Roe v Wade in Jeopardy- maybe? Remember the judicial triangle; District Court —> US Circuit Court of Appeals —> Supreme Court -MAJOR UPDATE-TRO GRANTED
I make zero apologies for my spicy sidebar. I’ve had a lot of time to think about it and I had first hand experience in the legislative and judicial trenches when my own State Assembly went 1956
I understand that a lot of women, young women and teenagers are really stressed out about SCOTUS’ refusal to block the effectuation of Texas SB8. I’m not an attorney but I do think that we should have a fact driven discussion about TX-SB8 and the future of Roe v Wade. This goes without saying no woman is ever happy about obtaining a lawful abortion. It is a deeply personal decision for the woman, her partner and her Doctor. Before we dive in to this incredibly complex litigation and legislation, if possible I’d like you to;
please take a deep breath
count to five and
then take another deep breath.
Again I know that many are scared and also stressed the bleep out. It’s okay to feel those emotions. And it’s even okay to be angry. It is incomprehensible to me and to millions of other sane women, that the fight our grandmothers and mothers fought to give us a choice —it is now requiring our generation of women’s reproductive advocates to once again step into the fighting ring. It sucks. But
🌶Spicy’s Snark-File-sidebar🌶
…look if you the white older (mainly evangelical Christian hypocrites) “men” want to be all up in a woman’s snatch 1 —that you have the power to tell us, your mothers, daughters, sisters, aunts what we can do with our own bodies. GREAT - but here’s my counter offer
Viagra & Cialis prescreening medical examinations..
…every time you want a prescription or a refill for your erectile dysfunction pills (viagra or cialis); Henceforth for all eternity, you shall submit to the mandatory;
rectal examination,
full on colonoscopy and endoscopy, and
a minimally evasive cough and turn examination.
Also since erectile dysfunction can be a result of an underlying pulmonary issue (for the record alcohol and abusing Xanax can make you flaccid AF) —then you will be required to put your old man ass on onto a treadmill and run with an oxygen mask and other cardiac monitoring equipment. You’ll also be required to submit to the aforementioned medical examinations for every refill of your little blue pills to fix your flaccid misogynist soul.
And insurance companies should be barred from paying for your erectile dysfunction “magic pills” -Nope you will be required to pay for them out-of-pocket (kind of like that nonsense you intractable ignoramuses did with birth control). It’s called turnabout fair play you draconian misogynistic douche baguettes. Furthermore, all pharmaceutical companies shall be required to put up to 60% of the revenue generated by their ED pills into a trust or escrow account. Those funds shall be used to further fund austerity programs like Food Stamps, Childcare, Welfare Programs, Vocational Training and other living expenses for the woman and baby until that baby reaches 18 years old.
Oh you think those medical requirements are too invasive and medically unnecessary? Too bad. Between your insane ultrasound and/or heartbeat legislation, prohibition of any late term abortions, and criminalization of abortion providers… And most egregiously the zero exemptions for rape or incest.
How. Fucking. Dare. You.
When did being a woman constitute a blanket preexisting condition? How do you think women feel? Constantly having filthy and corrupt politicians legislating what we can do with our own uteruses. That dirty/corrupt old-ass Bible-thumbing hypocritical men subjugating women to being barefoot and in the kitchen. It’s a conundrum that you are all “prolife” —Yet the moment that mother is forced to carry an unwanted pregnancy to term, you then turn around and say that mother and baby are “welfare parasites” simply because they need a “hand up”
—What about the life and liberty of women? What about the anti-mask, anti-mandate, anti-vax stances comport with you engaging/legislating, in what some legal scholars say is a crime against humanity, that crime being forced pregnancies. What’s next are you going to criminalize miscarriages? Because medically speaking a women who miscarries a pregnancy it’s also known as a “spontaneous abortion” <—that’s a NIH research white paper. Christ on a cracker 1959 called and they want you Texans to return their misogyny. Assholes. I hope you remain impotent and that you never procreate because there’s no sense in your seed(s) jacking up the gene pool.
