Unique Texas Abortion Law Creates Legal Confusion

WASHINGTON – The Texas anti-abortion law, which was allowed to go into effect last week despite being in clear conflict with decades-old precedents set by the United States Supreme Court in the landmark Roe v. Wade decision, is a complex piece of legal engineering.

It was intentionally built to avoid initial judicial review and structured to compel people to comply with it, even if they believe it violates their constitutional rights, through fear of being bombarded with excessive legal fees that could bankrupt them.

Attorney General Merrick Garland this week ordered the Justice Department to explore “all options” to challenge Texas’s highly restrictive abortion law and to protect abortion clinics that are under attack. Many Democrats and abortion rights proponents caution, however, that while they believe the law is unconstitutional, it was crafted in a way that makes legal challenges difficult.

FILE PHOTO: U.S. Attorney General Merrick Garland attends a news conference at the Department of Justice in Washington, D.C., U…
FILE – U.S. Attorney General Merrick Garland attends a news conference at the Department of Justice in Washington, June 25, 2021.

Senate Bill 8, as the legislation is called, makes it illegal in Texas for a doctor to perform an abortion after the sixth week of pregnancy — before most women are even aware that they are pregnant. Crucially, however, the law explicitly bans state officials from acting to enforce the law, delegating that responsibility instead to private citizens, who are eligible to recover a $10,000 judgment, plus attorney’s fees, from anyone who they can prove aided or abetted a woman seeking an abortion.

The law casts a broad net, meaning that not only doctors, but clinicians and clinic workers, and even relatives who help pay for an abortion are liable. However, the plain language of the law states that only people who “knowingly” assist someone seeking an abortion are liable, meaning that the commonly cited example of an Uber driver being exposed to a lawsuit under the bill is incorrect, experts say.

The Supreme Court last week, in a 5-4 decision, declined to block the law from coming into effect on procedural grounds, arguing that because there is no specific individual charged with enforcing the law, there is nobody who can be sued over it, and therefore, nobody the court can enjoin from enforcing it.

President Joe Biden sharply criticized the Supreme Court ruling and instructed Garland to explore ways to challenge the Texas law.

Thus far, abortion clinics in Texas have been careful to observe the new law — which makes no exceptions for rape or incest — and avoid drawing fire from self-appointed citizens or groups claiming violations of the new abortion restrictions. However, it is likely that eventually someone will defy the six-week limit on pregnancies before a procedure, leading to a constitutional test case.

Opponents furious 

Texas Governor Greg Abbott delivers an announcement in Montelongo's Mexican Restaurant on March 2, 2021, in Lubbock, Texas. Abbott announced that he is rescinding executive orders that limit capacities for businesses and the state wide mask mandate.
FILE – Texas Governor Greg Abbott speaks in Lubbock, Texas, March 2, 2021.

Opponents of the legislation have been scathing in their criticism of the Texas legislature and Republican Gov. Greg Abbott who signed the legislation.

“Texas politicians have succeeded for the moment in making a mockery of the rule of law, upending abortion care in Texas, and forcing patients to leave the state — if they have the means — to get constitutionally protected health care,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “This should send chills down the spine of everyone in this country who cares about the Constitution. We will keep fighting this ban until abortion access is restored in Texas.”

Others aimed their anger at the Supreme Court for choosing not to block enforcement of the statute.

“The Supreme Court has ignored 50 years of precedent and set back the hands of time, essentially allowing Texas to be a pre-Roe [v. Wade] state,” Alexis McGill Johnson, president and CEO, Planned Parenthood Federation of America, said in a statement. “This is a travesty for the nearly seven million women of reproductive age, and everyone who supports access to safe, legal abortion.”

Texas state Rep. Donna Howard, D-Austin, center at lectern, stands with fellow lawmakers in the House Chamber, Wednesday, May 5…
FILE – Texas state Rep. Donna Howard, D-Austin, center, speaks against a bill that would ban abortions as early as six weeks and allow private citizens to enforce it through civil lawsuits, in the House Chamber in Austin, Texas, May 5, 2021.

