The End Of Roe v. Wade

Is the title of this post alarmist? No, not really. That is effectively what the new Texas law has done, and has now been fulsomely endorsed by the Supreme Court, without even the courtesy of full briefing, oral argument and a merits decision. It was known this was coming when SCOTUS let this bunk take effect yesterday morning without action, it was just a question of what the backroom dynamics were in that regard. Now we know.

Here is the “decision”. As anti-climatic as it is, it is important. This is decision on a law, and the words count.

It is madness upon not just in Texas, but the entire country. These earth shattering decisions used to come only after full briefing and argument. No longer, now the shadow path is supreme.

Agree with Mark Joseph Stern in Slate when he says this:

At midnight on Wednesday, in an unsigned, 5–4 decision, the Supreme Court effectively overturned Roe v. Wade. The five most conservative Republican-appointed justices refused to block Texas’ abortion ban, which allows anyone to sue any individual who “aids or abets” an abortion after six weeks, when the vast majority occur. There is no exception for rape or incest. The decision renders almost all abortions in Texas illegal for the first time since 1973. Although the majority did not say these words exactly, the upshot of Wednesday’s decision is undeniable: The Supreme Court has abandoned the constitutional right to abortion. Roe is no longer good law.

Texas’ ban, known as SB 8, constitutes a uniquely insidious workaround to Roe. It outlaws abortion after six weeks, but does not call on state officials to enforce its restrictions.
Instead, as Justice Sonia Sotomayor wrote in dissent, the law “deputized the state’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.” Random strangers can sue any “abettor” to an abortion anywhere in Texas and collect a minimum of $10,000, plus attorneys’ fees. The act’s language is incredibly broad, encompassing any friend, family member, clergy member, or counselor who facilitates the abortion in any way. Every employee of an abortion clinic, from front-desk staff to doctors, is liable as well. And when an individual successfully sues an abortion provider, the court must permanently shut it down.

What other questions does this action, really inaction, by SCOTUS generate? A lot. Peterr asked this elsewhere:

Next up, perhaps, in the Texas legislature, now that SCOTUS has affirmed (5-4) their new approach to enforcement of state laws . . .

Texas declares that black and hispanic people shall not be allowed to vote, and delegates enforcement to any citizen, allowing them to sue for at least $10,000 if they can prove a black or hispanic person voted.

Texas declares that marriage is reserved to one man and one woman, and delegates enforcement to any citizen, allowing them to sue any same-sex couple who presents themselves in any form or fashion as “married” for at least $25,000 . . .

etc. etc. etc.

Again, not hyperbole. For now though, it is crystal clear that Roe is gone. There will be different laws in different states, at best. That is it.

What happens when states like Texas/their citizen plaintiffs start trying to enforce their craven law as to conduct occurring in other states? I don’t know, but that is the next horizon.

At any rate, this is going to be a problem for a very long time. If SCOTUS will do this though, given their clear previous precedent contrary to today’s order, means you can kiss voting rights cases goodbye.

It is a not so brave, nor honorable, new Supreme Court world.

193 replies
  1. Eureka says:

    Of all the reasons to be cut to the core, it’s the setting of the public upon themselves that’s the most horrifying.

    Incentivizing an otherwise deprived populace with large sums of cash and a tortious righteousness … it’s so violent.

  2. Eugenia Floyd says:

    This is truly a law with dystopian echos of the East German Stasi, Stalin’s crusade against enemies of the people, the Chinese Cultural Revolution, and yes, even Gilead from the Handmaid’s Tale, where neighbors turn on neighbors, family on family, strangers on anyone “suspicious.” And this sociopathic law further encourages any rapist looking to earn a quick $10,000+ (the law has no exclusion for rape, and the low – and likely lower in the face of this law – percentage of rape cases that are reported or resolved will increase his odds of success). The law also will encourage any stalker tracking a pregnant ex- wife or girlfriend and create a myriad other situations that will place any pregnant woman under the bullying control of people who are acting antagonistically to her best interest. If we don’t find a way to legitimately neutralize this type of sociologically sick vigilante-supporting legislation now and permanently, it may be used as a model to neutralize our other hard-won civil rights, and we will forever be at risk of becoming Gideon or worse. We need a call for creative defense attorneys in TX STAT.

  3. jaango1 says:

    A few years ago, we, the military veterans, from the standpoint that we are either Chicano, Native American, or both, arrived at and began advocating for following, as per the penchant of members of Congress:

    “Governments, federal, state, county and municipal, are prohibited from interfering in all subject matters pertaining to a person’s reproductive rights.”

    And demographics will matter during the pending years between now and approximately 2043, and where our white-oriented democracy, will experience its political demise.

  4. Peterr says:

    Bmaz, under the text “here is the ‘decision'” you link to a SCOTUS file with the four dissents. There is no link to the actual unsigned opinion of the five justices who did this, and I can’t find a link to their single paragraph order leaving the Texas law in place anywhere.


    • Peterr says:

      The SCOTUS website is, as you might imagine, very very slow this morning, but there’s nothing on their Orders of the Court page about this, and the Opinions Related to Orders page has only the dissents.

      • Peterr says:


        That’s the same link bmaz has in the post, and if you open it up, you will see that it is ONLY the four dissents.

        • harpie says:

          This is the first sentence I see:

          The application for injunctive relief or, in the alternative, to vacate stays of the district court proceedings presented to JUSTICE ALITO and by him referred to the Court is denied.

        • Scott says:

          The majority opinion is the first page and a half, up to, “CHIEF JUSTICE ROBERTS, with whom JUSTICE BREYER and JUSTICE KAGAN join, dissenting. ”

          The majority opinion is basically;

          “The application for injunctive relief…is denied.
          [Brief discussion of issues]
          In light of such issues, we cannot say the applicants have met their burden to prevail in an injunction or stay application. In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”

        • Peterr says:

          OK, I see what you are saying, and that makes sense. But at the very top of page one, the header to the whole page is this:

          ________________ 1

          Cite as: 594 U. S. ____ (2021)
          ROBERTS, C. J., dissenting
          No. 21A24
          JACKSON, JUDGE, ET AL.
          [September 1, 2021]

          That is, the document starts by saying that what follows is Roberts’ dissent . . . very odd and strange that it would not clearly label the order before proceeding to the dissents.

    • Fraud Guy says:

      I believe the concept is that since they declined to take the petition, they did not have to explain their reasoning, and/or what they were leaving up, and did not. The dissenters most certainly did.

      This is the insidiousness that bmaz is pointing out–the new law is taking effect, overwriting over 50 years of precedence, and the Gilead faction doesn’t have to leave their fingerprints anywhere.

  5. Peterr says:

    With regard to those dissents, I noticed an oddity at the end of each one:

    Roberts: . . .
    Breyer: I dissent.
    Sotomayor: I dissent.
    Kagan: I respectfully dissent.

    Maybe the “respecfully” is part of Kagan’s personal style (does Kagan always dissent “respecfully”), but on first reading, it struck me as her subtweeting someone (Alito? Roberts?) who said “why do we need all these angry dissents?” behind the scenes. IMHO, she is calling *someone* out with that “respectfully.”

    In fact, other than the heading “Roberts, C.J., dissenting” and the initial internal language preceding the text of his opinion (“CHIEF JUSTICE ROBERTS, with whom JUSTICE BREYER and JUSTICE KAGAN join, dissenting”), the word “dissent” does not appear in his opinion at all.

    Also, it struck me as interesting that Sotomayor did not join the Roberts dissent alongside Breyer and Kagan.

    • harpie says:

      Maybe the fact that Roberts didn’t utter the words “I dissent” is the reason Sotomayor did not join.

      She, Kagan and Breyer all joined each other’s dissents.

    • ThomasH says:

      But they’re the deep pockets in this state/SCOTUS endorsed vigilante shakedown.

      I wonder if Texas will see physicians and other healthcare providers flee the state to avoid being a target for malicious suits?

      • BobCon says:

        I think the vagueness of the law is going to end up affecting even more than heathcare providers.

        What happens when the Austin NPR affiliate broadcasts an All Things Considered interview with a doctor who describes home induced abortions?

