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New Mexico sues its “abortion sanctuary cities”

Good.

New Mexico’s top prosecutor on Monday asked the state’s highest court to overturn abortion bans imposed by conservative local governments in the Democratic-run state where the procedure remains legal after Roe v. Wade was struck down.

The move comes after the New Mexico cities of Hobbs, Clovis and two surrounding counties bordering Texas passed ordinances in recent months to restrict abortion clinics and access to abortion pills.

New Mexico Attorney General Raul Torrez filed an extraordinary writ in New Mexico Supreme Court to block the ordinances which he said were based on flawed interpretations of 19th century federal regulations on abortion medication.

“This is not Texas. Our State Constitution does not allow cities, counties or private citizens to restrict women’s reproductive rights,” Torrez said in a statement.

[…]

New Mexico’s largest cities of Las Cruces and Albuquerque have become regional destinations for women seeking abortions since the U.S. Supreme Court in June ended the nationwide constitutional right to the procedure.

Located on New Mexico’s eastern plains, Clovis and Hobbs do not have abortion clinics but approved ordinances to stop providers locating there to serve patients from Republican-controlled Texas, one of the first states to impose a near-total ban on abortion.

In direct response, New Mexico Democrats have drafted legislation to prevent cities from overriding state laws guaranteeing womens’ rights to reproductive healthcare. The legislation is due to be debated this month and has a strong chance of passing the Democratic-controlled state legislature.

See here for some background, and here for a reminder that New Mexico has been a regional access point for abortion for some time now.

More details here.

It’s not clear how soon the New Mexico Supreme Court could decide to take up the issue. Torrez said he hopes his petition to the Supreme Court will inspire a quick response within weeks or months — avoiding the potentially yearslong process of pursuing a civil lawsuit.

The filing targets Roosevelt and Lea counties and the cities of Hobbs and Clovis — all on the eastern edge of the state near Texas, where most abortion procedures are banned.

Clovis and Lea County officials declined to comment Monday, citing pending litigation. Officials could not immediately be reached in Hobbs and Roosevelt County.

Prosecutors say abortion ordinances approved in November by an all-male city council in Hobbs and in early January by Roosevelt County define “abortion clinic” in broad terms, encompassing any building or facility beyond a hospital where an abortion procedure is performed — or where an abortion-inducing drug is dispensed, distributed or ingested.

Torrez warned Roosevelt County’s abortion ordinance in particular gives private citizens the power to sue anyone they suspect of violated the ordinance and pursue damages of up to $100,000 per violation.

“The threat of ruinous liability under the law operates to chill New Mexicans from exercising their right to choose whether to terminate a pregnancy and health care providers from providing lawful medical services,” the attorney general wrote in his petition to the state Supreme Court.

In 2021, the Democrat-led Legislature passed a measure to repeal a dormant 1969 statute that outlawed most abortion procedures, ensuring access to abortion in the aftermath of the U.S. Supreme Court’s decision last year that overturned Roe v. Wade.

Gov. Michelle Lujan Grisham said she wants to see legislation that would codify the right to an abortion across the state.

Lawmakers have already proposed measures that would prohibit local governments from placing restrictions on abortion access — and call for putting in place protections for doctors and patients.

During her reelection campaign last year, Lujan Grisham cast herself as a staunch defender of access to abortion procedures. She has called a local abortion ordinance an “affront to the rights and personal autonomy of every woman in Hobbs and southeastern New Mexico.”

In June, the governor signed an executive order that prohibited cooperation with other states that might interfere with abortion access in New Mexico, declining to carry out any future arrest warrants from other states related to anti-abortion provisions.

The order also prohibited most New Mexico state employees from assisting other states in investigating or seeking sanctions against local abortion providers.

She followed up in August with another executive order that pledged $10 million to build a clinic that would provide abortion and other pregnancy care in Southern New Mexico.

Not much for me to add here other than I wish Attorney General Torrez good luck. This is clearly the right approach to take, and I hope the New Mexico legislature follows up as well. I look forward to the day when the state of Texas doesn’t make it necessary for them to do all this extra stuff. The Albuquerque Journal has more.

Emergency miscarriage care

Here’s another thing most of us have not had to think much about in the past when abortion was generally legal.

[A uterine aspiration (also commonly known as a D&C) or the removal of tissue from the uterus via suction] is a standard method for treatment of miscarriage and can be a life-saving intervention if a woman is hemorrhaging. But uterine aspiration is also routinely used to perform early abortions, and that’s one reason many emergency departments have historically resisted efforts to make the option available to patients who come in for miscarriage-related care.

That care already accounts for more than 900,000 emergency room visits every year, according to the most recent estimates. Now, as states move to restrict access to abortion in the wake of the Supreme Court’s decision in June to overturn Roe v. Wade, experts say that number is likely to surge even higher.

Fewer abortions will mean more pregnancies, and more pregnancies will mean more miscarriages,” said Dr. Sarah Prager, a professor of obstetrics and gynecology at the University of Washington and a co-author of the guidelines on miscarriage management for the American College of Obstetricians and Gynecologists.

Around 15% of known pregnancies end in miscarriage, and the first medical professional many of those patients see will be in an emergency room. Yet, by and large, she says, “emergency medicine physicians aren’t trained in managing miscarriage and don’t see it as something they should own.”

For more than a decade, Prager has been trying to change that through her work with the TEAMM Project, the nonprofit she co-founded on the premise that “many people experience miscarriage before they’re established with an OB-GYN.” Short for Training, Education and Advocacy in Miscarriage Management, TEAMM has conducted in-person workshops for clinicians at more than 100 sites in 19 states on all aspects of miscarriage care — everything from the use of ultrasound to diagnose fetal death to the three treatment options miscarrying patients should be offered when they come in for care.

A uterine aspiration is recommended when patients are bleeding heavily, are anemic, or are medically fragile, and many patients prefer the procedure because it can resolve a miscarriage most quickly. Another option is medication — usually mifepristone followed by misoprostol — which can help the body expel pregnancy tissue in a matter of hours. And the third is “expectant management”: waiting for the tissue to pass on its own. The latter can take several weeks and is unsuccessful for about 20% of patients, who remain at risk for hemorrhage and have to return to the hospital for surgery or medication.

In many emergency departments, expectant management has long been the only option made available. But now, amid the legal uncertainty unleashed by the fall of Roe, Prager and colleagues say they’ve been inundated with inquiries from emergency departments across the country. Doctors in states that have since criminalized abortion face stiff penalties, including felony charges, prison time, and the loss of their medical license and livelihoods.

“I think they’re scared,” says Prager. “They want to be able to know, with 100% certainty, that a pregnancy is no longer viable.”

This is why I say it’s just a matter of time before some nice white suburban lady who already has kids dies because she isn’t treated for a pregnancy-related emergency in a timely fashion. The corollary to this is that some doctor who performs a life-saving D&C on a patient will be arrested and charged with murder for it. I don’t want to see these things happen. It’s just that the conditions in our state, and in too many other states, are absolutely ripe for it. I really hope I’m wrong.

More on our future doctor shortage

This is unsustainable.

Abortion restrictions have forced Texas obstetrician-gynecology residency programs to send young doctors out of the state to learn about pregnancy termination, a burdensome process educators say is another example of abortion bans undermining reproductive health care.

At least one Houston-area program, the University of Texas Medical Branch, began sending residents out of state this year, to a partner institution in Oregon. Two other local programs, Baylor College of Medicine and Houston Methodist, said they still are working out arrangements for their own out-of-state rotations. McGovern Medical School at UTHealth Houston declined to comment on its plans.

The changes follow revised requirements from the Accreditation Council for Graduate Medical Education, the standard-bearer for residency programs, which maintains that abortion training is essential for providing comprehensive reproductive health care. Requirements updated in September say OB-GYN programs in states that ban the procedure “must provide access to this clinical experience in a different jurisdiction where it is lawful,” with exceptions for residents who choose to opt out.

Experts, however, say it takes month of coordination to arrange a temporary rotation in another state, leaving some inexperienced physicians with few options.

“There is no question that the restrictions in place following the Dobbs decision pose a risk to the training of up to 45 percent of OB-GYN residents who are training in states where abortion care is restricted,” said Dr. AnnaMarie Connolly, chief of education and academic affairs at the American College of Obstetricians and Gynecologists. “The joint efforts of ACOG … and countless residencies in protected states are directly addressing this risk to medical education and training.”

[…]

Arranging an out-of-state rotation is a logistical feat, Steinauer said, as it takes up to nine months to develop a plan for housing, airfare, training permits and other needs.

The university also takes on additional costs. To send two UTMB residents to Oregon for two weeks, it costs $5,216 for housing, $1,689 for airfare and airport transportation, $240 for parking and $370 for training permits, according to documents obtained through an open records request. The Ryan program is paying $1,500 for each resident, while the university picks up the remaining expenses, documents show.

There also is a strain on the host institution, said Dr. Aileen Gariepy, director of complex family planning at Weill Cornell Medicine in New York City. Some programs that offer abortion care may only have the capacity to accommodate their own residents. With a small number of programs left to take on a crush of new learners, “we may be doing a disservice to the training needs of all of our trainees,” she said.

She noted that Weill Cornell does not have the space yet to take on residents from its affiliate institution, Houston Methodist, which has approached the school about an out-of-state rotation.

“This kind of legislative interference in medical care is unprecedented,” she said. “We didn’t have a plan for that.”

[…]

Beyond the immediate challenge of meeting accreditation requirements, some educators publicly have expressed concern that abortion laws will make it harder for Texas to attract and retain OB-GYNs.

Out of nine publicly funded OB-GYN residency programs in Texas, six saw a drop in applicants from 2020 to 2021, the year SB8 was enacted, according to documents obtained by the Chronicle. Seven of those programs saw a drop in applicants in 2022.

Experts caution against drawing conclusions based on those trends. Yaklic noted that the number of graduates interested in OB-GYN programs often fluctuates, and recent changes to the application process may have influenced the data.

Still, at UTMB, many applicants have asked about abortion training during interviews, he said. Even before the Dobbs decision, earlier abortion restrictions caused medical school graduates to favor states that allow the procedure.

See here for some background. It’s certainly possible that we’ll more or less get acclimated to how things are now and the system will limp along as degraded but basically functional, with the bulk of the cost being borne by the people with the least power and fewest resources. It’s also possible, as noted in the comments, that the Lege could pass a bill to outlaw out-of-state abortion training for medical students in Texas, and then we’ll see how bad things can get. All I’m saying is that our state’s forced-birth laws are going to have a negative effect on overall health care, and we are already starting to see it happen.

It’s going to be a brutal legislative session for LGBTQ folks in Texas

I really wish this weren’t the case, but it is. It’s going to be bad.

Two bills that would ban classroom instruction about sexual orientation and gender identity in Texas public schools before certain grade levels are poised to receive top Republican backing in this year’s legislative session. But critics warn that the legislation could further marginalize LGBTQ students and families while exposing teachers to potential legal threats.

The two bills — authored by Reps. Steve Toth, R-The Woodlands, and Jared Patterson, R-Frisco — closely resemble legislation out of Florida that critics dubbed the “Don’t Say Gay” lawHouse Bill 631 and House Bill 1155 are among a flurry of anti-LGBTQ legislation awaiting lawmakers when they return to the Capitol on Tuesday.

Florida’s law prohibits schools from teaching about sexual orientation or gender identity from kindergarten through third grade. Both Texas bills mirror such a ban. Toth’s HB 631 would expand the restriction until fifth grade. Patterson’s HB 1155 would extend it to eighth grade.

Their proposals would also prohibit lessons on sexuality and gender identity at any grade level if they are “not age appropriate or developmentally appropriate.” Patterson’s bill doesn’t define what is appropriate for various age groups. Toth’s bill requires the lessons to align with state standards but doesn’t specify which standards.

Like Florida’s law, the two Texas bills don’t explicitly ban the use of the word “gay” in schools. The bills’ authors also maintain that the legislation would protect “parental rights” by allowing parents to more directly control what their children learn in school, including the existence of different sexual orientations and gender identities.

“Parental rights are paramount to the safety and well-being of a child,” Patterson said in a Jan. 3 tweet introducing his bill. “Therefore, I filed HB 1155 to ensure no school teaches radical gender ideology to any child from K-8th grade, and where parents must review and sign off on any health-related services.”

Lt. Gov. Dan Patrick has signaled that he would support passing a Texas version of the Florida law — even before these bills were filed.

“I will make this law a top priority in the next session,” he said in a campaign email last April.

Critics of the legislation argue that the bills’ vague nature would suppress discussion related to LGBTQ issues and representation.

“The reality is that everybody has a gender identity and sexual orientation; avoiding those conversations is incredibly difficult,” Adri Pérez, an organizing director with Texas Freedom Network, told The Texas Tribune. “What it becomes is a tool to be leveraged specifically against LGBTQIA+ people, because what stands out is not the people who fit in but the people who are being specifically targeted and attacked as being different.”

[…]

Chloe Kempf and Brian Klosterboer, attorneys with the American Civil Liberties Union of Texas, said the bills could pose explicit risks to teachers and school districts in the form of lawsuits from parents who believe they’re not following the law.

Toth’s bill outlines a mechanism for parents to sue school districts for violating his proposals, which includes the parental notification portion of that bill. Experts say that part of these bills could require teachers to potentially out their students, and parents could sue districts if teachers don’t comply. School districts would be saddled with the cost of those lawsuits, experts say.

More broadly, Kempf said, the bills would pose risks to schools and educators in the form of potential ultra vires claims, which enable citizens to sue public officials who violate state laws. Although it’s not clear if these types of lawsuits would be successful, Klosterboer said, the larger impact is more confusion and headaches for schools.

