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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.

Third Court rejects Paxton attempt to kill whistleblower lawsuit

Good.

Best mugshot ever

A state appeals court found Thursday that former deputies of Attorney General Ken Paxton who were fired after accusing the Republican official of abusing his office are protected under the state’s whistleblower law, allowing their lawsuit against Paxton to proceed.

Paxton’s lawyers had argued in court that he’s exempt from the Texas Whistleblower Act because he’s an elected official, not a public employee. But the court upheld a previous lower court decision that denied Paxton’s attempt to dismiss the case.

In its opinion, Texas’ 3rd Court of Appeals rejected the attorney general’s interpretation of the Texas Whistleblower Act, “which would have the effect of stripping whistleblower protections from employees who might report misconduct by the thousands of elected officials throughout the State — particularly by those who direct and lead the agencies of this State.”

[…]

In its opinion, the court wrote that the former employees “sufficiently alleged illegal conduct by their employing governmental entity as contemplated by the Act” and disagreed with Paxton’s characterization of the whistleblower law, writing that while “Texas is an employment-at-will state,” the act “provides an exception to that general rule.”

“Although loyalty and confident are important considerations in employment matters,” it wrote, “the Act provides that a State employer cannot fire an employee because he reports illegal conduct by the employer, even when it is that act of reporting that causes the employer to lose confidence or feel the employee lacks loyalty.”

See here for the previous update, and here for a copy of the ruling. The justices seemed pretty skeptical of Paxton’s argument at the hearing, so this is no surprise. Paxton could ask for an en banc hearing or he could appeal to the Supreme Court. The former means another couple of months that the lawsuit is on ice, but the odds of success are low. The latter is more likely to get a favorable ruling for Paxton, but if he loses he’s out of options and we move on to the next phase. I’m guessing he would rather avoid discovery, because it seems very likely that a weasel like Paxton has stuff to hide, so we’ll see if he decides to draw it out or not. Maybe, if we’re very lucky, we’re a step closer to Ken Paxton facing a bit of accountability for once in his life. The Chron has more.

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.

Chick-Fil-A and the “heartbeat” lawsuits

I’d forgotten all about this.

A case that’s before the Texas Supreme Court this fall could have strong implications for the future of the state’s newly adopted abortion ban, the most prohibitive in the nation.

The suit relates to a 2019 law that, like the abortion law, was authored by state Sen. Bryan Hughes, R-Mineola.

Known as the “Save Chick-fil-A” law, it allows anyone to sue when they believe a governmental entity has taken “adverse actions” against a person or company based on its support for a religious organization, as Republican lawmakers believed the city of San Antonio did when excluding the fast-food restaurant from its airport.

Civilian enforcement is also the key to the new state law that effectively bans abortion, Senate Bill 8 — a provision that has so far allowed it to survive a legal challenge based on Roe v. Wade, the 1973 Supreme Court case establishing women’s right to abortions. At issue in both cases: Can a state law grant private citizens standing to sue?

“The standing issue in the case is essentially the same,” said Jason Steed, a Dallas-based appellate lawyer and court watcher who is not involved in the case. “That’s what’s interesting about it is that the court could decide that standing issue and whatever they decide about that issue would have direct implications for SB 8.”

[…]

The city council’s decision to ban the restaurant had animated conservatives who saw it as discrimination against the company because its owner had given money to Christian groups that oppose same-sex marriage.

Gov. Greg Abbott, surrounded by Republican lawmakers, each with a Chick-fil-A styrofoam cup in hand, signed Hughes’ bill in July 2019, and celebrated it as a victory for religious freedom.

The suit before the Texas Supreme Court was brought on Sept. 5, 2019, by five Chick-fil-A supporters who said they were harmed because they would have been customers of the restaurant had it opened in the city-owned airport.

Still, they note in the suit that the law does not require them to prove damages and purports to give standing to anyone who alleges a violation. They are seeking a court order to stop the city from excluding the fast-foot chain from this project and potential ones with the city in the future.