        The craziness of the ruling is for all intents and purposes a sign for the press that the usual constitutional standards no longer apply, and they should worry about the First Amendment too.

        I’m not getting the sense they understand this, though.

  6. harpie says:

    What I’d like to know is:
    How will these Texas Taliban empowered Menstruation Vigilantes actually know when a pregnancy is six weeks old?

    Are the Texas Taliban planning on compelling all women of child-bearing age to register the first day of each menstrual cycle on some Taliban government registry?

    • Tom S. says:

      Does the “guidance” available here, help answer your question?

      I’ve debated anti abortion zealots who freely admit to indifference over who “skates” and
      who is trapped by elimination of local safe, clnical abortion services. They are completely
      indifferent to the result that only women with the least means to care for an unwanted child
      forced upon them are likely affected. “As long as we prevent abortions…”

    • Dawnrazor says:

      They don’t want or need to know. Remember, there’s no penalty for making a false claim or filing a suit in bad faith under the law.

      The purpose of the law is harassment and it will be up to the accused to prove the woman wasn’t six weeks pregnant.

        • Commander Ogg says:

          No. The law specifies that if you win the lawsuit against the person accusing you of aiding an abortion you are not entitled to attorneys fees.

          Unlike Ms. Wheeler IANAL. Perhaps the HIPPA allows for a lawsuit. Invasion of privacy? Defamation?

  7. DrFunguy says:

    Of course, if it were truly their goal to reduce abortions they would support sex ed in public schools and free access to birth control.
    Control and oppression of women has always been the point.

  8. Pete T says:

    Much as @bmaz suggested, it didn’t take long for State Rep Anthony Sabatini (FL) to suggest that Florida adopt a similar law. There will be many in “red” states I imagine.

    I suppose there has to be a test case making it to SCOTUS, but the last “draconian” TX abortion law circa 2013 that was ultimately shot down by a much different SCOTUS took 3-4 years to take effect. Much damage was already done by then.

  9. joel fisher says:

    There is such a thing as going too far and this might be it. I hope this is the end of the 9 member Supreme Court. Time for some very young, diverse membership on a new, expanded court.

    • Tom S. says:

      Or Larry Elder becomes California governor, Sen. Feinstein’s age catches up with her soon after and Elder has the opportunity to replace her, or Sen. Manchin, BD-WV and Sen. Sinema (BD-AZ) continue prioritizing personal ambition, and poof!

      The current, slim, democratic advantage in the senate is perishable, but they’re not reacting as if it is. Imagine how much more angry and violent the domestic terrorist authoritarians would become if G.O.P. didn’t own the SCOTUS and so many state governments, as well as “the heart of hearts” of the Blue Dog teasers who allegedly empower democrats in both federal legislative branches?

      • joel fisher says:

        You are so right. There are at least 4 states–MA, NH, VT, MD–and soon CA if your nightmare proves true, have GOP governors and old as dirt US Senators.
        As far as evidence of concern is concerned, I don’t see any. Justice Breyer doesn’t seem in any hurry to retire, either. An obvious Ginsburg scenario is in the offing and getting stuff done while there’s an opportunity doesn’t seem like a priority.

        • Tburgler says:

          I can’t speak for the other states, but VT gov Phil Scott has pledged not to replace Sanders or Leahy with a Republican. It’s only a promise, but his career in VT would be over if he broke it.

        • Justlp says:

          The recall process here in California is absurd. If 51% of voters vote to recall & 49% reject it, Newsom will be replaced by whomever among the scores of candidates gets a mere plurality of those who bothered to choose a replacement candidate. That means some RWNJ who gets 22% of the vote could become our new governor, despite Newsom getting 49%. It is just ludicrous & MUST be fixed.

          And this Texas fiasco makes my blood boil. Pro-life? I say BS! Why do white males believe they have the right to dictate to women how they should make an extremely difficult & personal decision. They care about forcing women to give birth against their will, but once the baby is born, will they care about providing for the child’s well-being? No! They will whinge about why so many mothers need government support to care for the child the mother knew she couldn’t afford in the first place!

          And the bounty angle is just pure evil. I can just imagine all the self-righteous idiots who claim to be ‘pro-life’ seeing this as their new job. $10k MINIMUM bounty with no limit on the upside. I am so disgusted and disheartened by the direction this country is heading.

  10. OldTulsaDude says:

    I thought Judge Wackner and the 9 3/4 Court were fictional but I guess now any law you don’t like can be ignored and you don’t even have to put up a Good Fight.

  11. Nord Dakota says:

    I thought the concept of legal standing meant something, but I have been told that only applies to federal courts. I know standing has prevented many civic-oriented actions from proceeding in federal courts, but even so the concept seems to me to be important.

    • DannyD says:

      That’s right along the same lines I was thinking…hoping some of the other law educated folks could chime in…

      1) Wouldn’t a third party resident lack standing to sue? How can this third party show that they’ve been personally *harmed* by the actions of an abortion provider or the recipient of abortion care?

      2) Let’s pretend that Texas courts *do* see that third parties (i.e. not the provider or recipient of care, or fetus) are harmed by abortion services. How are the courts going to estimate the value of the harm and make complainant “whole” again? By the level of personal distress the caller is subjected to? By some crazy “life value” calculation like the families of the 9/11 victims went through?

      What if the Texas courts just started blanket saying…”your complaint is true, but you’ve not been personally harmed, so award is $0″

      This kinda thing opens up some really crazy cans of worms!

  12. Jenny says:

    So in Texas will men have to pay child support 6 weeks after conception? How about medical expenses during pregnancy, labor and delivery, plus child support?

    Abortion is a safe, medical and legal procedure. Women are capable of making their own choices about their bodies. It is despicable in this day and age, that women’s rights are STILL being stomped on. It is appalling that lawmakers still think they have the right to tell women what they can and cannot do with their bodies and their lives.

    On the other hand, a vasectomy is a safe, medical, and legal procedure. Choosing to have a vasectomy is a form of birth control. HOWEVER, I have yet to hear hypocritical men opposing a vasectomy. I don’t see the religious right wing conservatives or anti-abortion advocates carry protest signs against men having vasectomies that say: swim sperm swim or sperm are people too and save the sperm.

    There is no bashing or revolting behavior towards men choosing to have a vasectomy. There are no protests against men and the choices they make for contraception. Why not? Why aren’t men criticized as women are for making legal reproductive choices? Is there a double standard? YES! Is this about control? YES!

    • Raven Eye says:

      Actually, I think that the State of Texas should provide full prenatal, postnatal, and infant support (medical, counseling, nutritional, consumables, etc.) to any woman and infant if the mother states that she had considered an abortion at any time during her pregnancy.

      That would ensure that the state follows up and takes responsibility for the outcome of the conditions it imposed upon mother and child.

      • TooLoose LeTruck says:

        In Texas?

        Good luck with that…

        What about pregnancies that are the result of rape?


        The mother’s too incapacitated to take care of a baby?

        Deformed fetus that can’t possibly survive after birth?

        What happens if there’s a miscarriage after 6 weeks?

        I haven’t read the law in detail but are any of these issues addressed?

        • Peterr says:

          All of them are ignored.

          There are no exceptions for rape or incest, and you can be sure that the line between a miscarriage (aka “spontaneous abortion”) and an induced abortion will be scrutinized in great detail, if/when actual cases start getting filed.

        • Rugger9 says:

          In CA we have a law about investigating miscarriages and stillbirths for drug involvement past a certain point. It was put in place basically during the crack epidemic phase of the drug wars to punish women for trying to kill their unborn children by street drugs. I had a relative who lost her much-desired child to a stillbirth and was subjected to the state’s nosing about to see if she really wasn’t trying to abort by other means. Very traumatic for her, and I see more of this kind of “slut shaming” creating emotional triggers all over the place.

          If the defendant prevails but cannot recover legal fees, exactly how is that remotely legal, never mind just? How are they supposed to redress a legitimate grievance? They would still be out their money without due process worth the name, and the plaintiffs would be able to waltz away for another shot later.

          I for one will be very interested to see how the panty-sniffers will react when some of their own get busted under this new law. That and the response from CA’s AG when Paxton demands we support TX here. Good luck with that.

