Texas bans abortion.

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Another point. The law does not seem to define "abortion" but uses that word freely as though it applies only to pregnancy. However the word has a wider meaning. It is the act of aborting some process, not just pregnancy.

For example, a manned rocket launch may be aborted. A planned advertising program may be aborted. A run of test software may be aborted. And so on.

Are all these abortions also subject to this law?
 
Skeptic Ginger said:
First let me point out the relevant wording of the law:

Bill Title: Relating to abortion, including abortions after detection of an unborn child's heartbeat; authorizing a private civil right of action.
That's an ignorant flaw right there.
Heartbeat, not cell beat​

That's what they get for trying to practice medicine without a license.


When does a heartbeat actually start?



The heartbeat requires the formation of the heart valves. Before that it is essentially cell beats.
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I have actually read the text of the law, hence my question. There are PLENTY of both legal and medical failures and plain ignorance contained in it.

And the answer to my question seems to be that a genuine fetal heartbeat is not present until at least three months pregnant, after the circulatory system starts to develop. Three months is also pretty late for most abortions.

So if "fetal heartbeat" specifically is the law's test of viability and limit of when the abortion ban starts then they have not really achieved their aim. Their ignorance shows. Not just practicing medicine without a license, practicing law without writing comprehension.
 
Norman Alexander said:
I have actually read the text of the law, hence my question. There are PLENTY of both legal and medical failures and plain ignorance contained in it.

And the answer to my question seems to be that a genuine fetal heartbeat is not present until at least three months pregnant, after the circulatory system starts to develop. Three months is also pretty late for most abortions.

So if "fetal heartbeat" specifically is the law's test of viability and limit of when the abortion ban starts then they have not really achieved their aim. Their ignorance shows. Not just practicing medicine without a license, practicing law without writing comprehension.
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They did not fail in terms of writing the law. The law gives a specific definition of the meaning of "fetal heartbeat" to be used within the context of the law. It is not unusual for laws to have definitions for words and phrases that are different from general usage. In fact, that's really the reason for putting the definitions in the law in the first place. It appears to me that this law is very good in terms of writing comprehension. I think some people have been working on this for a very long time.

The potential problem I see is what Stacyhs pointed out. The law makes these medical claims as justification for a compelling government interest.

The law is putting up as many hurdles as possible. Anyone can bring this civil action even if they are not a party and suffered no damages. Only the U.S. Supreme Court can determine which Constitutional arguments a court may allow, which isn't really a thing. By some strange bizarro twist this is civil action, not government action. And so on.

But they also have that bit about compelling government interest. In Roe V. Wade the Supreme Court ruled that a woman has a right to an abortion under the Constitution (14th and/or 9th Amendments). Government can make laws that violate Conditional rights if there is a compelling government interest.

The fact that the law specifically addresses an argument for a compelling government interest belies their other hurdles of rubbish. They wouldn't put that in unless they knew that this is really a question of whether the government can override a Connotational right, and those circumstances were already addressed in Roe V. Wade.

They also put in the medical reasons justifying the compelling government interest. If those are factually false, or maybe even misleading, that argument fails. This could basically lock them into facing this one question and supporting it with just these arguments. It's like on Seinfeld when he returned the dress for "spite" and they wouldn't accept that and then gave a different reason, but he already said "spite". If the medical arguments stated in the law fail, making different supporting arguments in court are not likely to be convincing.

In spite (see what I did there) or trying to bolster the validity of the law, they may have created a fracturing fail point.
 
DevilsAdvocate said:
They did not fail in terms of writing the law. The law gives a specific definition of the meaning of "fetal heartbeat" to be used within the context of the law. It is not unusual for laws to have definitions for words and phrases that are different from general usage. In fact, that's really the reason for putting the definitions in the law in the first place. It appears to me that this law is very good in terms of writing comprehension. I think some people have been working on this for a very long time.
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Indeed. The problem they face is they got the definition factually wrong.