“When a law is vague, it allows for discriminatory and targeted enforcement. And it also creates a very hostile and chilling atmosphere where people … go out of their way to self-censor,” Kempf said.

The bills’ vague language could also present challenges for schools trying to protect teachers from potential lawsuits.

“[Schools] might not even know what to tell teachers and staff how to actually protect themselves and protect the school district,” Klosterboer said.

Klosterboer added that it seems “very likely” that if Gov. Greg Abbott signs one of the bills into law, it would invite legal challenges.

[…]

Ultimately, LGBTQ advocates argue that these legislative actions are just another attack on an already marginalized population. As of last week, Texas Republican lawmakers have already filed 35 anti-LGBTQ bills for the 2023 session, far outnumbering the number of such bills that were filed ahead of the 2021 session, according to [Ricardo Martinez, CEO of Equality Texas].

“The legislation is meant to stigmatize LGBTQ people, isolate LGBTQ kids, and make teachers fearful of providing safe and inclusive classrooms,” he said.

There is ongoing litigation over Florida’s “don’t say gay” law. It will eventually be decided by SCOTUS. So yeah, that’s going great, too.

I would like to say something encouraging here. For sure, plenty of smart and passionate and dedicated people will do everything they can to fight these terrible bills, and you should do everything you can to help them. But the reality is that the Republicans have the numbers. They can pass whatever bills they want. This is what they want to do, and they believe they have a mandate after the 2022 election. They’re not going to stop until they’re voted out. Again, I wish I could tell you something else, but I can’t. It’s going to be a very rough six months. The Observer has more.

Texas clinics begin compliance with that wingnut anti-birth control court order

Infuriating but expected.

Texas teens will now need their parents’ permission to get birth control at federally funded clinics, following a court ruling late last month.

These clinics, funded through a program called Title X, provide free, confidential contraception to anyone regardless of age, income or immigration status; before this ruling, Title X was one of the only ways teens in Texas could obtain birth control without parental consent.

U.S. District Judge Matthew Kacsmaryk ruled in December that the program violates parents’ rights and state and federal law. The U.S. Department of Health and Human Services has asked the court to reconsider that decision.

But in the meantime, Texas’ Title X administrator, Every Body Texas, has advised its 156 clinics to require parental consent for minors “out of an abundance of caution” as it awaits further guidance from HHS.

“We hope that as the case proceeds, we are able to revoke this guidance and continue to provide minors in Texas the sexual and reproductive care they need and deserve with or without parental consent,” said Stephanie LeBleu, acting Title X project director at Every Body Texas.

Minors can still access testing and treatment for sexually transmitted infections, pregnancy tests, emergency contraception, condoms and counseling without parental consent, LeBleu said.

[…]

The case was brought by Jonathan Mitchell, the former Texas solicitor general who masterminded the state’s ban on abortions after about six weeks of pregnancy. Mitchell is representing Alexander Deanda, a father of three daughters.

Deanda is raising his daughters “in accordance with Christian teaching on matters of sexuality, which requires unmarried children to practice abstinence and refrain from sexual intercourse until marriage,” according to the complaint.

Neither Deanda nor his daughters have sought services at a Title X clinic, per the complaint. But Kacsmaryk ruled that the program violates Deanda’s rights under the Texas Family Code and the Due Process Clause of the 14th Amendment, denying him the “fundamental right to control and direct the upbringing of his minor children.”

See here and here for the background. Of the many annoying things about this is the obvious-even-to-a-non-lawyer-like-me question of standing. As in, how exactly is this guy injured in any way by the existence of this policy? My daughters have never sought services at a Title X clinic either. Am they now injured because they would have to get my permission to get birth control there? I know I’m asking for a rational answer for an irrational ruling, but I don’t get it.

And speaking of harms, this story came out a few hours after the previous one.

In Sabine County, pine trees outnumber the people. To commute between Pineland and Hemphill, the two towns that anchor the county, residents drive down a road that winds through a national forest. The towns are dotted with churches that loom large in daily community life. Bible scriptures are printed on plaques in local stores and even in Gilder’s office.

Research has shown access to contraception and comprehensive sex education prevents unplanned pregnancies. But for sexually active teens trying not to get pregnant in Sabine County, it’s hard to access either.

Sex education in Texas is taught amid tight parameters and bureaucratic strings. Texas schools have to offer health class at the middle school level, but parents must opt their children in to any lessons about sexual health. And when teachers do touch on sex education, state law requires them to stress abstinence as the preferred choice before marriage.

Even if teens in this region want contraception, it’s nearly impossible to get without parental consent. In small towns like Hemphill and Pineland, parents have eyes and ears everywhere, making teens reluctant to go to the local Brookshire Brothers or dollar store to purchase condoms. They could go to a family planning clinic, which provides contraception at little to no cost, but only clinics funded through the federal Title X program do not require parental permission — and a federal judge in Texas ruled last month that the program violates parents’ rights and state and federal law.

As Every Body Texas, the nonprofit group that is the state’s Title X administrator, awaits guidance from the U.S. Department of Health and Human Services on how to proceed, it informed Texas providers this week to require parental consent out of precaution.

Today, family planning programs are few and far between, thanks to funding cuts by the Texas Legislature in 2011. No family planning clinic exists in Sabine County. To get to the nearest one, teens in the region must travel to an adjacent county.

Meanwhile, Texas has one of the highest teen birth rates in the country. And in 2020, Sabine County’s teen birth rate was three times the statewide average. Nearly 7% of Sabine County teenage girls between the ages of 15 and 19 gave birth that year, compared with about 2% statewide.

You know where those parents don’t have eyes and ears? All the places where their teenage children are having unsafe sex and getting pregnant as a result. Funny how that works.

Mifepristone can now be offered at retail pharmacies

Good news, for at least some of the country.

For the first time, retail pharmacies, from corner drugstores to major chains like CVS and Walgreens, will be allowed to offer abortion pills in the United States under a regulatory change made Tuesday by the Food and Drug Administration. The action could significantly expand access to abortion through medication.

Until now, mifepristone — the first pill used in the two-drug medication abortion regimen — could be dispensed only by a few mail-order pharmacies or by specially certified doctors or clinics. Under the new F.D.A. rules, patients will still need a prescription from a certified health care provider, but any pharmacy that agrees to accept those prescriptions and abide by certain other criteria can dispense the pills in its stores and by mail order.

The change comes as abortion pills, already used in more than half of pregnancy terminations in the U.S., are becoming even more sought after in the aftermath of last year’s Supreme Court decision overturning the federal right to abortion. With conservative states banning or sharply restricting abortion, the pills have increasingly become the focus of political and legal battles, which may influence a pharmacy’s decision about whether or not to dispense the medication.

The F.D.A. did not issue an announcement but planned to update its website to reflect the decision. The two makers of the pill, Danco Laboratories and GenBioPro, released statements saying the agency had informed them of the action.

The action is the latest step taken by the federal government to expand access to abortion pills by easing some of the restrictions that have applied to mifepristone since it was approved in 2000.

In December 2021, the F.D.A. said it would permanently lift the requirement that patients obtain mifepristone in person from a health provider, a step that paved the way for telemedicine abortion services which conduct medical consultations with patients by video, phone or online questionnaires and then arrange for them to receive the prescribed pills by mail.

On Tuesday, the F.D.A. officially removed the in-person requirement from its regulatory rule book for mifepristone, leaving in place the remaining two requirements: that health providers be certified to show they have the knowledge and ability to treat abortion patients and that patients complete a consent form.

See here for some background. My understanding of the action taken in 2021 was that it allowed mifepristone to be prescribed via telehealth. I’m a little fuzzy on how much of a difference-maker this announcement is, but whatever it is, every little bit helps. Just, you know, not everywhere.

Whether large pharmacy chains and local drugstores would opt to make the pills available was not immediately clear Tuesday. The steps for pharmacies to become certified to dispense mifepristone are not difficult, but they involve some administrative requirements that go beyond the process pharmacies use with most other medications, such as designating an employee to ensure compliance. Given the time and resources required by those steps, some pharmacies may not consider it worthwhile to offer a medication that only a small percentage of their customers may use.

But while abortion pills may constitute a small percentage of a pharmacy’s sales, they could have a big impact on its public profile. Calculations about public perception and the highly polarized political landscape are also likely to influence a pharmacy’s decision.

In about half the states, abortion bans or restrictions would make it illegal or very difficult for pharmacies to provide abortion pills.

In states where abortion remains legal, pharmacies may face customer demand for the medication or public pressure from abortion rights advocates and health providers. National chains could decide to offer the medication in those states while not providing it in their stores in restrictive states.

I can say with 100% certainty that you won’t be able to walk into your local CVS here in Texas and find any mifepristone. The real question is what the Lege will try to do to prevent people from going out of state to get any kind of abortion care, or to punish people not in Texas who provide that care; the corollary questions will be about what the courts will do with the resulting litigation. We’re still a few months out from that, but it’s coming. In the meantime, at least some people will get to benefit from this.

Wingnut Trump judge issues his anti-birth control ruling

And from here it goes to the Fifth Circuit. Isn’t this fun?

A federal court ruling Tuesday may make it nearly impossible for Texas teens to access birth control without their parents’ permission.

U.S. District Judge Matthew Kacsmaryk ruled that Title X, a federal program that provides free, confidential contraception to anyone, regardless of age, income or immigration status, violates parents’ rights and state and federal law.

Kacsmaryk, appointed by President Donald Trump in 2019, is a former religious liberty lawyer who helped litigate cases seeking to overturn protections for contraception. Tuesday’s ruling is expected to be appealed.

Kacsmaryk did not grant an injunction, which would have immediately prohibited Title X clinics from providing contraception to minors without parental consent. Every Body Texas, the Title X administrator in Texas, said in a statement that it is awaiting additional guidance from the U.S. Department of Health and Human Services on how to proceed.

The case was brought by Jonathan Mitchell, the former Texas solicitor general who designed the novel law that banned most abortions in Texas after about six weeks of pregnancy. Mitchell has also brought a lawsuit to block requirements in the Affordable Care Act that require employers to cover HIV prevention medications.

Mitchell is representing Alexander Deanda, a father of three who is “raising each of his daughters in accordance with Christian teaching on matters of sexuality, which requires unmarried children to practice abstinence and refrain from sexual intercourse until marriage,” according to the complaint.

Deanda does not want his daughters to be able to access contraception or family planning services without his permission, arguing that Title X’s confidentiality clause subverts parental authority and the Texas Family Code, which gives parents the “right to consent to … medical and dental care” for their children.

Kacsmaryk agreed, ruling Tuesday that Title X violates Deanda’s rights under the Texas Family Code and the Due Process Clause of the 14th Amendment, denying him the “fundamental right to control and direct the upbringing of his minor children.”

Minors in Texas almost always have to get their parents’ permission to get on birth control. Even Texas teens who have already had a baby cannot consent to getting on birth control; the state has the highest repeat teen birth rate in the nation. Texas is also one of just two states that does not cover contraception at all as part of its state-run Children’s Health Insurance Program.

But Title X, a federal program dating back to the 1970s, is the exception to the rule. While federal regulations say Title X clinics should “encourage family participation … to the extent practical,” they are not allowed to require parental consent or notify parents that a minor has requested or received services.

Kacsmaryk’s ruling “holds unlawful” and “sets aside” that piece of the federal regulation.

See here for the background. As this Vox article observes, wingnut lawyers like Mitchell can file a suit that will almost always be heard by Kacsmaryk, who will pretty much always give them the ruling they want. And because the Fifth Circuit is also full of wingnuts and SCOTUS doesn’t care about wingnut judicial activism, whatever rulings he hands down tend to stay in place even if they later get overturned. What a system, eh? Bloomberg Law, which notes that “HHS had argued that the court’s remedy should be limited to an injunction requiring service providers to notify Deanda should one of his daughters request birth control in contravention of Christian teachings against sex outside of marriage”, has more.

Texas drops appeal of ruling that forbade banning the sale of handguns to people under 21

Least surprising headline of the week. And month, and year, and pretty much any other arbitrary timeline you choose.

Texas will no longer fight to ban 18- to 20-year-olds from carrying handguns in public. A judge ruled earlier this year that a state law banning the practice was unconstitutional, and Texas initially filed a notice that it would appeal. But Texas Department of Public Safety Director Steven McCraw withdrew the appeal to the 5th U.S. Circuit Court of Appeals this week.

U.S. District Judge Mark Pittman’s ruling was the first major decision about Texas gun laws since the U.S. Supreme Court ruled in June that the Second Amendment protected individuals who carry weapons for self-defense.

In September, the state filed a notice of appeal, which angered gun rights activists.

“Once again, government officials in the state of Texas are proven to be anti-gun stooges,” Dudley Brown, the president of the National Association for Gun Rights, said in a news release at the time.

Neither the notice of appeal nor the withdrawal listed legal arguments or reasons for doing so; DPS and the Texas attorney general’s office could not immediately be reached for comment.

See here and here for the background. I’m quite certain that the legal reasoning behind this is “we never wanted to appeal this in the first place but there was an election coming up and we wanted to tread carefully, and now that everyone has been safely re-elected we can drop the pretense”. This was predictable enough to be visible from orbit. My question for the lawyers is, could some other group pick up the appeal in place of the state, the way the then-Republican Congress took up the defense of DOMA after the Obama administration dropped out? I don’t know what the conditions are for that.

We said they’d come for birth control next

And here they are.

Matthew Kacsmaryk, a Trump appointee to a federal court in Texas, spent much of his career trying to interfere with other people’s sexuality.

A former lawyer at a religious conservative litigation shop, Kacsmaryk denounced, in a 2015 article, a so-called “Sexual Revolution” that began in the 1960s and 1970s, and which “sought public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults.”

