Fed Judge temporarily BLOCKS Texas SB-8 “this Court will not sanction one more day of this offensive deprivation of such an important right…”

“The State has forfeited the right to any such accommodation by pursuing an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right…”

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Informational background

Preliminary Injunction GRANTED…

Ordered Status Quo prior to the enactment of Texas SB-8

See Judge’s Order (via ECF or pull down from my Scribd Link) pretext - on October 1, 2021 the Court held oral arguments and this is kind of important (mainly because I’m sick of seeing so many slamming Attorney General Garland and President Biden. During oral arguments. Brian Netter who is representing the DOJ/USA argued said the law novelly designed to “outflank the federal government” - the DOJ attorney also argued that because of the language in TX SB-8, the law prevents nearly every legal challenge, specifically the constitutionality of the TX-SB-8. Stating in part “aggressive and terrifying” and an “open threat to the rule of law.” 1

What is interesting is part of the DOJ’s oral arguments is the attorney made a direct and frankly brilliant comparison —he argued, “it’s not hard to imagine other laws,” which were written in a similar way, and solely designed to create a chilling effect on other constitutional rights, such as the freedom of speech. Conversely Texas argued it would be unfair and prejudicial to “prematurely” issue an injunction against unknown/unnamed individuals who’s >$10K bounty might be in jeopardy. And to no one’s suprise Texas as argued that the U.S. has no authority to sue the state. ← Gawd I knew Paxton sucked but that’s pretty bad. Also you’ll note the Court extensively drew from Chief Justice Roberts recent dissent, read more here.

In the Court’s 113 Order/Opinion —this is the jurisprudence fuck around and find out. Because the Court did not hold back. The State of Texas’ arguments largely fell flat…

…depriving its citizens of this right by direct state…

A person’s right under the Constitution to choose to obtain an abortion prior to fetal ,viability is well established. Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme to do just that.

..obligation to safeguard the very rights the statute likely violates…

The State created a private cause of action by which individuals with no personal interest in, or connection to, a person seeking an abortion would be incentivized to use the state’s judicial system, judges, and court officials to interfere with the right to an abortion. Ratherthan subjecting its law to judicial review under the Constitution, the State deliberately circumvented the traditional process. It drafted the law with the intent to preclude review by federal courts that have the obligation to safeguard the very rights the statute likely violates.

I want you to read this paragraph (located on page 2) very closely because the brutality of this Order is just amazing…and that’s not me swooning by the eloquence and surgically precise language used by the Judge

…full knowledge that depriving its citizens of this right by direct state action would be flagrantly unconstitutional..

A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established. With full knowledge that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme whereby it created a private cause of action in which private citizens with no personal interest in or connection to a person seeking an abortion would be able to interfere with that right using the state’s judicial system, judges, and court officials. Rather than challenging the right to abortion via the appropriate process of judicial review, the State went so far as to draft the law in such a way as to attempt to preclude a review of the constitutionality of the statute by federal courts who have responsibility to safeguard the very rights the statute likely violates…

The Court gave the declarations a ton of weight and viewed them as credible. Whisper —> did you ever wonder why I was like -you should read each declarations? Well, that’s where one can find a cornucopia of factual/data driven arguments — okay fine here ICYMI:

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…The Court finds that abortion is a safe and common medical procedure…

…based on the credible declarations of abortion providers founded on their education and experience. Most providers in Texas perform both medication and procedural abortions. A medication abortion consists of taking two medications, mifepristone and misoprostol, which initiate a process similar to a miscarriage.

Not to belabor the point - as you’ll note in the Court’s Order - the footnotes are incredibly important and the Court repeatedly cited the data and facts previously included in the various declarations — the Court use of:

“based on the credible declarations of abortion providers founded on their education and experience”

That tells you how much validity the Court found in the various declarations - quoting directly from the Gilbert Declaration - and like it or not I explained to my readers why Texas SB-8 is a racist law and it disproportionately impact women of color and those who are poor

Many Texans obtain abortions because they are unable to meet their basic needs. Pregnant patients who seek abortion care are often low-income and below the federal poverty line. 14.7% of working Texans live in poverty, and 34.5% are low income. This number is even higher for women of color; 19.1% of Black women and 20.5% of Latina women live in poverty in Texas. These patients are in dire financial circumstances and often struggle to pay for needs like housing, food, and medical care. As a result, these patients believe that obtaining an abortion is the best decision for themselves and for their families

No Exemption for Rape, Incest…a bridge too far..

