I have criticized this guy (did so without attribution one place [comments] and he felt it necessary to "correct" me without actually fully responding ... thin skin). Note the famous cartoon at the top of the page. The useful thing here is to use such people as a "type" to critique. I felt that way back to my teenage years about op-eds. They provide useful short discussions to play off of.
I confuse two people on that blog to some extent, but one at least has doctrinaire views on such things as freedom of speech (so much I feel darn conservative*) and "departmentalism" (which can be an unrealistic approach where each department of government gets to judge constitutionality) and so forth. He is a symbol of the ivy tower who is too full of their own theories.
[Aside. Some woman lawyer noted she thought use of "people" to reference those who have abortions seemed a bit arch or something. But, I have seen one or more person remind us that trans and non-binary people have abortions. Such people do not always feel "woman" tells the whole story.]
Such people regularly are not useless. They are informed individuals, who might be experts in particular things, providing details for the general reader. And, the professor's discussion of the procedural questions on an academic level is fine on some level. Take that link I provided to his latest comments. Yes, the law is not totally free from judicial review.
But, that is a rather weak version of the criticism. I'm sure you can find someone who says that, but even they probably would admit with mild prompting that they recognize that at some point the law can be subject to judicial review. Surely, lots of people commenting readily say that. They reference the DELAY as women in Texas can't have an abortion.
I don't think the discussion, with its talk of "hand-wringing" and so forth seriously addresses this. AGAIN, sorry to cap lock, it is fine to discuss in detail the legality at hand. One lawyer helpfully spelled out the issues, including reference to Ex parte Young and all that. I saved it for my own reference.
It still is quite possible not to ivy tower-like act like it is all theoretical. Lots of litigation has time lags, but much less has such immediate harms with these stakes. There will be people who won't be able to obtain an abortion -- "able" here is a matter of general human decision making, not pure possibility -- or at best will have to deal with more complicated, costly, dangerous, and for some, morally fraught later in the pregnancy abortions. This is part of what the "hand wringing" is about.
The person notes that one way for the law to be addressed by the courts substantively is to have someone break it. Now, even that, might not get you there until someone actually goes after them. One brief I saw noted various state actors are required to enforce the law. But, many laws are not actually enforced. Think of sodomy laws back in the day.
Still, that came to mind for me too. The difficulty of legal liability in the short term at least is why clinics have traditionally went the route of pre-enforcement challenges. Equity (which is in place in part to clean up the nastiness of strict legal rules) alone warrant a similar approach here, if possible. The legal liability risks is a "substantial burden" on abortion rights. Planned Parenthood v. Casey specifically blocks that.
The professor earlier said this and it annoyed me. Again, I cite this as an example and avenue for response. Such comments are not unique, though the specific way they are framed might be different:
Justice Sotomayor offers some judicial supremacy, calling the law "a breathtaking act of defiance--of the Constitution, of this Court's precedents, and of the rights of women seeking abortions throughout Texas." She is 1/3 right--it defies the Court's precedents. But I presume the Texas legislature believed the law was valid under its reading of the Constitution, under which women do not have a right to seek abortions. Agree or disagree with that position, but it is an interpretation of the Constitution that the Texas legislature is entitled to make, if it wants to live with the consequences of being wrong about what the Court will do.
This is wrong for various reasons though it is nice he finally opened comments. (He apparently accidentally opened it one time, a person mildly critiqued him, and he closed them again.)
Sotomayor did not offer some "judicial supremacy" as the term should fairly be applied. The concept is that the Supreme Court has a somewhat absolute ability to determine what is "constitutional" and other bodies must follow. The more limited view is that the ruling applies to the case at hand.
It is unclear to me how this applies here. She is allowed to herself opine on the constitutionality as much as some other governmental actor, isn't she? She is responding to why the specific case should have been decided differently. The claim is an unfair potshot.
Taking the idea that the Texas legislature can attempt to apply its own view of the Constitution for granted, why is Sotomayor not correct about the "right" view of what the Constitution means? It is a rather extreme view to argue there is really no "right" view at all. As if, if Texas was willing to take its chances, Sotomayor cannot say a law that discriminates against Catholics is "unconstitutional." Again, how is that wrong?
The same thing about the "rights of women." You might DISAGREE with her -- though it is unclear that he does -- but their rights can reasonably be said to be violated. Since "1/3" is used, I take it that he is using those three things to determine the fraction.
What seems to be his problem, I guess, is the "breathtaking act of defiance" part. That is, his view is that Texas gets to try, so it isn't really that. Confusingly phrased, if that is the point -- at least, it seems to be given his response that seems largely unresponsive.
Even there, taking how we actually approach the law, over his possible view of how it should be approached, they are defying the law. You might think that is a good thing. When the now (at least for the time being!) governor of California as a lower level official went against state policy and married same sex couples, based on his own constitutional views, he was "defying" on some level, but many rooted for him.
(I saw "some level," since you very well might argue there is some right to challenge a law, hoping to be eventually upheld. But, especially here, with someone so concerned with proper frames, there are various levels to a word like "defiance," especially when used in a singular quickly written dissenting opinion. Using my overall policy of fair minded criticism, again, I think his reply is an unfair one.)