So, in retrospect, it’s unsurprising that Kacsmaryk would be the first federal judge to embrace a challenge to the federal right to birth control after the Supreme Court’s June decision eliminating the right to an abortion.

Last week, Kacsmaryk issued an opinion in Deanda v. Becerra that attacks Title X, a federal program that offers grants to health providers that fund voluntary and confidential family planning services to patients. Federal law requires the Title X program to include “services for adolescents,”

The plaintiff in Deanda is a father who says he is “raising each of his daughters in accordance with Christian teaching on matters of sexuality, which requires unmarried children to practice abstinence and refrain from sexual intercourse until marriage.” He claims that the program must cease all grants to health providers who do not require patients under age 18 to “obtain parental consent” before receiving Title X-funded medical care.

This is not a new argument, and numerous courts have rejected similar challenges to publicly funded family planning programs, in part because the Deanda plaintiff’s legal argument “would undermine the minor’s right to privacy” which the Supreme Court has long held to include a right to contraception.

But Kacsmaryk isn’t like most other judges. In his brief time on the bench — Trump appointed Kacsmaryk in 2019 — he has shown an extraordinary willingness to interpret the law creatively to benefit right-wing causes.

This behavior is enabled, moreover, by the procedural rules that frequently enable federal plaintiffs in Texas to choose which judge will hear their case — 95 percent of civil cases filed in Amarillo, Texas’s federal courthouse are automatically assigned to Kacsmaryk. So litigants who want their case to be decided by a judge with a history as a Christian right activist, with a demonstrated penchant for interpreting the law flexibly to benefit his ideological allies, can all but ensure that outcome by bringing their lawsuit in Amarillo.

And so, last Thursday, the inevitable occurred. Kacsmaryk handed down a decision claiming that “the Title X program violates the constitutional right of parents to direct the upbringing of their children.”

Kacsmaryk’s decision is riddled with legal errors, some of them obvious enough to be spotted by a first-year law student. And it contradicts a 42-year-long consensus among federal courts that parents do not have a constitutional right to target government programs providing contraceptive care. So there’s a reasonable chance that Kacsmaryk will be reversed on appeal, even in a federal judiciary dominated by Republican appointees.

Nevertheless, Kacsmaryk’s opinion reveals that there are powerful elements within the judiciary who are eager to limit access to contraception. And even if Kacsmaryk’s opinion is eventually rejected by a higher court, he could potentially send the Title X program into turmoil for months.

You can read the rest, and you should be upset by it. Note that there isn’t an injunction yet, just a terrible opinion by a terrible judge who hasn’t yet decided whether to impose his will on the entire country or not. But this is where we are, and it’s not going to end anytime soon. Daily Kos has more.

“Heartbeat” lawsuit against doctor dismissed

I’d forgotten this was still a thing, it had been so long since it was filed.

In the first test of the Texas law that empowers private citizens to sue for a minimum of $10,000 in damages over any illegal abortion they discover, a state judge Thursday dismissed a case against a San Antonio abortion provider, finding that the state constitution requires proof of injury as grounds to file a suit.

Ruling from the bench, Bexar County Judge Aaron Haas dismissed the suit filed by Chicagoan Felipe Gomez against Dr. Alan Braid who had admitted in a Washington Post op-ed that he violated the state’s then-six-week ban, Senate Bill 8, which allows for civil suits against anyone who “aids or abets” an unlawful abortion.

Thursday’s ruling does not overturn the law or preclude similar suits from being filed in the future, lawyers for Braid said Thursday. Nor does it change the almost-total ban on abortion that went into effect in Texas when the U.S. Supreme Court struck down federal abortion protections earlier this year.

“This is the first SB 8 case that has gone to a ruling, a final judgment,” said Marc Hearron, senior counsel for the Center for Reproductive Rights, which was part of Braid’s legal team. “It doesn’t necessarily stop other people from filing SB 8 lawsuits, but what we expect is other courts, following this judge’s lead, would say if you weren’t injured, if you’re just a stranger trying to enforce SB 8, courts are going to reject your claims because you don’t have standing.”

[…]

Haas said in court he would issue a written order in the next week, Hearron said. Gomez declined to comment until the ruling is finalized, though he said he would appeal the ruling. Gomez, who had no prior connection to Braid according to court filings, has said that he believed SB 8 was “illegal as written” given that Roe v. Wade hadn’t yet been overturned at the time, and he requested the court declare it unconstitutional.

Gomez told the Chicago Tribune after filing the suit that his purpose was not to profit from it, but rather to highlight the hypocrisy of Texas lawmakers when it comes to mandates on the state’s citizens.

“Part of my focus on this is the dichotomy between a government saying you can’t force people to get a shot or wear a mask and at the same time, trying to tell women whether or not they can or can’t get an abortion,” Gomez said. “To me, it’s inconsistent.”

The law, which was the most restrictive abortion law in the country when it went into effect in September 2021, purports to give anyone the standing to sue over an abortion prior to six weeks of pregnancy, which is before most patients know they’re pregnant.

The state later banned virtually all abortions except those that threaten a mother’s life, with violations by anyone who provides the procedure or assists someone in obtaining one punishable by up to life in prison. Abortion patients are exempt from prosecution under the law.

Haas agreed with plaintiffs that the constitutional standard is that a person must be able to prove they were directly impacted to sue over an abortion, Hearron said.

See here, here, and here for the background. According to the Trib, there were three lawsuits filed against Dr. Braid, but this was the only one served to him, so I believe that means there are no other active lawsuits of this kind still out there. It’s a little wild to look back and realize that this awful law ultimately led to so little direct action, but it most definitely had a chilling effect, and it set a terrible precedent that SCOTUS shrugged its shoulders at in the most cowardly way possible.

Dr. Braid’s intent, in performing the abortion and writing the op-ed that practically invited these lawsuits, was to challenge SB8’s legality on the grounds that Roe v Wade was the law of the land and thus SB8 was facially unconstitutional when it was passed. You could still make that argument now – a similar lawsuit in another state (I’m blanking on the details) hinged on that same point and prevailed in court – but in the end it wouldn’t much matter, as Texas’ so-called “trigger” law has gone even farther than SB8 did. I’m also not sure that Judge Haas’ ruling will stand on appeal, since it seems clear that the point of SB8 was that literally anyone had the standing to sue. But maybe the Texas Supreme Court will agree that “standing” does mean something less expansive than that. Again, it’s basically an academic exercise now, but you never know. And if anything about this makes the forced-birth caucus in the Lege unhappy, they’ll just pass another law to get what they want. My head hurts. Reform Austin has more.

Look to the state legislatures for the next frontiers in forced birtherism

The state of Texas will of course be on the forefront of this, but it will surely follow examples from other states as well.

As statehouses across the country prepare for next year’s legislative sessions — most for the first time since Roe v. Wade was overturned — Republican lawmakers are pushing for further restrictions on reproductive health, even in states where abortion is already banned.

But fissures are already emerging. Now, anti-abortion lawmakers must decide if they will push new abortion bans — a subject of debate among some abortion opponents — if they will amend existing bans to allow for abortions in cases of rape of incest, or if they will move to other reproductive health issues such as contraception. Abortion opponents have struggled to agree on all of them, especially with total abortion bans proving unpopular among voters.

“We will see this split in the Republican Party around following essentially their base, which wants to ban abortion without any exceptions, and the larger public,” said Elizabeth Nash, who tracks state policy for the Guttmacher Institute.

Near-total abortion bans are in effect in 13 states, and others have limited access: In Georgia, the procedure is banned for people later than six weeks of pregnancy, and in Florida and Arizona, it is banned after 15 weeks of pregnancy. Bans in seven other states have been temporarily blocked but could take effect pending state court rulings.

With Republicans controlling the U.S. House, federal abortion legislation — whether a ban or national protection — is unlikely to pass. State legislatures are the likeliest source of new abortion policy, and most work only part-time, meeting to consider bills for a few months either every year or every other year. The legislative year typically starts in January, but lawmakers are starting to prefile bills, offering a first glimpse into what they hope to accomplish next year.

Two bills in Texas, one of the few states that has bills prefiled, show how legislation could prevent people from leaving the state to access abortion.

Republican lawmakers have put forth a bill that would prohibit government entities from giving someone money that might be used to travel out of state for an abortion. Another bill would eliminate state tax breaks for businesses in the state that help cover their employees’ travel costs associated with getting an abortion outside of the state.

Though no other states have similar bills yet, those could, if passed, offer a model for other states seeking to restrict abortion access further without directly banning interstate travel. Texas has already banned abortion completely, and it was the first state to eliminate access to abortions after six weeks, even before Roe v. Wade was overturned.

In Missouri — which, prior to Roe’s overturn had some of the most restrictive abortion policies in the country — lawmakers have begun to pre-file bills intended to keep people from accessing abortion. The procedure is already banned there, but no state law prevents people from getting medication abortion pills from another state, or from traveling out of state for an abortion.

If passed, these bills could change that. One would make it a felony to transport drugs that are intended to be used to induce an abortion, though the bill would not criminalize pregnant people. (Similar legislation last year did not pass.) Another bill would treat a fetus as a person — legislation that could effectively equate abortion with murder. Both could pass this session, Nash said, though it’s hard to tell what abortion bills lawmakers will prioritize until they come back to the capitol.

There’s more, so read the rest. We are well aware of the split between public opinion and Republican action on abortion, but as yet that has not caused the Texas GOP any electoral problems, so there’s no reason to believe they will be held back in any meaningful way. We also know that actual legislation is not required if threats and bullying do the heavy lifting for you. I haven’t spent a lot of time reading through legislative previews and stories of pre-filed bills because I know it’s going to be a massive shitshow and I’m trying to stay sane during the holidays. Just know that what happens in one Republican-dominated legislature will be copied by another, and it will work its way to the federal stage as well.

The environmental attack on abortion

It’s ridiculous.

Abortion opponents and their allies in elected office are seizing on an unusual strategy after suffering a wave of election defeats — using environmental laws to try to block the distribution of abortion pills.

The new approach comes as the pills mifepristone and misoprostol, which people can take at home during the first 10 weeks of pregnancy, have become the most common method of abortion in the U.S. and virtually the only option for millions of people in states with laws that have forced clinics to close since the fall of Roe v. Wade.

The first salvo started last week with a petition asking the Food and Drug Administration to require any doctor who prescribes the pills to be responsible for disposing of the fetal tissue — which anti-abortion advocates want to be bagged and treated as medical waste rather than flushed down the toilet and into the wastewater.

If the FDA ignores or rejects the petition, as is expected, the group Students for Life of America plans to sue.

The new push is the culmination of years of brainstorming around how to restrict access to the pills — particularly since their use surged following the outbreak of Covid-19 and the FDA’s ruling in 2021 that they are safe to take at home without a doctor present.

[…]

With Leonard Leo, the Federalist Society president who has been influential in putting more conservative judges on the bench, co-chairing its board and the conservative legal powerhouse Alliance Defending Freedom, whose attorneys helped draft and defend the Mississippi anti-abortion law that eventually toppled Roe v. Wade, advising them on the campaign, Students for Life is also pushing conservative state attorneys general to bring enforcement actions against doctors and abortion pill manufacturers, and is planning a tour of college campuses to advocate on the issue.

Should they prevail in any jurisdiction, the rules would be so burdensome that use of the drugs could be effectively cut off, several groups representing abortion providers told POLITICO. And even if they are unsuccessful in court, the effort aims to sway public opinion at a time voters have become increasingly accepting of abortions early in pregnancy.

“It’s hard for me to imagine even a Trump-friendly judge going for an argument about wastewater regulation, but you never know. Anytime you deal with abortion, judges get weird,” said Mary Ziegler, a law professor at the University of California, Davis and author of “Abortion and the Law in America.” “And we know that the more the anti-abortion movement can get people to think about fetal remains and other concrete details about what abortion entails, the more uncomfortable Americans become. So, it could be helpful for them even if it doesn’t go anywhere legally.”

The group’s FDA petition argues that the high number of people using pills to terminate pregnancies at home and flushing fetal remains down the toilet — which has increased in part due to the same group’s efforts to overturn Roe v. Wade and restrict access to surgical abortions — poses risks to the environment.

It claims without direct evidence that trace amounts of the drug in wastewater could threaten livestock and wildlife as well as humans, citing some studies in which the drug was given directly to animals rather than ingested from groundwater, and others where drugs flushed directly down the toilet contaminated the water supply.

“Pharmaceutical contamination of water is a serious issue that can have serious impacts on the environment, but trying to say that one drug out of thousands is having an outsized effect is based on ideology not evidence,” said Nathan Donley, the Environmental Health Science director for the Center for Biological Diversity, who has written citizen petitions to the FDA. “Of all the drugs and synthetic chemicals we shed that can potentially contaminate water, abortifacients are a fraction of a fraction of a percent. It’s nothing.”

Also referenced repeatedly in the petition are studies about the environmental impact of hormonal contraception, leading some experts to ask whether conservative groups will apply the strategy to other drugs in the future.

“It seems like they’re laying the groundwork for considering contraception itself as medical waste,” said Susan Wood, the former FDA assistant commissioner for Women’s Health and a professor of health policy at George Washington University.

The bad faith here is thick enough to blot out the sun, but shame has never been a limiting factor for this crowd. Use of abortion pills is already pretty restricted in Texas so I’m not sure if a bill to impose this kind of requirement is likely in the forthcoming legislative session, but it wouldn’t surprise me. There will be a bill for this in the Republican-controlled US House, which at least should make the campaign case for flipping that chamber back that much easier. This is the world that SCOTUS has forced us to live in. The bad guys are going to keep coming. We can’t let up.