          Alternatively, let’s say someone in CA gets hit with a TX lawsuit (perhaps even a mistaken identity issue, remember “Crosscheck” for voting?) and sues here. TX SB8 is not applicable here in CA.

        • TooLoose LeTruck says:

          All of them ignored?

          How convenient and simple…

          One size fits all…

          Who was the character from Greek mythology who had a bed, and if a traveler didn’t fit the bed, he just started cutting off body parts?

          Somehow that comes to mind…

    • Krisy Gosney says:

      I agree with the points you’re making. I want to add the thing that chills me to the bone- the databases that will be ‘inadvertently’ created of all the names and contact info of the women who are accused of seeking abortion information and maybe/maybe not having the abortion. I think of these databases being sold and/or shared with other radicals and likely violent/murderous radicals. I see names and addresses of women framed in crosshairs. I see women, their landlords and their bosses being harassed. I see Texas women of childbearing age living through some very scary days.

      • TooLoose LeTruck says:

        Uh… yeaah…

        And if our Republican overlords manage to regain a congressional majority and retake the WH, I’m confident we’ll be seeing this kind of ugliness at the federal level next…

      • Rugger9 says:

        That database will probably be riddled with “errors” like the Crosscheck one was (for voting “integrity”) or the no-fly list that had infants and Senator Ted Kennedy (as a “mistake”, of course…) or even the latest fraudit exercise in AZ. So even allowing for the fact that HIPAA protections would have to be breached (and one can sue for that) if one of the Taliban Posse goes off on the wrong person it appears TX says the posse can’t be sued for any reason.

        That’s why TX should be held liable for the actions of its agents.

        • Krisy Gosney says:

          I’m afraid it’s going to be Dr Tiller level harassment and violence aimed at women and others in their lives in TX. My god, men don’t understand the overall, generalized, low buzz fear women live with everyday already. This law is a license to terrorize.

    • Rugger9 says:

      Likewise the “male pill” that was supposedly being worked on. I’ve had a vasectomy at my wife’s request, and it was very interesting how many times the docs kept coming back to the “do you really want to do this?” question. It can be reversed or FWIW I’m sure a variant of IVF can be done if more kids are wanted.

  13. earlofhuntingdon says:

    The Supreme Court had no rational basis not to enjoin Texas SB 8, pending a decision on its merits – which will take years. The statute is glaringly, profoundly and proudly, unconstitutional.

    Yet, the Court’s arch-conservative Catholic majority’s justification for not enjoining SB 8 is that the appeal to overturn it, “is unlikely to prevail.” The only way it could reach that conclusion, given existing precedents, which bind the lower courts, is if it had prejudged the issue without further facts, briefing, or debate.

    This “decision” includes four dissents, one each by the Court’s three liberal members, in which each of the others join, and one by John Roberts. The latter I take to be a fig leaf to delude the credulous press and unsuspecting public into thinking the Court is not as radical as its current majority. Poppycock. It was a stage-managed dissent that posed no threat to the majority.

    Hidden behind its implausible claims of restraint, this majority does many things. First, it denies the right to an abortion – and a woman’s control over her own body – to the women in the second most populous state in the country. That fate awaits every other woman living in a state controlled by a Republican legislature. Second, it draws forward by several years the abortion rights issue – and puts it center stage – in anticipation of the 2022 and 2024 elections. Let chaos reign. Third, it distracts from other alarming fronts in the right’s culture war against democracy and America. Among those is the wholesale theft of voting rights, the lethal demonization of public health for partisan gain, and one-sided support for corporate interests over those of real people. Balls and strikes my ass.

    • Peterr says:

      I disagree as to the Roberts dissent.

      I think he is truly worried about how “the Roberts Court” will be viewed by history, and is even more worried about being marginalized by the five justices to his right. He’s trying to cover his tail, history-wise, and begging the right wing to let him be a chief justice.

      Right now, the shadow Chief is Thomas and the shadow docket is the primary vehicle for getting things done.

      • Ginevra diBenci says:

        Peterr, your argument about Roberts and earl’s are not mutually exclusive. He remains desperate to retain this court’s truly astonishing credibility with Democrats for as long as possible, and the increasing–and increasingly hardline–majority give him cover for dissents like this one.

        It’s the craven exploitation of the shadow docket to essentially reverse national policy without accountability that most stains his robe, IMO. If he had any real principles he would not allow this creeping in the dark.

    • earlofhuntingdon says:

      Content to rest in a prison of its own making, this Court’s majority concluded that Texas had presented it with an unprecedented procedural problem that it could not decide in the context of a motion for an injunction. The complexities could only be decided on the merits. It will take years before lower court rulings reach the Supreme Court. (No word on what judges, lawyers or spouses named Ginny might have helped devise that scheme. It certainly was not devised by SB 8’s nominal legislative author.)

      Handily, that decision allows Texas to impose for several years its proudly unconstitutional rules. When the Supreme next hears this case, Texas and the real authors behind this law will have the benefit of that experience in order to work round its most glaring deficiencies, in order to avoid an adverse decision on the merits. Not to mention, if the Dems refuse to enact court reform and lose the Senate in 2022 and the presidency in 2024, a Republican-led government will have increased the Court’s arch-conservative majority, and no papering over will be necessary.

      John Roberts and his peers are playing a long game. As it is for Ron DeSantis and his lethal mismanagement of Florida’s Covid pandemic, the lives of ordinary people are mere collateral damage.

  14. Raven Eye says:

    (I proposed this earlier on another thread and I thank bmaz for getting this one started…)

    I think we may be opening a CEO Branch of this situation.

    If I was CEO of a large Texas-based company, or of a large company with a significant workforce in Texas, today’s calendar would have a lot of corner office and HR time blocks. I already have a situation where the workforce is a little jittery and with the labor market being what it is, folks are already looking at their options. The past year and a half have been a great time for polishing resumes.

    I doubt that many CEOs would take on legislators directly in any public way, and if they had tried anything back-channel prior to the legislation being passed, it certainly didn’t do much good. But one of the questions for HR would be how to help the employees we have now, and how to recruit quality workers into Texas job sites – and what does our health plan cover.

    Even providing secure remote digital access to out-of-state counseling and other services would run afoul of this law. But maybe that’s the point. Set it up and make sure that employees know that the CEO authorized it (picture and signature on the flyer). And then sit back and see who has the guts to file one of those online complaints.

    My insurance company is USAA, headquartered in San Antonio. Today I need to send something to the CEO asking how the company is looking out for the members and the employees. I dumped them once when they were getting too political.

  15. Epicurus says:

    Amy Coney Barret previewed the future in her address to Notre Dame Law School graduates in 2006. “So what then, does it mean to be a different kind of lawyer? The implications of our Catholic mission for your legal education are many, and don’t worry—I’m not going to explore them all in this short speech. I’m just going to identify one way in which I hope that you, as graduates of Notre Dame, will fulfill the promise of being a different kind of lawyer. And that is this: that you will always keep in mind that your legal career is but a means to an end, and as Father Jenkins told you this morning, that end is building the kingdom of God. You know the same law, are charged with maintaining the same ethical standards, and will be entering the same kinds of legal jobs as your peers across the country. But if you can keep in mind that your fundamental purpose in life is not to be a lawyer, but to know, love, and serve God, you truly will be a different kind of lawyer. ”

    Your “legal career is but a means to an end…to know, love, and serve God” as “your fundamental purpose in life”. Seems her oath(s) of office were lies, that her Constitutional rulings are but a means to a non-Constitutional end. Sad days, indeed.

    • RMD says:

      Thank you for this telling detail. Noise coverage has a gnat-like depth of field when depicting current events.

      “When people show you who they are, believe them the first time.” ~Dr. Maya Angelou

  16. TooLoose LeTruck says:

    What happens when states like Texas/their citizen plaintiffs start trying to enforce their craven law as to conduct occurring in other states?

    I was wondering about this very point myself…

    It’s so very nice of Texas Republicans to not only be totally on board w/ effectively deputizing the entire state to help police women’s reproductive systems, but also giving individuals a financial incentive to do so….

