Texas Supreme Court deals final blow to federal abortion law challenge

[LetMyPeopleVote]

Source: Texas Tribune

The Texas Supreme Court dealt a final blow to abortion providers’ federal challenge to the state’s latest abortion restrictions Friday.

The court ruled that state medical licensing officials do not have authority to enforce the law, which bans abortions after about six weeks of pregnancy. This was the last, narrowly cracked window that abortion providers had left to challenge the law after the U.S. Supreme Court decimated their case in a December ruling.

The law has a unique private-enforcement mechanism that empowers private citizens to sue anyone who, in the law’s language, “aids or abets” an abortion after fetal cardiac activity is detected, usually around six weeks of pregnancy.

Read more: https://www.texastribune.org/2022/03/11/abortion-texas-supreme-court/

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Abortions after six weeks are now banned in Texas. Roe was overturned and there is no way to challenge this law

[AllaN01Bear]

1. they spent x amout of years and wasted monies so that women cant get healthcare

welcome to the meanest place on earth. r u ready for back alley abortions ?

[Lucky Luciano]

4. At least there are pills now I guess.

[Rebl2]

8. I bet State houses

will try to make those illegal.

[Lonestarblue]

9. Except it's illegal to ship the pills within the state of Texas.

How the can track that is a mystery, but I’m sure they’ll find a way to further persecute women. So now we wait until June to find our whether our Supreme Ecclesiastical Court changes the law by upholding the Mississippi law limiting abortion to 15 weeks or outlaws it entirely. If they uphold the Mississippi law, will they allow the Texas law to stand by granting all states the right to make their own abortion laws?

[CTyankee]

12. Well, the internet is where women will go to order their meds.

My husband gets his meds shipped to him and not all are within the state of CT, so interstate commerce is involved. Why can't the abortion pill also be available this way?

[Lonestarblue]

18. I don't know how they could even track such shipments, but it's in the law.

Probably a Republican law that can’t really be enforced because the state has no jurisdiction over the USPS, bit it might be enough to threaten less informed women and keep them from ordering pills.

[melm00se]

28. While the Comstock Laws are archaic

and have taken a Supreme Court hit, they are still on the books.

Section 2 of the Comstock Laws says:

That section one hundred and forty-eight of the act to revise, consolidate, and amend the statutes relating to the Post-office Department, approved June eighth, eighteen hundred and seventy-two, be amended to read as follows:

"Sec. 148. That no obscene, lewd, or lascivious book, pamphlet, picture, paper, print, or other publication of an indecent character, or any article or thing designed or intended for the prevention of conception or procuring of abortion, nor any article or thing intended or adapted for any indecent or immoral use or nature, nor any written or printed card, circular, book, pamphlet, advertisement or notice of any kind giving information, directly or indirectly, where, or how, or of whom, or by what means either of the things before mentioned may be obtained or made, nor any letter upon the envelope of which, or postal-card upon which indecent or scurrilous epithets may be written or printed, shall be carried in the mail, and any person who shall knowingly deposit, or cause to be deposited, for mailing or delivery, any of the hereinbefore-mentioned articles or things, or any notice, or paper containing any advertisement relating to the aforesaid articles or things, and any person who, in pursuance of any plan or scheme for disposing of any of the hereinbefore-mentioned articles or things, shall take, or cause to be taken, from the mail any such letter or package, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall, for every offense, be fined not less than one hundred dollars nor more than five thousand dollars, or imprisoned at hard labor not less than one year or more than ten years, or both, in the discretion of the judge."

So the laws are on the books and postal inspectors can act upon it.

[Lonestarblue]

33. Thanks for posting. That sheds light on why Republicans think they can make shipping pills illegal.

[jeffreyi]

29. Well, people can get oxycodone and cocaine and fentanyl apparently readily

Welcome to the black market? And. The Taliban are tipping their hats to Texas.

[DBoon]

41. Enforced by private citizens

meaning nosy neighbors

[Jim__]

2. Hopefully the Dems can run against this in 2022. Don't let them texasize the nation. - n/t

[JohnSJ]

3. Yes Virgina, THE SUPREME COURT DOES MATTER!!!

[mountain grammy]

5. must control women no matter what..

[CrispyQ]

6. When will TX add the part about not letting women cross the border to get healthcare?

I think Missouri is trying to pass legislation that says women can't cross the border to get an abortion. Are they going to stop all women at every border? Are they going to give women a pregnancy test before they give them their travel pass?

Just to be clear, it's not about sanctity of life.

[CTyankee]

7. I predict a "brain drain" which will befall the state of Texas.

They will lose new businesses, new talent, new innovators and innovation. The best and the brightest will go to states not governed by insane legislatures, passing insane laws. They will see that Texas is no place for brainy people and will lose any competitive edge they have in any area of business, education and innovators.