Senate passes Respect For Marriage Act

Nice. And remember who opposed it, kids.

Republican U.S. Sens. John Cornyn and Ted Cruz tried to block a Senate vote to explicitly enshrine equal marriage rights for gay, lesbian and bisexual Americans into federal law Wednesday, after 12 GOP lawmakers joined Democrats to clear the way for the bill’s passage.

The Respect for Marriage Act would repeal the 1996 Defense of Marriage Act, which barred the federal government from recognizing same-sex marriage until the U.S. Supreme Court ruled that law unconstitutional in 2013. The high court went further in 2015 and ruled in Obergefell v. Hodges that states can’t ban same-sex marriages, declaring that gay, lesbian and bisexual Americans have a constitutional right to marry.

The core provisions of the Respect for Marriage Act would be relevant only if the Supreme Court reverses that decision in the way it revoked a constitutional right to abortion this summer.

The bill would not force states that currently have unenforceable bans on same-sex marriage, like Texas, to offer marriage certificates to gay, lesbian and bisexual couples if Obergefell is overturned. But it would mandate that the state recognize a same-sex marriage that occurred in a state where it is legal. The vote on Wednesday in the Senate clears the way for it to pass the chamber easily. It will then return to the House, where members will consider the amendments made in the Senate. The House passed the original version of the bill in July.

There was a push to get this to a vote before the election, but the decision was made to defer it to the lame duck session. Given that it has now passed the Senate, I can’t argue the logic – sometimes, the result is all that matters. The RFMA has some progressive critics, but the argument for its passage is strong. I have no doubt it will sail through the House. It’s a very good thing, but don’t rest on your laurels because there’s lots more to be done before the end of the year. Mother Jones, TPM, and The 19th have more.

Paxton taken off the hook for testifying in abortion funds’ lawsuit

By the Fifth Circuit, of course.

Best mugshot ever

Texas Attorney General Ken Paxton will not have to testify as nonprofits that help patients legally obtain abortions seek clarity on whether they can do their work in states like Texas where the procedure is outlawed, a federal appellate court ruled Monday.

A three-judge panel of the Fifth Circuit Court of Appeals found that an Austin federal court judge should have granted Paxton’s motion to quash subpoenas he was served by the plaintiff abortion funds.

The subpoena made national headlines after Paxton evaded a legal messenger who had shown up at his house on the eve of a hearing in the case. Paxton later called the messenger “suspicious” and “erratic” and said he “justifiably feared for his personal safety.”

The abortion funds are suing the state for protection to resume their work amid the state’s newly enforced abortion bans. They have said Paxton’s testimony is necessary because he and his office have made conflicting statements about the legality of helping Texas residents legally obtain abortions in other states, and he is the only person who can clarify their meaning and intent.

“We are happy that Judge Pitman can move forward in the case now, and that the Fifth Circuit has acknowledged the real threats against our clients related to assisting people to access reproductive health care out of state,” the plaintiffs’ attorneys said in a joint statement.

[…]

At first, the district court granted Paxton’s motions to quash the subpoenas; however, after more information came to light — Paxton had claimed he was served “on the literal eve of trial,” yet emails submitted to the court by the abortion funds’ lawyers showed he had at least four days notice — the judge changed course and ordered Paxton to testify.

The appellate judges disagreed with the lower court’s finding that there were “exceptional circumstances” requiring Paxton to testify.

“Paxton’s personal ‘thoughts and statements’ have no bearing on his office’s legal authority to enforce Texas’s abortion laws or any other law,” the panel wrote in the ruling. “It is entirely unexceptional for a public official to comment publicly about a matter of public concern. If doing so imparts unique knowledge, high-level officials will routinely have to testify.”

The panel also disagreed with the lower court’s contention that testifying would not cause a significant burden for Paxton.

“‘High ranking government officials have greater duties and time constraints than other witnesses,'” they wrote, citing prior case law. “Those duties often involve communicating with the public on matters of public interest. The fact that a high-ranking official talks to his constituents does not ipso facto mean he also has ample free time for depositions.”

See here for the background. This is one of those times where I wish the story included a quote or two from an actual legal expert about the opinion. We all know how deeply in the tank for Paxton the Fifth Circuit is, but based on what is reported in the story, the ruling seems at least defensible. But the Fifth Circuit is so utterly corrupt that I can’t rely on my judgment here, and they deserve absolutely no benefit of the doubt. I don’t want to be a chump here, so I’d like to see someone who knows these things render an assessment. In the absence of that, all I have is my well-honed instinct to not trust that terrible court. And we’ll all have the Internet mockery of Ken Paxton for his pusillanimous efforts to evade the process server. Sometimes the snark is the most dependable thing out there.

Our future doctor shortage

Putting a pin in this.

As reported by Jan Hoffman for The New York Times, in order to satisfy their prerequisites for specialty board certification, OB-GYN physicians in post-graduate medical residency programs must comply with national requirements, which include training in the performance of abortions. Such training is considered essential—and characterized as a  “core procedure”—for OB-GYN doctors, in order to properly treat common medical conditions such as miscarriage, infections, and other complications to pregnancy. And in order to receive accreditation, those medical residency programs—typically administered through schools of public health and occurring in hospitals or clinics—must provide that training.

But ever since a radical conservative majority on the U.S. Supreme Court overruled the right to abortion previously guaranteed by Roe v. Wade in June, several Republican-dominated states have passed laws prohibiting abortion and criminalizing its practice by physicians. As a direct result, residency programs that routinely provided their residents with training in abortion care are faced with a dilemma.

As Hoffman observes:

If they continue to provide abortion training in states where the procedure is now outlawed, they could be prosecuted. If they don’t offer it, they risk losing their accreditation, which in turn would render their residents ineligible to receive specialty board certification and imperil recruitment of faculty and medical students.

The absolute necessity of such training for OB-GYN doctors was recently reaffirmed by the Accreditation Council for Graduate Medical Education (ACGME). There is no exception for states whose Republican legislatures and governors have seen fit to transform the procedure into a criminal offense, although, as Hoffman reports, the guidelines permit a medical resident to “opt out” of such training for “religious or moral reasons.” Under the Council’s guidelines, a physician may also complete such instruction by serving a clinical rotation in a facility located in a state that permits doctors to perform abortions, but both hospital program directors and medical residents interviewed for The Times report expressed the fear that broadly drafted forced-birth laws in Republican-dominated states could still subject them to criminal prosecution.

[…]

For physicians seeking to complete their residencies in states that have or will soon criminalize the performance of abortions, the allowance for “out-of-state” training comes with an array of practical obstacles, from varying licensing and malpractice insurance regulations to housing costs. Hoffman reports that as consequence, physicians have begun to avoid placements in states where abortion is or will soon be illegal. She cites one physician who had been “courted” to join a Wisconsin medical residence program’s faculty who ultimately turned them down, citing the state’s abortion ban.

But the more worrying trend for those who may need OB-GYN care in Republican states is the growing reluctance of medical students to practice in those states.

Hoffman reports:

That is among the reasons that many medical students have said they are applying only to programs where abortion is legal. Public health experts predict that in a few years, patients in abortion-prohibited states, where the ranks of obstetricians are already shrinking, will experience even greater barriers to reproductive health care.

The reasons for this are practical, at least in part: An aspiring OB-GYN resident has little incentive to apply to a program that is not accredited. As Hoffman reports, the ACMGE explored the option of using “simulation” techniques such as virtual instruction or performance of “mock” abortions on models (and even papayas) to provide such training and concluded they were insufficient.  Even those medical students who desire to treat patients in the poorest of these “red-state” areas have balked when they find their programs do not have sufficient resources to place them for out-of-state training.

The effects of all this are as predictable as they are ominous for anyone seeking OB-GYN care in Republican-led states: Because of the very real threat of potential criminal prosecution, many of the most qualified and talented medical students will naturally apply tor OB-GYN residency programs in states where abortion is legal; in turn, those programs become more selective, admitting only the top students.  Meanwhile, students who simply may wish to practice OB-GYN in a “red state” are disincentivized to do so, by barriers to accreditation or the simple expense and logistics of obtaining such training out of their chosen state.

Finally, as Hoffman notes, the prohibitions against abortion in “red” states have deterred medical students pursuing careers in those states even in fields other than OB-GYN. She cites a study of third- and fourth-year medical students conducted for The Lancet Americas which interviewed those students about their preferred career placements; 60% wouldn’t apply to programs in forced-birth states. And “more than three-quarters of 500 responses” were from students pursuing specialties that were NOT obstetrics and gynecology.

Maybe it doesn’t play out this way. Maybe between elections and societal pressure, we get enough relaxation of the current forced-birth legislation to mitigate this effect. Maybe the effect only really hits poor people, so it never becomes a “real” issue to the Legislature. Maybe we just wind up with more Republican doctors. Who knows? Like I said, I’m putting a pin in this so that if five years from now the news in Texas is about how hard it’s becoming to find doctors in parts of the state where that previously had not been a problem, or how the major medical centers in Texas are having a hard time getting new interns and residents, we’ll be able to say we saw it coming. At least, some of us saw it coming.

Anti-gay Waco JP’s lawsuit still tossed

Good.

An Austin intermediate appellate court has upheld a Travis County judge’s decision to throw out McLennan County Justice of the Peace Dianne Hensley’s lawsuit against the state panel that sanctioned her in 2019 for refusing to perform same-sex weddings.

In an opinion issued Thursday, the 3rd Court of Appeals affirmed 459th State District Judge Jan Soifer’s June 2021 decision to dismiss Hensley’s lawsuit against the State Commission on Judicial Conduct.

The appellate court judges agreed with Soifer that the commission has statutory and sovereign immunity from the claims, that Hensley failed to exhaust other legal remedies before filing her lawsuit and that she failed to establish her claims that commission members were without legal authority to issue the public reprimand against Hensley.

Hensley has said she has always expected the case will ultimately be reviewed by the Supreme Court of Texas. She referred questions about the Thursday ruling to her attorneys at the First Liberty Institute, a high-profile religious liberty legal group based in Plano.

[…]

Hensley, a Republican who is unopposed in Tuesday’s election in her bid for a third term, has officiated at weddings between men and women but refused to perform weddings for same-sex couples, saying it goes against her “Bible-believing Christian conscience.”

She said Thursday she has stopped performing any weddings while her lawsuit is pending. Her lawsuit alleges the commission violated her rights under the Texas Religious Freedom Restoration Act.

The commission’s public warning against Hensley said she violated the Texas Code of Judicial Conduct by “casting doubt on her capacity to act impartially to persons appearing before her as a judge due to the person’s sexual orientation.” It also said she has refused to perform same-sex weddings since August 2016, despite the 2015 U.S. Supreme Court decision that established constitutional rights to same-sex marriage.

Hensley’s lawsuit originally was filed in McLennan County. However, it was transferred to Travis County after a contested hearing.

Her petition asserts the commission violated her rights by punishing her for “recusing herself from officiating at same-sex weddings, in accordance with the commands of her Christian faith.” She also claimed “the commission’s investigation and punishment” of her placed a substantial burden on her free exercise of religion.

See here, here, and here for the background. The court information on the case is here, and there was both a majority opinion and a concurring opinion, in which one Justice agreed with the judgment but not the reasoning behind it. I didn’t slog my way through the majority opinion, but all it’s doing is upholding the lower court, so there’s nothing new here. I stand by what I wrote about her lawsuit when she filed it in 2019. I only regret that she hasn’t seen fit to take my advice. I’m sure this will get to SCOTx and from there who knows what will happen, but for now justice has been served. Thanks to my friend Carmen for giving me a heads up about this one – I had briefly seen a headline about the opinion, which came out last week, but hadn’t gotten back to it. The DMN has more.

The surge in mail order abortion pills

We’ll see how long this lasts. We know the Lege is going to take aim at it.

Requests for mail-order abortion pills continued to spike in Texas, nearly doubling this summer after the U.S. Supreme Court overturned Roe v. Wade, according to new research.

Texas saw the sixth highest jump in weekly requests among states reviewed, according to the study, which was published in the Journal of the American Medical Association. The state is among a handful that now prohibit abortions in almost all cases, following the court’s decision to roll back federal abortion protections.

Mail-order abortion requests were already rising dramatically in Texas amid the state’s six-week abortion ban, which took effect last September. The new research found that Aid Access, the Austrian nonprofit that ships abortion pills to consumers in the U.S., received an average of 5.5 requests per week, per 100,000 Texans of reproductive age through August, up from 2.9 between September and June. There are about seven million women of reproductive age in the state.

The study provides further evidence that Texans are finding ways to access abortion even under the state’s strict new laws. Moreover, Abigail Aiken, an associate professor of public policy at the University of Texas Austin and the paper’s lead author, said requests for abortion pills increased in states even where abortions remain legal, suggesting that people are also getting more comfortable in general with the idea of managing their own abortions.

“I think it’s an unintended and kind of ironic consequence of abortion bans,” Aiken said. “They often actually illuminate the idea of self-managed abortion for people because it gets talked about in the media and people hear about it through social media platforms.”

[…]

Mail-order abortion requests were already rising dramatically in Texas amid the state’s six-week abortion ban, which took effect last September. The new research found that Aid Access, the Austrian nonprofit that ships abortion pills to consumers in the U.S., received an average of 5.5 requests per week, per 100,000 Texans of reproductive age through August, up from 2.9 between September and June. There are about seven million women of reproductive age in the state.

The study provides further evidence that Texans are finding ways to access abortion even under the state’s strict new laws. Moreover, Abigail Aiken, an associate professor of public policy at the University of Texas Austin and the paper’s lead author, said requests for abortion pills increased in states even where abortions remain legal, suggesting that people are also getting more comfortable in general with the idea of managing their own abortions.