It’s unclear whether the company wants into the airport. In September 2020, San Antonio was forced to offer Chick-Fil-A its spot back as part of an agreement with the Federal Aviation Administration’s Office of Civil Rights under the Trump administration. The settlement helped the airport avoid penalties that could have jeopardized millions of dollars in funding from the agency.

But Chick-Fil-A declined, and the city has since given the spot to Whataburger, which is slated to open by next spring.

In August of 2020, the Fourth Court of Appeals in San Antonio sided with the city and reversed a lower court’s decision, ruling that the city had sovereign immunity, a legal principle that protects governments and their agencies from lawsuits.

See here, here, and here for some background. Ken Paxton filed a lawsuit in July of 2019, before the five busybodies filed theirs. The easy way out for SCOTx is to uphold the Fourth Court’s ruling, which would allow them to not address the question of standing, which as noted is at the center of SB8. The city of San Antonio argued that the plaintiffs did not have standing, and as of today there’s no adjudication on that matter. Sooner or later, one way or another, we’ll get some kind of answer to that.

First lawsuit filed against the redistricting maps

Why wait? We already know they suck.

Before they’ve even been signed into law, Texas’ new maps for Congress and the statehouse are being challenged in court for allegedly discriminating against Latino voters.

Filing the first federal lawsuit Monday in what’s expected to be a flurry of litigation, a group of individual voters and organizations that represent Latinos claim the districts drawn by the Legislature unconstitutionally dilute the strength of their votes and violate the federal Voting Rights Act.

The lawsuit was filed in El Paso by the Mexican American Legal Defense and Educational Fund.

The legal challenge comes as the Legislature rounds out its redistricting work to incorporate a decade of population growth into new maps for Congress, the Texas House and the Texas Senate. Of the 4 million new residents the state gained since 2010, 95% were people of color; half were Hispanic.

Yet the maps advanced by the Republican-controlled Legislature deny Hispanics greater electoral influence — and pull back on their ability to control elections. The House map drops the number of districts in which Hispanics make up the majority of eligible voters from 33 to 30. The Congressional map reduces the number of districts with a Hispanic voting majority from eight to seven.

Here’s the MALDEF press release, and the lawsuit itself is here. From the introduction:

Plaintiffs seek a declaratory judgment that the redistricting plans for the Texas House (Plan H2316), Senate (Plan S2168), SBOE (Plan E2106) and Congress (C2193) violate their civil rights because the plans unlawfully dilute the voting strength of Latinos. Plaintiffs further seek a declaratory judgment that the challenged redistricting plans intentionally discriminate against them on the basis of race and national origin. Plaintiffs seek a permanent injunction prohibiting the calling, holding, supervising, or certifying of any future Texas House, Senate, Congressional and SBOE elections under the challenged redistricting plans. Plaintiffs further seek the creation of Texas House, Senate, Congressional and SBOE redistricting plans that will not cancel out, minimize or dilute the voting strength of Latino voters in Texas. Finally, Plaintiffs seek costs and attorney’s fees.

Glad to know that the SBOW map won’t go unchallenged this time around. The plaintiffs include include the League of United Latin American Citizens (LULAC), Southwest Voter Registration Education Project, Mi Familia Vota, American GI Forum, La Union Del Pueblo Entero, Mexican American Bar Association of Texas, Texas Hispanics Organized For Political Education (HOPE), William C. Velasquez Institute, FIEL Houston Inc., the Texas Association of Latino Administrators and Superintendents, and five individual voters. Defendants are Greg Abbott and Greg Abbott and Deputy Secretary of State Jose Esparza. I expect this will be the first of multiple lawsuits against the actual maps; we also have the still-untested lawsuit by Sens. Eckhardt and Menendez that claimed the Lege could not do non-Congressional redistricting in a special session. There’s supposed to be a hearing for that next week. Given that the three maps in question there might already be signed into law by that time it may be moot, but I’m just guessing. As you know I don’t have much optimism for any of these challenges, including the ones that haven’t been filed yet, but we have to try anyway. You never know.

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.

More on the Spring Branch ISD single member district lawsuit

Good story from KTRK.

The unofficial dividing line for the two sides: I-10 running through the district.