The potential problem I see is what Stacyhs pointed out. The law makes these medical claims as justification for a compelling government interest.

The law is putting up as many hurdles as possible. Anyone can bring this civil action even if they are not a party and suffered no damages. Only the U.S. Supreme Court can determine which Constitutional arguments a court may allow, which isn't really a thing. By some strange bizarro twist this is civil action, not government action. And so on.

But they also have that bit about compelling government interest. In Roe V. Wade the Supreme Court ruled that a woman has a right to an abortion under the Constitution (14th and/or 9th Amendments). Government can make laws that violate Conditional rights if there is a compelling government interest.

The fact that the law specifically addresses an argument for a compelling government interest belies their other hurdles of rubbish. They wouldn't put that in unless they knew that this is really a question of whether the government can override a Connotational right, and those circumstances were already addressed in Roe V. Wade.

They also put in the medical reasons justifying the compelling government interest. If those are factually false, or maybe even misleading, that argument fails. This could basically lock them into facing this one question and supporting it with just these arguments. It's like on Seinfeld when he returned the dress for "spite" and they wouldn't accept that and then gave a different reason, but he already said "spite". If the medical arguments stated in the law fail, making different supporting arguments in court are not likely to be convincing.

In spite (see what I did there) or trying to bolster the validity of the law, they may have created a fracturing fail point.
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I've never watched Seinfeld, so the point is lost on me. But I've highlighted what I think we agree on: Apart from all the legal contradictions, the medical "test" used to trigger the law is flawed, in that it does not do what the framers intended the law to do. It refers to a stage of pregnancy they thought occurred at six weeks or under, when in fact it is reached some months later than that (and well past the usual time that abortions are performed now anyway). It would take only one case of an abortion at, say, 12 weeks (brought by some over-zealous vigilante, no doubt) to be dismissed because an expert medical witness can show the the law as written does not in fact apply.
 
This legal loophole does not make any sense to me. Why couldn't a state use the same technique to make it illegal for anyone to aid a non-white in casting a vote?
 
Norman Alexander said:
Indeed. The problem they face is they got the definition factually wrong.

I've never watched Seinfeld, so the point is lost on me. But I've highlighted what I think we agree on: Apart from all the legal contradictions, the medical "test" used to trigger the law is flawed, in that it does not do what the framers intended the law to do. It refers to a stage of pregnancy they thought occurred at six weeks or under, when in fact it is reached some months later than that (and well past the usual time that abortions are performed now anyway). It would take only one case of an abortion at, say, 12 weeks (brought by some over-zealous vigilante, no doubt) to be dismissed because an expert medical witness can show the the law as written does not in fact apply.
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Everybody is supposed to know every episode of Seinfeld so that we have some means of having a common dialog. :p

In episode 129 Jerry is looking at jackets. A salesman tries to sell him an ugly jacket telling it is by some great designer and how wonderful it is. Not wanting to get into an argument, Jerry says he will return with a friend to get their opinion. The salesman sees through this and believes Jerry will not actually return. To call the salesman's bluff, Jerry returns with Elaine who will say that she doesn't like the jacket. The salesman successfully flirts with Elaine and Elaine says she likes the jacket, leaving Jerry no choice but to buy the ugly jacket. The salesman tells Elaine he will get her a great discount on a designer dress she wants, but the dress is never available for various reasons. Jerry thinks he is stringing Elaine along and that he was duped into buying the jacket. He returns the jacket to deny the salesman his commission. When the store clerk asks why he is returning the jacket, he says he is returning it for "spite". The store says he can't return it just for spite. Jerry says he changed his mind and he is returning it because he doesn't want it. The manager says it is too late because he already said "spite".

The legislature can define "fetal heartbeat" in the law however they want. The actual term used doesn't matter. They could have called it a "cardiovascular indicator" or "significant pregnancy stage" or whatever.

The problem is that this is flagrantly in violation of the Supreme Court decision in Roe v. Wade that prohibits laws against abortion in the first trimester. But the Supreme Court ruled that there is a compelling government interest that can allow bans on abortion in some cases during the second trimester and that abortion can be banned in the third trimester except in some cases.

