Anti-abortion law in the USA

[CharonY]

In the US, apparently there is a new tactic in place to restrict or even abolish abortions. 

Quote

In May, Texas Gov. Greg Abbott (R) signed a state law that effectively bans abortions after the sixth week of pregnancy — sooner than many people learn they are pregnant. This law violates the ruling in Planned Parenthood v. Casey (1992), which protects “the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state.”

Quote

The anti-abortion law, which is before the Supreme Court in a case called Whole Woman’s Health v. Jackson, presents a maze of procedural complexities that are rarely seen in even the most complicated litigation. The law appears to have been drafted to intentionally frustrate lawsuits challenging its constitutionality. And Texas, with an assist from a right-wing appellate court, has thus far manipulated the litigation process to prevent any judge from considering whether SB 8 is lawful.

Quote

For one, abortion rights plaintiffs can’t sue their state directly. The ordinary rule is that when someone sues a state in order to block a state law, they cannot sue the state directly. States benefit from a doctrine known as “sovereign immunity,” which typically prevents lawsuits against the state itself.

But they also can’t really follow the same path that most citizens who want to stop laws do. That path relies on Ex parte Young (1908), a decision in which the Supreme Court established that someone raising a constitutional challenge to a state law may sue the state officer charged with enforcing that law — and obtain a court order preventing that officer from enforcing it. So, for example, if Texas passed a law requiring the state medical board to strip all abortion providers of their medical licenses, a plaintiff could sue the medical board. If a state passed a law requiring state police to blockade abortion clinics, a plaintiff might sue the chief of the state’s police force.

Part of what makes SB 8 such a bizarre law is that it does not permit any state official to enforce it. Rather, the statute provides that it “shall be enforced exclusively through . . . private civil actions.”

Under the law, “any person, other than an officer or employee of a state or local governmental entity in this state,” may bring a private lawsuit against anyone who performs an abortion after the sixth week of pregnancy, or against anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion.” Plaintiffs who prevail in such suits shall receive at least $10,000 from the defendant.

SB 8, in other words, attempts to make an end run around Young by preventing state officials from directly enforcing the law. Again, Young established that a plaintiff may sue a state official charged with enforcing a state law in order to block enforcement of that law. But if no state official is charged with enforcing the law, there’s no one to sue in order to block the law. Checkmate, libs.

It’s worth noting that this tactic cannot prevent anyone from ever challenging SB 8. Now that the law has taken effect, abortion providers (plus anyone who “aids or abets” an abortion, a vague term that is not defined in the statute) will undoubtedly be bombarded with lawsuits seeking the $10,000 bounty authorized by the new state law. These defendants will then be able to argue in court that they should not be required to pay this bounty because it is unconstitutional.

But they will do so under the threat of having to pay such a bounty to anyone who brings a lawsuit against them. Even if abortion providers prevail in all of these suits, moreover, they will still have to pay for lawyers to defend themselves in court. And the suits seeking a bounty under SB 8 will likely be numerous and endless, because literally “any person” who is not a Texas state officer can file such a suit.

If SB 8 remains in effect, any abortion providers who do remain operational are likely to be crushed by a wave of lawsuits that they cannot afford to litigate.

In a way it is a clever way to skirt litigation and basically banning abortion by threatening folks performing it, rather than banning the procedure itself. 

https://www.vox.com/2021/8/31/22650303/supreme-court-abortion-texas-sb8-jackson-roe-wade-greg-abbott

 

[Peterkin]

It's just a holding tactic, until their tame supreme court overturns Roe v. Wade. It's just one facet (others include a variety of voter suppression and civil rights limitation and other discriminatory tactics in multiple states) of a strategic takeover by the far right. Yes, it can, too, happen here, and there and anywhere. 

Edited September 1, 2021 by Peterkin
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[Phi for All]

This is the age of extremism, and more folks are coming out of the woodwork with intractable demands for our society. American Taliban, for sure. Terrorist religious tactics with heavy doses of toxic masculinity are rampant in right wing leadership.

Is this like the new Texas gun laws, where 60% of Texans don't approve, but they're saddled with partisan whackos in office who're going to push this through to please Trump?

[TheVat]

I noticed that NPR's count of the new laws in TX that went into effect today was.... 666.  By the number of the Beast ye shall know them... 

https://www.npr.org/2021/09/01/1032894148/in-texas-666-laws-take-effect-sept-1-including-many-conservative-priorities

@Phi for All, I think this is similar to the gun laws where you essentially have minority rule.  IIRC reproductive choice has majority support in TX,  and the new "bounty hunter" system of burying clinics in lawsuits is also widely opposed.   I feel it's not too late for Justice Roberts to resuscitate his conscience if any cases do find a twisting turning path to SCOTUS.   

