city” ordinance

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

Right there with them

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

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

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

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

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

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

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

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

Other May election results

Roundup style, mostly.

San Antonio Mayor Ron Nirenberg easily wins a fourth term.

Mayor Ron Nirenberg

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The runoff will be June 5.

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

And then there was Lubbock.

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

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

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

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

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

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

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

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

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

[…]

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

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

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

It instead relies on private citizens filing lawsuits.

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

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

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

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

Planned Parenthood not booted from Medicaid yet

A (likely very) temporary reprieve.

It’s constitutional – deal with it

Responding to an emergency lawsuit filed hours earlier, a Travis County judge issued an order Wednesday blocking Texas from removing Planned Parenthood as a Medicaid health care provider beginning Thursday.

The 14-day temporary restraining order, granted by state District Judge Maya Guerra Gamble after a brief hearing Wednesday afternoon, allows Planned Parenthood to continue providing health care to about 8,000 low-income Texans.

The judge also set a Feb. 17 hearing to determine whether a temporary injunction should be issued to keep Planned Parenthood in Medicaid.

In its lawsuit, Planned Parenthood argued that state officials did not follow the legally mandated process for kicking its health clinics out of Medicaid. Wednesday was supposed to be the final day Planned Parenthood clinics could receive Medicaid reimbursement for care that can include contraceptives, cancer screening and testing and treatment for sexually transmitted infections, but not abortions.

[…]

Planned Parenthood’s lawsuit argued that the termination letter did not comply with state law, including requirements that reasonable notice, and an opportunity for a hearing, be given.

The organization is seeking a court order blocking its removal until it exhausts all available administrative protests and appeals.

Texas officials, however, have argued that Planned Parenthood’s attack on the Jan. 4 notice of termination was misguided because a notice sent in January 2016 — kicking off years of litigation — complied with all necessary state laws and Medicaid regulations.

As the story notes, this has been going on since 2015. The state officially gave notice to Planned Parenthood patients that they needed to find a new doctor on January 5. I didn’t blog about it then because it was too depressing, and we know what else was going on at that time. It was a Fifth Circuit ruling that allowed the state to take the final steps in this process, so I don’t expect there to be much future to this litigation. Even the argument being made is just to buy time, as there are no questions of law remaining. You know my mantra: until we start electing different people to office, nothing is going to change. The Trib and the Chron have more.

Why endorse Sarah Davis?

It’s a good question.

Rep. Sarah Davis

Planned Parenthood’s Texas political arm on Thursday endorsed state Rep. Sarah Davis, rebuffing abortion rights activists who had lobbied the group to deny political support for the Houston Republican.

The efforts to deny Davis the endorsement had revolved around a petition circulated by Sherry Merfish, a deeply connected Democratic donor and former Planned Parenthood board member. The petition concedes that Davis “may have met the minimum standards of what it means to be ‘pro-choice,’” but argues that “the rest of her record stands completely at odds with the cause of reproductive justice and the purported mission of Planned Parenthood.”

It had gathered some 450 signatures by Wednesday afternoon, including numerous Planned Parenthood donors and two board members of the group’s Houston affiliate. One of the board members, Peggie Kohnert, had circulated her own petition.

The lobbying effort has revealed a fracture between key members of Houston’s abortion rights community and the leaders of Planned Parenthood Texas Votes, a political action committee that defines itself as nonpartisan but has struggled to find Republicans like Davis to endorse. As the debate plays out, Texas Democrats — desperate to capture a House majority before next year’s critical redistricting battle — are making an all-out push to unseat Davis, whom they view as one of the most vulnerable Republican legislators in the state.

Davis’ stances on abortion have angered members of her party but helped garner support from moderate voters. In the last two cycles, she won re-election while her party’s standard-bearers, Donald Trump and Ted Cruz, each failed to crack 40 percent in her district.

Houston lawyer Ann Johnson, Davis’ Democratic opponent, argues the incumbent has worked against women’s reproductive issues by opposing the Affordable Care Act and declining to vote for the law’s optional expansion of Medicaid. Davis disagrees, saying she has voted against “every anti-choice bill” during her time in office.