“I think it’s an unintended and kind of ironic consequence of abortion bans,” Aiken said. “They often actually illuminate the idea of self-managed abortion for people because it gets talked about in the media and people hear about it through social media platforms.”

I’m glad that people are finding ways, but as helpful as Aid Access is, it’s inherently fragile. Draconian measures may be required to damage its ability to provide its service, but I have no doubt that the forced birth contingent will be all in on such measures. It’s just a matter of when they hit on the right tactic, which they did with SB8 for doctor-provided abortions. And of course, while the medication can cover most of the early abortions, it’s the ones that come later in pregnancy, the ones that are the result of a pregnancy gone wrong and which threaten the health of the mother that remain. The accompanying horror stories – it’s also just a matter of time before some nice white suburban lady who already has a couple of kids dies as a result of being unable to get a medically necessary abortion in a timely manner – will stay with us for the longer term. The Trib and Texas Public Radio have more.

State Bar complaint against Ted Cruz was dismissed

This story ran a few days ago.

Not Ted Cruz

A lawyer group that brought ethics complaints against Trump attorneys is trying to make it tougher for lawyers to use the legal system to overturn elections.

The group, called the 65 Project, aims to change bar rules of professional conduct in 50 states and the District of Columbia to eliminate “fraudulent and malicious lawsuits” against fair election results.

“Lawyers purport to be self-regulatory and special stewards of the rule of law,” Paul Rosenzweig, a group advisory board member, told reporters Wednesday. “They failed in that responsibility” with the 2020 election.

The effort is a new front in the group’s self-described battle to protect democracy from abuse of the legal system. 65 Project has already filed 55 state bar ethics complaints against lawyers for former President Donald Trump over their efforts to overturn the results of the 2020 election.

The group’s targets have included former Foley & Lardner partner Cleta Mitchell, Sen. Ted Cruz (R-Texas) and lawyers Joseph diGenova and Boris Epshteyn.

Part of 65 Project’s new effort includes proposing rules to prevent attorneys in public office from violating attorney standards by amplifying false statements about elections.

The group is focusing initially on about a dozen states, including Ohio, Wisconsin, Texas, and Pennsylvania, and DC, said Michael Teter, a former Utah assistant attorney general who is Project 65’s managing director.

See here for the background. The Bloomberg Law story says that all of the 65 Project’s complaints are active, but that is not accurate. According to the DMN, which I was able to quickly peruse before the paywall came up, the complaint was dismissed by the State Bar of Texas on June 13, a few weeks after it was filed. The reason, as noted in the sub-head of the story, is that the State Bar said they lacked oversight since Cruz was acting as a Senator and not a lawyer; their dismissal letter didn’t address the merits of the complaint. A minor consolation, that. We are still waiting for a ruling in the complaint against Ken Paxton; a ruling by a different judge in the case against Paxton deputy Brent Webster does not bode well for the complainants, but I suppose it’s not over till it’s over. There’s still a possible appeal of that ruling, which as far as I know has not yet been filed. I fear all of them will get away with it, which is too depressing to contemplate. We’ll know soon enough.

So many abortion clinics have closed

Most of them are in Texas.

More than half of the 23 abortion clinics in Texas have closed since the U.S. Supreme Court overturned Roe v. Wade in June, according to a new report.

Twelve clinics have shuttered their operations entirely in the state, and the rest have focused on other services, which could include cancer screenings, STI treatments and contraception, according to the review by the Guttmacher Institute, which studies reproductive health access. The count did not include a list of clinics that have closed.

Nearly half of the 26 abortion clinics that have closed nationally since the court’s decision were in Texas, according to the report.

[…]

In the wake of the Supreme Court decision, which lifted federal abortion protections, several independent abortion providers announced they were relocating their Texas operations to states where the procedure is still allowed. Whole Woman’s Health, which is moving its Texas operations to New Mexico, had worked in Texas for nearly 20 years, with clinics in Austin, McAllen, Fort Worth, and McKinney before this summer.

Whole Woman’s Health now offers a program in which Texas patients who are up to 11 weeks pregnant can go to New Mexico or four other states for a telemedicine appointment and pick up prescribed abortion medication in that state. It also plans to open a physical clinic in New Mexico and is in the process of searching for a building.

“We know the same amount of people in the community we serve still need abortion care,” said Amy Hagstrom Miller, the group’s founder and CEO. “The ban doesn’t do anything to prevent unplanned pregnancies; it just keeps people from getting professional medical care.”

Two things to keep in mind here. One is that the number of clinics in Texas at the time of the Dobbs decision was already way down from the early 2010s. This is because of the the anti-abortion law that was passed in 2013, the one that Wendy Davis famously filibustered against, which was aimed at regulating clinics out of business; this was a prime example of a so-called TRAP law, which stood for “targeted restrictions (or regulations) on abortion providers”. You know, the law that forced abortion clinics to transform themselves into ambulatory surgical units and did things like require minimum corridor widths, under the bullshit guise of “safety”. The Supreme Court in 2015, which still had Anthony Kennedy on it, threw out this law on the grounds that it was a lying pile of baloney that did nothing to actually promote safety and put an “undue burden” on the providers. (The case was Whole Women’s Health v Hellerstedt, you may have heard of it.) For a brief shining moment, clinics and abortion advocates in Texas began making plans to sue the state over other restrictive laws that this decision would have rendered unconstitutional.

And then 2016 happened, and we know the rest. But the point is that in between the passage of the 2013 TRAP law and the 2015 Hellerstedt decision, more than half of the clinics that had provided abortions in Texas had closed. None, as far as I know, had reopened following Hellerstedt, though going by the numbers in both stories it’s likely some new places began offering abortion services. However you slice it, the number of clinics that were around to close this year was down sharply from less than ten years ago. We were already a state where getting an abortion was exceedingly difficult to do for many women.

What this all means is that even if Democrats manage to fill the inside straight and put themselves in a position to re-establish abortion rights nationwide in 2023, we’re a long way off from abortion being readily available in Texas again. That process could take a decade or more, and that’s assuming that Republicans don’t gain a trifecta and do a national abortion ban or some other horrible thing. We have some hope of making the laws right again. Getting back to where we were, let alone where we need to be, that is a much longer-term project. Daily Kos has more.

You can be gay, you just can’t act gay

So rules a notoriously anti-gay Trump judge, narrowing a SCOTUS ruling from just two years ago at the behest of the usual suspect.

A federal judge has ruled that Biden administration guidelines requiring employers to provide protections for LGBTQ employees go too far, in a win for Texas Attorney General Ken Paxton, who brought suit against the rules last fall.

The rules were first issued after the landmark ruling in Bostock v. Clayton County in 2020, in which the Supreme Court ruled that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, sex or religion, includes protection for gay and transgender people.

In 2021, the Biden administration released guidance around the ruling, noting that disallowing transgender employees to dress and use pronouns and bathrooms consistent with their gender identity constituted sex discrimination.

Judge Matthew Kacsmaryk, a Donald Trump-appointed U.S. district court judge for the Northern District of Texas, found that Title VII prohibits employment discrimination against an individual for being gay or transgender, “but not necessarily all correlated conduct,” including use of pronouns, dress and bathrooms.

Earlier this year, after Paxton issued a nonbinding legal opinion that gender-affirming medical care for transgender minors could be considered child abuse, Health and Human Services Secretary Xavier Becerra released additional guidance that federally funded agencies can’t restrict people from accessing “medically necessary care, including gender-affirming care, from their health care provider solely on the basis of their sex assigned at birth or gender identity.” Kacsmaryk also ruled to vacate that guidance.

[…]

Kacsmaryk is himself known for his opposition to expanding or protecting LGBTQ rights. Before being nominated to the bench, Kacsmaryk was the deputy general counsel for the First Liberty Institute, a conservative legal organization focused on religious liberty cases. In a 2015 article arguing against the Equality Act, Kacsmaryk wrote that the proposed legislation that would prohibit discrimination based on sex, sexual orientation or gender identity would “punish dissenters, giving no quarter to Americans who continue to believe that marriage and sexual relations are reserved to the union of one man and one woman.”

In a 2015 article for the National Catholic Register titled “The Abolition of Man … and Woman,” Kacsmaryk called the term gender identity “problematic” and wrote that, “The campaigns for same-sex ‘marriage’ and ‘sexual orientation’ and ‘gender identity’ (SOGI) legislation share a common legal theory: Rules predicated on the sexual difference and complementarity of man and woman are relics of a benighted legal regime designed to harm ‘LGBT’ persons, or at least deny them ‘full equality.’”

I wonder sometimes how Ken Paxton would do if instead of being able to pick his judges he always had to argue his cases in front of a judge that, you know, ruled on the law and the merits of the case rather than on what they felt like. Probably would have a lower batting average, I’m thinking. Anyway, that ruling was 6-3, with Gorsuch the author and Roberts joining him and the (at the time) four liberals. That means that five judges who ruled for the plaintiffs are still there. It’s certainly possible, maybe even likely, that the Biden administration read that ruling in as expansive a manner as they thought they could, and as such they could have overstepped what SCOTUS had in mind. I suppose we’ll get to find out, once the Fifth Circuit does its duty of upholding the ruling. We know that in general this SCOTUS doesn’t give a crap about precedent, but maybe they’ll feel differently when it’s their own precedent.

Evade this, Kenny

Paxton gets ordered to testify, along with an old-fashioned bench slapping.

Best mugshot ever

A federal judge has ordered Texas Attorney General Ken Paxton to testify in an abortion rights lawsuit. U.S. District Judge Robert Pitman had previously quashed the subpoena, which Paxton fled his home to avoid being served.

In a hearing last week, lawyers representing abortion rights nonprofits asked Pitman to reconsider and require Paxton to testify. Pitman granted their motion on Tuesday.

These nonprofits, called abortion funds, brought the lawsuit in August, seeking assurance that they will not be criminally or civilly penalized for helping Texans pay for abortions out of state. They have argued that Paxton’s statements on social media and in the press make it clear that the state’s top lawyer believes the abortion funds can and should be prosecuted for their work over state lines.

[…]

[I]n Tuesday’s order, [Judge Pitman] said he [originally quashed the subpoena] “on the assumption that counsel for Paxton had made candid representations to the Court … only to learn later that Paxton failed to disclose Plaintiffs’ repeated emails attempting to inquire as to whether Paxton could testify.”

Pitman also sided with the abortion funds’ argument that Paxton has unique, first-hand knowledge that requires him to testify.

“The Court will not sanction a scheme where Paxton repeatedly labels his threats of prosecution as real for the purposes of deterrence and as hypothetical for the purposes of judicial review,” Pitman wrote.

He also rejected the argument that requiring Paxton to testify would be too much to ask of the state’s top lawyer.

“It is challenging to square the idea that Paxton has time to give interviews threatening prosecutions but would be unduly burdened by explaining what he means to the very parties affected by his statements,” Pitman wrote. “The burden faced by Plaintiffs—the effective cessation of many core operations—outweighs the burden of testimony faced by Paxton.”

Pitman gave lawyers on both sides a week to determine how and when Paxton will testify.

See here, here, and here for the background. Judge Pitman’s order is practically perfect. I have no notes. I look forward to seeing how Paxton responds to questions from someone who isn’t a sycophant. The Chron has more.

The hearing that Paxton was trying to flee from

It’s about whether the First Amendment rights of abortion funds have been abridged by threats of prosecution from people like Ken Paxton. You know, no big deal.

Leaders of Texas’ most prominent abortion funds on Tuesday implored a federal judge to give them clearance to resume providing assistance to people seeking abortions in states where the procedure is legal.

The funds filed the class-action suit in August seeking to block state and local prosecutors from suing them if they get back to work offering Texans funding and support for travel, lodging, meals and child care, among other expenses incurred while they obtain abortions. On Tuesday, they sought to temporarily block any potential prosecutions until the case is decided.

The groups halted abortion support operations in June after the Supreme Court issued its decision this summer overturning federal protections for the procedure. The decision also led clinics throughout the state to stop providing abortion services.

The legal battle carries immense implications for thousands of Texans seeking abortions, who will inevitably incur higher costs as they depend on other states due to Texas’ near-total abortion ban. Studies show the vast majority of pregnant people pursue abortion for financial reasons, and most who obtain abortions are low-income people of color.

Texas Attorney General Ken Paxton, a Republican, is named as a defendant in the suit, as well as a number of county and district attorneys who are responsible for enforcing the state’s abortion bans. Some local prosecutors in liberal-leaning counties have pledged not to prosecute, while others in redder counties have said they will.

The plaintiffs point to “myriad threats” of prosecution by the attorney general “and his associates,” including social media posts, statements and cease-and-desist letters sent by members of the hard-line conservative Texas Freedom Caucus to corporations.

Caucus member and Deer Park Republican state Rep. Briscoe Cain has also sent similar letters to Texas abortion funds, including plaintiff organizations, saying their donors, employees and volunteers are subject to prosecution under the pre-Roe statutes, according to the suit.

The Texas Supreme Court ruled in July that the state’s pre-Roe statutes, which make it illegal to “(furnish) the means for procuring an abortion,” are enforceable.

The plaintiffs also cited an advisory issued by Paxton just hours after the Dobbs decision was announced that stated the pre-Roe statutes could be enforced by district and county attorneys immediately.

[…]

The abortion funds claim in their suit that charitable donations are a protected form of freedom of speech and association under the First Amendment, but the possibility of debilitating litigation has chilled their exercise of those rights. It has also, they argue, scared some donors out of giving freely to the group.