 

 

[beecee]

Heard something about this last night...Shit! it's nearly as unbelievable as Trump getting into power. Hopefully, it can be dismantled or otherwise hindered by your Federal law processes.

And yes, we also have an emergence of such extreme right nonsense in Australia, known as "Ünited Australia Party" guess what there motto is? Make Australia Great!!!🤮

[iNow]

3 hours ago, beecee said:

Hopefully, it can be dismantled or otherwise hindered by your Federal law processes.

The clever bit here is that they’ve subtracted government officials from the process. They’ve basically opened up the system such that any private citizen can sue abortion providers and also anyone else deemed to be “assisting” in the process of abortion for money and damages. They’ve empowered citizens to rip the system apart from the inside and this allows judges to look aside and avoid ruling for/against since it doesn’t involve government entities. 

Like redrawing district lines and changing who can vote / how they can vote, these practices are effective. I disagree with them, but they know how to play the game. We need more people like this without scruples on the side of liberal policies. The right is racking up win after win after win despite being a minority. 

[beecee]

40 minutes ago, iNow said:

The clever bit here is that they’ve subtracted government officials from the process. They’ve basically opened up the system such that any private citizen can sue abortion providers and also anyone else deemed to be “assisting” in the process of abortion for money and damages. They’ve empowered citizens to rip the system apart from the inside and this allows judges to look aside and avoid ruling for/against since it doesn’t involve government entities. 

Like redrawing district lines and changing who can vote / how they can vote, these practices are effective. I disagree with them, but they know how to play the game. We need more people like this without scruples on the side of liberal policies. The right is racking up win after win after win despite being a minority. 

So there's no way this can be successfuly nullified by Federal intervention/laws? So what does a female do if needing or requiring an abortion? Can she move to another state? In that case, what could happen on her return?

[iNow]

14 minutes ago, beecee said:

So there's no way this can be successfuly nullified by Federal intervention/laws?

There’s always a way, but it requires power and control. Right now, those who know how to play the game and who wish to impose their preferences on women at all costs tend to have the power… in Texas and other states like mine, and also in the federal courts across the states and most importantly in the US Supreme Court (see also: Mitch McConnell blocking Merrick Garland, but allowing Amy Conen Barrett to be seated during election years).
 

14 minutes ago, beecee said:

So what does a female do if needing or requiring an abortion?

Hope that she has enough money or a kind friend with enough money to drive the 8-10 hours across Texas into a more liberal neighboring state (tho really the only state bordering Texas where this could possibly help is New Mexico… Oklahoma and Louisiana are really no better than Tejas in this regard) to have the procedure done there, then repeat the 8-10 drive back home and still hopefully have gainful employment / not have been fired for being gone 2 days. 
 

14 minutes ago, beecee said:

Can she move to another state?

Here again, profound wealth inequality rears its ugly head. Yes, some can. No, most can’t. 

Edited September 3, 2021 by iNow

[beecee]

7 minutes ago, iNow said:

 Here again, profound wealth inequality rears its ugly head. Yes, some can. No, most can’t. 

Of course I understood that, and a shame. Really this is as unbelievable as Trump ever getting elected! How long before the Texas Governor needs to have elections?

[iNow]

20 minutes ago, beecee said:

How long before the Texas Governor needs to have elections?

The sad part is that all this idiocy around making it illegal for schools to ban masks, or ensuring guns can be carried into kindergartens, or that private citizens can legally sue anyone they personally decide are wearing Scarlett letters in abortion issues, or that voting shouldn’t happen on Sunday’s or be allowed via mail, or ad infinitum… all that stuff is PRECISELY what wins them the election. 

The problem isn’t the politician. While governors and their various henchmen obviously wield enormous power, the problem is not with them, per se. They are the symptom, not the cause. The problem is the widespread base of millions of otherwise decent neighbors demanding the pols all behave in one certain and very precise way or else be strung up and cast out. The problem is the elected “officials” are doing these things precisely bc that’s the most optimal and successful path towards maintaining power when the next election ultimately happens. 

Edited September 3, 2021 by iNow

[MigL]

The fact that private citizens can sue abortion providers ( or anyone involved ) should have no effect on the Judiciary.
Why can't judges simply dismiss these lawsuits according to case law ?

IOW, are judges controlled by the bat-shit crazy Texan Republicans ?

[CharonY]

13 minutes ago, MigL said:

The fact that private citizens can sue abortion providers ( or anyone involved ) should have no effect on the Judiciary.
Why can't judges simply dismiss these lawsuits according to case law ?