Some of Johnson’s supporters say groups such as Planned Parenthood Texas Votes have allowed Davis to carefully curate her moderate reputation while she aligns with her party on immigration and gun policies. Merfish said the group also would paint a misleading picture of Johnson by backing Davis.

“By endorsing Sarah, in people’s minds who may not be as familiar with Ann, it would cast doubt on whether Ann is aligned with them on these issues,” Merfish said. “Because, then why wouldn’t they endorse both of them, or why wouldn’t they stay out of it?”

Planned Parenthood Texas Votes announced the Davis endorsement Thursday as part of a slate of 18 new endorsements. Davis is the only Republican among the 27 candidates the group is backing this cycle.

In a news release, Planned Parenthood Texas Votes said it is “working to elect officials not to just defend access to sexual and reproductive health care, but to repair and expand the public health infrastructure damaged by Governor Abbott and other extremist politicians.”

There was a preview story about this on Wednesday, which covered much of the same ground. As the story notes, Davis also received the endorsement from the Human Rights Campaign, despite Ann Johnson being an out lesbian. The story goes into a lot of detail about Davis’ career and various votes and issues that are at the heart of the dispute, so I encourage you to read the rest.

On the one hand, I get why PPTV and the HRC want to endorse Republicans like Davis, who are an increasingly rare breed. It’s in their best interests, at least as they see it, to be non-partisan, which means they need to find Republicans they can support. From a national perspective, Democrats may be the majority in Congress now, but partisan control is likely to swap back and forth over time, and you need to have some connections to the Republican majority when it exists, no matter how otherwise hostile it is, because you can’t afford to be completely shut out. Long term, I’m sure groups like these very much want for their issues to not be seen as strictly partisan, but to have broad consensus across party lines, and the only way to do that is to have Republican faces you can point to and say “see, they support us, too”. They have done this for a long time, and it’s just how they operate.

On the other hand, the simple fact of the matter is that having Sarah Davis in the State House makes it that much more likely that the Republicans will maintain their majority in that chamber, and a House with a Republican majority and a Republican Speaker is absolutely, positively, one hundred percent going to pass at least one major anti-abortion bill in 2021, just as it has every session since 2003, when the Republicans first took the majority and thus gained trifecta control of Texas state politics. A State House with a Republican majority and Speaker will absolutely not pass a bill to expand Medicaid. I agree, such a bill would almost certainly be DOA in the Senate, but at least it would get there, and the voters in 2022 would have a tangible example of what they’ve been missing out on. And of course, a State House with a Republican majority and Speaker will absolutely make further cuts to women’s health (which is already happening without any legislative input) and add further restrictions to Planned Parenthood, again as they have been doing for years now. All of this would happen regardless of the virtuous votes that Sarah Davis would cast. I mean, it may be true that she has helped stop some things and reverse some cuts and spoken against some other things, but all this has happened regardless. She’s only one member, and they have always had the votes to do all that without her.

This debate has played out for several years at the national level, with the national Planned Parenthood PAC being criticized in the past for supporting the likes of Arlen Specter and Susan Collins and a handful of Congressional Republicans for their reasonably pro-choice voting records while overlooking the “which party is the majority” aspect. Indeed, for the first time ever, Planned Parenthood has endorsed Collins’ challenger, with her vote for Brett Kavanaugh being the proverbial last straw. Activists, including blogs like Daily Kos, have made the same argument about control of the chamber versus individual members with acceptable voting records. However you feel about what PPTV and HRC did here, it’s not at all a surprise to see this debate arrive here on this level.

Ann Johnson

Though individual endorsements rarely have the power to swing elections, Planned Parenthood Texas Votes holds more sway in House District 134 than the average political group, said Renée Cross, senior director of the Hobby School of Public Affairs at the University of Houston. The district, which covers Bellaire, West University Place, Southside Place, Rice University and the Texas Medical Center, is home to some of the most affluent, educated and politically engaged voters in the state and contains what Merfish described as a “trove of Planned Parenthood voters.”

The group’s endorsement is particularly significant for Davis, Cross said, because of President Trump’s struggles among suburban women.

“Just like the tea party helped bring her in back in 2010, the anti-Trump movement could help move her out, especially among women,” Cross said.