  17. JohnForde says:

    From Roberts dissent, “federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.”
    So why cannot the court enjoin all citizens of Texas from enforcing this law?

    • timbo says:

      The problem is that there has been no time to figure that out in any officially documented detail within the Federal courts? What case or clause provides the best guiding light to make such an enjoinment against citizens suing each other within the state of Texas? That’s the problem before the court… in Roberts mind, if not others? Because all rights not reserved for the federal government devolve to the states or the people themselves, there must be an explicit federal interest identified that permits the court to intervene. Now, clearly, one could identify that there is a >societal< interest in not going down the rabbit hole that this new Texas state law is representative of…but a societal interest and a Federal jurisdictional standing to adjudicate are two different things.

  18. Tony el Tigre says:

    “A Republic, if you can keep it.”

    All good things come to an end. Honestly, I think Franklin would be surprised it lasted so long, although truth be told, even the good old days weren’t all that good.

    “Arrivederci America!”

  19. Anomalous Cowherd says:

    I am not a lawyer, so please bear with me.

    This cries out for a “reductio ad absurdum” rejoinder. Specifically, blue states passing nearly identical laws enabling their citizens to use the same methods, with the same protections, to go after any person or business that aids or abets crimes committed with a firearm. If the constitutional issues are confusing here with rights to privacy, etc., then they are similarly confusing with regard to the second amendment. Hoist them on their own petard and watch how quickly they backpedal.

    I don’t want to hear any “when they go low we go high” nonsense. This isn’t about doing things the right way; this is about giving them an object lesson in karma, the law of unintended consequences, and – importantly – raw power. Copy their damn law word-for-word so there’s no wedge point to separate ours from theirs. If the court ties itself in knots trying to distinguish the two that will serve to delegitimize their ruling.

    What am I missing here?

    • PieIsDamnGood says:

      The right wing justices do not care if they are exposed as hypocrites. Bullshit originalists views have contradicted each other for ever, think Scalia and states rights until it came to cannabis, and that hasn’t stopped them yet.

      Republican voters won’t care either, the ends justify the means. Plus this will all take 2-5 years to play out.

      • Anomalous Cowherd says:

        So the Supremes seriously believe that they can play Calvinball with constitutional issues and there will be no blowback? They think that everyone will just shrug their shoulders and say, “Oh, well – so it goes?”

        I suppose if you were a judge who had lived a coddled life you might end up believing some such nonsense. But anti-democratic laws which perpetuate minority rule have, in the past, been harbingers of popular uprisings. Let’s hope that in this instance a major expansion of the Supreme Court is the sole response.

        • Fred Fnord says:

          Pretty sure they can, actually. Barring getting every single Democrat in the Senate onboard to pack the court AND pass voting rights legislation before 2022 (or before the first Democratic Senator drops dead, whichever comes first, our only recourse will be violence, or a general strike. And Americans are as likely to manage a general strike as I am to fly to Acapulco without a vehicle.

    • dude says:

      I too, not a lawyer, and I too see this as the representative government abdicating its responsibility by delegating legal authority (at least for enforcement) to bounty hunters or deputies. At least bounty hunters have licenses. And if a private citizen files a suit against someone they allege is breaking a law ( and would it be civil or criminal ? ) , then I assume a lawyer files the suit–so where are the lawyers’ associations on this issue?

      • earlofhuntingdon says:

        Had Texas merely empowered its citizens to act as snitches on their fellow citizens, I might agree with the abdication characterization. It didn’t. It’s paying them to snitch, gives them an outsized window in which to do it, lavishly rewards them with attorneys fees if they win, and shields them from the reverse liability if they lose or act in bad faith. That’s playing an intentional and active part. It’s being King Rat. This is an unconstitutional scheme deliberately designed to avoid judicial oversight.

        • earlofhuntingdon says:

          Strangely enough, it appears to come, at least in part, from the defendant in the snitch lawsuit. The chaos and social divisiveness that will ensue will be of Twilight Zone proportions.

          The tools of conquest do not necessarily come with bombs and explosions and fallout. There are weapons that are simply thoughts, attitudes, prejudices…to be found only in the minds of men. For the record, prejudices can kill…and suspicion can destroy…and a thoughtless, frightened search for a scapegoat has a fallout all of its own—for the children and the children yet unborn. And the pity of it is that these things cannot be confined to the Twilight Zone.

        • Rugger9 says:

          Those items are what makes the Taliban Posse de facto TX agents if not full-blown employees, and we should be able to sue TX for unleashing them.

  20. The Old Redneck says:

    I am sure I’m in the minority here. But I really do believe Roberts is worried about the court’s credibility and legitimacy. He recognized that they’re not powerless to do anything about Texas’s end-run around state action when he said:

    Defendants argue that existing doctrines preclude judicial intervention, and they may be correct. But the consequences of approving the state action, both in this particular case and as a model for action in other areas, counsel at least preliminary judicial consideration before the program devised by the State takes effect.

    Strange indeed that he is the first one sounding the alarm on this, but that’s what we get with the current composition of the Court.

    • P J Evans says:

      He should have thought about that years ago, before he went along with destroying things like voting rights and other things that matter to the little people.

      • The Old Redneck says:

        That’s an interesting thought. He may have wanted a center-right court, and ended up with a monster he can’t control. It would be just like the Republican Party and its voting base.

    • PieIsDamnGood says:

      I believe Roberts is worried about his reputation and is providing PR cover for outcomes he agrees with.

  21. Rugger9 says:

    Once the state officially “deputizes” the American Taliban the state ought to be held liable for what they do, even more so considering that TX in this case is apparently offering bounties for prosecutions. I don’t see how that is any different than a contractor working for the state in terms of TX’s liability.

    The notes above regarding the slippery slope of what this kind of construct could be used for later are all valid, i.e. voting rights, etc. probably including nullification of federal laws or the birthright citizenship spelled out clearly in the text of the 14th Amendment.

    I also wonder how this is supposed to work for TX residents going to CA (for example) for services, because the action taking place in CA would not occur in TX. However, the “abetting” part of this means that any transport used (like, the airlines) would also be subject to legal panty-sniffing. HIPAA prevents release of patient records in almost all cases as a federal law, so exactly how would the Taliban Posse be able to get the information about whether a woman was pregnant if she chooses not to release it? I am aware of some of the red states that tried to force reporting. I am also looking forward to (for example) CA suing TX for interference in CA’s rights (because you know the Posse wouldn’t respect blue state laws).

    As I see it any concerned woman in TX ought to get a pregnancy test and if positive go to CA if needed before discussing it with any medical professional in TX (to avoid required reporting), which will take resources.

    The way this was done (no one in the majority wanted to sign this, what courage!) and the clearly intended result should spur Pelosi and Schumer to send a bill quickly to Biden for raising the court membership to 13 or even 15. The GQP and their Taliban allies have showed their hand.

    • P J Evans says:

      the Rs who voted for this will have female relatives take short vacays in NM or Colorado, or shopping trips to Chicago or NYC. Because it’s only for *those people*.

    • MissyDC says:

      Please stop using stop using rhetoric like “TexasTaliban” to describe what’s happening in Texas.

      Such references fuel hatred against Muslims and serve the purposes of the hateful right-wing evangelical Christians behind these horrific policies.

      • Rugger9 says:

        The Taliban in Afghanistan are selectively Muslim as our Dominionists are selectively Christian. Neither are representative of their respective faiths, but both are notoriously puritanical about their views (and ISIS-K thinks the Taliban are softies, go figure). However, it should also be noted that these groups are starting to interact since there are common goals for both. That’s the sense I’m using.

        I’m not a fan of TX Gilead, if for no other reason than this isn’t going to just stay in TX. I’ll go with Dominionist Posse instead for now, DomPosse for short.

        • bmaz says:

          FL is already working hard on it, and my understanding is AZ is not far behind. AZ would be incredibly sad, as at one time Planned Parenthood was very strong here.

  22. David Falkner says:

    my knowledge of the law is limited but it is reported in multiple outlets that there are no negative consequences for malicious filings under this law, if that is true it sounds like a wonderful opportunity to file suits against all kinds of folks in texas, wives and daughters of Republican legislators, conservative neighbors etc., etc use their weapon against them

    • BenFDC says:

      I was thinking along the same lines, except I was idly wondering what would happen if every Republican legislator in the state were sued individually under this statute in every jurisdiction in the state.