..determine whether a “detectable fetal heartbeat” is present and bans any abortions performed if a “fetal heartbeat” 16 is detected or if the physician fails to perform a test for one. Tex. Health & Safety Code §§ 171.201(1), 171.203(b), 171.204(a). S.B. 8 empowers licensing authorities to discipline any licensed healthcare provider who perform abortions in violation of S.B. 8. Tex. Occ. Code §§ 164.053(a)(1)), 301.101, 553.003. S.B. 8 contains no exception for pregnancies that result from rape or incest, or for fetal health conditions that are incompatible with life after birth

…SB-8 does not define what constitutes aiding or abetting under the statute…

S.B. 8 creates liability for anyone who performs an abortion in violation of the six-week ban and anyone who “knowingly” aids or abets the performance of an abortion performed at six weeks or later. Id. § 171.208(a)(1)–(2). Although S.B. 8 does not define what constitutes aiding or abetting under the statute, it specifies that paying for or reimbursing the costs of the abortion would fall under the ban, which would apply “regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of [S.B. 8].” Id.

In addition, a person need not even actually take steps to “aid and abet” a prohibited abortion to be held liable under S.B. 8; all that is required is that the person intended to “aid and abet” an abortion at six weeks or later. Id.§ 171.208(a)(3).

..Despite the Texas Attorney General’s lack of clarity…

…about what the State would do in the face of a preliminary injunction, this Court trusts that the State will identify the correct state officers, officials, judges, clerks, and employees to comply with this Order. The Court relies on the Texas Attorney General’s representation that the State “would [not] want to do anything that could lead to contempt.”

…SB-8 changes the way state courts interpret binding precedent.

As you’ll note (see page 110 et seq) Texas attempted to use the “but your honor the ‘secret society’ of the Biden Administration is picking on us. The Feds are overly vexatious litigant.

Should It Stand -your prerequisite Easter Egg- because most will overlook 3 simple words;

“should it stand” that means the Federal Judge in Austin, TX is subtly stating his Order/Opinion will likely be appealed by the Texas Defendants. And thus my previous assessment that the “real action” can be found at the 5thCCOAs.

This Court’s preliminary injunction, should it stand, discourages states from doing so: if legislators know they cannot accomplish political agendas that curtail or eliminate constitutional rights and intentionally remove the legal remedy to challenge it, then other states are less likely to engage in copycat legislation. Thus, rather than increase the number of suits by the United States, this Court’s preliminary injunction maintains the status quo of very few such suits and preserves this cause of action for exceptional cases like this one.

…the State has forfeited the right to any such accommodation by pursuing an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right…

…the State has requested, in the event the Court preliminarily enjoins enforcement of S.B. 8, that the Court stay any injunction until the State has the opportunity to seek appellate review. The State has forfeited the right to any such accommodation by pursuing an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right.

From the moment S.B. 8 went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution. That other courts may find a way to avoid this conclusion is theirs to decide; this Court will not sanction one more day of this offensive deprivation of such an important right.

This isn’t just the Court Granting the Government’s Motion

  • IT IS ORDERED that the United States’ Emergency Motion for Temporary Restraining Order or Preliminary Injunction, (Dkt. 8), is GRANTED as set out above in Section V.

  • the Defendants Motion to Dismiss the Complaint =DENIED

  • the Defendants State of Texas’s Motion to Strike the previously filed Declarations =DENIED

  • Amici States Unopposed Motion for Leave to File Brief as Amici Curiae = GRANTED

  • IT IS FINALLY ORDERED that the Texas Intervenors’ motion to strike, lodged at the preliminary injunction hearing, (Hr’g Tr., Dkt. 65, at 96), is DENIED.

…this Court preliminarily enjoins state court judges and state court clerks who have the power to enforce or administer Texas Health and Safety Commission…

Again you can pull down the 113 page order via ECF or pull down from my Scribd Link) —also please don’t be alarmed if you don’t see me publishing articles over the next few days. I’m trying to squeeze out every minute of Summer —while simultaneously juggling numerous construction projects at our beach house. So if I go dark for a few days —you can be assured that eventually I’ll pop back up.

Also sincere apologies for publishing three “newsletters” today. I know that’s a lot. I genuinely do try to be mindful and respectful of publishing multiple articles/newsletters/emails in a single day. But when my phone alerted I contemplated setting publish for Oct 7, 2021 12:04AM but then I realized this evening’s Court Order was important enough for me to break through my self imposed guardrails.

-Filey

ps:

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