Legal experts say it is still unclear how the Supreme Court will rule on long-standing abortion guarantees, which it plans to review later this year.
Despite uproar from activist organizations that see the move as a de facto departure from the 1973 ruling, the Supreme Court's failure to act on Texas's near-total abortion ban does not necessarily mean Roe v. Wade is dead.
Legal experts say it is unclear how the Supreme Court will rule on long-standing guarantees for abortion, which it plans to review later this year when it hears a direct appeal against this important ruling.
Texas' first-of-its-kind law allows individuals, not the government, to impose a six-week ban on abortion and file lawsuits against health professionals or anyone who helps someone get an abortion. Clinics and other potential claimants will find it more difficult to establish their position in court or to determine a specific target for satisfying claims due to the unusual enforcement mechanism.
Judges' reluctance to act on a motion to freeze Texas law early Wednesday "is evidence that the court is likely to seriously curtail or overturn Rowe, but this is not conclusive evidence," said Cornell University law professor Michael Dorf.
Given how different this case is from many other recent abortion cases, the court's silence is difficult to explain. According to lawyers, the case may be deadlocked due to technical and procedural problems, and not because of something directly related to the court's interpretation of the Roe v. Wade case.
“The fact that the court was unable to sort it out late at night really says little,” said Ed Whelan, senior fellow at the Center for Conservative Ethics and Public Policy, arguing that this is not a prediction of what will happen when judges are considering a 15-week abortion ban in Mississippi in Dobbs v. Jackson Women's Health Organization, a case expected to decide Rowe's fate this fall. “I don't think this issue will have any particular impact on what the Dobbs court is doing,” he said.
Unlike the six-week abortion restrictions imposed by more than a dozen states, all of which have been overturned by courts, Texas law still stands legal problems because it makes people, not the state, the executor. Successful claims are awarded $ 10,000 in compensation and may be brought against a non-patient, such as a friend who loans money to pay for an abortion or provides transportation to the clinic.
Planned Parenthood President Alexis McGill Johnson said: "Anyone suspected of abortion is now getting a bounty." "The state equips the vigilantes with the power to execute the terrible law."
The district judge and clerk who will hear claims filed by private individuals are among those accused of challenging legislation filed by Texas abortion providers. However, due to the protection afforded by Congress, proactive legislation against judges is rarely permitted.
“There is an evil shine in this legislative design because it creates all sorts of complex procedural barriers to seeking help,” Dorf added.
A person who has had an abortion cannot be held liable. Anyone who refers a patient to an out-of-state abortion doctor or helps a patient travel are not responsible. However, the clinic's attorneys argue that this will continue to have a disincentive effect on doctors, who will be more hesitant about the operation, and on patients who would be afraid to seek it even before six weeks of pregnancy.
“Even if the defendants win all cases, the burden of having to defend themselves, bring in lawyers, go to rural courts in 258 Texas counties — that alone threatens to end abortion across the state,” he said. said Mark Herron, senior adviser to the Center for Reproductive Rights and chief attorney for the case.
Herron also argues that the legislation provides incentives for people to bring unfounded cases, arguing that there will be no financial consequences if they do not prove that the illegal abortion was performed, but a minimum compensation of $ 10,000 if they win.
“The Texas Legislature designed this law to encourage as many lawsuits as possible, making it virtually risk-free,” he explained.
The ACLU, one of the leading organizations fighting the bill, said no lawsuits were filed in the state yet.
Activists are now monitoring what the Supreme Court will do next, as well as how quickly other states are emulating Texas policies.
While the Supreme Court may still delay the passing of the Texas bill to allow legal proceedings, opponents of abortion seem encouraged.
“This is an ingenious approach that brings the power back to where it belongs with We the People,” said Kristan Hawkins, founder of Students for Life, a lobbying organization that operates in dozens of state capitals. "This is what we are looking at for future model legislation."
Abortion rights groups that track state policy predict that Arizona, South Carolina, and Ohio will be among the first to enact the law, but that Kentucky, Mississippi, Alabama, Arkansas, and North Dakota, which have already imposed six-week restrictions. can follow.
Despite the novelty of Texas law, Louisiana legislators passed a bill in 1997 allowing women who have abortions to sue their abortion doctors for unlimited damage caused by the operation.
The legislation was overturned by a federal court, and the injunction was upheld by the 5th Circuit Court of Appeals. However, in 2001, a federal appeals court ruled 2-1 that the lawsuit used to challenge the law was unconstitutional because the listed defendants - the Governor of Louisiana and the attorney general - were not involved in the implementation of the law and therefore did not have immunity under the 11th Amendment. ...
Texas law is much broader in that it allows anyone to apply it - a strategy known as "private attorneys general." Such regulations have been around for centuries, but they gained popularity in certain liberal circles in the late 1990s and early 2000s as a way to strengthen environmental and labor compliance.
Dorf explained, "This process automatically has no ideological basis." "It was an attempt to tap the resources of the private sector in certain situations, and not so much to dissuade future legal entities from initiating a pre-emptive legal process."
If Texas law is upheld in court, Herron and other clinic attorneys warn that other states could follow suit on a range of issues beyond abortion, ranging from Covid precautions to protest restrictions.