This law is obviously intended to get the Supreme Court to revisit the Row v. Wade decision. It says that a defendant can't use Roe v. Wade as a defense unless the Supreme Court says otherwise, even though that isn't how the judicial system works. But a defendant would still have a right to claim that the law is unconstitutional.

To get around that, they rely on the Supreme Court ruling and the standard of strict scrutiny to declare in the law that there is a legitimate compelling government interest. The problem is that although the reasons given justifying the law may be true for a fetal heartbeat in the general use of the term, we must instead apply the specific definition of "fetal heartbeat" given in the law. When that meaning is applied, the reasons for the justification are no longer true. If they go into court they can't say that "fetal heartbeat" means something else in their justification or that there is some other compelling government interest that justifies the law. Well, they can, but they already said "spite".
 
jrhowell said:
This legal loophole does not make any sense to me. Why couldn't a state use the same technique to make it illegal for anyone to aid a non-white in casting a vote?
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You are absolutely right - the reason the Supreme Court gave why the law wasn't clearly unconstitutional is the same as in your example.
But the Trump Judges don't care about being consistent.
 
jrhowell said:
This legal loophole does not make any sense to me. Why couldn't a state use the same technique to make it illegal for anyone to aid a non-white in casting a vote?
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It doesn't actually make sense. I don't think it is supposed to make sense. It is supposed to force a case into the Supreme Court and give them a reason to revisit the the Roe v. Wade decision on when a government has a compelling government interest to ban abortion. The rest is just nonsense to try to force the case into the Supreme Court.

But it is a bit more complex. A law allowing people to sue for aiding a non-white person to vote would be unconstitutional because of the Equal Protection Clause. Such a law could only be allowed if there was a compelling government interest requiring the law that could not be address any other way. It would get declared unconstitutional almost immediately.

In this case the Supreme Court has already ruled that although a woman has a constitutional right to an abortion, there can be a compelling government interest to ban some abortions after the first trimester. Texas want to ban abortions before that. If they challenged Roe v. Wade directly, the courts would hold Roe v. Wade and it would just get kicked out by the lower courts. They could try to take it to the Supreme Court, but the Supreme Court is unlikely to hear such a case because that court has already ruled on the issue.

The intent here is to skirt around the issue of Roe v. Wade with a bizarre law that will surely be challenged in the courts. It is set up to basically force it into the Supreme Court. It gives the Supreme Court a different type of law so that they have some reason to revisit the idea of when there is a compelling government interest to pass laws against abortion.

If they can get the Supreme Court to rule that there is such an interest when there is a "fetal heartbeat" then it doesn't matter if this crazy law is unenforceable on other grounds. They can dump this stupid law and just pass a law outright banning abortion when there is a "fetal heartbeat" relying on the new Supreme Court decision.
 
DevilsAdvocate said:
It doesn't actually make sense. I don't think it is supposed to make sense. It is supposed to force a case into the Supreme Court and give them a reason to revisit the the Roe v. Wade decision on when a government has a compelling government interest to ban abortion. The rest is just nonsense to try to force the case into the Supreme Court.

But it is a bit more complex. A law allowing people to sue for aiding a non-white person to vote would be unconstitutional because of the Equal Protection Clause. Such a law could only be allowed if there was a compelling government interest requiring the law that could not be address any other way. It would get declared unconstitutional almost immediately.

In this case the Supreme Court has already ruled that although a woman has a constitutional right to an abortion, there can be a compelling government interest to ban some abortions after the first trimester. Texas want to ban abortions before that. If they challenged Roe v. Wade directly, the courts would hold Roe v. Wade and it would just get kicked out by the lower courts. They could try to take it to the Supreme Court, but the Supreme Court is unlikely to hear such a case because that court has already ruled on the issue.