“Despite their strong desires and commitment to assisting their fellow Texans, Plaintiffs will be unable to safely return to their prior operations until it is made clear that Defendants have no authority to prosecute Plaintiffs or seek civil penalties from them for their constitutionally protected behavior,” they state in the suit.

See here for some background, and I’ll get back to this in a minute. The Trib adds some details.

They have asked U.S. District Judge Robert Pitman for a preliminary injunction that would stop Paxton from pursuing criminal charges or civil penalties against abortion funds. The state has countered that their fear of prosecution is “self-imposed,” as the attorney general cannot bring criminal charges and the law that allows him to bring civil penalties does not apply to abortion funds.

At the end of the seven-hour hearing Tuesday, Pitman noted that while attorneys for the state had repeatedly implied that the abortion funds had “nothing to worry about,” they had stopped short of saying so directly.

Pitman is expected to rule on the request for a preliminary injunction in the coming weeks but in the meantime is also considering a motion to require Paxton to testify himself. Before the hearing Tuesday, Pitman quashed a subpoena seeking the attorney general’s testimony, but lawyers for the plaintiffs have asked him to reconsider. Paxton fled his home Monday to avoid being served with the original subpoena.

The lawsuit also seeks clarity on whether a Texas-based abortion provider can perform abortions for Texans in other states where the procedure remains legal, or provide telehealth services from Texas to patients in other states.

On that question, the attorney for the state was even less definitive about whether the attorney general would try to enforce the civil penalties in the law, saying that situation was not amenable to a clear “up or down” answer but would have to be handled on a case-by-case basis.

[…]

But all of that changed when the U.S. Supreme Court overturned Roe v. Wade in late June, allowing states to set their own laws on abortion. Immediately, Paxton issued guidance that said prosecutors could “immediately pursue criminal prosecutions based on violations of Texas abortion prohibitions predating Roe that were never repealed by the Texas Legislature.”

“Under these pre-Roe statutes, abortion providers could be criminally liable for providing abortions starting today,” Paxton wrote.

But those pre-Roe statutes don’t criminalize just abortion providers — they also criminalize anyone who “furnishes the means” for an abortion, punishable by up to five years in prison.

Immediately, abortion funds in Texas stopped their operations, citing confusion over whether paying for abortions out of state constituted furnishing the means for an illegal abortion. As the leaders of several abortion funds testified to on Tuesday, they were particularly alarmed by Paxton’s statement that his office would “assist any local prosecutor who pursues criminal charges.”

Their fears were exacerbated, according to testimony, when a group of conservative lawmakers in the Texas House, including Cain, issued a letter to Sidley Austin, a prestigious law firm that had offered to pay for its Texas-based employees to travel out of state to get abortions. In the letter, the lawmakers threatened the law firm with criminal prosecution for their actions.

Based on these indications from Paxton and lawmakers, “we believed we would be prosecuted, to be frank,” Anna Rupani, the executive director of Fund Texas Choice said Tuesday.

This freeze on their work came with other consequences, according to Tuesday’s testimony. Several of the funds said they had lost donors or had to spend more time reassuring donors who were confused and worried. Some said they had lost staff or board members over fear of criminal prosecution.

Lawyers for the state, though, argued that this chilling effect was “self-imposed” and “unreasonable.” None of the people the abortion funds cited threats from — Cain, the other legislators or Paxton himself — have the ability to bring criminal charges against anyone.

Only district and county attorneys can bring criminal charges in Texas; the prosecutors named on this lawsuit have agreed not to press charges against abortion funds for paying for out-of-state abortions until the case is fully resolved.

Paxton, though, still has the ability to pursue civil cases and, in the case of Texas’ more recent abortion laws, is actually required to by state statute.

To me, the most salient fact of this case is this, and here I quote from my earlier post: “[I]n their amicus brief to a writ of mandamus that blocked a lower court order that would have enjoined the 1925 state law criminalizing abortion, 70 Republican legislators argued that criminal penalties should apply to people who help others get an abortion.” I Am Not A Lawyer, but it seems to me that a very credible threat of being thrown in jail for your political advocacy is a First Amendment issue. That said, I think we all know what will happen here: Judge Pitman will grant the restraining order, and the Fifth Circuit will block it for no good reason. And so back to SCOTUS we go, and I sure hope they enjoy being constantly dragged into every abortion fight that they said should have been a state issue. What happens from there, I have no idea.

District court judge dismisses State Bar complaint against Brent Webster

This is a bad ruling, and it needs to be appealed.

A Texas district judge has dismissed a professional misconduct lawsuit against a top aide of Attorney General Ken Paxton seeking to discipline them for their effort to overturn the 2020 presidential election.

Milam County Judge John W. Youngblood ruled last week that his court lacked the jurisdiction to rule on the matter, agreeing with the attorney general’s argument that doing so would violate the separation of powers doctrine by interfering in an executive branch matter.

“To find in the commission’s favor would stand for a limitation of the Attorney General’s broad power to file lawsuits on the state’s behalf, a right clearly supported by the Texas Constitution and recognized repeatedly by Texas Supreme Court precedent,” Youngblood wrote.

A similar case filed by the State Bar against Paxton is still before a Collin County judge and has not yet been decided.

[…]

Jim Harrington, a member of Lawyers Defending American Democracy, a coalition of lawyers including two former State Bar presidents, who filed a friend-of-the-court brief in support of the State Bar, called the ruling a “legal charade.” The group also filed complaints that prompted the bar to file suits against Paxton and Webster.

“The logic of the judge’s decision is that, if a lawyer works for the Attorney General, there is no way to hold the lawyer accountable for ethical violations and professional misconduct,” Harrington said in a statement. “In other words, the attorney general’s office is above the law. That is contrary to the principle of the Constitution, and we hope the State Bar will appeal the ruling.”

Ratner, a co-founder of the group and a Maryland attorney, said he, too, was disappointed in the ruling and added that it misconstrued the premise of the suit.

“While separation of powers authorizes the Attorney General to decide what lawsuits to file on the State’s behalf, we believe it does not authorize him to make misrepresentations and dishonest statements to a court in violation of his duties as a Texas-licensed lawyer,” Ratner said. “That’s what’s involved here.”

See here for the background, and here for a copy of the letter the judge sent. Not a formal opinion, though I suppose he could still write one, just a one page letter. Obviously, if this judge fully bought into Ken Paxton’s sleazy and self-serving line of defense, it doesn’t bode well for the complaint against him. I think Jim Harrington has this exactly right, and I hope the State Bar has the wisdom and the guts to appeal this. Anything less would be a dereliction of their duty. The Trib has more.

Fifth Circuit upholds Texas’ ridiculous social media censorship law

Back to you, SCOTUS.

A Texas law prohibiting large social media companies from banning users’ posts based on their political viewpoints will go into effect after a federal appeals court on Friday lifted a block placed on the statute.

NetChoice and the Computer & Communications Industry Association sued Texas after the law, known as House Bill 20, was passed last year, arguing that internet companies have a First Amendment right to curate content posted on their platforms and decide which types of speech they saw fit to be there.

In its ruling, the 5th U.S. Circuit Court of Appeals disagreed with the plaintiffs’ argument that the law was unconstitutional, saying they were seeking protection to “muzzle free speech.”

“Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say,” the ruling says.

The CCIA said the ruling forced tech companies to give equal treatment to all manners of speech, including extremist views.

“We strongly disagree with the court’s decision. Forcing private companies to give equal treatment to all viewpoints on their platforms places foreign propaganda and extremism on equal footing with decent Internet users, and places Americans at risk,” the group said. “‘God Bless America’ and ‘Death to America’ are both viewpoints, and it is unwise and unconstitutional for the State of Texas to compel a private business to treat those the same.”

See here for the previous update, in which SCOTUS blocked the law pending the Fifth Circuit’s ruling on the appeal, and here for a copy of the opinion. I think this sums it all up:

You and me both. We’ve now reached that point, and as everyone expects this to be appealed it will be back to SCOTUS for the final word. I have no idea what to expect. The Chron has more.

Republicans propose nationwide abortion ban

It was ever thus.

Republicans are struggling with the backlash against the Supreme Court overturning Roe v. Wade and a series of Republican-controlled states instituting harsh abortion bans. Voters are angry, and that anger has contributed to a reduction in Republican hopes for November’s midterm elections. So what are they doing about it? Well, Sen. Lindsey Graham is going to introduce a national 15-week abortion ban.

That’s one way to do things. Voters are angry that your party is banning abortion in the states? Go ahead and ban it nationally! Many in your party defended the Supreme Court’s move as backing states’ rights on this issue? Take it federal!

Graham’s move is a political calculation. He’s calling his 15-week abortion ban—which falls far short of Roe’s standard of viability, usually around 23 or 24 weeks—the “Protecting Pain-Capable Unborn Children from Late-Term Abortions Act.” He thinks he can convince swing voters to hear “late-term abortions” and “pain-capable” and think, “This is a reasonable limit I can support in the name of compromise.”

But that’s presuming that voters will hear those words and not just “national abortion ban.” Or that they won’t see through the fact that what Graham proposes is a sharp cut from what had been the national standard for nearly five decades.

[…]

It’s not hard to see what Graham thinks he is doing with this messaging bill that has no chance of passing in a Congress controlled by Democrats or being signed by a Democratic president. He’s trying to use the deceptive name of the bill to convince voters that Republicans just have reasonable goals when it comes to a national abortion ban. The thing is, Republicans haven’t given voters a lot of reason to trust them on this issue, given the harsh abortion bans in so many Republican-controlled states, and the horror stories coming out of those states of women denied care for miscarriages or pregnancies that threaten their health, or child rape victims forced to travel out of state for medical care. And Graham’s ban wouldn’t reinstitute abortion rights up to 15 weeks in the states with near-total bans—it would only limit abortion rights where they currently exist.

It is also, of course, a huge betrayal of everything Republicans have said about states’ rights. Here’s Graham himself, just last month: “I think states should decide the issue of marriage and states should decide the issue of abortion.” It isn’t, or shouldn’t be, a surprise that Graham is a giant liar on this front, but it’s another reminder that the implication that Republicans just want to pass this oh-so-reasonable “Protecting Pain-Capable Unborn Children from Late-Term Abortions Act” isn’t just a lie when it comes to the name of the bill, it’s a lie about their larger ambitions. They’re just getting started with this, and yes, Republicans want a national abortion ban.

The first thing you need to understand is this:

Yes. Marshall expands on that here:

Republicans want to portray this as a reasonable national compromise, setting a national standard as I’ve seen even some journalists put it. But that’s not what it is. It doesn’t set a national 15 or 20 week standard. All the total restrictions which are now common in red and some purple states stay in place. It simply takes the Mississippi law which brought us the Dobbs decision and imposes it on every blue state. So what Mississippi passed and which was treated as extreme a year ago will become the law in California, New York, Illinois, Washington state and everywhere else. In practice it’s a blue state abortion ban. Abortion’s already banned in the great majority of red states or soon will be.

Republicans leave the decision to the states. Unless a state protects abortion rights. In which case Republicans ban it for them.

It is critical at every stage — though I suspect most won’t need it pointed out — that this is a national ban. Even if it’s 15 weeks versus from the moment of conception, it is a national ban. So if you’re relying on your blue state politics making this someone else’s problem you’re out of luck. It’s coming for you. And it certainly won’t stop with a 15 week ban.

If this were both a limit and a guarantee – that is, abortion is legal up to 15 weeks but no more, except in broadly-defined cases where the pregnant person’s life or health is in danger, then maybe this could have some traction. It would still be a big setback for abortion rights in mostly blue states, but it would make abortion at least theoretically available again in roughly half the country, including Texas. This is close to the preferred outcome of John Roberts, who simply wanted to uphold the Mississippi 15-week ban and make Roe smaller, not throw it on the trash heap and then light it on fire. Such bans have failed nationally and in some states when put to the voters, and post-Dobbs it’s harder to see anyone who isn’t a committed forced-birther feeling like “compromise” is the right answer, but it would at least make the Republicans look like they were willing to give some ground. This is nothing like that.

Republicans in the Senate mostly greeted this bill by reacting as they would to a dead cat on their front porch. And if they’re really lucky…

I approve of this message. Slate has more.

It’s the year 2022 and we’re still litigating the Affordable Care Act

Isn’t this horse dead yet?

A federal judge in Fort Worth agreed Wednesday with a group of Christian conservatives that Affordable Care Act requirements to cover HIV prevention drugs violate their religious freedom.

U.S. District Judge Reed O’Connor also agreed that aspects of the federal government’s system for deciding what preventive care is covered by the ACA violates the Constitution.

O’Connor’s ruling could threaten access to sexual and reproductive health care for more than 150 million working Americans who are on employer-sponsored health care plans. It is likely to be appealed by the federal government.

This lawsuit is the latest in a decade of legal challenges to the Affordable Care Act, many of which have run through O’Connor’s courtroom. In 2018, O’Connor ruled that the entirety of the ACA was unconstitutional, a decision that was struck down by the U.S. Supreme Court.

At issue in the class-action lawsuit is a 2020 mandate requiring health care plans to cover HIV prevention medication, known as PrEP, free of charge as preventive care.

In the suit, a group of self-described Christian business owners and employees in Texas argue that the preventive care mandates violate their constitutional right to religious freedom by requiring companies and policyholders to pay for coverage that conflicts with their faith and personal values.

The lawsuit was filed in 2020 by Austin attorney Jonathan Mitchell, the legal mind behind Texas’ civilly enforced six-week abortion ban. In the suit, Mitchell also challenges the entire framework through which the federal government decides what preventive services get covered.

O’Connor threw out several of Mitchell’s arguments but agreed that the U.S. Preventive Services Task Force’s system for deciding what health care services are required to be fully covered under the ACA violates the Appointments Clause of the U.S. Constitution.

