Biggest Abortion Case in 29 Years at the Supreme Court

This issue isn’t whether the Texas law is constitutional or whether it would survive judicial review. The issue that the way the Texas law is written allows Texas to avoid having an injunction placed on the law while the issue works its way through the courts. There are tons of abortion bans on the books, and they were all symbolic because they were all injuncted before they could go into effect shutting down abortion clinics. Texas found a legal loophole around that.

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It isn’t? It circumvents federal courts, which some argue may be unconstitutional.

The “vigilante justice” aspect is that anyone from anywhere can sue a Texan in a Texas court for $10K for having or abetting (performing or even driving the woman to the clinic) an abortion. Some guy from another state sued a Texan just to see what would happen, and it’s one of the cases making its way (or maybe already made its way) through the courts.

Because the law is being “enforced” by the people and not by the state (the abortion recipient / helper can only be sued by other people, not by the state of Texas), the state of Texas cannot be sued for creating this law or letting the resulting lawsuits take place. This is one of the things SCOTUS discussed – whether a state can create a law for which the state can’t be sued. This is my understanding anyway, I could be wrong about details and our resident legal beagles please correct at will.

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How does it circumvent courts? The entire enforcement mechanism requires the direct participation of the courts.

All it does do is prevent a random judge from stopping it before any case opposing it is actually decided.

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Perhaps this is the part that may be unconstitutional, because the legislature should not be able to make law which can’t be blocked by the judiciary. Something about separation of powers → checks and balances → judicial review, which isn’t explicitly written in the Constitution but is implied and has a long history of legal precedent.

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But it can be stopped by the judiciary. Where it cant be stopped is prior to the judiciary rendering a verdict. And even then, the judiciary’s participation is required for there to be any enforcement at all; that random judge can still stay any case in front of him until there’s a higher decision, if he so chooses.

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Dude, you are Mister Hyper Literal these days.

How about this: The issue isn’t whether the BAN is constitutional - as of right now it clearly is not - BUT that could change based on SCOTUS’s ruling in Dobbs. The issue is that Texas found a way around the preliminary injunction process that usually stops clearly unconstitutional laws while they wind their way through the courts.

As of right now, it looks like Texas really did find a loophole. I’m waiting for my usual SCOTUS explainers to put out a podcast to help me understand the ruling from Friday before I say I completely understand what happened. But if you look at some of the layman articles on it, it looks like the law is on the books until it is found unconstitutional on the merits, not on the “vigilante justice” aspect.

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If the Alito draft is adopted, it would rule in favor of Mississippi in the closely watched case over that state’s attempt to ban most abortions after 15 weeks of pregnancy

Of course, the headlines will again pronounce that Mississippi is assaulting women by banning abortions, completely ignoring those pesky “most” and “after 15 weeks” parts.

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One outcome for which I’m (at least) hopeful here is that, for so many stupid Americans who cannot even name the three branches of our government, there is a chance they will finally become aware the Court is NOT banning abortion.

Maybe, just maybe, those idiots will learn the matter has simply been returned to the discretion of the individual states. It’s a lot to hope for, I realize, given the lack of awareness of so many Americans.

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I assert that it’s not just a lack of awareness, but a lack of capability of awareness. Yes this is a sad comment/opinion, but it seems so to me.

Amazon’s on board …
https://money.usnews.com/investing/news/articles/2022-05-02/amazon-to-reimburse-u-s-employees-who-travel-for-treatments-including-abortions

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Thank you for posting. This confirms my long standing decision to eschew doing business with Amazon at all costs.

Course, to be honest, the WaPo buy alone was enough to elicit that reaction.

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Sounds like a pretty good case for opposing the court’s decision there!

While this is big news, since we all knew a decision in one way or another was coming, the bigger news here is something no one predicted - the release of this draft. From the article:

A person familiar with the court’s deliberations said that four of the other Republican-appointed justices – Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – had voted with Alito in the conference held among the justices after hearing oral arguments in December, and that line-up remains unchanged as of this week.

This statement to a reporter is unprecedented. But whoever it was didn’t just stop there - they went further and actually handed over a DRAFT of the opinion.