Supporters claim victory 

Supporters of the law, however, see it as a victory over a court system that they believe is rigged against them.

The anti-abortion movement had two main goals in advancing the legislation, said John Seago, legislative director for Texas Right to Life, a group closely involved in drafting the legislation.

“The first one was, how do we have a pro-life policy actually be enforced, when we have lawless district attorneys who are not enforcing pro-life laws,” Seago said. “The second one is these activist federal judges — how do you get around them? [They are] looking for excuses to hold up laws, even though we can win ultimately.”

Genesis of the law 

The roots of S.B. 8 can be traced back to an article by a former solicitor general of the state of Texas, Jonathan F. Mitchell, which was published in the Virginia Law Review in 2018. Called The Writ-of-Erasure Fallacy, the article argued that when federal courts block enforcement of state laws, those laws are not, as popularly believed, “struck down.” Rather, they remain on the books and are simply not enforced.

That leaves room for future, and even retroactive, enforcement, if a later Supreme Court overrules a previous opinion enjoining enforcement. And, critically for this case, Mitchell theorized that a bill that provided a private cause of action in state court could continue to be enforced by private citizens, even if a federal court has enjoined state officials from enforcing it. That would remain the case unless a person sued under the law pursued an appeal all the way to the Supreme Court, and won.

Unless and until the Supreme Court of the United States declares a statute unconstitutional, the States remain free to authorize and entertain private enforcement actions in their own courts — even after a federal district or circuit court has disapproved the statute and enjoined the State’s executive from enforcing it,” Mitchell wrote.

Mitchell was closely involved in the drafting of S.B. 8.

Private cause of action 

It may not be clear to a layperson how a private individual with no connection to a person who gets an abortion — and no way to show that they have suffered personal harm because of it — can have the standing to sue in the first place.

If this were a federal law, that objection would have force. But under state law in Texas, the legislature is allowed to specifically confer standing on private individuals in certain kinds of cases if it chooses to do so. In S.B. 8, that is precisely what state legislators did.

Most states have similar rules allowing the legislature to confer standing on private citizens, which is one reason why governors and legislators in at least seven states across the country have said that they are preparing legislation similar to S.B. 8 in their states. 

FILE - In this Sept. 1, 2021 file photo, a security guard opens the door to the Whole Women's Health Clinic in Fort Worth,…
FILE – A security guard opens the door to the Whole Women’s Health Clinic in Fort Worth, Texas, Sept. 1, 2021.

Fear of legal fees 

The law is structured to compel compliance — even if a defendant in a potential case believes that their rights are being violated and that they would be vindicated in court — through fear of legal bills.

The law itself does not allow someone sued under it to recover legal fees from their accuser, even if they are able to demonstrate their innocence. However, it does allow the accuser to recover legal fees from the defendant in the case of a guilty verdict.  

But the burden of legal fees is potentially even heavier than it seems. If Mitchell’s theory is correct, and enforcement of the law could only ever be truly blocked by a Supreme Court ruling that it is unconstitutional, that means someone who wants to challenge it is going to face years of lawsuits involving huge legal fees.

But in the United States, a defendant in a federal lawsuit who is asserting his or her constitutional rights are being violated is generally not eligible to recover legal fees.

In the law review article, Mitchell lays out the implications plainly.

“Of course, the defendants in these private enforcement actions can reassert the constitutional objections to the statute — and perhaps they will persuade the court to follow the reasoning of the courts that have disapproved the statute,” he wrote. “But a defendant has no entitlement to attorneys’ fees when he asserts his constitutional rights defensively in a private enforcement action, and the need to foot one’s own legal bills may induce statutory compliance even for those who expect to prevail on their constitutional objections.”

Boomerang effect 

There has been much speculation that the unique legal structure of the Texas law might just as easily be applied to other areas in which lawmakers want to curtail specific rights that have been guaranteed by court rulings.

For example, some have suggested that states where a majority of residents disagree with the Supreme Court’s rulings on handgun bans might create a private right of action against gun dealers who sell them. The point would not be to win an argument over the constitutionality of the statute, but to compel compliance with it anyway.