With two boys in the district, Carla Cooper-Molano has seen the battle scars, and she wants someone on the school board who represents her family living north of I-10.

“If I communicate to the board, these are my needs, this is what I need, this is what my community at school needs, they are drowned by a much larger vested interest from the south,” said Cooper-Molano.

Cooper-Molano said the majority of SBISD students come from lower-income, working-class families, whose struggles range from paying rent to buying school supplies, to putting food on the table every night.

The disconnect comes when you look at the makeup of the current SBISD school board. According to a recently filed federal civil rights lawsuit, the majority of SBISD’s board members live south of I-10, in more affluent and less diverse neighborhoods. In fact, a person of color has never won a seat on the school board. According to the district’s own data, SBISD’s student body is 59% Hispanic, and 27% white.

The lawsuit alleges that having every school board member elected “at-large,” meaning they represent the entire district instead of neighborhoods, violates the federal Voting Rights Act of 1965 because it dilutes the voting power of minorities. The plaintiff who filed the suit is Virginia Elizondo, a former teacher at SBISD with a Ph.D. in Educational Leadership. Elizondo ran twice for the school board, most recently in 2021. This time, she came up short against Chris Earnest, a Memorial area consultant.

Elizondo and supporters of the lawsuit are asking for single-member districts to be drawn. Under this scenario, board members will be elected to represent specific areas of the district, not the entire district. It’s similar to how the House of Representatives elects its members, and how Houston ISD elects its school board members. Houston City Council, for example, has a hybrid model. There are five at-large seats in addition to the district seats.

Nina Perales, the vice president of the Latino legal rights organization Legal Services for MALDEF, has fought similar battles in other cities across Texas. She explains that the plaintiff will need to show the courts there is no opportunity for minorities to elect a candidate of their choice.

“If the majority of voters consistently prefer one candidate, and minority voters consistently prefer another candidate, it’s simple math. The majority is always going to outvote the minority in every single seat,” said Perales.

See here for some background, and here for some demographic data about SBISD. The fight is contentious in part because a loud contingent of SBISD parents from the wealthy part of the district don’t think that the SBISD board is opposing it strongly enough, and they want to have one of them added as a defendant in the lawsuit. If the plaintiffs win, past history suggests they will be able to elect someone to the Board; a recent example cited in the story is Richardson ISD, in the Dallas area. I don’t know what the litigation schedule is – these things can take years to resolve – but I’ll keep an eye on it.

SCOTx puts San Antonio ISD’s vaccine mandate on pause

Ken Paxton finally gets what he wants.

The Texas Supreme Court temporarily halted San Antonio Independent School District’s staff vaccine mandate on Thursday, a day before the deadline for all employees to get vaccinated against COVID-19.

The ruling comes two weeks after a Bexar County judge denied the state’s request for a temporary injunction to stop the staff vaccine mandate. Texas Attorney General Ken Paxton’s office appealed that decision to the 4th Court of Appeals and also requested the court temporarily block the mandate while it considers Paxton’s appeal.

The 4th Court of Appeals denied the attorney general’s request to temporarily block the vaccine mandate. Paxton then requested the Texas Supreme Court step in and halt the mandate, which it did Thursday while stating the court’s decision is not a reflection “on the merits of the state’s claims.” The appeals court still has to rule on the state’s appeal of the temporary injunction that was denied by the Bexar County judge on Oct. 1.

[…]

While the Supreme Court’s ruling means SAISD must pause its vaccine mandate, the district said in a statement that it will continue to work with health care providers to offer vaccines to any employees, students, and families who want them.

“This is especially important as we anticipate the availability of the Pfizer vaccine for 5-11-year-old children in the next month. We remain committed to believing it’s the right thing to do,” the district said in the statement. “We are extremely proud of our efforts in providing abundant access to this life-saving protocol to all of our employees and the broader SAISD community. Based on the science, we continue to feel strongly that these vaccines help us keep our staff and students as healthy as possible and in the classroom, where learning happens best, and in giving our families stability.”