      And we wouldn’t want to leave out Governor Abbott. Or, for that matter, every activist in the Lone Star State who was advocating for this monstrosity.

        • DrFunguy says:

          Intending to aid or abet an abortion?
          I’m not sure what it takes to reasonably allege someones intention. But, as many have observed today, the potential for chaos seems to be a feature, not a bug of the law.
          Since there is no penalty for a false claim, what does one have to lose?
          I’m only being somewhat facetious. If, god forbid, I lived in TX, I’d be sorely tempted.

        • pdaly says:

          If there is no penalty for potential false claims, I agree. Why not sue all the Republican legislators ?!

          Let chaos reign, let it rain down on Republicans first.

  23. Brent Wiggans says:

    This model of law and enforcement, if allowed to stand, invites legal chaos and the rule of tort. It would inevitably be applied to any area of law in which it might be thought to give advantage. Civil order could be overwhelmed by masses of litigation. There are inexhaustible sources of money available to bring these actions from interested and motivated persons and organizations. If the conservative majority on the Court is content to countenance this maneuver to avoid judicial review they may eventually find they were too clever by half. What will be the basis for a court hearing complaints against a blue state that passes similarly structured legislation that makes abetting the acquisition of a gun an actionable tort if it makes no direct attack on the constitutional right to have a gun. The creation of just such a case might concentrate the minds of the Court’s majority wonderfully. Goose, meet Gander.

  24. WilliamOckham says:

    Texan here. First, unless you’ve actually read the law, you have no idea how nutty it really is. It purports to command the courts in all sorts of weird ways about severability, preclusion, awarding of attorneys fees, etc. It also purports that if this statute is found to be unconstitutional and then the SC overrules Roe v. Wade or Planned Parenthood v Casey, you can still go back and sue under this statute for up to four years.

    The most interesting part of this is that the law makes no mention of where the abortion occurs. So, if you help a woman in Texas leave the state to get an abortion, you could be sued under this law and a court in Texas could find you liable.

    • bmaz says:

      Your second paragraph is one of my concerns. I think it is purposefully vague so that somebody can try this. I do not think there is jurisdiction if the overt act, i.e. the abortion, is not in the jurisdiction of Texas, but I do expect it to be tried. But suppose woman gets on a plane to AZ for her abortion, who can be sued? Southwest Airlines? Good luck with that.

      • Rugger9 says:

        Isn’t that the definition of “unconstitutionally vague”? It also opens up a can of worms because if someone goes to CA and CA decides to point out in court that abortion is legal here, how does TX have any jurisdiction? Remember that was tried by the seditionists where (IIRC) TX AG Paxton tried and failed to invalidate the votes in WI, PA, AZ and GA on the theory that those voters “disenfranchised” TX voters.

      • WilliamOckham says:

        It was intentional. They also put this in:

        knowingly engages in conduct that aids or abets
        the performance or inducement of an abortion, including paying for
        or reimbursing the costs of an abortion through insurance or

        The thing is, offering insurance that covers abortion is already illegal in Texas. So, I’m expecting to see a lawsuit against a company headquartered in Texas that has operations in California or New York (where insurance plans are required to cover abortions).

    • BobCon says:

      Facebook should be terrified.

      They’re being put in the untenable position of needing to shut down any advice related to abortion, while also not shutting down any right wing opinions.

      I think the GOP endgame is essentially having Facebook become a rightwing echo chamber, but I think even Zuckerberg knows that’s not commercially viable.

    • Rugger9 says:

      Perhaps I’m being too clever by half, but how is it possible that the “equal protection of the laws” standard from the 14th Amendment fits a case where plaintiffs aren’t held accountable for their abuses under this system? The defense gets a cost that the plaintiffs never will see.

  25. Rugger9 says:

    OT, I see Candace Owens is pitching a fit because the PRIVATELY OWNED lab she called refuses to give her a COVID-19 test because of her prior statements (of course, she claims racism…). Lots of karma citations on the internet, but I have no doubt Owens wanted a PRIVATE lab to check so she wouldn’t have to explain a positive test after all of the stuff she’s said. Any private business can set its own policies, such as for baking a cake and can serve whoever they want as long as they get no federal / state money.

    Go to the county, they’ll help.

    • P J Evans says:

      She could get the vaccine, then she’d have less reason for testing.
      I suspect she did it for the media attention.

      • Rugger9 says:

        It’s not like she cares about the result anyway, nor will it change anything she does. It reminds me of Milo Y before he fell out of favor, when he tried to speak at Berkeley and the university wanted him to cover the cost of police OT.

  26. Callender says:

    One part of the decision gave me pause: “Nor is it clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law. See Ex parte Young, 209 U. S. 123, 163 (1908) ”

    I’m no lawyer but wondered if this wasn’t exactly what the Bush v Gore decision did? Wasn’t Bush/Gorre “an injunction against state judges asked to decide a lawsuit under” state law, in this case of course the FL supreme court? I was always struck by the “this isn’t a precedent” nature of Bush/Gore. I always wondered when this lack of precedent could bite us in the ass. Has the serpent now struck?

    To be honest it’s still, all these years later, such a sore subject with me I knew it would depress me too much to research it myself. So to the lawyers here – (BMAZ – help me) disabuse me of the notion that this decision is another dystopian aspect of nightmare we’re living in, namely that the court today could conveniently use the “non precedent” nature of the Bush/Gore decision to avoid having it as a vexatious precedent today. Put another way, would Bush/Gore somehow have been a precedent now but isn’t because it was a “one off” decision?

    All of you here deserve thanks for keeping up the good work. I appreciate is a lot. Particularly you, Marcy! And the comments are always very interesting.

    • P J Evans says:

      I’ve seen comments elseweb that CEOs are going to have to figure out how to deal with this. Not just female employees. but married employees, because abortion is a safe *and officially legal* medical procedure, often used when the fetus has died or is non-viable. (Unless the TX GOP wants to be sued for women who die because they can’t get a medically needed abortion.)

  27. harpie says:

    From appellate lawyer in the Fifth Circuit, Raffi Melkonian:
    11:24 AM · Sep 2, 2021

    I wanted to note something about Texas SB8 that’s been my hobbyhorse since this law was proposed […]
    So it creates this cause of action for
    1] doing the abortion and
    2] aiding and abetting the abortion. […] You can be sued if you
    3] *intend to* (but have not) aided or abetted the abortion.

    That’s *bananas* when applied to constitutional rights.

    I think Sotomayor brought that up in her dissent:

    Courts are required to enjoin the defendant from engaging in these actions in the future and to award the private-citizen plaintiff at least $10,000 in “statutory damages” for each forbidden abortion performed or aided by the defendant.

    • harpie says:

      About that italicized part…does that mean
      “statutory damages” to the Texas Taliban empowered Menstruation Vigilantes?

      How would they be “damaged” by someone aiding someone else to exercise their CONSTIUTIONAL RIGHTS?

      • earlofhuntingdon says:

        Good question. There’s no factual connection between the statute’s damage provision and the supposed harm for which the damage is compensation. (Is it taxable income to the recipient, I wonder.)

        I’m also surprised at the hook the majority chose to rely on: its claim that it is not federal courts could enjoin a private citizen’s right of action under state law. For one thing, that position assumes that the statute is constitutionally valid and that the courts would be enjoining only specific abuses. That’s preposterous.

        But really, the majority didn’t try to defend its position. It just took it, overriding half a century of conflicting precedent – as Adam Serwer writes, because it wanted to, because it could, and because fuck you.

        • earlofhuntingdon says:

          As I see it, it’s not the collective citizenry that has a right, but a multitude of individual citizens, each of whom has rights separate and apart from every other citizen. Naturally, the rights of those they might sue are irrelevant to this Texas legislature.

        • earlofhuntingdon says:

          It could only make sense in the atomistic, there is no society world Margaret Thatcher tried to invent. But no one lives there, certainly not the extremely socially and politically well-organized world of the hard right, which thrives on disciplined, propagandized collective uniformity.

