{"id":87079,"date":"2021-11-08T16:38:17","date_gmt":"2021-11-08T16:38:17","guid":{"rendered":"https:\/\/yellowdogwire.com\/?p=87079"},"modified":"2021-11-08T16:38:22","modified_gmt":"2021-11-08T16:38:22","slug":"the-architects-of-texas-abortion-ban-overplayed-their-hand","status":"publish","type":"post","link":"https:\/\/yellowdogwire.com\/?p=87079","title":{"rendered":"“The Architects of Texas\u2019 Abortion Ban Overplayed Their Hand”"},"content":{"rendered":"\n

Slate: <\/a>“For two months, it\u00a0appeared as if the Supreme Court was divided 5\u20134 on S.B. 8, the Texas law that\u00a0lets bounty hunters<\/a>\u00a0collect $10,000<\/a>\u00a0from anyone who performs or \u201cabets\u201d an abortion after six weeks of pregnancy. During oral arguments over the law\u00a0on Monday, however, a different split emerged. Three justices obviously loathe the measure as a cynical nullification of a genuine constitutional right. Three justices seem to think it cleverly games an unjust system by elevating state sovereignty over made-up liberties. And three justices are freaked out by S.B. 8 but aren\u2019t quite sure what to do about it. These three justices\u2014John Roberts, Brett Kavanaugh, and Amy Coney Barrett\u2014will ultimately decide the law\u2019s fate.<\/p>\n\n\n\n

But here\u2019s the kicker: It might not even matter what the Supreme Court does in this case as far as abortion rights are concerned. In exactly one month, the justices will hear a more important case,\u00a0Dobbs v. Jackson Women\u2019s Health Organization<\/em><\/a>, that gives them an opportunity to overrule\u00a0Roe v. Wade<\/em>. And if\u00a0Roe\u00a0<\/em>goes, Texas will simply ban abortion outright, obviating the need for the\u00a0convoluted workaround at the center of today\u2019s oral arguments. For the three justices who are torn over S.B. 8, the solution may be simple: Affirm the federal judiciary\u2019s supremacy over states that undermine their authority, then hand those states the power to ban abortion whenever, wherever, and however they please.<\/p>\n\n\n\n

…The law has spawned two different federal lawsuits. The first, filed by abortion providers, sued the judges and clerks in Texas state court who would preside over the lawsuits. The second, filed by the Justice Department, sued Texas itself, including anyone carrying out S.B. 8\u2019s commands on behalf of the state. (Only the United States government\u00a0gets to sue states<\/a>\u00a0directly.) On Sept. 1, the day the law took effect, the Supreme Court declined to block S.B. 8,\u00a0turning away the providers\u2019 suit<\/a>\u00a0by a 5\u20134 vote. The five ultraconservative justices\u00a0complained<\/a>\u00a0that \u201ccomplex and novel antecedent procedural questions\u201d prevented them from acting; Chief Justice John Roberts joined the liberals in dissent. After weeks of public outcry over this abuse of the court\u2019s\u00a0shadow docket<\/a>, the justices abruptly scheduled both cases for oral argument on Monday. It seemed that Kavanaugh or Barrett had reassessed their earlier blas\u00e9 attitude toward S.B. 8 and potentially\u00a0recognized the law for what it is<\/a>: an affront not just to abortion access, but to their own\u00a0<\/em>authority.<\/p>\n\n\n\n

That presumption was borne out on Monday over and over again as Kavanaugh and Barrett, joined by Roberts, expressed skepticism, bordering on hostility, toward Texas\u2019 chicanery. Right out of the gate, Barrett debunked one of the state\u2019s biggest lies: that S.B. 8 complies with the Constitution\u00a0<\/em>because defendants can cite\u00a0Roe\u00a0<\/em>as a defense to any lawsuit. In fact, she pointed out, the statute prohibits defendants from raising \u201cthe full constitutional holding\u201d of abortion precedents\u2014meaning, in her words, that \u201cthe full constitutional defense cannot be asserted.\u201d (Her question was so good that Justice Sam Alito, an avid proponent of S.B. 8, felt obliged to step in and contradict her, the first of much mansplaining throughout the day.)”<\/p>\n","protected":false},"excerpt":{"rendered":"

Slate: “For two months, it\u00a0appeared as if the Supreme Court was divided 5\u20134 on S.B. 8, the Texas law that\u00a0lets bounty hunters\u00a0collect $10,000\u00a0from anyone who performs or \u201cabets\u201d an abortion after six weeks of pregnancy. During oral arguments over the law\u00a0on Monday, however, a different split emerged. Three justices obviously loathe the measure as a…<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"nf_dc_page":"","_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_post_was_ever_published":false},"categories":[4],"tags":[],"class_list":["post-87079","post","type-post","status-publish","format-standard","hentry","category-newsstory"],"jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/yellowdogwire.com\/index.php?rest_route=\/wp\/v2\/posts\/87079","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/yellowdogwire.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/yellowdogwire.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/yellowdogwire.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/yellowdogwire.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=87079"}],"version-history":[{"count":1,"href":"https:\/\/yellowdogwire.com\/index.php?rest_route=\/wp\/v2\/posts\/87079\/revisions"}],"predecessor-version":[{"id":87080,"href":"https:\/\/yellowdogwire.com\/index.php?rest_route=\/wp\/v2\/posts\/87079\/revisions\/87080"}],"wp:attachment":[{"href":"https:\/\/yellowdogwire.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=87079"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/yellowdogwire.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=87079"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/yellowdogwire.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=87079"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}