Fifth Circuit Tells Women To Get F*cked In Latest Abortion Decision
Good morning! Who wants a little murderous rage before lunch courtesy of the Fifth Circuit? More like who doesn't, right? Okay, grab your antacid of choice and let's talk about what happened yesterday with the Texas abortion case.
This is a complicated procedural decision, so let's quickly review what led us to this point. Remember this is the Texas law that effectively bans all abortions after six weeks (read: six weeks after menstruation) and relies on a bounty system for enforcement. This was an explicit attempt to evade judicial review where Texas essentially handed every rando in the state (and outside the state!) a cudgel, and then made it legal to beat doctors with it by authorizing private lawsuits for $10,000 plus attorney's fees against anyone who performs an abortion, performs an abortion or even aids and abets the having of an abortion.
"Can't sue us, we're not enforcing the law!" Texas officials snicker.
"Can't sue us, we haven't tried to enforce the law. Yet!" anti-abortion vigilantes insist menacingly.
And amazingly, the Supreme Court let 'em get away with it. Or perhaps not amazingly, since the Court's six conservative justices now seem confident they have the strength to beat back any liberal attempt by, say, California to deputize its own citizens to trample their neighbors' constitutional right to own guns citing this precedent. In September, the conservatives, minus Chief Justice Roberts, let the law go into effect, professing themselves unable to judge whether it might result in the restriction of the right to access abortion in Texas.
Which was HAHA, FUCK YOU so funny, right? Naturally, abortion care all but stopped in the state. The anti-abortion goons didn't even have to file any lawsuits; the mere threat of crippling legal fees closed clinics. In short, the law worked as intended.
Also as intended, abortion providers have been tied up trying to find someone to sue. In December, the Supreme Court held that the providers couldn't sue state judges and court clerks, or the Texas attorney general. But eight justices found that the plaintiffs could sue Texas state licensing officials who might take action against medical providers sued under the statute.
Which brings us back to the Fifth Circuit. Despite the Supreme Court saying essentially, "yes, these are appropriate defendants, this case can go forward," the state of Texas asked the circuit court to certify that very question to the Texas Supreme Court. Essentially, the state lost this issue at SCOTUS, and would now like a re-do at the state court, which is dominated by Republicans.
The providers have already filed a petition for writ of mandamus asking the Supreme Court to order the Fifth Circuit to send this case back to the trial judge, in this case U.S. District Judge Robert Pitman, who already blocked the law going into effect once, expressing disgust at the state's bad faith effort to get around constitutional guarantees by outsourcing its enforcement and depriving the plaintiffs of someone to sue to vindicate their rights. But in the meantime, the Fifth Circuit gave Texas what it wanted yesterday, shunting this case off to the Texas high court, where it will no doubt languish until the Supreme Court can gut Roe v. Wade in the Mississippi 15-week ban case.
Toldja this one was going to require Pepto Bismol.
Writing for herself and Judge Stuart Kyle Duncan, a Trump appointee, Judge Edith Jones insisted the decision was "not about abortion, nor about whether S.B. 8 is consistent with the federal Constitution, nor about the wisdom of S.B. 8, but about the constitutional authority of federal courts to entertain this pre-enforcement suit against a state law."
This sounds suspiciously like bullshit, and that suspicion is confirmed when you get to the Reagan appointee's reasoning. You see, Justice Neil Gorsuch, writing for himself and for Justices Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett, said that it "appears" the licensing officials are appropriate defendants. Chief Justice John Roberts and the court's three liberals said the officials were definitely appropriate defendants. Which might look like eight justices saying the case can proceed against these defendants. But Justice Clarence Thomas wrote a dissent saying the officials couldn't be sued, and that means five members of the court weren't totally sure about this one, and so the Texas Supreme Court gets to decide.
No, I'm not making this shit up.
"[T]he plurality state only that Texas law 'appears' to impose enforcement duties on the defendants," Judge Jones writes, and thus "there is no controlling rationale for the Supreme Court’s interpretation of state law." Therefore, "We, the inferior court, are bound by the governing plurality plus Justice Thomas, whose reasoning bespeaks at least uncertainty and the need to defer to state law."
In her telling, the court simply must park this case with the state court to foreclose the "possibility that federal courts could declare S.B. 8 constitutionally infirm even though our conclusions might be based entirely on a faulty understanding of Texas law."
Judge Stephen Higginson, an Obama appointee, accuses the majority of "contravening the Supreme Court’s mandate, effectively telling the Court that its opinion was advisory."
"Let me highlight a third time that this delay and re-litigation came with frank admission by the defendants in oral argument that no inferior court, ever in United States history, has permitted a litigant who lost in the Supreme Court to get a second bite on remand, through certification, defiant of the law of the case," he wrote in a furious dissent.
"[W]e are only causing further delay, indeed delay without specified end,” he noted with frustration. "This further, second-guessing redundancy, without time limit, deepens my concern that justice delayed is justice denied, here impeding relief ordered by the Supreme Court."
But delay is kind of the point here.
Which is something to think about when you're complaining that Joe Biden and the Democrats suck. Because this shit right here is the direct result of us not showing up in 2016. And if you want to give the Republicans another four years to pack the judiciary, this circular firing squad shit is a great way to guarantee it.
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.