        • YancyFaith says:

          Jay Sekulow’s son, Josh or Jordan, something like that, runs an anti-abortion org with his wife Texas. Financed by Daddy’s money, from what I understand.

        • earlofhuntingdon says:

          More to your point, is there harm, what is it, who is injured by it, and what’s the connection between the injury and the state action designed to address it (through this novel private right of action scheme)?

          The statute avoids those questions, substituting instead implicit assumptions, presumably because anything it might articulate would be immediately seen as obviously constitutionally improper.

        • earlofhuntingdon says:

          Those are issues to be dealt with on the merits. But their weight and the scope of potential harm from this statute is so great, a normal Court would have enjoined it until after it considered those merits. And because on its face, this statute creates irreversible adverse outcomes that flagrantly conflict with those intended by established law.

  28. Hoping4Better_Times says:

    I am old enough to remember what happened before Roe v. Wade. Desperate women who were poor or young died either at the hands of a back-alley abortionist or trying to self-abort with a wire coat hanger. The Texas law does nothing to help a woman during her pregnancy or to support that child for the next 18 years. Poor women, especially women of color will be punished by this law while affluent women simply leave Texas for a few days to get a safe, medical abortion.

    • BobCon says:

      I think it’s actually more insidious than a simple rich-poor divide. I think it is aimed at enabling ad hoc attacks at anyone poor or rich who crosses lines set by the Texas right.

      If CVS fills prescriptions for birth control pills, they run the risk of being accused of being accomplices to abortions. That doesn’t mean they will necessarily be driven out of the market, but it gives the Texas GOP the leverage to extract concessions from them down the line.

      If a wealthy liberal woman says anything that crosses whatever line is created, what are the odds she will be the victim of uneven enforcement of the law? There is no reason to think there won’t be all kinds of double standards in the way right wingers are left alone.

      That’s not to minimize the certainty that the law will be especially harsh on poor women and women of color. It absolutely will be a nightmare that way. But it’s looking to be like the way Jim Crow was not simply a tool for racist domination, but a tool for ideological domination as well.

    • P J Evans says:

      Texas has been doing as little as possible to provide that kind of support for at least 30 years. Nor have they really cared, in that timespan, about educating kids. They’d rather use subsidies to try and attract companies, whose employees then discover they’re moving to a state that’s only modern on the surface, in a few of the largest cities.

  29. Epicurus says:

    I am probably wrong but to sue someone as an abettor seems to mean the suing party knows that a specific person received an abortion. A lawsuit would require, I assume, public disclosure of the party that received the abortion. Otherwise how could anyone prove anyone else was an abettor? I am not sure how abortions fare under HIPAA but I would think it a clear violation to disclose such individual information as would happen in a lawsuit. I think HIPAA violations fall under HHS which allows the federal government then to go after all such HIPAA violations.

    • bmaz says:

      Yeah, that is a very fair question, and I have no idea. All of these fair questions makes it even more astounding that SCOTUS just blithely left this las fly.

  30. Raven Eye says:


    If we drove around Texas over the next few days, how many times might we come across women and men carrying signs saying:

    “NO VAX!”
    “My Body, My Choice”

    And how many Texas ass-hat legislators would be offering up real or virtual High Fives?

  31. PhoneInducedPinkEye says:

    There’s already a crowd of angry incels and misogynists on 4chan who maintain databases of sex workers on onlyfans and try to ruin their lives through doxxing, reporting them to the IRS, etc.

    What’s going to happen when that level of hatred is turned towards women in Texas seeking an abortion? There are going to be truly despicable actors getting involved in this.

    Call your reps, tell them they need to stop pussyfooting around and apply pressure upwards to use the power we gave them.

  32. David Falkner says:

    heard and interesting point today by a neonatal cardiologist. Her understanding of the statute was that it requires the presence of a ‘fetal heartbeat”. she stated that the heartbeat is created by the opening and the closing of the valves and at 6 weeks there fetal circulatory system is not developed to the point of having a function heart, that in fact the so called “fetal heartbeat is merely an electrical impulse.

    • earlofhuntingdon says:

      Precisely. As I understand it, at six weeks, there is no functioning heart, any more than there is a viable organism. The anti crowd has simply picked the most wrenching association it can find in order to spew its misogynistic and racist propaganda.

      • P J Evans says:

        Like their pictures of a smiling baby, while talking about pre-20-week fetuses. (It isn’t even a fetus until 8 weeks of gestation.)

      • RMD says:

        the 6 week period the law refers to as “pregnancy” includes the 2 weeks after the last menstrual cycle….The woman isn’t even pregnant in weeks 1 & 2.
        Conception occurs in week 3.
        The embryo at that point..not even referred to as a “fetus” is only 4 weeks old by week 6 measuring barely 1/2 inch.
        The heart doesn’t exist. Tissue that later on develops into the heart muscle is all that exists …and the much-referenced “heart beat” is…at best…an electrical impulse that can only be detected by sensitive medical equipment.
        Most women have no awareness at that time that their menstrual cycle has changed at 6 weeks.

  33. timbo says:

    I’ve heard not a few folks talking about using this sort of logic to go after those who possess guns by formulating similar laws that enable private law suits that are protected in similar ways to this novel Texas anti-abortion (really an anti-women) inspired law. I’m curious what other area of social concern might be targetted by a similarly constructed law in other states.

    That is, can a state make a law that empowers individuals to sue in a similarly protected class manner to further that state’s interest in clean environment, anti-polluting measures?

    What about enacting laws that encourage suing individuals and corporations, etc, that help enforce the Texas law in Texas but happen to do it from the state that might enact a ban on helping enforce the Texas law?

    And how about abridgement of civil rights? Can a state pass a law that protects citizens that file lawsuits alledging damages of their individual civil rights in a similar manner as this Texas law?

  34. harpie says:

    Jill Filipovic:
    3:55 AM · Sep 2, 2021

    The Texas abortion bounty law harkens back to some of the worst eras of authoritarianism and paranoia in modern history: the Stasi, China’s cultural revolution and Soviet Russia. But most acutely, it harkens back to Ceauşescu’s “pro-life” Romania.

    Ceauşescu banned abortion and contraception, and engaged a broad network of secret police who, like Texas’s lawmakers, also relied on civilian informants to snitch on women who ended pregnancies or sought to prevent them. […] [THREAD]

    [He was the leader of communist Romania from 1965 until he was overthrown and killed in a revolution in 1989.]

  35. biff murphy says:

    Good to know you can carry a gun w/o a permit in TX, and inform on your neighbor for planning an abortion for reward, but if your were raped you have no recourse.
    Didn’t every one of these SCJ’s swear that they wouldn’t overturn established laws in confirmation hearings.
    I seem to remember these questions.

  36. Bay State Librul says:

    Per Charlie Pierce and Chris Hayes — The law is a “Three-card Monte”

    Do the hustle — it’s a con, the game is fixed, a cheating, manipulating case in legal trickery.
    Conclusion: Have Texas secede from the fucking union.

    • P J Evans says:

      Declare them a failed state, and boot them back to territorial status? (It would be easier than trying to re-route everything around the new border.)

  37. Tom says:

    Unless I’m mistaken in the scope of this new Texas law, it would seem to declare open season on all women of child-bearing age in the Loonie Star State. What’s to stop creepy guys from hanging around doctors’ offices, medical clinics, hospital waiting rooms, drug stores, beauty parlors, nail salons, college campuses, high schools etc. on the grounds that they’re only carrying out their civic duty by watching out for women who might be intending to have an abortion and their aiders and abettors? Maybe the idea is to make women reluctant to go out in public unless they have a male relative along with them. And maybe these women should cover themselves up more, say, with some sort of head-to-toe black garment.

    • P J Evans says:

      Doesn’t even need to be a black garment. (I’m thinking “patriotic” burkas with flag-color stripes and patterns. Great for protests, too: not much identifying information if there are lots of people and few fabric designs.)

