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.
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