“At a high level, this lawsuit is part of a larger pushback against the government’s ability to regulate,” said Allison Hoffman, a law professor at Penn Carey Law at the University of Pennsylvania. “And then also asking what happens when regulations and religion clash.”

[…]

The lawsuit specifically addresses PrEP, but O’Connor’s ruling, which addresses how the federal government can decide what preventive care is covered in employer health care plans, may end up having much more wide-reaching consequences, Hoffman said.

“We’re talking about vaccines, we’re talking about mammograms, we’re talking about basic preventative health care that was being fully covered,” she said. “This is opening the doors to things that the ACA tried to eliminate, in terms of health plans that got to pick and choose what of these services they fully covered.”

The American Medical Association, along with 60 leading medical organizations, issued a statement condemning the lawsuit.

“With an adverse ruling, patients would lose access to vital preventive health care services, such as screening for breast cancer, colorectal cancer, cervical cancer, heart disease, diabetes, preeclampsia, and hearing, as well as access to immunizations critical to maintaining a healthy population,” the organizations wrote.

While implementation has not been as universal as hoped, fully funded preventive care through the ACA has been shown to be largely effective at improving health outcomes, reducing health care spending and increasing uptake of these services.

It’s a familiar set of villains, including the hand-picked judge, making the same kind of tired arguments about how “Christians” deserve to be exempt from laws they don’t like, even at the expense of literally everyone else’s health. And while SCOTUS has regularly batted aside these malicious lawsuits, I don’t have any faith they’ll do the same this time. TPM, Reform Austin, and The 19th have more.

“Safe haven” laws are also not a replacement for abortion

Continuing a theme.

What are safe haven laws?

flurry of Houston baby abandonments in the ’90s led Texas to become the first state to enact a safe haven law in 1999.

Created as an incentive for parents in crisis who are unable to care for their newborns, the law allow parents to drop off babies 60 days or younger at any hospital, fire station or EMS station in the state, no questions asked.

The baby will then be protected and given medical care until a permanent home is found. Provided the baby arrives unharmed and safe, the parents avoid prosecution for abandonment or neglect.

Do people actually use the laws?

Roughly 400,000 babies are born in Texas each year, but data shows that a small fraction of people actually utilize the option.

Just 172 infants have been relinquished under the state’s safe haven law since 2009, according to data from the Department of Family and Protective Services.

Why?

Most families have likely never heard of it, said Sheila M. Katz, a sociology professor at the University of Houston.

This is especially true for middle- and low-income families who may not have the “extra bandwidth” to explore something until they’re in the situation, Katz said.

[…]

Katz said safe haven laws are “very good” at doing what they’re designed to do, but weren’t created to be an option for people unwilling to continue pregnancies.

“It’s taking a law and trying to make it look like a band-aid for bigger issues,” she said.

“If a woman is in an unhealthy relationship and decides to get an abortion to sever ties,” Katz added, “a safe haven law will not help in this situation.”

Or, to put it another way, people who choose to get abortions do so because they don’t want to be pregnant. There’s a separate decision made about what to do after giving birth once that one has been made. The impression I get is that the kind of person who would dump a baby at a fire station is someone who felt truly desperate and trapped and without any other option. While it is very likely that the post-Dobbs criminalization of abortion in Texas will increase that population, the availability of abortion pills and the still-robust abortion access network may mitigate that. I could be wrong, of course – we may in fact see enough of an increase in that population to drive an equivalent increase in the number of babies getting deposited at these locations. If you think that’s something to cheer about, well, you know what I think of you.

VA says it will provide abortions

Very interesting.

The Department of Veterans Affairs said Friday it will provide abortions for veterans and their beneficiaries as medically necessary or in cases of rape or incest.

The VA said it plans to provide abortions across the entire nation — including states, such as Texas, that prohibit the procedure. The VA’s decision reopens access to abortion to a class of women in Texas and several other states.

Texas is home to more than 1.5 million veterans. About 193,000 of those are women — more than any other state.

Texas lawmakers approved a ban on abortion that went into effect after the U.S. Supreme Court overturned Roe v. Wade, the case that established a nationwide right to abortion.

“This is a patient safety decision,” VA Secretary Denis McDonough said in a statement. “Pregnant Veterans and VA beneficiaries deserve to have access to world-class reproductive care when they need it most. That’s what our nation owes them, and that’s what we at VA will deliver.”

In announcing the decision to provide abortions, the VA said “access to medically necessary abortions is essential for preserving the life and health of Veterans and VA beneficiaries.”

That’s great, and I’m very glad to see it, but I think we all know that Greg Abbott and Ken Paxton aren’t going to just accept this as a given and keep quiet about it. There’s no comment from any Texas official in this story, so for right now we don’t know exactly how they will respond. But come on, we really do know that they will challenge it in court, and they will surely make threats about arresting VA doctors who perform abortions anyway. This was the right thing to do but the matter is far from settled. We will have to see how it plays out. Mother Jones has more.

A different poll about abortion in Texas

Interesting and encouraging, but I’m not sure I buy it.

One year after Texas implemented what was then the most restrictive abortion law in the country, a majority of Texas voters are expressing strong support for abortion rights.

In a new survey, six in 10 voters said they support abortion being “available in all or most cases,” and many say abortion will be a motivating issue at the ballot box in November. Meanwhile, 11% say they favor a total ban on abortion.

“We’ve known that politicians in Texas and across the country have been enacting harmful abortion bans. We’ve known that they’ve been out of step with what Texans want, and now we have the data to prove that,” said Carisa Lopez, senior political director for the Texas Freedom Network, one of several reproductive rights groups that commissioned the poll.

[…]

Polling firm PerryUndem surveyed 2,000 Texas voters in late June, just before the Dobbs decision was issued. The poll had a margin of error of plus or minus 3 percentage points.

The data release comes one year after the implementation of S.B. 8, which relies on civil lawsuits to enforce a prohibition on most abortions after about six weeks.

Pollster Tresa Undem said she believes the issue is likely to motivate turnout among supporters of abortion rights in states including Texas in November.

“I think that’s probably why in Texas we’re seeing a shift in the Texas electorate becoming more pro-choice — because there’s been that year of S.B. 8, and people experiencing that,” Undem said.

Because of S.B. 8, Texas had provided an early example of the impact of restrictive abortions laws, months before the U.S. Supreme Court released its Dobbs v. Jackson Women’s Health Organization decision overturning Roe v. Wade and other abortion-rights precedent.

In response to that ruling in late June, the state’s trigger ban — also passed in 2021 in anticipation of Supreme Court action — also took effect, making abortion completely illegal in Texas except to save a patient’s life during a medical emergency. Doctors say that exception is narrow and subject to interpretation, and some say they fear terminating pregnancies for patients facing medical crises.

Undem says she’s seeing growing support for abortion rights among several key voting blocs including women, Latinos, and younger voters.

The poll memo, which includes some data, is here. I have two issues with it. One is that we don’t get the exact wording of each question, which is significant because as we know the wording can make a big difference in the responses. Two, these results are a lot more pro-abortion rights than we have seen in other polls. The post I did on the UT/Texas Politics Project data, which also was from June, illustrates this. In that poll, they broke down the situations into much more specific subgroups, with certain circumstances under which the person got an abortion, and the number of weeks they were pregnant. In cases of rape or incest or a threat to the mother’s health, support was in line with this poll – in particular, the “never available” number was down in the 10-15% range, as it is for the “never available” number in the PerryUndem poll. But for discretionary abortions, the level of support in the UT/TPP poll was much lower, and the “never available” number was up in the 30s. That’s a huge difference, and it’s in two polls taken at about the same time.

The most likely reason for those differences is the way the questions were asked. From what I can see, the PerryUndem poll didn’t get into any specific situations, which likely meant people were more lenient in what they would acquiesce to. You could argue that some of the specifics of the UT/TPP poll skewed responses in the other direction – I strongly suspect that most people in that poll didn’t know that Roe generally allowed abortions through 24 weeks, and that the law in the Dobbs case, which restricted abortion access to 15 weeks, was still looser than the 12 week choice that the poll gave. Texas’ law was allowing abortion up to 20 weeks before SB8 was passed, and that itself was technically illegal under Roe but went unchallenged in court on the very reasonable concern that SCOTUS (well before Amy Coney Barrett was there) would have upheld it and maybe done more than that. Point being, I think general ignorance of the law and of pregnancy probably contributed to some of the more restrictive answers.

The thesis of this poll was that attitudes in abortion had already begun to shift in Texas even before the Dobbs decision was handed down, because of the effect of SB8. I buy that to a point, but because this poll had no “before” data to compare with, that’s just a guess. If you want to extrapolate from there and decide that attitudes have loosed further since June, you can do that, but I’d want to see an updated version of this poll – or the UT/TPP poll, as one example – before I reached that conclusion.

One more thing about this poll, which neither NPR nor the Texas Signal noted, is that it also included an Abbott/Beto question. This poll, taken in June before the Dobbs decision and the surge in generic Democratic numbers since then, had Abbott leading Beto 47-43, the closest gap we’ve seen in any public poll so far. The crosstabs are a bit wonky – how you get to this result when Beto leads among Latinos 49-39 and leads among Black voters 70-14 is a mystery to me – but there it is. We’ve only seen one post-Dobbs poll so far, and it didn’t show any real movement. But as we always say, it’s one poll. I’m sure we’ll be seeing more soon.

Investigating abortions is Houston’s “lowest priority”

So says Mayor Turner, and I’m glad to hear it.

Mayor Sylvester Turner

Mayor Sylvester Turner said Thursday that investigating abortions under the state’s near-total ban is the city’s “lowest priority” when it comes to crime.

Turner said the city would continue to marshal its limited law enforcement resources toward driving down violent crime. While the city cannot ignore the law, Turner said, he wanted to assure medical professionals and pregnant Houstonians that police here will not seek to interfere in sensitive health care decisions.

“I want women to get the best health care that we can offer in this city, and I don’t want doctors or health care providers or practitioners to second-guess themselves in providing the best health care,” Turner said at a City Hall news conference. “We cannot undo the law, it is on the books. It is what it is. We cannot supersede it, but we certainly can prioritize how our resources will be used in this city.”

[…]

Matt Slinkard, the city’s executive assistant police chief, acknowledged the city is duty-bound to enforce the law, but said Houston Police Department officers would remain “laser-focused” on violent crime. Police officials told City Council this week that violent crime is down 10 percent year-over-year, though it remains above pre-pandemic levels.

Slinkard said he was not aware of any complaints filed with the department since the law took effect last week. The mayor also sent a letter to District Attorney Kim Ogg outlining those priorities.

Turner spoke at City Hall along with members of the city’s women’s commission and council members, a majority of whom are women.

Like I said, good to hear. As you know, multiple other Texas cities have taken similar action, via the passage of an ordinance called the GRACE Act. Those have spelled out the things that the city and its law enforcement agency intend to de-emphasize to the extent that they can. One thing those cities have in common is that they all operate under the weak mayor/city manager form of government. I feel pretty confident that’s why they passed these ordinances via their city councils – their mayors don’t have the executive authority to set those policies on their own. It’s possible there could still be a Council vote of some kind on this, but for the most part I’d expect this to cover it. I really hope it’s all an academic exercise, that in a few months we’ll have a Congress and a Senate that can pass a national abortion rights law. Until then, every bit of local action is appreciated.

Of course the redistricting lawsuit trial will be delayed

All we ever get is delays.

The legal fight over the shape of Texas political representation for the next decade won’t be decided until next year after a federal panel agreed Tuesday to delay a trial over new political maps.

The federal three-judge panel hearing the case pushed the start of the trial, which was originally scheduled for Sept. 28, following a flurry of disputes over discovery that left both the state and the various plaintiff groups questioning whether they’d have enough time to prepare to make their cases in a federal court in El Paso.

The court said it would announce a new trial at a later time.

The maps passed by the Legislature in 2021 have already gone into effect and are being used for the first time in this year’s elections, but the litigation could decide whether those maps need to be changed to ensure that voters of color have a fair say in choosing their representatives in elections for years to come.

The state faces a broad catalog of challenges to its four political maps, including its congressional and statehouse maps, that could affect a litany of districts. The legal claims, stemming from nearly a dozen consolidated lawsuits, include allegations of intentional discrimination, vote dilution and racial gerrymandering. The Republican-drawn maps largely serve to bolster the party’s dominance, giving white voters greater control of political districts throughout the state.

At issue in the delay were ongoing fights to compel Gov. Greg Abbott, the Texas attorney general’s office and other Republican elected officials to turn over thousands of documents that the state has been fighting to keep concealed. With less than a month until the scheduled start of the trial, the state and the plaintiffs groups were also jostling over various depositions in which state lawmakers relied on asserting legislative privilege to avoid divulging information on how the maps were drafted.

Redistricting cases are complex, with plaintiffs carrying the burden of proving wrongdoing by the state. The release of the disputed documents, the plaintiffs argued, could reveal new facts that could require additional depositions.

“Were the September 28 trial setting to hold, the Court could rule in advance of the upcoming legislative session. This would have been a clear benefit to all parties. But a ruling on only partial evidence does justice for none,” some of the plaintiffs wrote in a joint advisory filed with the court last week.

But the delay is not without risk.