  38. mospeck says:

    small l lib who hates abortion, but agree w women who have to carry the kid. Biophysics-wise Roe v Wade is just a creature from a faraway long time ago. Right now we can stop a human from ever getting forged. 100 M sperm to 1 egg and then so many diff ways for the code sequences to get set (like 10 to the 75 power or some such different variations). But the physics remains clear that once the code sequences get set about an hour after conception that the growth program then kicks in and we get made. Conception just seems like just a natural demarcation line

    • earlofhuntingdon says:

      “We get made.” A lot to unpack there. “Conception is a natural demarcation line” for what exactly: logic, the law, social policy? And for whom: white male misogynists?

      Missing from your passive-voiced logic, for example, is what lies between the DNA recipe and and a viable organism. Life is not a creationist’s graphic novel. To say that once the recipe’s been written and the parts are in the pan, we’re done, “we get made,” leaves out unspoken ingredients: Women’s health and women’s lives, and all the social policies and choices that empower or destroy them.

    • vvv says:

      “Right now we can stop a human from ever getting forged.” All the other stuff you said and I vehemently disagree with aside, (“an hour after conception” – really?) this statement fails to acknowledge the actual and practical ability to make that choice. That’s why the f*ckwads chose 6 weeks, even as they have and continue to try to shutdown sex education and access to contraception, Planned Parenthood, clinics, debate and moral and pragmatic and legal recourse.

      If you think that defines your so-called “small l liberalism”, I think you do not understand liberalism, whatever size the “l”.

      Right now we can fly to the moon – I really wish these racist, misogynistic power-tripping authoritarians would, and stay there.

      • mospeck says:

        Until the code sequences get set a person is just a potentiality. Strange and beautiful–and a rather brutal fact–but it’s the way the world works. After that the growth program, implantation and Mom’s support, kicks in. And then she has all the responsibility. Why do XX have to carry this enormous karmic burden? It’s 2021 and modern sci and lawyers should be able to take them off the hook. Last time I checked, XY (the ones with the stupid gene as my wife refers to them) love sex. And we’re not going to be able to stop those bastards, but we should be able to figure out how to go around stupid politics and get this one right.

        • Eureka says:

          Jesus Christ. “and Mom’s support” — like an afterthought, besides being conveniently and diminishingly false. I am so sick of these bullshit embryology hot takes (go look up what oocyte cytoplasm is and does while you’re at it. Genomic imprinting is a related keyphrase to try on).

          While I appreciate too some of the folks speaking to these issues, the “bun in the oven” analogy and all of its machine-like variants (like women are freaking crockpots) are devoid of her life and agency, her primacy, her body, her experience, what her grandmother experienced (if you’re truly interested in the biology of what makes life, or you “you”) and so forth. Life isn’t some magical junction of haploid DNAs and well the rest is ‘mere’ machine support. If that were the case then it wouldn’t matter to have a woman “host”, now would it? So please stop facilizing that way.

          “Until the code sequences get set” AND A WHOLE LOT MORE YOU”RE SKIPPING “a person is just a potentiality.” — come on, man. But maybe that’s why you believe that “modern sci” can “take them off the hook”? Bask in the glow of some petri dishes, I suppose. But to take your point to its logical conclusion, we might just implant those “code sequences” into any mammalian organism, right (whoops — still not past the whole “female” problem, nor the usurious one)? What does that say about human life.

          You’re engaging in fantasy to let yourself believe that you can be both “liberal” and view women this way. SciFi won’t be coming to the rescue here.

    • P J Evans says:

      It’s more like a couple of days. Because that’s how long it takes for the egg to implant and start Doing Things.
      And physical gender takes longer than that. Hearts? maybe they start existing at about 8 weeks.

    • Krisy Gosney says:

      Oh my god. No. In the real life of trying to make a baby, just no. My wife and I just spent 7 years trying many ways to make a baby. I wish it was so ‘1-2-3 and there you go.’ Would have saved us so much time, money and heart ache. So many people who have opinions, even ‘scientific’ ones, really don’t know the reality. We are not dealing with machine parts here, we are dealing with living, changing things in a living, changing environment which are themselves in living, changing environments with each living thing and each environment having its own history, health and pressures. Sigh.

      • P J Evans says:

        I know a couple who kept trying. She got tested, and everything looked normal, but no go. (I don’t think anyone considered, back then, that the problem might be with him. That was in the 70s.)
        And then there’s my parents, who seemed to be successful too often. (Four pregnancies in less than four years. One miscarriage, three kids. My father got a vasectomy, because he had enough.)

  39. earlofhuntingdon says:

    Surprise, surprise, surprise: “Republicans in six states rush to mimic Texas anti-abortion law. North Dakota, South Dakota, Mississippi, Indiana, Arkansas and Florida eye similar measures to new Texas ban after six weeks.”

    Florida is by far the most populous and electorally significant, followed by Indiana. All of those states have poor educational and public health standards. This imperils the lives of millions more women and people of color. At least two of the governors of those states want to be the next Republican president. This will become the principal GOP/Faux Noise shouting point in 2022. Control of the House and Senate might hinge on it.

    • vvv says:

      My son bought a house and moved to Indiana last year – it’s all I can do not to tell him what I think of his new domicile state.

      Perhaps he knows because I refuse to visit? (His cats, which I am allergic to, don’t increase the odds, and have served as an excuse in explanation to others.)

  40. Alan Charbonneau says:

    I don’t get how some random person can have standing in an abortion case, but IANAL

    It seems that harassment lawsuits are encouraged as there is no downside.
    I wonder if the law would allow someone to file a lawsuit alleging some Kraken-like claims without evidence. If someone “thought” someone else was more than six weeks pregnant, they could sue to harass them. Or if they needed evidence, a Sidney Powell-style affidavit would suffice.

    But if that’s the case, the law may backfire by activists abusing it in reverse. Like, say, someone files a lawsuit based on an affidavit that Greg Abbott provided Information to an underage teen girl on how to get an abortion and that Dan Patrick drove her to the abortion clinic. Of there is an “anything goes” mentality, then we may very well see it.

      • Alan Charbonneau says:

        Well, godaddy is kicking them offline for violation TOS sec 5.2 harvesting private info w/o consent. Will they find a new home? Did Parler?

        Yes, the affidavit would be perjurious, but I imagine there will lawsuits filed on people to get at people they don’t like (think Salem with trials). I can imagine false lawsuits filed by MAGAs against some known, gasp, liberal, and I can see people on the other side doing the reverse. It sounds like a recipe for a miserable society. I remember in the movie “Brazil”, there was a sign that read “Suspicion Breeds Confidence”.
        We are headed there.

    • bmaz says:

      No. If the law is taken to its extreme, that too would be aiding and abetting. I think this is a swell statement, but will never be made good on.

      • Eureka says:

        Agreed but this goes to the discussion Raven Eye & you were having (on the other page, and RE above) about large orgs taking shots like this. Whether it’s pure PR or not, we may find out…

        Adding (because why not, we are in crazy land) the thought comes to mind that then Uber or Lyft could sue for interfering in their business, or something (at any rate it strikes me that this will get to SCOTUS through some backdoor).

        • Raven Eye says:

          A story titled “Big firms with Texas ties silent so far on strict abortion ban” was on my WaPo Kindle feed for today, but I couldn’t seem to find it online using the Post’s search. The story is by Todd C. Frankel and Jena McGregor, dated Sept. 4. I did manage to find in on Yahoo Sports (?!?!):

          I think the gist of the story is that this bill caught the big companies on their collective back feet. They know that any policies linked to abortion are lightning rods, but they have the real world problem of maintaining a quality work force. There are so many companies with such a range of broad product/service lines that boycotts might be ineffective. The wrong move at the C level could subject a company to nasty protests at their facilities and all kinds of other shenanigans. But they also know that their shareholders represent a variety of interests and while consumers may not be able to find comparable products/services, investors have a different type of shopping list.

          I’m guessing that the Big Kids aren’t having such a wonderful Labor Day weekend.

  41. skua says:

    To an outsider who watches from afar the SCOTUS decision looks like that of a rugby referee who thinks that they’ve made serious mistakes that have favoured Side A and now are ignoring fouls by Side B to try and even things up for Side B supporters.

    The loyalty of conservative judges Rob., Thom., Kav., etc, to the RW been questioned lately?
    If yes then I think they got some stick for their display of disloyalty.

