Ciceronian Review

Everybody Attorney General

SB 8 is a private attorney general statute as has been pointed out many times by many commentators, and so, they say, it is not different than a multitude of other private attorney general statutes used to enforce various health and safety and anti-discrimination laws.  That description is misleading.  SB 8 enables anyone to sue regarding any abortion (more than 6 weeks after last menstrual cycle).  But not anyone can sue to enforce anti-discrimination laws, or ADA, or disclosure laws.  The plaintiffs has to be injured in some way before a suit may be brought.  For example, to sue under the ADA statutes, one has to disabled int he appropriate sense and be deprived of access in the appropriate sense.  Not just anyone who may sue.  There are similar requirements for all of the private attorneys general statutes that I am aware of.  No injury at all is required under SB 8.  That makes it quite different. I think unprecedented, but I have not surveyed all private attorney general statutes.

Formalism and Realism: Law

Reading commentary on SB 8 I have not found any discussion of the effect of abortion service providers closing in Texas.  Perhaps I read too narrow a selection of legal commentary sites.  Perhaps something else.  Whatever the explanation, I have been waiting for a discussion of what happens, is in fact happening, to women denied access to abortion while the judicial process walks along its circuitous path and whether the nature of the effect matters or should matter to whether the circuitous should be followed.  Unwanted pregnancies will be continued, and children consequent will be born.  What of that effect?  Is there a way that burden can be ameliorated after the fact?  I have not thought of a similar problem for other constitutional rights. Maybe that is a limitation of my imagination, maybe this is unique (or nearly so).  It seems to me that this effect -- unwanted pregnancies compelled to continue and consequent children -- should matter a great deal to the way the judicial processes should work here.

Surely the law will be fully tested in just a matter of weeks, one might think.  First, a matter of weeks matters a good deal here as that pushes some unwanted pregnancies too far out under current law.  Second, why think this will be resolved in a matter of weeks.  The Fifth Circuit has made plain that it will uphold any regulation of abortion.  Surely those judges and their minions can see ways to delay resolution of any appeal.  Set a regular briefing schedule, sit on the decision, etc.  Or simply stay consideration until the Supreme Court acts on Dobbs.

Adhere to proper procedure is fine, but there is also the principle that courts should look to substance over form, and procedure is nothing if not form.    

 

Another Odd Implication of SB 8

The statute provides that anyone in Texas may sue anyone who aids or abets or performs an abortion.  There are no exceptions to the 6 week limit on abortions other than a vague "health" of the woman.  No exceptions for rape or incest.  So, A rapes Woman who as a result becomes pregnant.  She seeks an abortion past the 6 week deadline.  Rapist, as a Texan, is free to sue the doctor, nurses, receptionist, etc. for violation of §171, each for the statutory amount of $10,000.  So the rapist also can benefit financially from his crime.  Same with one who perpetrates incest (which in most cases is just a case of intra-familial rape).

Maybe somewhere else in the Texas Codes there is something to block this outcome.

Astonishing

This story is the most surprising thing I have read in a newspaper in a very long time, maybe ever.   Ahmaud Arbery was a Black man jogging through town who was confronted and murdered by three White men.  Jackie Johnson, the Glynn County Georigia prosecutor, declined action.  (The three men were eventually charged and convicted.)  Here is the surprising information in the article:  First, Ms. Jackson was defeated in the next election, and hence removed as county prosecutor.  Second, she has now been charged with crimes, indicted no less, for her conduct.  I cannot recall any prosecutor being charged with a crime, let alone indicted, for malfeasance.  I suppose it must have happened, but I cannot recall another instance.   I am astonished. 

"Ms. Johnson is charged with “violation of oath of public officer” and “obstruction and hindering a law enforcement officer,” according to the indictment, which the state attorney general’s office released on Thursday.

 

The indictment says Ms. Johnson failed “to treat Ahmaud Arbery and his family fairly and with dignity” by not disclosing that she had sought the assistance of another district attorney before recommending that he take over the case. Ms. Johnson recused herself because Gregory McMichael had worked in her office.

She also “knowingly and willfully” directed two Glynn County police officers not to arrest Travis McMichael, “contrary to the laws of said state,” the indictment said.

“Our office is committed to ensuring those who are entrusted to serve are carrying out their duties ethically and honestly,” the state attorney general, Chris Carr, said in a statement, adding that the state was continuing to investigate Mr. Arbery’s case.

It is now being led by a fourth prosecutor, whom Mr. Carr appointed in May 2020."

Supreme Court Yields to Facebook

This may be the best comment (posted September 2) on the Supreme Court in recent months.

Some Points re Texas SB8

The Supreme Court declined injunctive relief for the Plaintiffs, so SB8 went into force. The Court's refusal to act has been based on the procedural morass that the case presents as there are no state agents empowered to act under SB8.  The decision, of course, says that nothing should be inferred about the merits of the case from this denial and that there are serious constitutional questions about the law.  It is hard to be fooled by such talk,  Doing nothing entails that there will no access to abortion services in Texas.  Every Justice knows that.  Admittedly, it is possible that a Justice who has voted to let SB8 take effect might still vote to retain Roe and Casey.  But why would that happen, as a practical matter?  I think the Justices have committed themselves.

There is no dispute that procedural elements of the statute are quite a problem for those challenging it.  Some suggest a single case against a single clerk and judge is the proper vehicle, with other defendants added as appropriate.  That, of course, is a rather expensive process, and a challenge to financial viability of service providers, as intended.  In fact, the law really doe snot need much to have full effect of shutting down abortion services in Texas.  An almost limitless number of suits are available to anti-abortion stalwarts, at very little comparative costs, and no risk under the statute.  All as designed.

I wonder about what it portends for other issues.  If successful, there is no reason the strategy won't be followed and work for other controversies.  

Here are the points I wanted to make:

Various commentators, including law professors, complain that news media and others wrongly claim that SB8 bars abortions as early as 8 weeks because SB8 refers to Roe and Casey and so does not apply at 6 weeks.  But the professors have the worst of that argument.  The statute does bar abortions: makes actionable any abortion involving a detectable fetal heartbeat (which occurs around 6 weeks).  §171.204(a) (Prohibition of Abortion of Unborn Child with Detectable Fetal Heartbeat).  It says: "Except as provided by Section 171.205, a physician may not knowingly perform or induce an abortion of a pregnant woman if the physician detected a fetal heartbeat for the unborn child...".  171.205 is a "medical emergency" exception (which is quite vague).  So the statute on its face, for textualists and orginalists the end of the story, says abortions after 6 weeks are actionable, i.e., practically speaking, banned.

So where are Roe and Casey?  Two places, first, in a prefatory remark stating that Texas has not repealed its criminal statutes against abortion, and, second, in §171.209(e).  That section provides that the affirmative defense in 209(b) will not be available if either Roe or Casey is overruled regardless of whether the abortion occurred before or after either case is overruled.   209(b)'s affirmative defense is a claim that the defendant has standing to assert a third party constitutional right re abortion and that relief would impose an undue burden on the woman (or group of women).  Now that is the Casey standard, but acknowledging the affirmative defense is not an incorporation of Casey or Roe into the statute in a meaningful sense.  This is an affirmative defense, it admits the validity of §171.204 and 205, and so admits that the state may and has prohibited abortions beginning at six weeks.  That is how affirmative defenses work.  They operate only after there is prima facie liability.