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Fri Sep 10, 2021, 08:47 AM

The Problems the DOJ faces with the Texas Abortion Lawsuit.

This CNN article does a good job describing the technical hurdles the DOJ will face pursuing it's lawsuit against the Texas abortion law. Not insurmountable but not easy. The real problems begin when they reach the federal appellate level. The judges in the 5th Circuit are basically to the right of Atilla the Hun.

https://www.cnn.com/2021/09/10/politics/doj-texas-lawsuit-explainer/index.html

8 replies, 835 views

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Arrow 8 replies Author Time Post
Reply The Problems the DOJ faces with the Texas Abortion Lawsuit. (Original post)
Tomconroy Sep 10 OP
StarfishSaver Sep 10 #1
FBaggins Sep 10 #6
StarfishSaver Sep 10 #7
FBaggins Sep 10 #8
Lovie777 Sep 10 #2
NJCher Sep 10 #3
Tomconroy Sep 10 #4
LeftInTX Sep 10 #5

Response to Tomconroy (Original post)

Fri Sep 10, 2021, 08:58 AM

1. This may help to explain why DOJ had to proceed very carefully and methodically before acting

 

These cases can't be rushed into.

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Response to StarfishSaver (Reply #1)

Fri Sep 10, 2021, 11:18 AM

6. I think it explains DOJ's decision a week or two ago to tie the FACE act to the conflict

That may help establish standing for this challenge.

I'm still puzzled, however. My expectation was that the law would be put on hold very quickly once some clinic performed an abortion outside of the standard in the law and someone actually tried to bring an action under that law. We should therefore want that action to come as quickly as possible. But DOJ announcing that they are going to use FACE to defend access to the clinics would seem more likely to delay the date of that much easier challenge.

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Response to FBaggins (Reply #6)

Fri Sep 10, 2021, 11:22 AM

7. I don't understand

 

The warning about prosecuting people who engage in violence or intimidation under the FACE Act is a separate matter from the department filing a civil lawsuit against the state of Texas challenging the new law. I don't see how anything DOJ does or doesn't do under the FACE Act in any way delays the civil challenge to the Texas law, which has already been filed and did not need to wait for an individual to file a lawsuit under it.

Could you explain a reasoning?

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Response to StarfishSaver (Reply #7)

Fri Sep 10, 2021, 11:42 AM

8. I see two key challenges in the current lawsuit

Clinics couldn't sue the state of Texas, but the federal government can if they can establish standing. And, of course, finding someone to sue.

That second one is (on my first reading) the tougher challenge. Making a hypothetical future person an agent of the state will make for some interesting arguments.

But standing is clearly a question mark as well (as the article notes). One of the two standing arguments is (in CNN's description):

"that the Texas ban is imposing harm on the federal personnel whose duties include securing abortion access for people in the federal government's care, because the Texas law exposes those personnel to private SB8 enforcement litigation if they help a woman obtain an abortion after six weeks."


Just a week or two ago, DOJ announced that they were sending people in to enforce FACE (a different conversation can be held on whether or not that really applies here). I think that earlier move helps establish the claim.

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Response to Tomconroy (Original post)

Fri Sep 10, 2021, 09:07 AM

2. Agreed . ...

the courts are stacked with RW judges.

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Response to Tomconroy (Original post)

Fri Sep 10, 2021, 09:24 AM

3. Can someone explain to me

Why the right wing judges trump appointed didnít rule in his favor when he needed them to?

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Response to NJCher (Reply #3)

Fri Sep 10, 2021, 09:37 AM

4. I think that the issue that one state has no standing to

Interfere in the elections of another state was so obvious it wasn't even worth hearing arguments on. Thomas and Alito didn't really disagree with the ultimate result. They both have a rule that the court should give some sort of consideration when one state sues another (original jurisdiction).

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Response to Tomconroy (Original post)

Fri Sep 10, 2021, 10:44 AM

5. This:

What is parens patriae? And why it matters
The department is making another major standing argument: that the US government has the right to bring the lawsuit against Texas because of how the ban "flagrantly infringes on the constitutional rights of the public at large."
That standing argument relies on a legal concept known as parens patriae, Vladeck said, which espouses the government is a representative of its citizens and it can sue to vindicate the rights of those citizens.
It's a "well-trod" legal concept, Vladeck said, but it's on "ground that has not been trod in a while."
The lawsuits refers multiple times to the "scheme" to "evade" the Constitution and "avoid" responsibility. The department says that Texas "has gone to unprecedented lengths to cloak its attack on constitutionally protected rights."


This why I see the law as illegal: "Because it evades the Constitution"...

"This kind of scheme to nullify the Constitution of the United States is one that all Americans -- whatever their politics or party -- should fear. If it prevails, it may become a model for action in other areas, by other states, and with respect to other constitutional rights and judicial precedents," Garland said.


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