Another quick hit

This is Joseph.

Josh Marshall is a really sharp operator and his comments on the political (as opposed to legal) implications of the latest ruling in Whole Woman's Health, et al., Applicants v. Austin Reeve Jackson, Judge, et al.

But now they’ve essentially managed not only to overrule Roe but do so with a law that lets that guy you knew in High School who’s always sharing right wing memes on Facebook sue your sister who drove you to the clinic for a $10,000 cash prize. In a way the antis and the Court have done abortion rights advocates a favor by creating a reality in Texas that exposes the hideousness of the Roe opponents’ aspirations: both shackling and predatory.

The problem is so severe that even the center right can see where this is going. Look at Outside the Beltway:

I can’t stress enough that what is going on here is a ban that would normally be implemented via the criminal code is being enforced by civil actions. And, one should note, this is being done to undercut a procedure that is legal under federal court rulings. The pretzel here twists expansive standing with the ability of plaintiffs to receive financial awards as a way to stop providers from engaging in an otherwise legal activity. No doubt abortion opponents find this clever (and, it is–it is certainly creative), but a dispassionate assessment should lead one to see the way in which it is subverting the legal system to get around Supreme Court rulings on a process the Court has deemed as constitutionally protected. If the threat of harassing lawsuits can empower a state to block rights and privileges that are otherwise deemed constitutional, then we have a true subversion of the legal order at play here. 

These are not wild-eyed liberals.  In his previous post, Steven Taylor even focused on John Roberts as having the best dissent (his dissent is the only one he explicitly agrees with) based on it being entirely focused on the issue of procedure and and not focused at all on the substance. There is a serious chance that Roe vs Wade seems likely to be overruled this year in a different case, with better facts than this case, not that better facts would be hard to achieve. Why let the case with bad legal structure proceed and not be disciplined and wait for the best shot?  

There have been some attempts to argue that this should be fought via a series of civil challenges. But the legal fee rules make this complicated:

Still, even getting a lawsuit dismissed can be burdensome and, at times, require expensive lawyers. The abortion law specifically bans plaintiffs from being ordered to pay defendants’ legal fees; opponents fear that the risk of filing a baseless lawsuit is low for plaintiffs and that defending from many lawsuits — even if they are dismissed — could still be financially damaging to a clinic or doctor.

as do the venue rules: 

Adriana Piñon, a senior staff attorney and policy counsel for the ACLU of Texas, said the new law “stacks the deck” against defendants and encourages plaintiffs to sue by including various mechanisms in the law, such as barring a change in venue unless all parties agree, limiting the legal defenses that the defense can present and awarding the plaintiff $10,000 at minimum if they are successful in the suit

This upends standard rules on standing and personal jurisdiction that seem to have very broad implications. Regardless of what you think about the merits, the structure itself seems poised to create a wave of lawsuits that are procedurally 

There is a lot more to say, about the rights that are actually harmed and about the evils of the "Shadow Docket" (where major decisions are made without discussions of merits), but I suspect the procedural stuff is enough to make it clear that this is a bad law. We all focus on the Supreme Court decision not to intervene, but notice that the appeals court has been preventing a hearing on the merits by just deciding to neither stay the law or have a hearing. It's just a mess.

Whatever one thinks of where we ended up, is this really the type of process we want?