    • timbo says:

      Well, that’s something anyways. This is going to become more of a mess before it gets better… thanks to those fools on the US Supreme Court being unwilling to stop turmoil in our state legal systems beforehand.

  42. Eureka says:

    OT pleasant news —

    Appreciators and donors of chef Jose Andres’ World Central Kitchen may also be interested; they alerted the need for and paid for these meals:

    How a crew of Philly restaurants and volunteers came together to feed Afghan evacuees at the Philadelphia airport

    An 8 p.m. message set a network of volunteers in motion. “It’s the only group text I’ve ever been in that I haven’t hated,” said one of the organizers of the frenzied effort to feed Afghan families.
    by Jenn Ladd
    Published Sep 2, 2021

    Prior, local Afghans* were cooking and translating as part of a vetted volunteer network greeting arrivals. The airport pass-thru process has since been sped up but for this occasion where folks were stranded overnight, and hungry.

    There was a great interview of a young woman born here whose father encouraged her to learn Pashto because she “might need it someday” — “Well today and yesterday are those days,” she said last weekend.

    • Jenny says:

      Excellent! Good news. Helping each other with compassion and kindness creates good vibrations. And our world could use more good vibrations.

        • Raven Eye says:

          Not a bad idea, though it might take a while.

          Meanwhile, as I mentioned on another thread, Biden can award the Presidential Medal of Freedom just to get things rolling. Trump did everything he could to soil the reputation of that award and it would be good to get the concept back on track.

  43. earllofhuntingdon says:

    “Texas stands for a right to life that begins at conception and ends at birth.”

    People are foils in the Texas plutocratic hierarchy’s war on everyone but themselves. To wit: Texas schools have 50,000 confirmed cases of Covid among their students. It leads the nation in child deaths, 59 as of September 3rd. But Greg Abbott still thinks he’s winning at the Alamo.

    • bmaz says:

      Just so everybody knows who Nicholas Wallace is, he is the Stanford Law student that FedSoc tried to fuck over. He extremely admirably fought back, with the aid of FIRE and Adam Steinbaugh, who has long been a friend to me and this blog. Not everybody has spare change, but for those that do, FIRE does some outstanding and important First Amendment work.

      • harpie says:

        Oh! This is pretty funny!

        I’m trying to figure out a decent substitute for FedSoc’s name…one that will be succinct, but more descriptive of what they really do. Any ideas?

        … maybe just The Radicalist Society …

        • harpie says:

          I tried to think of something appropriate [and with the same number of syllables] to kind of rhyme with “society”… Here’s a possibility:

          B-factory : a particle accelerator designed to produce B mesons

          B meson: any of a class of short-lived mesons that are thought to be a combination of one bottom antiquark and either an up, down, or strange quark

          NOTE: B mesons are primarily useful for theoretical purposes, such as verifying proposed models that explain the natural laws of the universe.

          >>> The Radicalist B-factory [?] [eh…not great.]
          I’m curious what our resident wordwmiths might come up with.

        • Stephen Calhoun says:

          imo. The Federalist Society is getting close to being up against the intersection of fascist methods and something like a post-Constitutional order.

          If the fundamental state’s rights argument for managing elections today holds that majority GQP power in the legislatures makes it possible for Gerrymandered GQP states to overturn elections, then courts will decide if this is legal.

          It seems to me the core idea here is that ‘this doesn’t break the law,’ or doesn’t reach the law’s breaking point. Courts will affirm that overthrowing elections is possible ‘under the (new) law.’

          The ‘Federalist’ hope is that our Constitutional order would be able to flex to protect a fascist order and a permanent tyranny of the minority. They just can’t say this out loud. . .yet.

          (Anyway, it seems the Fascist Society is apt.)

        • bmaz says:

          This is absolute bunk. As odious as the FedSoc truly is, they have done this openly, notoriously and within the lines. While Dems, suddenly realizing what the fuck has been going on forever, realize what pathetic fucks they have been on judicial policy. Please do not insult people that have been pointing this out from the start.

  44. harpie says:

    1:27 PM · Sep 5, 2021

    How divisive have #SCOTUS’s “shadow docket” rulings become?
    Recent totals re: applications for stays/injunctions provoking 3+ public dissents: [THREAD]

    Chart consolidated from Vladeck’s tweets:

    OT2014: 10 (6 re: MO executions)
    OT2015: 8 (5 re: Clean Power Plan)
    OT2016: 8
    OT2017: 5
    [Kavanaugh replaces Kennedy]
    OT2018: 11
    OT2019: 14
    [Barrett replaces Ginsberg]
    OT2020: 29 (and counting)

    • harpie says:
      11:57 PM · Sep 3, 2021

      During its current Term (which ends on 10/3), #SCOTUS has handed down 68 orders (on its “shadow docket”) from which at least one Justice publicly dissented. In *none* of those dissents has a Justice to the right of the Chief Justice joined a Justice to his left. That’s stunning.
      It’s not the number of orders with public dissents that’s staggering; it’s the ideological homogeneity of the dissents. We regularly see “merits” cases that produce cross-ideological dissents. That’s completely absent here, reinforcing just how divisive these orders have become.

  45. harpie says:

    Four people I was reading when the SB8 decision was released:
    [Times are Eastern]

    September 2, 2021
    12:04 AM After an agonizing wait, we have an agonizing decision. Five to four, the Supreme Court green lights Texas’s six week abortion ban—which flagrantly violates Roe v Wade—without so much as holding an argument. – nycsouthpaw

    12:14 AM 5-4, Texas gets away with it. There is no federal right to abortion, it can be swept away by States through procedural chicanery creating a $10,000 letter of marque against everyone connected to an abortion. – Max Kennerly

    12:51 AM Democracy is in deep deep trouble. – Ted Boutrous

    12:55 AM Put another way, this was all an obvious ploy to frustrate Roe without anyone having to actually vote to overrule it.

    The Justices in the majority *know that* this was such a ploy;
    they know that it is widely understood to be such a ploy, and
    they chose to reward it *anyway.*
    – Steve Vladeck

  46. Anne says:

    Hey lawyers, please comment on malicious use of this law.
    Let’s say I live in TX and have to go on a business trip to CA. If somebody wants to hassle me or my employer for whatever reason, they can sue my employer and/or husband under this law and we have to hire a lawyer etc. Or maybe it’s mistaken identity.
    Do they have to prove I had an abortion? Do they have to prove I was pregnant? Do I have to prove I wasn’t pregnant? The only way to prove I didn’t abort is to actually be pregnant, right? Even if I’m pregnant they can claim I was thinking about it, right?

  47. Sonso says:

    I would say that both your and Calhoun’s comment can be true at the same time. Perhaps we can agree that Hillary Clinton was right: there IS a vast right-wing conspiracy.

  48. Savage Librarian says:

    In the article cited below, Jennifer Rubin suggests some laws that might help stop the Texas anti-choice law. They sound interesting. Any thoughts from the lawyers here?

    Section 1983 of Title 42 in the U.S. Code

    1988, West v. Atkins

    HIPAA laws, the Health Insurance Portability and Accountability Act

    Fifth Amendment

    “Conservative outlines national laws that should nullify the Texas vigilante abortion law” – 9/5/21

    • harpie says:

      “While the Justice Department urgently explores all options to challenge Texas SB8 in order to protect the constitutional rights of women and other persons, including access to an abortion, we will continue to protect those seeking to obtain or provide reproductive health services pursuant to our criminal and civil enforcement of the FACE Act, 18 U.S.C. § 248. […]

      The department has consistently obtained criminal and civil remedies for violations of the FACE Act since it was signed into law in 1994, and it will continue to do so now. […]

      “We will not tolerate violence against those seeking to obtain or provide reproductive health services, physical obstruction or property damage in violation of the FACE Act.” […]

    • harpie says:

      About the FACE Act, via nycsouthpaw:
      1:31 PM · Sep 6, 2021

      This Merrick Garland statement about using the FACE Act — which makes it a crime to interfere with access to abortion clinics — made me wonder how that bill was ever passed.

      In 1994, SIXTEEN Republicans voted for it, including Mitch McConnell!

      1994! Mitch McConnell! [screenshots]

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