As you can surmise I actually put a lot of thought into my Spicy’s Snark-File-sidebar because I’ve been holding that in for an extremely long time.
Full Disclosure I have a ton of family in Texas. Half the time they won’t claim me and the other half the time I won’t claim them. It’s a very dynamic and synergistic love/hate relationship - but good god almighty Texas should just do it and leave the Union.
To help you understand the TX-SB8 I think it’s best that we try to stick to the four corners of facts. Versus getting caught up in the emotional vacuum of opinions. I’ve taken the liberty of sourcing and embedding the relevant documents;
I genuinely wished that the reporting on the entire stages of TX-SB8 were far more robust than what was previously reported. Drawing from my first hand legislative and judicial experience- TX-SB8 is the Frankenstein of all Frankenstein anti-abortion bills ever enacted. The Texas lawmakers essentially cobbled together the numerous Judicial Crisis Network State (proposed) legislation (drawing from Alabama, Mississippi, Kentucky, Tennessee and Virginia etc) to effectively outlaw all abortions in the State of Texas …it’s Leo Leonard’s lifetime dream coming true and it’s disgusting
Texas has compelling interests from the outset of a woman’s pregnancy in protecting the health of the woman and the life of the unborn child…
The fetal heartbeat is a key medical predictor of whether an unborn child will reach live birth. A fetal heartbeat can be detected as early as six weeks. Current Texas law generally bans abortions after 20 weeks of pregnancy. This bill would prevent abortions from being performed or induced once a fetal heartbeat is detected unless there is a medical emergency as defined under Health and Safety Code Section 171.002(3).
Because that aforementioned quote is pulled directly from from the bill analysis that I previously embedded. Below is an excerpt from the Senate Committee Report and pulled from that analysis (which is embedded below)
Sec. 171.208. CIVIL LIABILITY FOR VIOLATION OR AIDING OR ABETTING VIOLATION.
(a) Authorizes any person, other than an officer or employee of a state or local governmental entity in this state, to bring a civil action against any person…
House Committee Report ANALYSIS - “Civil Practice and Remedies Code, or any other law, to bring an action under this section not later than the fourth anniversary of the date the cause of action accrues”
SCOTUS rejected the emergency request to block the law. Largely because the District Court’s Order which denied the Defendants Motion to Dismiss. But TX-SB8, which bans abortions after six weeks of pregnancy in defiance of Roe v. Wade but also adds a nasty little amendment. Whereby the State of Texas legislature effectively deputized any and I mean any Texan. Allowing them to sue (in civil court) any one and I mean any one who “aides and abets” a woman seeking a lawful. TX-SB8 is also being litigated in several State courts in Texas. Moreover the 5thCCOAs has yet to rule on the District Court’s Order denying the Defendants Motion to Dismiss - trust me keep reading because I’ll walk you through that too.
SCOTUS Opinions can be found below and as always you really should read the dissents because each address other nuances related to both procedure, regular docket v shadow docket, sovereign immunity… it does not in any way address the constitutionality of TX-SB8…
Yes that’s a real thing. In short SCOTUS’ “shadow docket” saw an unprecedented use during the Trump Administration. If you recall, I published countless Twitter threads, repeatedly explaining the astronomical use of “emergency” rulings. Moreover sounding the alarm that Donald Trump weaponized our Judicial System and had zero respect for the lower courts (District Courts and Circuit Court of Appeals) by skipping straight to SCOTUS because “it’s an emergency”
However if you pull back and take a fuller examination, you’ll note that the Robert’s Supreme Court has not only abused but one could argue weaponized the “shadow docket 2” —the Regular SCOTUS Docket, those cases are fully briefed, Oral Arguments etc. At a later date we will delve into the materiality and comparison of the Trump Administration and the current SCOTUS’ abuse of the Shadow Docket 34 —which was intended for “emergencies” where time is of the essence.