IOW, are judges controlled by the bat-shit crazy Texan Republicans ?

Well, I believe judges in Texas are typically elected, so they are in some way a representation of a bat-shit crazy population (though inevitably biased due to gerrymandering). I actually do not know on what basis judges could dismiss lawsuits, even if they wanted to (it being just stupid is probably not enough). As iNow mentioned, the clever bit is that they kind of removed constitutional challenge to the law, which otherwise would probably be the most direct way. 

And ultimately the idea is probably not even that folks would win these lawsuits. It is more to tangle up healthcare providers with so many lawsuits (of which each has a minimum cost of 10k if lost) that it just does not make sense for them to continue.

 

[iNow]

28 minutes ago, MigL said:

Why can't judges simply dismiss these lawsuits according to case law ?

Of course, they can. The way it’s been framed, however, provides them with a quote unquote “legitimate out” not to have to. 

There is no constitutional challenge. It’s just private citizens exercising their legislatively guaranteed rights to sue “people.”

Like I said. Clever. We need more on the right side of history willing to surrender their scruples to achieve wins within the rules of the game like this. It’s smart, even though I hate what it means. 

[Peterkin]

1 hour ago, iNow said:

We need more on the right side of history willing to surrender their scruples to achieve wins within the rules of the game like this.

History is made by people surrendering scruples to expediency. The biggest problem in America (not exclusively - not by a long chalk) is that they have. The Repuglican party has no effective opposition, because the Demicrats have largely sold their scruples to campaign contributors.

The rules need to be tossed in the shredder and better ones made, so that people with scruples can hold office and make decent legislation.

Just watched Michael Moore's film Fahrenheit 11/9

This has nothing, really, to do with reproduction - it's about taking all power of action from a voter demographic that's most likely to vote for social services rather than war games, tax cuts and the armaments industry.  Once women are barefoot and pregnant and still working two jobs to feed their kids, first, you put the polling booths too far away for them to walk to between shifts and then you can say, they don't vote anyway, might as well strike them off the lists. And then, y'all know what? There used to a real nifty device to keep 'em quiet - know where we can get those? Disabling women is a main plank of neo-Medeievalist policy.

Edited September 3, 2021 by Peterkin

[iNow]

33 minutes ago, Peterkin said:

The biggest problem in America (not exclusively - not by a long chalk)

How long exactly is your chalk? Like sidewalk long, or just blackboard long?
 

33 minutes ago, Peterkin said:

The Repuglican party has no effective opposition, because the Demicrats have largely sold their scruples to campaign contributors.

It’s super fun how you so nonchalantly and with such conviction lay the entirety of the blame and ownership of this problem solely down on to one side of a coin that itself actually has three.

33 minutes ago, Peterkin said:

The rules need to be tossed in the shredder and better ones made

It’s easy to the point of being lazy and slothish to tear down existing barns. It is, however, much harder to build new barns from scratch and from the ground up. 

My question to you is, “What alternative do you have in mind?” You speak of rules needing shredding. Okay, great. I’ll supply both the power and the blades. But with what will you replace them?

This is a genuinely interesting question. Sadly, my expectation of you, however, is for little more than another waste of bandwidth / waste of time post lacking in any meat, merit, or meaning. Truth be told, I would genuinely welcome you proving me wrong here. 

Go ahead, I dare ya… I’ll even say, please. 

33 minutes ago, Peterkin said:

Just watched Michael Moore's film Fahrenheit 11/9

Good for you.  I’ve seen it, too. Please, however, try replying next time with something even within the vicinity of relevant… or at least within the same zip code or continent of relevant. It would be much appreciated.

Edited September 3, 2021 by iNow

[Peterkin]

20 minutes ago, iNow said:

How long exactly is your chalk? Like sidewalk long, or just blackboard long?

It reaches around the globe. The USA is not unique; no nation is immune.

20 minutes ago, iNow said:

It’s super fun how you so nonchalantly and with such conviction lay the entirety of the blame and ownership of this problem solely down on to one side of a coin that itself actually has three.

What coin? What sides? What blame?

20 minutes ago, iNow said:

It’s easy to the point of being lazy and soothing to tear down existing barns.

No, it's very hard, and very painful and usually soaked in blood.

20 minutes ago, iNow said:

It is, however, much harder to build new barns from scratch and from the ground up.

Yes. Barns are difficult. Not sure it's ever been done with constitutions.

20 minutes ago, iNow said:

“What alternative do you have in mind?”