See here, here, and here for the background. Next up would be a hearing in district court on the merits of the state’s request for an injunction, followed by another round of appeals. The hope remains that in this time, whether the mandate is allowed to be enforced or not, some number of SAISD employees get vaccinated who wouldn’t have done so otherwise. If that happens, it was all worth it. The Trib 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.

The fate of the Paxton trial location is once again with the CCA

Best mugshot ever

As you recall, the very long-awaited securities fraud trail of Ken Paxton is ticketed to go back to Collin County after the First Court of Appeals denied a request for an en banc hearing to reconsider the court’s previous ruling that had upheld the Harris County district court judge’s ruling from last year (and was itself a confirmation of a previous ruling). Special prosecutor Brian Wice has argued that the reason for that ruling is in error, and as such has filed a petition for a writ of mandamus with the Court of Criminal Appeals to overturn the First Court and keep the trial in Harris County.

The main thrust of the petition is that the First Court erred in its ruling, and for a detailed explanation of why it erred can be found here. The TL;dr of that is basically that Team Paxton has been playing fast and loose with its arguments about the original judge’s appointment to the case – if you read that petition, you will see multiple uses of the word “sandbag” or “sandbagging” – and it makes heavy use of the dissenting judge’s opinion from that First Court case. The Court of Criminal Appeals is notoriously pro-prosecutor, except when it isn’t, so who knows what they’ll do and who knows how long it will take. But we are at a point in this ridiculously long and drawn-out saga where the next step will be for the question of where the trial should be is resolved, and we will presumably move on to fighting about the actual trial. (There are still questions about the pay for the special prosecutors, which is a whole ‘nother can of worms.)

Anyway. Since people like to make snarky comments on Facebook and Twitter about how long Ken Paxton has been under indictment without having gone to trial, the least I can do is update you on the legal bits and pieces as we wend our way every so slowly towards that day. You’re welcome.

Federal lawsuit over mask mandate ban in schools has its hearing

A big case with potential national implications.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In case you missed it.

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

State appeals SB8 restraining order to Fifth Circuit

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

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

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

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

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

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

[…]

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

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

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

UPDATE: Room service indeed.

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

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

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

Federal judge blocks SB8

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

Slate provides some highlights from Judge Pitman’s opinion.

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

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

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

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

If in Texas you can’t get justice…

Try somewhere else.

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

El Paso mask mandate blocked

This is a city mask mandate. It does not affect the El Paso ISD mask mandate.

El Paso’s mandate requiring masks in indoor spaces, including schools, was ended on Thursday by the 8th Court of Appeals. The ruling does not apply to the El Paso Independent School District, which is involved in a separate court case.

The appeals court said the city’s mask mandate had to be lifted while it hears an appeal by the Texas Attorney General’s Office of a lower court ruling upholding the mandate. The ruling was based on Texas Supreme Court orders on similar mask mandates in San Antonio and Bexar County, the city said in a news release.

The mask mandate by Dr. Hector Ocaranza, the El Paso health authority, has been in effect since Aug. 17. The city’s rate of newly reported COVID-19 cases has declined in that time.

[…]

Despite Thursday’s ruling, the county’s largest district can continue to require students, teachers and staff to wear masks because it is part of a multiple school district lawsuit challenging Abbott’s executive order.

The El Paso ISD Board of Trustees voted on Aug. 17 to join a suit join a suit La Joya ISD and five other districts filed against Abbott days earlier in Travis County. The lawsuit now includes nearly two dozen districts, including a community college. EPISD was the only El Paso area district to join.

A Travis County judge granted the parties a temporary injunction against Abbott, allowing the districts to continue requiring masks. The governor is contesting that ruling with the 8th Court of Appeals. State and the districts’ attorneys are still submitting briefs before the court makes a final ruling in the case.

See here for some background. As noted, El Paso has been doing all right with the Delta outbreak. One has to assume that the mask mandate has helped with that. Hopefully the lifting of it now doesn’t set them back too far.

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?

Justice Department gets involved in federal lawsuit over mask mandate ban

Missed this over the weekend.