So, why is she only 1/3 right again? His other critiques basically amount to at least partial disagreements with the assumptions of the dissenters. Fine enough, but as me and many others note, this is all a matter of discretion. And, as Sotomayor noted, the district judge provided an extended argument on why at least someone (even if you don't agree with it all) has standing.
Again, equity and prudence in general (see Roberts) warrants holding up the application of the law. One that will harm a lot of women until the courts somehow get around to interpreting it and needing to (unless they are clowns) note it blatantly violates Planned Parenthood v. Casey.
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One particular travesty of this law is its broad reach to those that "aid and abet" abortions. Just what this means is unclear though it seems to go further than merely applying to doctors and immediate medical staff.
One thing litigation would have to determine is its reach. For instance, in theory, mere advocacy might apply. At least there, I think even conservative judges would be wary about being too broad in scope.
To note a possibility, partially on the litigation extravaganza possibilities, I received an email from Lyft (the ride people) -- I signed on to them when COVID early on made mass transit seem risky -- strongly opposing it:
We want to be clear: Drivers are never responsible for monitoring where their riders go or why. Imagine being a driver and not knowing if you are breaking the law by giving someone a ride. Similarly, riders never have to justify, or even share, where they are going and why. Imagine being a pregnant woman trying to get to a healthcare appointment and not knowing if your driver will cancel on you for fear of breaking a law. Both are completely unacceptable.
This reminds me of the concern regarding tracking people via third party means (phone calls or car tracking devices) having First and Fourth Amendment implications, such as concern about privacy of personal associations. There are many moving parts here and "aid and abet" will bring within its ambit a lot of them. This tends to be the case in many cases. We are a united whole and must join together.
The email notes it is setting up a driver defense fund and donating a million dollars to Planned Parenthood. Uber says it will support the former, but the reports I have seen did not say it will donate money.
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President Biden and VP Harris in separate statements strongly criticized the decision and law overall. Biden directed the HHS and DOJ in particular to look into the matter and overall promised to find a way to protect the rights of women in Texas. It is unclear what immediately this would entail though Jen Psaki (press secretary) referenced a national abortion law, which Nancy Pelosi promised will be brought to a vote.
(I have seen this national statutory abortion protection idea come up before, and there is always some problem, including what it should cover, anti-abortion Dems, the filibuster, and an overall lack of urgency.)
And, Pelosi is all about only doing that when she has the votes. A concern there is that the Supreme Court will target such a law, though we don't know yet just what it would say. But, as Chris Hayes noted on Twitter, that is a problem we face when it comes. After all, we are a far way from the law even passing since we do have the U.S. Senate.
I agree on some level that Dems got too complaisant about abortion rights on some level. The writer's overall tone has a lot going for it. But, he repeatedly is more rhetoric than realistic voice, which is fine on some level -- people have different roles -- if something that still stands out.
For instance, this "privacy protector" idea (which a bunch of people "yes man!" him on Twitter for) seems overly cute. As but one person noted, it isn't that easy to get around the Hyde Amendment. The purpose of the amendment is to not allow the federal government to get involved in the abortion business. This, which at some point will involve some sort of funds, does the opposite. Still, think big, man, and continue to amuse us with your daily dealings with your smart aleck/cute sons.
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Ultimately, I don't know exactly what this law will wrought. Its breadth -- which other states now might follow with the Court letting it stand -- suggests a lot of horrors. But, the very breadth might require them to temper the blow. Pandora's box.
It also might be all a holding action until the Supreme Court decides. We shall see.
ETA: One of the second generation, so to speak (Anna S. is now in college and doing things like writing Lawfare pieces), High School SCOTUS contributors (class of '24) wrote a very good summary of the abortion ruling, including lower court developments.
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* One blog was a strong denunciation against local officials letting the courts handle the question of people putting vulgar (think "Fuck Biden") signs on their front lawns. He argued this was obviously unconstitutional, citing various Supreme Court precedents.
But, do they really? A big vulgar sign in front of a home which children might pass daily is not the same as briefly seeing a jacket in the courthouse, sending Snapchats to your friends, sexually themed books and magazines, and a whole slew of other cases. If "fleeting" obscenity can get you in trouble merely if said on television, why not here?
The permanent open sign next to your home to me raises novel questions. There was some 1970s case involving a flag put up on someone's home and they decided it on vagueness grounds or something. Just what is allowed here? Can't stop at "Fuck Biden." Since no one reads this, what about "Pelosi is C-Word"? Something about seeing you next Tuesday.
Political speech, right? Or even use of the "N" word. It is not like a "fighting word" in that context, is it? But, hey, it is just down outrageous for a mayor -- partially for political reasons [hey, they have the right to try, right?!] -- to toss big vulgar signs Dennis the Menace might see on his way to bother Mr. Wilson to the courts to decide.
There was also a continual blather about limits on speech at public stadiums and so forth (think hateful speech), including not allowing student athletes to bad mouth other teams or something as a violation of sportsmanship rules. This all was not just problematic, but GLARING on free speech grounds, as it was all so obvious. I think not.
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