This is the joint lawsuit with multiple plaintiffs; the Justice Department lawsuit, which survived a motion to dismiss in June, is being heard separately. The plaintiffs in this lawsuit scored a couple of wins recently relating to documents that must be disclosed to them. Those rulings obviously weren’t the end of the dispute, and so we have delays. The risk mentioned is that a final ruling would not be made in time for the Lege to make any required adjustments to the maps for the 2024 election. Remember, unless the primaries get moved back, which would affect the Presidential races, we need maps by October or so, to accommodate filing season and any updates that county election officials need to make. That’s not a lot of time. We’ll see when the new trial date is scheduled, but keep that time frame in mind. Unless we want to wait until 2026 – which, as we know from previous decades’ experience, is hardly out of the norm – the clock is very much ticking.

More on the targeting of medical abortion

The end goal has always been a complete national ban on abortion. The “return it to the states” nonsense is a dodge to make you think it won’t be that bad and the people claiming it’s about a national ban are just fearmongering. The actions and words of the forced-birth fanatics make it clear what is really happening.

Two top antiabortion groups have crafted and successfully lobbied for state legislation to ban or further restrict the predominant way pregnancies are ended in the United States — via drugs taken at home, often facilitated by a network of abortion rights groups.

In the wake of the Supreme Court’s decision to overturn Roe v. Wade, 14 states now ban or partially ban the use of those drugs, mifepristone and misoprostol, which are used in more than half of all abortions.

But the drugs remain widely available, with multiple groups working to help provide them even to women in states with abortion bans. Students for Life of America and National Right to Life Committee, which have played leading roles in crafting antiabortion laws, hope to change that with new legislation.

The groups are pursuing a variety of tactics, from bills that would ban the abortion-inducing drugs altogether to others that would allow family members to sue medication providers or attempt to shut down the nonprofit groups that help women obtain and safely use the drugs.

Their strategy reflects the reality that abortion access today looks vastly different from that of the pre-Roe world, one without easy access to abortion medications from out-of-state or overseas pharmacies.

[…]

Students for Life is taking a different tack in efforts to limit or outlaw medication abortion — crafting and backing bills that restrict access to the drugs themselves.

Among the seven bills the group has successfully lobbied to pass, each requires women to see a physician in person to receive the medications rather than receiving them through the mail. The mandates vary from state-to-state, but most require a physical examination, a test to determine the blood type of the baby, an ultrasound to determine the stage of the pregnancy, a disclosure of safety risks and a follow-up examination after the procedure. In many of the states, the medications could only be used in a limited set of circumstances, like in Oklahoma where its use is restricted to ending early pregnancies that resulted from rape or incest — or if the woman’s life is in danger.

Telehealth appointments for the procedure are also prohibited under the bills.

In some cases, doctors are required to tell their patients that they can potentially reverse the effects of mifepristone and stop the abortion process — something that the American Medication Association has said is “a claim wholly unsupported by the best, most reliable scientific evidence.”

“So many states in the abortion arena have been playing with misinformation like this, relying on the antiabortion movement instead of medical professionals and what the science shows,” said Wendy E. Parmet, co-director of Northeastern University’s Center for Health Policy & Law. “Some states have required physicians say it causes breast cancer — which is also false.”

The ultimate goal of Students for Life is to block access to drugs entirely. The group is seeking criminal sanctions for the physicians and organizations that “manufacture, distribute, prescribe, dispense, sell or transfer” the drugs in the state.

If passed, the laws would be most effective in blocking prescriptions made by doctors in states where abortion is still legal — typically through telehealth appointments — to patients who reside in states where medication abortions are banned in all circumstances.

Experts say it is unlikely that law enforcement would be allowed to enter a state to arrest a doctor where they have no jurisdiction. However, state medical boards could penalize doctors — including revocation of their medical licenses — if they determined they are not licensed to practice medicine with someone who resides outside their state.

“It’s not as bad as going to prison, but it’s certainly something that no doctors want to have to do — be in a position where they are having to defend their license,” said Hearn, McCormack’s attorney, who is also a physician.

I’ve blogged about this in various forms before, and it’s important to keep in mind that this is where the forced birth fanatics want to go, and will go if they’re not stopped. Enforcing these kinds of laws will be extremely intrusive, wherever the exist. I have meant that in the past to mean that law enforcement will need to get all kinds of access to your mail, your phone logs, your browsing history, and so on, but there’s another way in which having such laws on the books will curtail everyone’s privacy. You will have to be extremely careful about what you say to whom, and you won’t be able to trust anyone you don’t know. That includes medical professionals and anyone who works for or with them.

If you are looking to end your own pregnancy, your own doctor may be your downfall.

Between 2000 and 2020, law enforcement in 26 states investigated or arrested at least 61 people for allegedly aborting their own pregnancy or helping someone else do so, according to a report released earlier this week by the legal advocacy group group If/When/How. And in 45 percent of those cases, it was healthcare providers or social workers who tipped off police.

In another 26 percent of the cases, people “entrusted with information”—like partners, parents, and friends—reported their ostensible loved one to police.

“The research really clearly confirms that the biggest threat to the privacy of abortion seekers is other people,” said Laura Huss, senior researcher for If/When/How. “That breakdown of trust and ethics and the patient-doctor relationship is really alarming.”

The report, which examined the criminalization of self-managed abortions while Roe v. Wade was still the law of the land, offers a stunning glimpse at how people who get abortions in this post-Roe era may be targeted and threatened by law enforcement. Although abortion opponents often insist that they do not want to punish pregnant people for abortions, abortion rights supporters have long pointed out that pregnant people have already faced criminal consequences—and there’s no way to ensure they’ll be kept out of an anti-abortion dragnet.

Gotta say, as a child of the 70s and 80s, all this gives me serious Soviet Union vibes. I’m old enough to remember when Republicans and conservatives thought that was a bad thing.

A different EMTALA ruling in Idaho

As expected. You know where this goes from here.

A federal judge on Wednesday blocked Idaho from enforcing a ban on abortions when pregnant women require emergency care, a day after a judge in Texas ruled against President Joe Biden’s administration on the same issue.

The conflicting rulings came in two of the first lawsuits over Biden’s attempts to keep abortion legal after the conservative majority U.S. Supreme Court in June overturned the 1973 Roe v. Wade decision that legalized the procedure nationwide.

Legal experts said the dueling rulings in Idaho and Texas could, if upheld on appeal, force the Supreme Court to wade back into the debate.

[…]

In Idaho, U.S. District Judge B. Lynn Winmill agreed with the U.S. Department of Justice that the abortion ban taking effect Thursday conflicts with a federal law that ensures patients can receive emergency “stabilizing care.”

Winmill, who was appointed to the court by former Democratic President Bill Clinton, issued a preliminary injunction blocking Idaho from enforcing its ban to the extent it conflicts with federal law, citing the threat to patients.

“One cannot imagine the anxiety and fear (a pregnant woman) will experience if her doctors feel hobbled by an Idaho law that does not allow them to provide the medical care necessary to preserve her health and life,” Winmill wrote.

The Justice Department has said the federal Emergency Medical Treatment and Labor Act requires abortion care in emergency situations.

“Today’s decision by the District Court for the District of Idaho ensures that women in the State of Idaho can obtain the emergency medical treatment to which they are entitled under federal law,” U.S. Attorney General Merrick Garland said in a written statement.

“The Department of Justice will continue to use every tool at its disposal to defend the reproductive rights protected by federal law,” Garland said. The DOJ has said that it disagrees with the Texas ruling and is considering next legal steps.

See here for the background. TPM goes deeper into the two rulings and also provides copies of them, but the bottom line is that the Texas judge said that the federal guidance went too far, didn’t go through the formal rule-change process (even though it was guidance on an existing rule and not a change), didn’t take the rights of the fetus into account, and could only apply when the mother’s life was in danger, not just when her health was threatened. The Idaho judge didn’t do any of that.

Both rulings will be appealed, and as Idaho is in the more liberal Ninth Circuit, there’s a very good chance that this ruling will be upheld. The same is true for Texas, where the radical and lawless Fifth Circuit will get its paws on it. While it is usually the case that a split in the appellate courts means that SCOTUS will weigh in, it seems possible to me that they will duck the issue, perhaps on the grounds that this is really a dispute over state laws, and since the Texas case applies only to Texas, there’s no need for them to step in. I’m just guessing, I could easily be wrong. We’ll know soon enough. DAily Kos has more.

Paxton’s State Bar disciplinary hearing

We are slowly moving towards finally having some kind of result in this saga.

Best mugshot ever

Lawyers for Texas Attorney General Ken Paxton argued Wednesday that a Kaufman County judge should toss a lawsuit alleging he acted unethically in a legal challenge that sought to overturn the 2020 presidential election.

The first public hearing in the case inside a near-empty Kaufman County courtroom was not to determine the merit of the lawsuit lodged by a disciplinary commission of the state bar, but whether the group can seek sanctions against Texas’ top lawyer.

Paxton’s lawyers said the case, which could threaten his law license, is an unconstitutional attempt to control his office’s work and could have a chilling effect on future attorneys general. But an attorney for the commission countered that all lawyers should be subject to the same rules of professional conduct, no matter their position.

Judge Casey Blair, a Republican, did not issue a decision from the bench Wednesday. The outcome could establish the limits of the commission’s power to sanction lawyers who serve in high-ranking elected positions.

Any ruling will likely be appealed, meaning it could be months before the bar’s complaint over Paxton’s 2020 election lawsuit is heard in court, if ever.

[…]

In the hearing Wednesday, Christopher Hilton, a state attorney representing Paxton, argued that if the court allows the lawsuit to go forward, then “every future attorney general will have to fear for their law license rather than represent the state of Texas to the best of their ability and the way their voters expect that they would do.

“They would be hamstrung on unelected bureaucrats,” he said.

Royce LeMoine, a lawyer for the commission, said Paxton is being sued for his actions as a lawyer, not as the state’s attorney general, and that this is not a “select prosecution.”

“The commission’s disciplinary rules do not violate the respondent’s ability to advocate for his clients and the state of Texas,” LeMoine told the judge.

See here, here, and here for the previous updates. The Chron had a preview story on Tuesday.

“I hope it proceeds,” said Jim Harrington, one of the Texas lawyers who filed the State Bar complaint. “I hope [the judge] bites the bullet and denies the plea because it’s the right thing to do.”

[…]

In seeking to dismiss the disciplinary case, Paxton’s lawyers argue that it would violate the separation of powers doctrine for the Texas courts to “police” what they say was an executive branch decision. They also claim Paxton is protected by sovereign immunity, the legal principle that generally shields public officials from lawsuits.

In a separate motion, the attorney general’s office is asking the judge to allow the agency to intervene in the case on Paxton’s behalf.

The 2020 suit was not “dishonest, fraudulent, or deceitful,” they write in filings, and the State Bar’s issues with it essentially amount to a “political disagreement.”

“If Texans disapprove of the how the Attorney General exercises his authority, the remedy is to vote him out of office,” Paxton’s attorneys write. “The bar has no veto over how the Attorney General exercises his constitutional authority.”

Paxton was not the first attorney general to be asked to spearhead the case, and lawyers in his own office, including then-Solicitor General Kyle Hawkins, had argued against it, according to the New York Times. Hawkins, who would normally represent the state in such litigation, had no involvement in the case when it was filed and resigned within a month.

Top lawyers at the Florida attorney general’s office ridiculed the suit as “bats—t insane,” emails revealed.

Recent polls have shown the attorney general’s race is highly competitive between Paxton and his Democratic opponent Rochelle Garza, a former ACLU attorney. Garza, who has portrayed herself as the candidate who will bring integrity to the attorney general’s office, isn’t buying Paxton’s legal argument in this case.

“Political disagreements have to do with policies, not facts,” Garza said in a statement. “Even first-year law students know that legal accusations of wrongdoing require evidence, yet two years later, Paxton continues peddling his baseless lies about the 2020 election. Texans deserve an attorney general who believes in the rule of law and ethically uses the power of the office to serve Texans, not for their own political ends.”

Any decision in the case could foreshadow the result of a suit filed against Paxton’s First Assistant Attorney General Brent Webster by the Texas Bar for his involvement in the 2020 Supreme Court petition. Webster is also seeking to dismiss his case, and a hearing will be held Sept. 6 in Williamson County.

Paxton and Webster are being represented by lawyers from the attorney general’s office, as well as outside counsel. The office has not responded to questions about why they need both. The cost to taxpayers so far is over $46,000, and that’s before today’s initial proceedings.

The attorney general’s office has said the four in-house attorneys working on the case are not keeping track of their billable hours. The office did not explain why no timekeeping was done, despite its policy of doing so for other types of cases.

“To me, it’s really outrageous they’re using taxpayer money,” Harrington said. “This has nothing to do with his role as attorney general, absolutely nothing. It’s only his role as an attorney. Even if the State Bar disbars him, it has no effect on him being attorney general.”

You will not be surprised to know that I am on the State Bar’s side in this dispute. Paxton’s argument has merit to the point that elected officials should not be held accountable for political decisions by non-political offices like the State Bar. Where that falls apart is that he was also acting as a lawyer, and in doing so was violating the ethical and professional rules that lawyers are supposed to abide by. The evidence for that is overwhelming, from the sheer brazen falsity of the the claims he was making to the way similar lawsuits had been routinely batted aside by a myriad of courts to the fact that his own Solicitor General, whose job it is to make these arguments in court, refused to participate. If he can’t be held accountable for that then he has a blank check to do anything. That cannot be the right answer.

Anyway. If Paxton is found guilty, he will be subject to discipline from the State Bar, which could be anything from a scolding to being disbarred. While the latter seems unlikely to me – from what I have observed, it’s usually lawyers that do things like misappropriate clients’ money that get the boot – I don’t think it would be inappropriate given the seriousness of the issue. If that did happen, Paxton would still be able to hold the office of Attorney General. We’re not getting rid of him that easily. I don’t know what to expect and I don’t know how long it might take. With Paxton, we’re used to waiting on these things. Reform Austin has more.