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

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

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

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

[…]

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

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

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

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

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

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

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

One more lawsuit against Texas’ voter suppression law

From Mi Familia Vota:

Non-profit civic engagement organization Mi Familia Vota, along with individual voters, filed suit today in the United States District Court for the Western District of Texas in San Antonio seeking to block a new voter suppression law enacted by the Texas Legislature.

The lawsuit challenges Texas Senate Bill No. 1 (SB 1), a law designed to suppress votes from Texans of color and other marginalized communities through measures that include prohibiting drive-through voting, limiting voting hours, making it unlawful for counties to automatically mail eligible voters mail-in ballot applications; implementing stricter rules for voting by mail; allowing election officials to reject allegedly defective ballots without notice to the voter prior to the election; implementing monthly purges of voter rolls; limiting physical and language assistance at the polls; and enabling partisan poll watchers, which creates increased risk of voter intimidation.

The law was passed on the heels of the 2020 election, which saw enormous gains in the number of Black and Latino voters in Texas, in part driven by counties like Harris County, which took actions to make voting safe and accessible, including by offering drive-through and 24-hour voting options. “Texas’s new voter suppression law, 2021 Texas Senate Bill No. 1, 87th Legislature (“SB 1”), is a calculated effort to disenfranchise voters,” the complaint reads. “If allowed to stand, the bill will unconstitutionally burden qualified voters and inevitably prevent many voters from lawfully casting their ballots in future elections.”

The plaintiffs argue that these changes to voting law in Texas create an undue burden on voters, especially those who are Black or Latino, in violation of the First, Fourteenth, and Fifteenth Amendments to the Constitution and the Voting Rights Act of 1965. They cite a pattern of voter suppression legislation in Texas throughout the 19th, 20th, and 21st centuries, and they demonstrate as false Texas officials’ claim that the law is targeting “voter fraud.”

“Latinos and other voters of color came out to vote in big numbers in 2020,” said Angelica Razo, Texas State Director for Mi Familia Vota. “We saw places like Harris County come up with ways of making voting widely available and safe during the COVID-19 pandemic. Our state should empower voters to find safe and accessible voting options. Instead, our legislators chose to suppress voters, make it harder for us to vote, and subject us to voter intimidation. Voting is a constitutional, protected right, and we are proud to continue to advocate for the voting rights of our community, so that all eligible voters are able to exercise their right to vote.”

[…]

The defendants in this case are Texas Governor Greg Abbott, Texas Deputy Secretary of State Jose Esparza, and Texas Attorney General Ken Paxton.

The plaintiffs are represented by Free Speech For People, a nonpartisan legal advocacy nonprofit dedicated to defending our democracy; the law firm of Stoel Rives; and the law firm of Lyons & Lyons. Free Speech For People filed a federal lawsuit last month in Phoenix, on behalf of Mi Familia Vota, Arizona Coalition for Change, Living United for Change in Arizona, and Chispa Arizona, to block two new Arizona laws restricting voting rights.

”SB 1 creates unconstitutional burdens on the right of Texans to vote, in an effort to block voters–and specifically voters of color–from voting and having their votes counted,” said Courtney Hostetler, Senior Counsel for Free Speech For People. “It shuts down reasonable practices that counties have implemented to increase voters’ access to the polls. It makes voters and election officials vulnerable to intimidation. And it will force certain voters to jump through costly and time-consuming hoops to remain on the voter rolls. The law violates the First, Fourteenth, and Fifteenth Amendments to the US Constitution and the Voting Rights Act of 1965.”

A copy of the lawsuit is here. It’s lawsuit number 6 by my count – there were two federal lawsuits filed before SB1 was signed, then two more federal lawsuits plus a state lawsuit filed right after it was signed. I still haven’t really read any of them, but these are all people who have been down this road many times before. Their arguments may not work in the courts that we have now, but they will have merit regardless. I expect the federal suits to get combined, maybe not all of them into one but some of them. And it will surely take months before we get our first hearings and maybe rulings. Stay tuned, and do keep reminding our Democrats in Washington that it’s still not too late to pass a federal voting rights bill.

Medicaid and the “heartbeat” law

Of interest.