This will take a bit of time, but it will happen.

[Rebl2]

10. I hope so

[2naSalit]

11. Women of Texas...

I hope you find a way to make these fuckers pay.

[bluestarone]

14. AGREE!!!

Texas WOMEN CAN do it!! VOTE M ALL OUT!!!

[NHvet]

15. True

But in Texas where everything is big, surprisingly the ballot box has shrunk to the size of shoe box by the those that don't want others to vote, so don't look for help there.

[LymphocyteLover]

13. This is awful but I don't understand the ruling and how it affects the challenge

Can someone explain that please? Reading the article didn't help.

[Jim__]

17. Here's how the Texas Tribune explained it.

From the article cited in the OP:

The court ruled that state medical licensing officials do not have authority to enforce the law, which bans abortions after about six weeks of pregnancy. This was the last, narrowly cracked window that abortion providers had left to challenge the law after the U.S. Supreme Court decimated their case in a December ruling.

The law has a unique private-enforcement mechanism that empowers private citizens to sue anyone who, in the law’s language, “aids or abets” an abortion after fetal cardiac activity is detected, usually around six weeks of pregnancy.

The law is designed to evade judicial review, a goal at which it has been largely successful so far. Abortion providers have tried to argue that the law is actually enforced by state officials — the clerks who docket the lawsuits, the attorney general and medical licensing officials who could discipline doctors, nurses or pharmacists who violate the law — which would give them someone to bring a constitutional challenge against in court.

The U.S. Supreme Court disagreed with all of those arguments but one, allowing a challenge against the medical licensing officials to proceed. That case then went back to the 5th U.S. Circuit Court of Appeals, which sent it to the Texas Supreme Court to weigh in on.

[LymphocyteLover]

20. Right-- I don't understand how determining that medical licensing officials enforcing the law

helps overturn the overall law? Because then they would be defendants in a proper case against the law?


The evil of this law is astounding. I fucking hate Texas Republicans with a passion.

[Jim__]

34. I believe the key is the "private enforcement mechanism."

I'm not a lawyer, so this is my non-expert opinion. But I take this paragraph to be the key:

The law has a unique private-enforcement mechanism that empowers private citizens to sue anyone who, in the law’s language, “aids or abets” an abortion after fetal cardiac activity is detected, usually around six weeks of pregnancy.

Here's a brief summary of the Roe v Wade decision:

The Due Process Clause of the Fourteenth Amendment protects against state action the right to privacy, and a woman’s right to choose to have an abortion falls within that right to privacy. A state law that broadly prohibits abortion without respect to the stage of pregnancy or other interests violates that right. Although the state has legitimate interests in protecting the health of pregnant women and the “potentiality of human life,” the relative weight of each of these interests varies over the course of pregnancy, and the law must account for this variability.

In the first trimester of pregnancy, the state may not regulate the abortion decision; only the pregnant woman and her attending physician can make that decision. In the second trimester, the state may impose regulations on abortion that are reasonably related to maternal health. In the third trimester, once the fetus reaches the point of “viability,” a state may regulate abortions or prohibit them entirely, so long as the laws contain exceptions for cases when abortion is necessary to save the life or health of the mother.

It seems like the decision explicitly prohibits state action. The Texas law is enforced by the private law suits of citizens - not the state. The argument was that state medical licensing officials could enforce the law. The Supreme Court left that question open. The Texas supremes ruled that they couldn't. Therefore the law is not enforced by the state. It's outside the Roe v Wade ruling.

[LymphocyteLover]

44. Yes but I'm not clear on why judges who rule on the abortion lawsuits aren't officials in charge of

enforcing the law and thus subject to constitutional restraints???

[Budi]

16. Is there a possibile way to code women's reproductive rights into...

..into the recently passed Violence Against Wome Act reauthorization?

It is the only way I see these rights being protected.

[LymphocyteLover]

21. Good thought... but was VAWA actually reauthorized?

OK, it is not yet but almost is
https://www.npr.org/2022/03/09/1085495317/the-violence-against-women-act-catches-a-ride-on-1-5-trillion-spending-bill

[Budi]

27. Just needs one more hurdle to jump over.

There should be NO hurdles for any human rights.
This is so sick. 🙁

[LymphocyteLover]

43. it is so ridiculous but Republithings are gonna be Rethuglicants

[BlueIdaho]

19. Texas...

Might as well be living in Russia. The time is right to drain that thuggish state of all its talent and all its Businesses.

[FBaggins]

23. No they didn't

Nor does it overturn Roe.

What it does is close the door on challenges to republicans' novel strategy intended to shield the law from initial judicial review (that is... getting it overturned before it ever comes into effect). You can't sue the Governor to enjoin him from enforcing the law because he plays no part in enforcing the law.

