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.
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