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

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

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

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

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

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

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

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.

More on the San Antonio ISD vaccination mandate litigation

I’m a little confused at this point, but I’ll cope.

Judge Mary Lou Alvarez of the 45th District Court denied the state of Texas’ request for a temporary injunction Friday, allowing the San Antonio Independent School District to continue requiring its employees to be vaccinated against the coronavirus.

Former SAISD Superintendent Pedro Martinez, who has since left the district to take a job in Chicago, issued the vaccine mandate on Aug. 16, requiring all staff members to be vaccinated by Oct. 15. SAISD board President Christina Martinez said Thursday that about 90% of SAISD staff has been vaccinated.

Alvarez’s decision came after a hearing on the state’s request for temporary relief against the vaccine mandate was delayed. Another state district judge denied the school district’s challenge on Sept. 23 that the state and Gov. Greg Abbott did not have jurisdiction to sue. SAISD then appealed that ruling, pushing back the original hearing for the state’s lawsuit; the appeal was dropped earlier this week.

After Alvarez’s ruling, the state’s legal team said they planned to appeal. A trial for the lawsuit is set for Jan. 19, 2022.

[…]

Attorney Steve Chiscano, who represented SAISD, dismissed the state’s lawsuit as a political ploy.

“We are sitting in an injunction hearing that the AG is hoping to win so he can spin off another press release on how proud he is that he beat up on this district,” Chiscano said. “It is so obvious and so clear that this is happening that I believe at the end of the day, you’ll see that what the governor is doing is not supported by any law.”

See here and here for the background. I’ve decided that we had a motion by SAISD to dismiss the lawsuit, which was denied, and then the state asked for a temporary restraining order against SAISD, which was also denied. The source of my initial confusion was the change in judges between the two, but I think that may just be how Bexar County rolls. In any event, true to form and as the story notes, Paxton – who was not present for the hearing – did indeed tweet about it and how he’s fighting for the freedom of people who want to get sick and die and take others with them. Ultimately, this judge did not buy the state’s argument that the Abbott executive order was enough on its own to prevent SAISD from responding to the pandemic in this fashion. A higher court may intervene before the hearing for an injunction, but in the meantime I sure hope that SAISD is making progress in getting shots into arms. That is what really matters. The Current has more.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

How the “heartbeat” lawsuits may proceed

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SAISD vaccine mandate update

Still in place for now, but clearly on shaky ground.

Best mugshot ever

San Antonio Independent School District can continue requiring its staff to get vaccinated against COVID-19, despite a judge ruling against the district Thursday in a case filed by the Texas attorney general.

Judge Angelica Jimenez of the 408th District Court denied SAISD’s plea on Thursday that state Attorney General Ken Paxton lacks the legal authority to enforce Gov. Greg Abbott’s Aug. 25 executive order, which banned public entities, such as school districts, from mandating COVID-19 vaccines. Steve Chiscano, the attorney representing SAISD, immediately appealed the ruling.

Appealing Jimenez’s jurisdiction ruling delayed a hearing requested by the state to stop SAISD’s vaccine mandate with a temporary restraining order. The school district and attorney general’s office will make their arguments again before the 4th Court of Appeals. Case information is due at the court Oct. 4, according to online court records. The lawyers will file briefs, and justices will make a decision at an undetermined date.

[…]

In a statement, the district said Jimenez’s ruling does not enforce Abbott’s executive order prohibiting vaccine mandates and that SAISD would continue its vaccine protocols.

“We do not believe the Governor and Attorney General have the legal authority to continue this lawsuit, and we respectfully disagree with the judge’s ruling,” the district said in the statement. “We know that following the executive order and not requiring vaccination of our employees is potentially deadly, and we will do what is necessary to protect the children and staff of the district.”

See here for the previous update. I’ve always thought that the vaccine mandate was a heavier lift than the mask mandates, so I won’t be surprised if Paxton eventually wins this one. But as long as that mandate remains in place, SAISD can move closer to a goal of maximizing the number of its employees who have been vaccinated. No matter the odds, that’s worth fighting for.