When reporting the facts, the nuances and understanding that content and context are not mutually exclusive. But you also need to understand what SCOTUS actually said and the reason for which they held…
In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.
Now allow me the honor of translating that legalese. This is incredibly important and I’ll do my best to explain the significance and nuances in plain layman’s terms.
SCOTUS made ZERO ruling on the Merits aka the constitutionality of SB-TX8.
the Applicant’s Emergency Stay failed to meet the prerequisite thresholds “strong showing” that it is “likely to succeed on the merits,” that it will be “irreparably injured absent a stay,” —meaning the Applicants failed to satisfy the various requirements for both an injunctive relief and/or “vacate stays of the district Court’s proceedings” and the “balance of the equities favors it, and that a stay is consistent with the public interest” because injunctive relief requires these four guide post and the sole burden is the Applicant’s. SCOTUS ruled that the Applicants did not meet the aforementioned thresholds.
As noted in the dissent; “Court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue.”
The dissent - read it carefully
The subtext of the dissent is multi fold, the questions of sovereign immunity, constitutionality, and procedure taking center stage. In short even in the dissent the Justices opine that the Emergency Stay was not properly before SCOTUS. And on that specific point I’m inclined to agree. Because it also addresses the timeliness and by proxy standing. As evident in the following paragraph:
I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner. Defendants argue that existing doctrines preclude judicial intervention, and they may be correct.
The subtext of Chief Justice Roberts -he is speaking directly about SCOTUS’ shadow docket, but more importantly he referenced the US Circuit Court of Appeals (CCOAs) specifically the 5thCCOAs which has yet to issue a ruling on the merits and constitutionality of TX-SB8 5.
The real action is in the Fifth Circuit Court of Appeals
That case before the 5thCCOAs is styled as: Whole Woman's Health v. Jackson Case No 1:21-cv-00616 -the civil complaint was filed in Western District of Texas Federal District Court on April 13, 2021 https://ecf.txwd.uscourts.gov/doc1/181126630626
Appeal of Order entered by District Judge 82 - which was filed within minutes of the District Court’s Order -broadly denying the Defendants various Motions to Dismiss. https://ecf.txwd.uscourts.gov/doc1/181026856470
ORDER GRANTING IN PART AND DENYING IN PART 84 Motion to Stay Case and Vacate the Preliminary Injunction Hearing. Signed by Judge Robert Pitman -in short because the Defendants claimed Sovereignty Immunity concerning the staying the District Court ruling on their MTD, the Court made the correct decision. “Defendants’ opposed motion to stay case and vacate the preliminary injunction hearing, (Dkt. 84), is GRANTED IN PART and DENIED IN PART. Defendants’ motion is granted as to the State Defendants and denied as to Dickson. https://ecf.txwd.uscourts.gov/doc1/181026864944
And lastly as to the merits (constitutionality of TX-SB8) of the case, the 5thCCOAs has yet to opine. Keep in mind that the District Court’s ruling pertained to the Defendants various Motions to Dismiss… that’s what the Defendants appealed. The problem is because the Plaintiffs Whole Woman's Health ran to SCOTUS with an Emergency Application, 1) the law went into effect, 2) the 5thCCOAs has yet to rule on the Defendants Appeal of the district court’s Order denying their MTD, 3) SCOTUS was in fact limited on what it could adjudicate because the the emergency application was improper. Yes I know that sounds confusing and it might not be what you want to hear. But trust me on this;
…the real action is in the 5thCCOAs… not SCOTUS..
again reread what Chief Justice Robert’s articulated in the closing paragraph of his dissent, which reads:
…when that question is properly presented…
Although the Court denies the applicants’ request for emergency relief today, the Court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue. But although the Court does not address the constitutionality of this law, it can of course promptly do so when that question is properly presented. At such time the question could be decided after full briefing and oral argument, with consideration of whether interim relief is appropriate should enforcement of the law be allowed below.