A complicated and impossible one. I'm willing to take the time, but this is not the appropriate venue for a long time-wasting exposition. In brief, meatless, meritless, meaningless summary: separate the judiciary from politics and politics from money.

 

Edited September 3, 2021 by Peterkin

[iNow]

9 hours ago, Peterkin said:

A complicated and impossible one.

Please elaborate. 

 

9 hours ago, Peterkin said:

separate the judiciary from politics and politics from money

How might one do this? What could it look like beyond lofty idealized words on a page or screen?

[dimreepr]

10 minutes ago, iNow said:

How might one do this? What could it look like beyond lofty idealized words on a page or screen?

We could try writing a constitution that incorporates past failures, with a possible future success...

 

[Peterkin]

1 hour ago, iNow said:

What could it look like beyond lofty idealized words on a page

That's what the original constitution was - until the founders put aside their lofty principles in favour of unity and compromised with slavery. They had already put aside any scruples regarding the treatment of Native Americans, indentured servants, transported captives from debtors' prisons and imported women and children from sundry pits of poverty on the parent continent.   

Lofty idealized words, in fact, is what every constitution and bill of rights is. And they stay on the page, impotent ink, unless legislature is enacted to enforce them - with big, sharp teeth, not a "Tsk-tsk! Throw another useful idiot over the battlements and we'll call it even."

1 hour ago, iNow said:

10 hours ago, Peterkin said:

separate the judiciary from politics and politics from money

How might one do this?

With some intelligent (hence complicated) and bold (hence, impossible) legislation.

Who ever thought it was a good idea to make jurists cater to the public whim in order to adjudicate the law? That uncoupling is the relatively simple phase. Just follow the British example; where judges are nominated by their peers and selected by a committee of senior jurists. Lots of competition among barristers, but no demeaning political campaigns, fund-raising and favour-currying with politicians or factions or interest blocs. It's a much less disruptive process, as well; allows the legal apparatus to present an unruffled authority to the public and thus retain its confidence in the system. That's a quite important consideration.   

The second phase is far more contentious: uncoupling representation of the polity from monetary obligations. It could be done with a series of reforms that those presently holding office are absolutely unwilling to undertake (just as, whoever was elected by the first-past-the-post format is unwilling to pass measures for proportional representation). Reduce the duration of election campaigning periods to a specific period before voting day. Prohibit all private funding and apportion the same basic travel and staffing allowance to each candidate for a particular office. Prohibit private advertising. Hold debates in public venues and on public broadcast media (which, BTW, require complete independence and robust funding). Let the privately owned news media print and broadcast events and candidate information, time and place of meetings or speeches, the accurate transcript of actual speeches - no editorials, commentary, selective quotes or other forms of political slant. Abolish all political lobbying.  

Edited September 3, 2021 by Peterkin
two addenda and one sp.

[dimreepr]

7 minutes ago, Peterkin said:

That's what the original constitution was - until the founders put aside their lofty principles in favour of unity and compromised with slavery. They had already put aside any scruples regarding the treatment of Native Americans, indentured servants, transported captives from debtors' prisons and imported women and children from sundry pits of poverty on the parent continent.   

Lofty idealized words, in fact, is what every constitution and bill of rights is. And they stay on the page, impotent ink, unless legislature is enacted to enforce them - with big, sharp teeth, not a "Tsk-tsk! Throw another useful idiot over the battlements and we'll call it even."

With some intelligent (hence complicated) and bold (hence, impossible) legislation.

Who ever thought it was a good idea to make jurists cater to the public whim in order to adjudicate the law? That uncoupling is the relatively simple phase. Just follow the British example; where judges are nominated by their peers and selected by a committee of senior jurists. Lots of competition among barristers, but no demeaning political campaigns, fund-raising and favour-currying with politicians or factions or interest blocs. It's a much less disruptive process, as well; allows the legal apparatus to present an unruffled authority to the public and thus retain its confidence in the system. That's a quite important consideration.   

The second phase is far more contentious: uncoupling representation of the politity from monetary obligations. It could be done with a series of reforms that those presently holding office are absolutely unwilling to undertake (just as, whoever was elected by the first-past-the-post format is unwilling to pass measures for proportional representation). Reduce the duration of election campaigning periods to a specific period before voting day. Prohibit all private funding and apportion the same basic travel and staffing allowance to each candidate for a particular office. Prohibit private advertising. Hold debates in public venues and on public broadcast media. Let the news media print and broadcast events and candidate information, time and place of meetings or speeches, the accurate transcript of actual speeches - no editorials, commentary, selective quotes or other forms of political slant. Abolish all political lobbying.  