Lawsuit filed over our very dumb new social media “censorship” law

So very dumb.

Texas is being sued over its new law barring social media platforms from banning users over their political views by two trade associations that represent some of the industry’s biggest online companies.

NetChoice and the Computer and Communications Industry Association, which represent Google and Twitter, among other companies in the e-commerce and social media industries, filed a lawsuit Wednesday asking a federal judge to block the law.

Under the law, which was passed by the Legislature as House Bill 20, and signed by Gov. Greg Abbott on Sept. 9, social media platforms with over 50 million monthly users in the U.S. — a threshold that includes Twitter, Facebook, Instagram and YouTube — must publicly report details about content removal and account suspensions biannually. The platforms are also required to establish an easily accessible complaint system, where users could flag violations of the law.

Supporters of the bill said it was a necessary step to ensure users’ viewpoints aren’t censored and people who are blocked have a path for recourse.

The state cannot force platforms to host content they wouldn’t otherwise host, the presidents of NetChoice and CCIA said in a Tuesday meeting with reporters. The law threatens the safety of users, creators and businesses that use platforms to reach their audiences, said NetChoice President and CEO Steve DelBianco.

“They can’t be forced to carry content that violates the community standards that they use to curate a community of online content that suits their advertisers and audience,” DelBianco said.

[…]

This lawsuit isn’t the first of its kind for NetChoice and CCIA. In May, the groups sued to block a similar measure in Florida, which became the first state to regulate tech companies’ speech. In June, a federal judge granted the request to block the enforcement of the law.

DelBianco said the First Amendment flaws outlined by the judge in Florida’s case “match pretty closely” to the Texas law.

I didn’t blog about this while it was happening because it was dumb. It was more performance art in a legislative session that was all about grievances and wingnut wish lists. This law will almost certainly die a quiet but expensive-to-defend death without ever being enforced, and we will all get on with our lives. And we will all be a little bit dumber because of it.

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.

Appeals court appears skeptical about Paxton’s whistleblower defense

As well they should be.

Best mugshot ever

A panel of Texas 3rd Court of Appeals justices expressed skepticism of an argument from Attorney General Ken Paxton’s lawyers on Wednesday that he is exempt from the state’s whistleblower act because he’s not a public employee and a case against him should be thrown out.

Former Paxton deputies in the Office of the Attorney General claim in a whistleblower lawsuit that they were fired for reporting alleged crimes by Paxton to law enforcement. Paxton’s lawyers are trying to get the case dismissed and asked the appeals court to throw out the case on the grounds that Paxton is not subject to the whistleblower law. A lower court denied Paxton’s motion to dismiss the case in March.

Barely a minute into oral arguments, Justice Chari L. Kelly began questioning Solicitor General Judd E. Stone II, who is representing Paxton in the suit.

“Isn’t the action of every employer at the OAG’s office an action by the employee governmental agency?” Kelly said.

Justice Gisela D. Triana questioned Stone’s argument that all elected officials are exempt from the whistleblower law and Chief Justice Darlene Byrne asked whether his interpretation would give Texas Supreme Court justices immunity from sexual harassment claims from their employees.

Stone said employees filing sexual harassment claims would have other avenues for relief outside the whistleblower law, but argued that the attorney general as an elected official cannot be sued under the law, which covers public employees, appointed officials and governmental entities.

[…]

Stone argued that barring the attorney general from firing employees when they disagree with legal positions or have lost his trust would be an infringement on the elected official’s power.

But Kelly questioned that argument and nodded to claims by the whistleblowers’ lawyers that Paxton is a public employee because he receives checks from the state and participates in its retirement system, and that he acts as the entity because he is its titular head.

“If he can go in and change any decision internally … If he truly has the power to have the last say on anything that comes out of the agency. How is he not the agency?” she asked.

Stone said the justices should interpret the law as it was written, which did not include elected officials in the text of those who can be sued on whistleblower claims.

But Joe Knight, who argued for the whistleblowers’ lawyers, blasted the idea that the Legislature wrote a statute meant to ensure public employees complied with the law and then exempted elected officials without explicitly saying so. He said the drafting of the law in such a way would be “strange and unlikely,” and said the “Legislature does not hide elephants in mouseholes.”

