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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.

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One Comment

  1. policywonqueria says:

    ATTENTION, ATTENTION, ALL FERTILE TEXANS !

    While the SCOTUS sits on this, be sure to practice safe nonvaginal sex and/or contraceptive sex (as may correspond to your predilection) unless you want to procreate and make your unique contribution to the demographic future of Texas and the nation!

    DYNAMIC RESPONSE REQUIRED

    Come Sep. 1, 2021, the risk calculus regarding unprotected sex in Texas has shifted. Out-of-state travel may now be required following failure to practice safe sex and nonacceptance of the natural consequences thereof.

    Regarding the latest supreme filing:

    Do they seriously think the SCOTUS doesn’t have an internet connection and access to Westlaw? Hello you-all … the SCOTUS is itself on the web, and even more transparent than some Texas courts of appeals (who don’t all post amici briefs as a matter of general viewpoint-neutral practice, though most do).

    And check out their disclosure: No related proceedings. – Duh !

    How about USA v. TEXAS and more than a dozen cases brought by abortion providers and abortion funders that the MDL Panel stayed yesterday for the benefit of Texas Right to Life?

    As for the DOE action and its valient efforts to place 29 million Texas civilians under a blanket restraining order (it’s less clear how that works for the remainder of the global population of a few billions of “persons”), there are private parties in that case now who want to bring SB8 suits based on abortions that were already illegal before SB8 and want to go after funders (like the ones part of the group that got TROs against Right to Life in Travis County). Not certain whether they will be intervenor-defendants only or intervenor-plaintiffs, too. What if they were to move for injunctive relief against the state of Texas to protect their First Amendment rights to petition and associate, or perhaps even seek to vindicate their asserted rights against interference by the United States?

    At least Justice Sonya won’t have to worry about the nuances of a proper judicial litmus test to determine which pro-lifers are most deserving of having a prior restraint imposed upon them for holding “incorrect” views on abortion, and thus posing an eleveated litigation risk to Texas abortion providers.

    Then there are those pesky pro se “test cases” in Bexar County. One of them colorful characters has since filed some pleading purporting to bring the State of Texas into the action as a necessary party. Shouldn’t one or the other of the district judges in Bexar County get to sort that one out first? Why only Travis?

    Whole Woman et al claim that SB8 is designed to defeat federal court review.

    Even if the attribution of intent is warranted (and even if Senator Hughes were to confess if he hasn’t already done so), there is litigation pending in numerous state courts already, and much of it was initiated by the abortion providers and promoters themselves. So how could it be claimed in good faith that the a state forum to litigate SB8 constitutionality is unavailable?

    Given that there are already more than a dozen state-side cases of various sorts in the pipeline, why can’t that process be allowed to run its course to the Texas Supreme Court and on the the SCOTUS?

    The obvious retort is that it would take too long. But is that true?

    Note that emergency motions and mandamus proceedings are routinely brought in the Texas judicial system (incl. in time-sensitive election law disputes and – more recently – in regards to mask mandates). SCOTX has shown itself/themselves capable — nay eager — to issue emergency orders. And they have their own version of a “shadow” docket (which is arguably a misnomer, but let the law profs quibble about that). And the MDL panel has already issued a scheduling order for the proposed consolidation of the cases against Right to Life and the state defendants.

    Finally, what about the Younger and Rooker-Feldman doctrines?

    Are those now supposed to be ditched via emergency SCOTUS intervention?

    And if so, what is the rationale (other than “It’s what we want because we want it”?)

    Isn’t SB8 a state law that needs to be reviewed and construed by the Texas Supreme Court to avoid the need for the certified question from the Fifth Circuit?

    Not to mention that numerous state constitutional arguments are contained in the filings that might provide a basis for the SCOTX to invalidate parts, if not all, of SB8. If state constitutional arguments provide a sufficient remedy concerning a problem of state law (enactment of an imprudently extreme anti-abortion measures by the majority party that currently has will and power of enact-so), would there even be a need for federal intervention? Not to mention that the legislative process is ongoing, and that imprudent and even unconstitutional defects in the current versin of the Texas Heartbeat Act could be fixed.

    DISCLOSURE: Here at policywonqueria we engage in causal-chain analysis when analyzing social and public policy problems. We favor prevention of unwanted pregnancy over abortion. We also know fine people whose parenthood wasn’t planned but were lovingly embraced and raised.

    See previous postings under the rubric of —> What causes pregnancy?

    TAGS: population dynamics, fecundity and fertility alerts