You must also accept, that your words can be misunderstood, if I try hard enough... 

[iNow]

31 minutes ago, Peterkin said:

judges are nominated by their peers and selected by a committee of senior jurists.

I support this. It's how the state supreme court jurists are selected in my state (tho some on the right are trying to change this to corrupt the process in pursuit of power and control)

33 minutes ago, Peterkin said:

no demeaning political campaigns, fund-raising and favour-currying with politicians or factions or interest blocs.

Judges in the US don't campaign in this sense. They're appointed. It's all currying of favor, but still needs to be approved by the senate which is where the check is supposed to exist. But it's not a political campaign in the standard sense.

34 minutes ago, Peterkin said:

Reduce the duration of election campaigning periods to a specific period before voting day. Prohibit all private funding and apportion the same basic travel and staffing allowance to each candidate for a particular office. Prohibit private advertising.

Again, I support all of this. As you have already acknowledged, however, it'll never happen since the people we need to write these laws into place are the very ones benefiting today from their absence. 

35 minutes ago, Peterkin said:

Hold debates in public venues and on public broadcast media (which, BTW, require complete independence and robust funding)

I'm not as convinced this would matter nor that people living in their echo chamber ecosystems would watch / care, but I am not opposed to it. 

36 minutes ago, Peterkin said:

Let the privately owned news media print and broadcast events and candidate information, time and place of meetings or speeches, the accurate transcript of actual speeches - no editorials, commentary, selective quotes or other forms of political slant.

I don't see any way this could be done given freedom of speech and freedom of the press protections. This one seems like it would help, but could never be implemented so is moot.

37 minutes ago, Peterkin said:

Abolish all political lobbying.

This is too broad. Some lobbying is good. Parents of massacred children lobby for better gun regulations. Residents near heavily polluted waters lobby for better environmental protections. Lobbying is not bad in and of itself. What I think you want to focus on instead is no longer equating lobbying with money contributions, not letting corporations have so much access, and not letting former elected officials lobby for X number of years after leaving office.

Anyway... thank you for engaging my question directly. It's very much appreciated, you offered good ideas, and I clearly wasn't giving you enough credit last night. 

[CharonY]

1 hour ago, Peterkin said:

That's what the original constitution was - until the founders put aside their lofty principles in favour of unity and compromised with slavery

A bit off-topic, but considering the background of the founders I am fairly confident that the constitution was set up with slavery in mind, rather than being a compromise of sorts. At best one could consider it ambiguous, but it clearly benefitted slavery operations in its original form. Unless you mean what the ideal should have been, which is a bit more abstract and decoupled from the realities of what it really was.

[swansont]

1 hour ago, Peterkin said:

That's what the original constitution was - until the founders put aside their lofty principles in favour of unity and compromised with slavery.

Not just slavery

https://www.thoughtco.com/compromises-of-the-constitutional-convention-105428

[Peterkin]

1 hour ago, iNow said:

Anyway... thank you for engaging my question directly. It's very much appreciated, you offered good ideas, and I clearly wasn't giving you enough credit last night

My earlier post was drafted in anger and fear. I have come to realize overnight that the advance of a new Dark Age won't affect me, so why care? Besides, it might all collapse under climate change, a super-pandemic or a nuclear war and ... well. 

  I had been reluctant to elaborate off topic, given that the political mechanism, let alone the will or the power, is not currently in place to implement any of it. Oh, and i forgot to mention the #***!in:: electoral college. Burn that!

One small quibble:

1 hour ago, iNow said:

Some lobbying is good. Parents of massacred children lobby for better gun regulations. Residents near heavily polluted waters lobby for better environmental protections.

They shouldn't need to! It should be sufficient to apprise their representatives in the legislative bodies of their needs, problems and demands - at no extra cost to themselves. If the government were doing its job, there would already be gun control laws: It's not exactly a secret that children have been killed or that most voters want assault rifles off their streets. How effective is their lobby against the NRA's? If the government were doing its job, there would be no heavily polluted waters poisoning the environment and its residents. How effective is their lobby against the weapons manufacturers'?

Edited September 3, 2021 by Peterkin

[iNow]

9 minutes ago, Peterkin said:

I have come to realize overnight that the advance of a new Dark Age won't affect me, so why care?

As a father of young kids and someone who cares for others who will outlive me, I am unable to share this nonchalance about our shared future. 

11 minutes ago, Peterkin said:

They shouldn't need to! It should be sufficient to apprise their representatives in the legislative bodies of their needs, problems and demands

But they do. Not all constituents agree. Democracy is the worst form of government, except for all the others.