I agree that Davis is better positioned with these endorsements than without them. A bigger concern for Davis is just simply how Democratic HD134 was in 2018, when Beto took 60% of the vote, and Davis was fortunate to not have had a serious challenger. I see a parallel to Ellen Cohen, who won re-election in 2008 by a 14-point margin over a non-entity opponent, even as Republicans were carrying the district in nearly every other race. 2008 was a strong Democratic year overall in Harris County, but HD134 was actually a bit more Republican than it had been in 2006, when something like seven or eight downballot Dems also carried the district. Cohen still vastly outperformed other Dems in the Republican tidal wave of 2010, but that wave was too big for her to overcome. I get the same feeling about Davis this year. Maybe I’m wrong – no two elections are ever alike, and HD134 has been a Republican district far longer than it’s been a Democratic district – but there’s a reason why neutral observers view Davis as being endangered.

One last thing: When I say that groups like PPTV and HRC want to be supportive of Republicans like Sarah Davis, it’s because there’s literally no other Republicans like Sarah Davis, at least at the legislative level in Texas. The thing is, Republicans like her have been extremely endangered for some time now. Go ahead, name all of the Republican legislators you can think of from this century that you could classify as “pro-choice” with a straight face and without provoking a “no I’m not!” response from them. I got Joe Straus, Jeff Wentworth (primaried out by the wingnut Donna Campbell), and that’s about it. I’m old enough to remember when Gary Polland and Steven Hotze ousted Betsy Lake, the nice River Oaks Planned Parenthood-supporting lady who had been the Harris County GOP Chair in the 90s, thus completing a takeover of the party that has lurched ever further rightward since. If they can’t support Sarah Davis, I have no idea who else in the Republican Party they could support.

Abortion clinics say “ban’s over, we’re back”

I’m sure this will be left alone.

Right there with them

Texas clinics resumed offering abortions Wednesday after a strict bar on nonessential medical procedures was loosened at midnight.

The ban on nearly all abortions in Texas has been the subject of weeks of litigation — starting in late March when the governor postponed all surgeries not “immediately medically necessary” to preserve medical resources for coronavirus patients. Attorney General Ken Paxton said the ban extends to abortions, and the politically conservative 5th U.S. Circuit Court of Appeals has largely sided with state officials.

The legal fight is ongoing. Abortion providers have accused state officials of political opportunism, saying abortions rarely result in hospitalization and require little or no protective equipment.

A new order from Republican Gov. Greg Abbott that took effect Wednesday allows more procedures to resume in health care facilities that agree to reserve a certain number of beds for coronavirus patients and to refrain from seeking scarce protective equipment from public sources.

Abbott demurred when asked last week if abortions could proceed under his latest directive, saying it was a decision for the courts and “not part of this order.”

But abortion providers said Wednesday that they meet the criteria he laid out.

See here and here for the background. I assume this will wind up in court again, and the main question will be what ridiculous justifications the Fifth Circuit will come up with to agree with the state’s position. Until then, this is where we are today.

UPDATE: It appears that the state has agreed that the expiration of the order means that there is no further restriction on abortions. So that’s a relief.

Fifth Circuit flips off abortion rights again

I’m so sick of this shit.

Right there with them

A federal appeals court has again banned most abortions in Texas amid the coronavirus pandemic, though the ruling will only be in effect for two days.

The ruling on Monday by the Fifth Circuit Court of Appeals prohibits medication and surgical abortions for nearly all women except those nearing the state’s 22-week legal gestational limit to obtain one. The court had ruled last week that medication abortions could proceed.

But the court’s ruling will expire Tuesday night.

Republican Gov. Greg Abbott issued a new order loosening restrictions on nonessential surgical procedures — presumably including abortions — starting Wednesday, though neither he nor Attorney General Ken Paxton have clarified how abortions will be impacted.

Abbott’s original order restricted procedures to only those that require “immediate” response to protect a life or serious adverse medical outcome. The new order replaces “immediate” with “timely.” Physicians are left to determine whether the criteria is met.

Paxton has no plans to clarify how the new order applies to abortions, according to a spokeswoman. He has previously threatened criminal action against doctors who perform them during the ban.