Seago, of Texas Right to Life, said that the “narrow focus” of his organization is such that the broader implications of the use of this novel legal structure are not a great concern, but that the group welcomes the opportunity to resolve any issues in court.

“The question kind of assumes you are headed towards a collision in our federalist principles. But that’s an important legal question that should be answered, not avoided just because it’s a new question,” he said.

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Donald Trump and the ‘Disloyal’ Jews

A president loyal only to himself uses my community as a political weapon.

The major debate tearing apart the American Jewish community on this particular Wednesday is whether or not the 45th president of the United States just accused them — us — of disloyalty to Israel and the Jewish people or of disloyalty to the Republican Party and the man who has remade it in his image.

“Where has the Democratic Party gone? Where have they gone where they are defending these two people over the state of Israel?” President Trump said on Tuesday, referring to Ilhan Omar and Rashida Tlaib, Democratic congresswomen who support the boycott movement against Israel. “And I think any Jewish people that vote for a Democrat, I think it shows either a total lack of knowledge or great disloyalty.”

As my people say: Nu?

What do you hear in the president’s statement, which, like many things he blurts out, manages to be both opaque and outrageous at once? If you’re pro-Trump or Trump-curious, you’ll generously hear an assertion that Jews should be loyal to Israel. If you’re anything like me, you can’t help but hear echoes of the sinister charge of dual loyalty.

I’ve been around enough tables with pro-Trump Jews to strongly suspect that this is a riff on a theme Mr. Trump himself has overheard at many dinners with Ivanka and Jared, the favorite daughter and dauphin: dismay that even those Jews who have appreciated the president’s Israel policies — moving the Embassy to Jerusalem, recognizing Israeli sovereignty over the Golan Heights, cracking down on Iran — will never pull the lever for him.

It’s easy to imagine what they say: Look how much you’ve done. More than any other president. They should be grateful. Why can’t they see that? Why can’t they see that the Democratic Party has abandoned them? Meantime, you’re more pro-Israel than most American Jews! Indeed, on Wednesday afternoon at the White House, Mr. Trump clarified as much: “If you want to vote Democrat, you are being very disloyal to Jewish people and very disloyal to Israel.”

Brace yourself for further presidential Twitter rants on the matter because I do not believe that Mr. Trump is capable of higher-order thoughts about loyalty — loyalty to the office in which he sits, loyalty to the Republic, and, above all, loyalty to the idea of keeping America united. Fealty to him is the only litmus test.

Indeed, if we have learned anything about the former host of “The Apprentice,” it is that he looks at the world in the exact way he looked at those contestants. You’re a winner or you’re a loser. You’re for him or you’re a turncoat. In his small mind, if you’re on Team Jew, you vote for his party because Republicans are pro-Israel and, therefore, pro-Jew. If you’re on Team Anti-Semite, well, then you vote for the other guys.

All of which is why I have zero doubt that if the prime minister of Israel criticized Mr. Trump on the wrong day or in the wrong way, the president would dump Israel at that very moment. And it is why anyone with a shred of knowledge about Jewish history should be extremely concerned.

If 2,000 years of diasporic living has taught the Jews anything, it’s that an existence that is contingent upon the kindness of strangers is never too safe or too long lasting. A president with authoritarian tendencies who cares about nothing more than lock-step loyalty is not one American Jews, let alone anyone, can rely on.

More to the point: Will white supremacists, like the one arrested Monday in Ohio, or the one arrested Tuesday in Miami, parse these Talmudic distinctions about who was, in fact, the subject of the disloyalty in that Tuesday sentence? Or will they hear — as they have always heard in this president’s rants against the globalists, the elitists, the invading immigrants organized by George Soros, and all the shady forces keeping the hard-working men and women of America down — the word “Jew”?

The Jews of America are in the midst of a political crisis, sped along at breakneck speed by a president asking us, bluntly, to choose. Vote for a party whose base seems increasingly in thrall with newbie politicians who are unapologetic supporters of the B.D.S. movement, a new face of old anti-Semitism, even as the party’s leadership remains pro-Israel. Or vote for the party led by a man who is loyal to nothing but himself, who actively sets Americans against one other, and, more, genuinely seems to thrill at creating a disunited state of America.