The intent here is to skirt around the issue of Roe v. Wade with a bizarre law that will surely be challenged in the courts. It is set up to basically force it into the Supreme Court. It gives the Supreme Court a different type of law so that they have some reason to revisit the idea of when there is a compelling government interest to pass laws against abortion.

If they can get the Supreme Court to rule that there is such an interest when there is a "fetal heartbeat" then it doesn't matter if this crazy law is unenforceable on other grounds. They can dump this stupid law and just pass a law outright banning abortion when there is a "fetal heartbeat" relying on the new Supreme Court decision.
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IF the goal is to get a case before SCOTUS on the issue of when there is a compelling gov't interest in banning abortion, why all the nonsense with citizens suing others? Had they just passed a law banning abortion at 6 week because there was a compelling interest with fetal heartbeats, wouldn't they have gotten to SCOTUS just as much?
 
This isn't a traditional "Make a law specifically to challenge a court precedent at the SCOTUS level" political/legal maneuver. It's way more childish, vindictive, and spiteful.

It's "We're going to punish women with an illegal harassment campaign until the courts let us punish women with laws."
 
Paul2 said:
IF the goal is to get a case before SCOTUS on the issue of when there is a compelling gov't interest in banning abortion, why all the nonsense with citizens suing others? Had they just passed a law banning abortion at 6 week because there was a compelling interest with fetal heartbeats, wouldn't they have gotten to SCOTUS just as much?
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If they passed an outright ban, there are many people and groups who could goo into a Texas court and have it tossed out based on Roe v. Wade. There have been similar laws and cases that have been lost in lower courts where the Supreme Court has refused to hear the case. Roberts in particular has basically said he is not interested in reversing or even revisiting Roe V. Wade. Such a case probably wouldn't make it to the Supreme Court.

By making this a civil action, it is not just a redo of Roe v. Wade. It is a different type of case that they hope will make it to the Supreme Court. A civil action also means the law is not subject to the same constitutional standard if it were a government action. Sort of.

The civil action also puts the people providing the abortion of the defensive. With a ban, practically anybody could sue the government and the government would be the . With this law, a person providing abortions becomes the defendant. If doctors are afraid of being sued, they have already accomplished their goal. If not, a well financed anti-abortion group can sue some doctor.

A government action like a ban has to be in compliance with both the Texas and U.S. Constitutions which place a number of limitations on government. Those limitation do not necessarily apply to private civil actions.

The legislature can dictate who has standing and what constitute allowable defenses. There are existing similar laws. For example, a law may say someone can sue somebody for something and that intoxication is not an allowable defense. This law prohibits a defense based on "a defendant's belief that the requirements of this subchapter are unconstitutional or were unconstitutional". That would not be allowed for a government action. For a civil action...that's bizarre enough that the Supreme Court may hear that case.

It also prohibits "a defendant's reliance on any state or federal court decision that is not binding on the court in which the action has been brought". What court decisions are not binding? Well, they put that in too: "A defendant against whom an action is brought...does not have standing to assert the rights of women seeking an abortion as a defense to liability...unless...the United States Supreme Court holds that the courts of this state must confer standing..."

The Supreme Court ruled that a woman is entitled to an abortion. But this law does not prohibit a woman from getting an abortion. It doesn't even prohibit it indirectly by banning people from performing an abortion. This is just a civil action against an abortion provider. The Supreme Court hasn't ruled that people have a constitutional right to perform an abortion. And this law says that an abortion provider can't use Roe v. Wade as a defense because that would not be a binding court decision.

That is, unless the Supreme Court rules otherwise. By making a civil action, is skirts around outside Roe v. Wade. It says this is a different independent matter. And Roe v. Wade can't come into it unless the Supreme Court says otherwise.

That sets it up so that the Texas courts have to go along with this law and the only way to rely on Roe v. Wade is to take it to the Supreme Court. Because it is such a strange case, the Supreme Court would pretty much have to hear the case. That's when they try to get a opinion that there is a government interest in allowing abortion providers to be sued, which is a new sperate issue that would not actually be a reversal of Roe v. Wade.
 