In briefings to the court, the whistleblowers’ lawyers said when lawmakers intend to exempt elected officials from being labeled as public employees, they do so in the text of the law. The Texas Whistleblower Act does not.

The whistleblowers’ lawyers said exempting the attorney general would rob the law of its purpose to protect public employees reporting wrongdoing by government entities.

Stone also argued in briefs that the former officials did not make the reports to law enforcement authorities required to invoke whistleblower protection, and that even if they had, they reported only potential crimes, not crimes that had actually happened.

The whistleblowers’ lawyers attacked that argument, saying their clients reported their concerns to the Travis County District Attorney’s Office, the FBI, the Texas Rangers and the attorney general’s human resources office.

The lawyers also said their clients believed Paxton had already abused his office, tampered with government records, taken bribes and obstructed justice through his interactions with Paul when they brought their concerns to law enforcement.

See here, here, and here for some background. It must be noted that all three appellate court justices are Democrats, so their opinions will carry limited weight before the Court of Criminal Appeals, no matter how ridiculous Paxton’s arguments are. That’s just how it is, I don’t make the rules. No indication when the court may rule, but the initial suit was filed last November, the motion to dismiss was denied in March, and the appeal to the Third Court was made in June, so as far as that goes, we’re moving at a decent pace.

Texas takes its potty obsession to court

Oh, brother.

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

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

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

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

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

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

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

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

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

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

First “heartbeat” lawsuit filed

Didn’t take long.

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

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

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

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

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

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

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

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

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

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

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

“Heartbeat” lawsuit bait

Something like this was going to happen sooner or later.

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

The electoral dress code lawsuit

Still interesting.

A U.S. magistrate judge this week recommended striking down parts of Texas law that prohibit wearing political apparel within 100 feet of a polling place as unconstitutionally vague — but upholding a narrower provision that specifies that clothing bearing messages related to what’s on the ballot can be banned.

The issue first arose in 2018 when Harris County resident Jillian Ostrewich wore a Houston firefighters T-shirt to a polling place and election workers told her to turn it inside out because it related to Prop B, a pay parity measure for firefighters on that ballot that year. Claiming she was unconstitutionally censored and her right to free speech infringed upon, she sued Harris County and state officials.

The case puts to the test a U.S. Supreme Court ruling from June of that year in which the justices struck down a Minnesota law that banned voters from displaying “issue-oriented” apparel at the polls for being overbroad. The Texas suit was brought by Pacific Legal Foundation, the same California-based libertarian public interest law firm that won the Minnesota case.

[…]

U.S. Magistrate Judge Andrew M. Edison in his report on Tuesday said the election judge had a constitutional basis for rejecting Ostrewich’s shirt because it had a clear relationship to the ballot measure, even if it did not explicitly say to vote for that measure. Under that law, Edison said, Ostrewich had not been harmed and therefore was not entitled to damages.

Other parts of the law, however, which define “electioneering” as advocating “for or against any candidate, measure, or political party” through “posting, use, or distribution of political signs or literature” leaves room for misunderstanding, he said. Ostrewich would have no way of knowing whether wearing that same shirt in a future election, even if the measure weren’t on the ballot then, could also be considered illegal electioneering.

Those parts of the law “do not give Texas voters notice of what is expected of them in the polling place, and they do not provide election judges with objective, workable standards to rein in their discretion,” Edison wrote. “This is impermissible under the First Amendment and these statutory provisions should be struck down as unconstitutional.”

See here for the background. Seems reasonable to me to say that you can be barred from the restricted area for wearing a shirt that directly addresses the current election, but barring a shirt that’s not about that election may be too broad. The plaintiffs are claiming a victory, even though their main actor was denied any relief; I think the defendants can be reasonably satisfied with this as well. This was a recommendation and not a ruling – the parties have two weeks to hammer out an agreement of some kind, which will then need to be approved by the judge. I’ll be honest, I had no idea that was a thing, but here we are. The lawyers out there, what do you think about this?