We are increasingly a people apart. Which self-mutilation, so many of us wonder, is worse? Abandon the universal values our community has always championed? Or abandon the particularism without which we cease to be Jews at all?

Our predicament would be entirely familiar to the Jews of Babylon and Berlin and every community that has been erased in between. But that it is facing the greatest diaspora in Jewish history has shocked those who always believed we were the lucky ones.

To preserve all that has ever made American Jews — and America — great, we cannot allow this man to tear us apart.

Look who’s politically correct now

When liberals refuse to call things what they are and sub in carefully calibrated euphemisms instead, far-right conservatives respond with one of their favorite phrases. This, they say, is political correctness run amok. But now it’s the far right that’s refusing to call the cages holding immigrant children separated from their families “cages”they’re “chain-link partitionsinstead. This hypocrisy reveals how much of a sham the crusade against political correctness among the far right has always been.

.. Television and talk show host Laura Ingraham may have come up with the pleasantest description possible of the sterile rooms surrounded by metal fences where terrified kids squirm under astronaut blankets on floor mats: “essentially summer camps.”

.. The very fact that the Border Patrol is keeping these children in cages shows the administration is treating them like animals. The complaint that talking about cages makes the administration “uncomfortable,” too, is straight out of the campus culture wars, yet when liberals lodge this complaint, conservatives label them snowflakes faster than you can say “microaggression.”

.. How dare you refuse to name radical Islamist terror, they ask? How dare you say “holidays” instead of “Christmas”? And what is up with these genderless pronouns?

.. This is a strong argument only when the stifled speech is actually an attempt at truth-telling in the face of censorship. Yet when the Trump camp cries out against political correctness, it usually has nothing to do with truth-telling or censorship at all.

.. And what was the politically correct autocracy stopping him from doing?

  • Calling women “slobs,” “dogs” and “pigs.” But women are quite literally not dogs, or pigs. They’re women.
  • Describing Megyn Kelly as a “bimbo” isn’t laying bare some suppressed reality — it’s nastiness for nastiness’s sake.

.. The pro-Trump right has weaponized “political correctness” to mean they get to say whatever they want, and those who disagree with them don’t.

FISA-Gate Is Scarier Than Watergate 

The press used to uncover government wrongdoing. Today’s press is defending it.

The Watergate scandal of 1972–74 was uncovered largely because of outraged Democratic politicians and a bulldog media. They both claimed that they had saved American democracy from the Nixon administration’s attempt to warp the CIA and FBI to cover up an otherwise minor, though illegal, political break-in.

In the Iran-Contra affair of 1985–87, the media and liberal activists uncovered wrongdoing by some rogue members of the Reagan government. They warned of government overreach and of using the “Deep State” to subvert the law for political purposes.

.. The new FBI director, Christopher Wray, has also reassigned the FBI’s top lawyer, James Baker, who purportedly leaked the Steele dossier to a sympathetic journalist.

.. Once again, an administration is being accused of politicizing government agencies to further agendas, this time apparently to gain an advantage for Hillary Clinton in the run-up to an election.

.. There is a similar pattern of slandering congressional investigators and whistleblowers as disloyal and even treasonous.

.. This time around, the press is not after a hated Nixon administration. Civil libertarians are not demanding accountability from a conservative Reagan team. Instead, the roles are reversed.

.. Barack Obama was a progressive constitutional lawyer who expressed distrust of the secretive “Deep State.” Yet his administration weaponized the IRS and surveilled Associated Press communications and a Fox News journalist for reporting unfavorable news based on supposed leaks.

.. Progressives are not supposed to destroy requested emails, “acid wash” hard drives, spread unverified and paid-for opposition research among government agencies, or use the DOJ and FBI to obtain warrants to snoop on the communications of American citizens.

.. Liberal and progressive voices are excusing, not airing, the excesses of the DOJ and FBI.

Apparently, weaponizing government agencies to stop a detested Donald Trump by any means necessary is not really considered a crime.