At any rate I hope that this factual explanation can help you understand the nuances contained in the recent SCOTUS denial, and that it at least adequately addresses the underlying concerns. But I’ll repeat that the question/application was improper and SCOTUS’ response was appropriate…and as always if you have a question please feel free to leave a comment and I’ll do my level best to provide you a factual answer.
Now some of you might have paid attention to the highlights in the SCOTUS Ruling as I noted that Chief Justice Roberts’ made a very key carve out…he explicitly stated Texas State Courts… because there is a civil case pending in the 459th Civil District Court
Shortly before 8PM DC local time Judge Maya Guerra Gamble ORDERED and granted Planned Parenthood’s TRO - which would halt the anti-abortion group Texas Right to Life and its associates from suing abortion providers and workers…
Planned Parenthood’s Temporary Restraining Order GRANTED…
stopping them from suing abortion providers and health care workers at Planned Parenthood health centers in Texas under the newly in-effect “sue thy neighbor” abortion ban, S.B. 8…under S.B. 8’s private enforcement provision while litigation against the unconstitutional law continues.
The Statement from Helene Krasnoff, vice president for public policy litigation and law, Planned Parenthood Federation of America:
We are relieved that the Travis County district court has acted quickly to grant this restraining order against Texas Right to Life and anyone working with them as deputized enforcers of this draconian law. This restraining order offers protection to the brave health care providers and staff at Planned Parenthood health centers throughout Texas, who have continued to offer care as best they can within the law while facing surveillance, harassment, and threats from vigilantes eager to stop them. But make no mistake: this is not enough relief for Texas. Planned Parenthood will continue fighting for the millions of Texans affected by S.B. 8., doing everything we can under the law to restore Texans’ federal constitutional right to access abortion.
It buys a bit of time but this fight isn’t over - not by a long shot. Read the Judge’s ORDER granting the TRO - it’s scathing…
I personally refer to mine as “Gretchen” —it’s a long standing inside joke. For example; lordy my greetchen got a workout, my gretchen needs to be feed, why does my gretchen leak when I laugh…
Amir H. Ali Deputy Director, Supreme Court & Appellate Program, MacArthur Justice Center. Written Testimony
The Honorable Loren L. AliKhan, Solicitor General, The District of Columbia. Written Testimony
Michael T. Morley, Assistant Professor, Florida State University College of Law. Written Testimony
Stephen I. Vladeck, Charles Alan Wright Chair in Federal Courts, University of Texas School of Law. Written Testimony -I personally found his testimony the most informative and detailed and I would highly recommend you take the time to read it.
That case before the 5thCCOAs is styled as: Whole Woman's Health v. Jackson Case No 1:21-cv-00616 -the civil complaint was filed in Western District of Texas Federal District Court on April 13, 2021
Still reading and re-reading, but I’d like to suggest that a rectal sonogram using a a vaginal wand sheathed with a condom be part of the rectal exam. It’s much bigger than the doc’s index finger and the procedure could be justified by noting MD is looking for cancerous lumps.
Thank you for diving into the weeds of the Texas SCOTUS decision and explaining that it didn’t overturn Roe v Wade, which is what’s being reported. We know it’s a huge step in that direction though. C’mon Merrick Garland!!!
Still reading and re-reading, but I’d like to suggest that a rectal sonogram using a a vaginal wand sheathed with a condom be part of the rectal exam. It’s much bigger than the doc’s index finger and the procedure could be justified by noting MD is looking for cancerous lumps.
Thank you for diving into the weeds of the Texas SCOTUS decision and explaining that it didn’t overturn Roe v Wade, which is what’s being reported. We know it’s a huge step in that direction though. C’mon Merrick Garland!!!
💪💪🏽💪🏽💪🏽💪🏽
To every f*ing word of parity testing for men when they want their ED meds.