The law still does not make legal sense even in Texas terms. It's not a crime to abort. The person collecting 10 000 has no personal standing in the case. It's not a fine as the state is not involved, and you could not fine it anyway as a minor offense would still need to be illegal, such as smoking pot in many states. A civil suit needs to have a judge determine if the parties have any claim or standing. Clearly, they do not.
 
For instance, even though the Supreme Court has ruled that gay and lesbian couples have the constitutionally protected right to marry, a state following the Texas blueprint could outlaw same-sex marriage and then allow private citizens to sue anyone who performs a same-sex wedding for money damages. A state could ban handguns (even though the Supreme Court has ruled that the 2nd Amendment protects a right to possess and own them) and authorize citizens to bring civil suits against anyone who has a handgun. In fact, a state could adopt a law banning criticism of the governor and then allow any private person to sue the critic for money.

Under the Supreme Court’s reasoning in the Texas case, the only way to challenge these unconstitutional laws would be to violate them, get sued by a private citizen, and then fight the lawsuit and the statute’s constitutionality.

<snip>

The foundational principle of American jurisprudence is that all laws, criminal and civil alike, must comply with the Constitution. State statutes that prohibit abortion after the sixth week of pregnancy or outlaw same-sex marriage or forbid criticizing the governor all blatantly violate the Constitution. The kind of enforcement mechanism used does not lessen their unconstitutionality.

Regardless of Texas’ legal ploy, Roe vs. Wade, which held that the Constitution protects a woman’s right to abortion, remains the law of the land — including in Texas. The Supreme Court’s conservative majority, in its zeal to end abortion rights, has now put all constitutionally protected rights in jeopardy.
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https://www.latimes.com/opinion/sto...aw-could-threaten-other-constitutional-rights
 
Tero said:
The law still does not make legal sense even in Texas terms. It's not a crime to abort. The person collecting 10 000 has no personal standing in the case. It's not a fine as the state is not involved, and you could not fine it anyway as a minor offense would still need to be illegal, such as smoking pot in many states. A civil suit needs to have a judge determine if the parties have any claim or standing. Clearly, they do not.
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That is Federal terms, not Texas terms. The requirement of injury in fact to establish standing only applies to Federal courts. The issue of Constitutional standing derives from the judicial powers granted to the United States (vested in the Supreme Court and inferior courts established by Congress) by Article III of the U.S. Constitution. That says Federal courts only have the power to resolve "Cases" and "Controversies". The Supreme Court interprets that as meaning that the parties must have standing and that to have standing they must be a party to the controversy and have suffered injury.

In addition to Constitutional standing, a party must also have prudential standing. That basically means that they are not raising another person’s legal rights, it is not a general grievance, and falls within a "zone of interest". Those are not limited by the Constitution and are limits Federal courts have placed on themselves.

The Supreme Court has ruled that through legislation Congress can waive prudential standing, but not Constitutional standing because that would be granting the United States judicial power beyond what is granted by the Constitution.

A State court derives its judicial power not from the U.S. Constitution by the the State's constitution. The language of the Texas constitution is very different from the U.S. Constitution. Therefore, the Federal rules on standing do not apply to Texas courts.

Texas courts have kinda sorta adopted the Federal rules, but not completely. It is a bit murky. It would fall to the Texas Supreme Court to determine whether the legislature can grant standing to all parties for a law like this. That court would not be bound by Article III. There doesn't appear to be anything that says the legislature can't grant standing like this. Whatever the Texas court decides in regards to standing would be final because it really only depends the Texas constitution and wouldn't be a violation of the U.S. Constitution.
 
DevilsAdvocate said:
That is Federal terms, not Texas terms. The requirement of injury in fact to establish standing only applies to Federal courts. The issue of Constitutional standing derives from the judicial powers granted to the United States (vested in the Supreme Court and inferior courts established by Congress) by Article III of the U.S. Constitution…
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Thank you. That was elucidating.
 
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