In its ruling, the Fifth Circuit said medication abortions use masks and other critical protective gear needed for frontline doctors to respond to the coronavirus crisis. Abortion providers are required to meet with patients before and after providing them pills to terminate a pregnancy, the court wrote, and should be wearing protective gear during those visits.

“The question, then, is not whether medication abortions consume (personal protective equipment) in normal times, but whether they consume PPE during a public health emergency involving a spreading contagion that places severe strains on medical resources,” it wrote.

It was one week ago that the court allowed medical abortions to continue, so if you’re feeling some whiplash, you’re not alone. It boggles my mind that restrictions could be re-imposed by the court at a time when they are being eased up by the state, but that’s Fifth Circuit logic for you. What happens tomorrow when this order expires? Who the hell knows? It’s been bullshit from beginning to end. If we ever want to get off this demonic roller coaster, it’s going to require a new Governor and a new Attorney General, at the very least. The Trib has more.

Abbott and Paxton continue to play politics with abortion

This is exactly the problem with that Fifth Circuit ruling.

Right there with them

Though Gov. Greg Abbott loosened a ban on nonessential surgeries, he said Friday it would be up to courts to decide if his order restores access to abortions — the subject of a weekslong legal brawl — as the state continues to combat the coronavirus pandemic.

“Ultimately, obviously that will be a decision for courts to make,” Abbott said, adding, that an allowance for abortion is “not part of this order. The way that the order is written is in terms of what doctors write about the type of treatment that is provided.”

The Republican governor issued an order last month barring medical procedures that are not “immediately medically necessary” to preserve protective equipment and hospital beds for coronavirus patients. His directive extends through April 21 and Abbott said Friday the restrictions would be relaxed starting April 22.

But Attorney General Ken Paxton has declared Abbott’s first order applies to all abortions except those needed to protect the life or health of the woman. The near-total ban prompted a lawsuit from abortion providers, who accused state officials of political opportunism and argued the procedure does not usually require hospitalization nor extensive protective gear.

See here for the last entry. This is exactly what I meant when I said that if all it takes is a declaration of an emergency for the state to shutter abortion clinics, then there is no right to abortion in Texas and the law as it now exists is a sham. Abbott is on the one hand saying that we can start easing up on shutdown orders and we have plenty of hospital capacity (not that abortion has anything but a negligible effect on that), but hey, it’s not up to him to decide whether any of this means that reproductive health care can go back to its usual business even if other medical services that are deemed “non-essential” can resume. It’s cynical and chickenshit on his part, and it again shows that there has to be some kind of consistency. And it again shows why the Fifth Circuit sucks.

Fifth Circuit allows medical abortions to proceed

Well, this is a pleasant surprise.

Right there with them

A federal appeals court on Monday blocked Texas from enforcing a ban on medication-induced abortions as part of the state’s curbs on certain medical procedures during the coronavirus pandemic.

As a result of fast-moving litigation over Texas’s abortion restrictions, women seeking to terminate an unwanted pregnancy may do so through the use of medicine, but only women nearing their 22nd week of pregnancy may undergo a surgical abortion.

In its Monday ruling, the 5th Circuit Court of Appeals said it sided against Texas because it was unclear if the state’s public health order halting nonessential medical procedures applied to medication-induced abortions.

“[Abortion providers] argue that medication abortions are not covered by [the order] because neither dispensing medication nor ancillary diagnostic elements, such as a physical examination or ultrasound, qualify as ‘procedures,’” the three-judge panel wrote.

“Given the ambiguity in the record, we conclude on the briefing and record before us that [Texas officials] have not made the requisite strong showing [necessary for] relief,” the panel said.

The panel’s decision partially reinstates a lower court ruling that limited the Texas health order’s impact on abortions.

Following the 5th Circuit’s ruling, abortion providers on Tuesday withdrew an application submitted to the Supreme Court over the weekend that had asked the justices to intervene.

See here and here for the background. It’s still far less than great, in that it accepts the premise that abortions aren’t essential health care and can be routinely delayed for political reasons, but at least it recognizes that dispensing medication is in no way a threat to the supply of PPEs. From this godforsaken court, that counts as a ringing victory. SCOTUSBlog and the Trib have more.