“If a state can easily instruct private citizens to sue someone for simply exercising a fundamental right, then any state can pursue any individual right,” he added. “The figurative after the hypothetical can be divided. As a result, everyone on both sides should be very concerned, and we should all hope that Texas's cynical structure regarding this bill does not work. "
Despite uproar from activist organizations that see the move as a de facto departure from the 1973 ruling, the Supreme Court's failure to act on Texas's near-total abortion ban does not necessarily mean Roe v. Wade is dead.
Legal experts say it is unclear how the Supreme Court will rule on long-standing guarantees for abortion, which it plans to review later this year when it hears a direct appeal against this important ruling.
Texas' first-of-its-kind law allows individuals, not the government, to impose a six-week ban on abortion and file lawsuits against health professionals or anyone who helps someone get an abortion. Clinics and other potential claimants will find it more difficult to establish their position in court or to determine a specific target for satisfying claims due to the unusual enforcement mechanism.
Judges' reluctance to act on a motion to freeze Texas law early Wednesday "is evidence that the court is likely to seriously curtail or overturn Rowe, but this is not conclusive evidence," said Cornell University law professor Michael Dorf.
Given how different this case is from many other recent abortion cases, the court's silence is difficult to explain. According to lawyers, the case may be deadlocked due to technical and procedural problems, and not because of something directly related to the court's interpretation of the Roe v. Wade case.
“The fact that the court was unable to sort it out late at night really says little,” said Ed Whelan, senior fellow at the Center for Conservative Ethics and Public Policy, arguing that this is not a prediction of what will happen when judges are considering a 15-week abortion ban in Mississippi in Dobbs v. Jackson Women's Health Organization, a case expected to decide Rowe's fate this fall. “I don't think this issue will have any particular impact on what the Dobbs court is doing,” he said.
Unlike the six-week abortion restrictions imposed by more than a dozen states, all of which have been overturned by courts, Texas law still stands legal problems because it makes people, not the state, the executor. Successful claims are awarded $ 10,000 in compensation and may be brought against a non-patient, such as a friend who loans money to pay for an abortion or provides transportation to the clinic.
Planned Parenthood President Alexis McGill Johnson said: "Anyone suspected of abortion is now getting a bounty." "The state equips the vigilantes with the power to execute the terrible law."
The district judge and clerk who will hear claims filed by private individuals are among those accused of challenging legislation filed by Texas abortion providers. However, due to the protection afforded by Congress, proactive legislation against judges is rarely permitted.
“There is an evil shine in this legislative design because it creates all sorts of complex procedural barriers to seeking help,” Dorf added.
A person who has had an abortion cannot be held liable. Anyone who refers a patient to an out-of-state abortion doctor or helps a patient travel are not responsible. However, the clinic's attorneys argue that this will continue to have a disincentive effect on doctors, who will be more hesitant about the operation, and on patients who would be afraid to seek it even before six weeks of pregnancy.
“Even if the defendants win all cases, the burden of having to defend themselves, bring in lawyers, go to rural courts in 258 Texas counties — that alone threatens to end abortion across the state,” he said. said Mark Herron, senior adviser to the Center for Reproductive Rights and chief attorney for the case.
Herron also argues that the legislation provides incentives for people to bring unfounded cases, arguing that there will be no financial consequences if they do not prove that the illegal abortion was performed, but a minimum compensation of $ 10,000 if they win.
“The Texas Legislature designed this law to encourage as many lawsuits as possible, making it virtually risk-free,” he explained.
The ACLU, one of the leading organizations fighting the bill, said no lawsuits were filed in the state yet.
Activists are now monitoring what the Supreme Court will do next, as well as how quickly other states are emulating Texas policies.
While the Supreme Court may still delay the passing of the Texas bill to allow legal proceedings, opponents of abortion seem encouraged.
“This is an ingenious approach that brings the power back to where it belongs with We the People,” said Kristan Hawkins, founder of Students for Life, a lobbying organization that operates in dozens of state capitals. "This is what we are looking at for future model legislation."
Abortion rights groups that track state policy predict that Arizona, South Carolina, and Ohio will be among the first to enact the law, but that Kentucky, Mississippi, Alabama, Arkansas, and North Dakota, which have already imposed six-week restrictions. can follow.
Despite the novelty of Texas law, Louisiana legislators passed a bill in 1997 allowing women who have abortions to sue their abortion doctors for unlimited damage caused by the operation.
The legislation was overturned by a federal court, and the injunction was upheld by the 5th Circuit Court of Appeals. However, in 2001, a federal appeals court ruled 2-1 that the lawsuit used to challenge the law was unconstitutional because the listed defendants - the Governor of Louisiana and the attorney general - were not involved in the implementation of the law and therefore did not have immunity under the 11th Amendment. ...
Texas law is much broader in that it allows anyone to apply it - a strategy known as "private attorneys general." Such regulations have been around for centuries, but they gained popularity in certain liberal circles in the late 1990s and early 2000s as a way to strengthen environmental and labor compliance.
Dorf explained, "This process automatically has no ideological basis." "It was an attempt to tap the resources of the private sector in certain situations, and not so much to dissuade future legal entities from initiating a pre-emptive legal process."
If Texas law is upheld in court, Herron and other clinic attorneys warn that other states could follow suit on a range of issues beyond abortion, ranging from Covid precautions to protest restrictions.
“If a state can easily instruct private citizens to sue someone for simply exercising a fundamental right, then any state can pursue any individual right,” he added. “The figurative after the hypothetical can be divided. As a result, everyone on both sides should be very concerned, and we should all hope that Texas's cynical structure regarding this bill does not work. "
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