No draft decision in the modern history of the court has been disclosed publicly while a case was still pending. The unprecedented revelation is bound to intensify the debate over what was already the most controversial case on the docket this term.

from scotusblog:
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I’ve just learned of all this minutes ago so now I’m catching up. I’ve made my opinion on Roe v. Wade and PP v. Casey clear in the past, so obviously I am happy that this is the likely opinion of the court. So I think at this point, it’s better to focus on the reaction to what has just happened in the past 12 hours. Here are some of the better takes I’ve seen so far (will edit this post and add takes as I come across them).
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The reaction on the left serves once again to place their scintillating arrogance on full display. Several obvious points:

  • abortion availability in New York will be unaffected
  • abortion availability in New Jersey will be unaffected
  • abortion availability in California will be unaffected
  • abortion availability in Massachusetts will be unaffected

and so forth and so on. Women in blue states will not lose their right to kill babies on account of this decision.

But that’s not good enough for the left wing radicals. They seek haughtily to impose their disgusting views on states having deep seated moral and religious objection to slaughter of human beings. There remain in America states where “Thou Shalt Not Kill” still has meaning. This is more than the pompous and supercilious residents of blue states can withstand. They know better, after all. Just ask them!

So we witness how distraught unhinged leftists can become, not at the loss of their own execution power, but over the moral stance taken by persons in states not subject to their direct control. Perhaps their efforts to impose their depravity on others is indicative of their need of salve for their tortured souls.

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So, what now…

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One option here would be for the Court to issue the majority opinion in Dobbs as soon as it is final—perhaps as early as today or tomorrow—along with whatever concurring opinions and dissents are ready at that time. Other separate opinions could be issued later, and the majority could then have the opportunity to respond to those separate opinions.

A second and cleaner option might be for the Chief to inform all of the justices that they need to have their votes and opinions ready to go by an imminent date certain—say, next Monday. Dobbs was argued way back on December 1, the draft majority opinion was evidently circulated in early February, and the issues are straightforward, so everyone has had plenty of time to draft opinions.

A third option would be for the Court to issue a short order now that concisely states that a majority of the Court reverses the Fifth Circuit, overturns Roe and Casey , and establishes that rational-basis review will govern state regulations of abortion. The order would also state that the full opinions in the case will be issued later.

I think option 1 is the best course, but option 2 isn’t bad either. Option 3 is bad. I think there is also a 4th option. The court has to come out UNANIMOUSLY condemning the leak, promise that it will conduct and internal investigation AND NAME the person or person(s) responsible, and that nothing is final until the actual opinion is released, not give a release date, and then shut up for several weeks. Then, when the news cycle has died down, release the opinion and the dissents (in about 3-4 weeks). Then, hopefully soon after, out the leaker.

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Views I heard during the overnight cast great doubt on any court member, to include even the liberal members, having been the source of the leak. I personally would trust most of them, with the possible exception of Sotomayor. But I don’t think Sotomayor was the source. However:

The clerks of the liberal members are all highly suspect. If one is guilty that person should be outed and disbarred.

If instead it was one of the Court support staff who “did the deed”, that person needs to be discovered and fired pronto.

I doubt Roberts has the cajones to do much of anything that needs doing. Having happened on his watch this is a stain for him. He is now Chief Justice of the first leaker Court. Everyone should send him a box of Depends.

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I’m waiting for the media cries -

  • this is an attack on our democracy
  • some insurrectionist is threatening our most revered institution
  • we need a Commission to investigate everyone who was involved in the leak, their friends, their donors, etc. preferably throw them all in jail until we decide who to blame.
  • I’m just waiting for the death threats to the Justices to change their minds about their personal safety for issuing such an opinion to start rolling in.

Meanwhile, a reminder that the culture warriors have been taking over the legal system and corrupting our institutions.

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I usually really like your posts. They are well thought out and make interesting points even if I don’t agree with them completely. I usually have every intention of clicking the heart icon in the bottom right. Then, more often than I am happy to admit, I hold back on hitting it simply because of the last sentence you type, which ends up souring the good point you just made. This post is a great example.

So far it looks like they might be going with option 4:

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