But that doesn't mean that they decided that the law was constitutional. If an abortion provided performs the procedure outside of the proscribed window and someone tries to collect their $10k bounty... that case can be appealed and eventually get a ruling on the law itself.

The problem is that the process can take years and, during that time, the TX law will stand in the way of anyone who is unwilling to break it. But that's not the same thing as overturning Roe. That may come in just a few months... but this isn't it.

[wnylib]

26. What about the legal principle that

to bring a lawsuit against someone you have to have been injured in some way? How could anyone claim that a woman's abortion injures them? Wouldn't that make the law unconstitutional?

The father of the embryo or fetus might claim injury, but a stranger?

[FBaggins]

32. Not an unreasonable argument

But that would be possible only after someone tries to sue under the new law (which presumably has happened at this point).

If enough people try to sue under the new law and get rebuffed (either for this reason or straight-up Roe rights), then the statute will effectively become a dead letter that does not restrain medical providers from providing abortion services.

But none of that has anything to do with the SCOTUS conversation. Their rulings (and this more recent appellate decision) were related to whether the normal course for appealing new legislation before it takes effect (by enjoining enforcement) could be used in this case.

[LymphocyteLover]

24. But aren't judges who rule on the payments from people who sue responsible for enforcing the law???

[ancianita]

25. From Elie Mystal: "...what makes abortion difficult is not some fancy lawyering from the right,

but the near refusal to defend it from the left. ...

Don't get me wrong, "choice" is great. It's a fine frame. It's language designed to appeal to people who have a genuinely held religious believe about when life begins, and even the word choice should remind those adherents that not everybody shares their choice of God, either, and yet we co-exist.

But the better legal frame is "Forced birth is some evil shit that can never be compelled by a legitimate government. The end.

...if you don't like my Eighth or Fourteenth Amendment [right to privacy and due process clause] argument in defense of abortion rights I could give some Thirteenth Amendment arguments. Because the same amendment that prohibited slavery surely prohibits the state from renting out women's bodies, for free, for ninth months, to further its interests. Forced labor is already unconstitutional."

[czarjak]

30. Good thing Greg locked up all of the rapist?

[NoMoreRepugs]

31. To all you MFer's who were SOOO concerned about Hillary's this or that I say Fuck YOU.

[Farmer-Rick]

35. It's a step in the wrong direction

But it will still allow for people to challenge anyone claiming the $10,000. Bounty for pregnant women who get abortions outside the state. How are they going to stop other states from providing abortion services when they have no Texas involvement?

Sounds like the fugitive slave act of the 17 and 18 hundreds. It was overturned but not before the Supremes blessed it along with the horrible Dred Scott decision. Making women into fugitives how special. Religion at its finest.

[Tommymac]

36. Well. Gov Newsome used the SAME LAW - just changed abortion to Guns - To control Guns in CA.

So guess the SC is going to have to accept Gun Control too.

Good for the goose and all that jolly good stuff.

https://www.forbes.com/sites/alisondurkee/2022/02/18/california-moves-forward-with-gun-control-bill-that-mimics-structure-of-texas-abortion-ban/?sh=1f9ab2d17897

'California Moves Forward With Gun Control Bill That Mimics Structure Of Texas Abortion Ban'

California officials on Friday threw their weight behind legislation that would let private citizens sue firearm manufacturers and distributors if they violate the state’s assault weapons ban or other gun control measures—the first state effort to mimic the structure of Texas’ near-total ban on abortions for a different political issue.

[Farmer-Rick]

39. Yeah, that's messed up too.

It's like these states that disagree with another state's laws can send out bounty hunters to control people in other states......much like the fugitive slave act, which is why I bring It up.

So, if I get this right, if I'm a woman in Texas and I go to California and get an abortion after 12 weeks? Then someone can bring a suit against me, or the abortion clinic, or the Airlines I used to get there? So, they file in Texas for their $10,000 who pays the $10,000? The state, the woman, the Airlines?

[LudwigPastorius]

37. YAY, TEXAS!!

[LetMyPeopleVote]

38. There's essentially no way to stop private bounty hunters from violating the constitution

Link to tweet

[SpankMe]

40. Is there a loophole in this?

Abortion providers have tried to argue that the law is actually enforced by state officials — the clerks who docket the lawsuits, the attorney general and medical licensing officials who could discipline doctors, nurses or pharmacists who violate the law — which would give them someone to bring a constitutional challenge against in court.

“The Court concluded that Texas law does not authorize the state-agency executives to enforce the Act’s requirements, either directly or indirectly,” they wrote.

If the state doesn't have the authority to enforce the Act's requirements "...either directly or indirectly..." then how could a defendant be forced to pay the fine brought by a lawsuit? If state officials can't discipline clinics, doctors, etc. for violating the law, then what's to prevent these people from continuing to operate. I just don't understand complex laws.

[paleotn]

42. Time to leave Tejas, folks.