Anchorage Rallies In Protest of Supreme Court Election Decision

This afternoon, people gathered at the Parkstrip and marched to the Anchorage Town Square to protest Friday's Supreme Court decision on abortion.  My rough estimate of the crowd is 400-600.  

Observations:  The crowd was younger than the demonstration on May 8, 2022 when the decision was leaked.  The organizers also talked a lot about voting this time, which was missing at the previous demonstration.  Including voting no on whether Alaska should have a constitutional convention.  (The constitution requires such a vote every ten years.)  Conservatives want such a convention to do (at least) two things:

1. Remove the right to privacy in the constitution 
2. Change how judges are selected in Alaska (by a non-partisan commission which evaluates people applying for judgeships by reviewing surveys of judges, attorneys, juries, court employees, and court watchers.  Top candidates are passed on to the Governor to choose from.

During the 1960's the protesting against the Vietnam war was invigorated by the fact that all 18 year old men had to register for the draft and stood a decent chance of being sent to Vietnam to fight.  All their friends and family had a very personal interest in the war ending.  

Today's young folks have been give an equally important stake in fighting Dobbs v. Jackson's Women's Health Organization.  This time it's all women of child bearing age who are on the line, but since women don't need an abortion unless a man has been involved, men too have a vital stake.  And if the Vietnam War protests are any predictor, the people fighting to make abortions legal again aren't going away. 

Here are some photos from today's protest.

1927 Buck v. Bell

Facts of the case

Carrie Buck was a "feeble minded woman" who was committed to a state mental institution. Her condition had been present in her family for the last three generations. A Virginia law allowed for the sexual sterilization of inmates of institutions to promote the "health of the patient and the welfare of society." Before the procedure could be performed, however, a hearing was required to determine whether or not the operation was a wise thing to do.

Question

Did the Virginia statute which authorized sterilization deny Buck the right to due process of the law and the equal protection of the laws as protected by the Fourteenth Amendment?

Conclusion

The Court found that the statute did not violate the Constitution. Justice Holmes made clear that Buck's challenge was not upon the medical procedure involved but on the process of the substantive law. Since sterilization could not occur until a proper hearing had occurred (at which the patient and a guardian could be present) and after the Circuit Court of the County and the Supreme Court of Appeals had reviewed the case, if so requested by the patient. Only after "months of observation" could the operation take place. That was enough to satisfy the Court that there was no Constitutional violation. Citing the best interests of the state, Justice Holmes affirmed the value of a law like Virginia's in order to prevent the nation from "being swamped with incompetence . . . Three generations of imbeciles are enough."

Griswold v. Connecticut, 381 U.S. 479 (1965)

Argued March 29-30, 1965

Decided June 7, 1965

Syllabus

Appellants, the Executive Director of the Planned Parenthood League of Connecticut, and its medical director, a licensed physician, were convicted as accessories for giving married persons information and medical advice on how to prevent conception and, following examination, prescribing a contraceptive device or material for the wife's use. A Connecticut statute makes it a crime for any person to use any drug or article to prevent conception. Appellants claimed that the accessory statute, as applied, violated the Fourteenth Amendment. An intermediate appellate court and the State's highest court affirmed the judgment.

Held:

1. Appellants have standing to assert the constitutional rights of the married people. Tileston v. Ullman, 318 U. S. 44, distinguished. P. 381 U. S. 481.

2. The Connecticut statute forbidding use of contraceptives violates the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights. Pp. 381 U. S. 481-486.

Eisenstadt v. Baird

DECIDED  Mar 22, 1972

Facts of the case

William Baird gave away Emko Vaginal Foam to a woman following his Boston University lecture on birth control and over-population. Massachusetts charged Baird with a felony, to distribute contraceptives to unmarried men or women. Under the law, only married couples could obtain contraceptives; only registered doctors or pharmacists could provide them. Baird was not an authorized distributor of contraceptives.

Question

Did the Massachusetts law violate the right to privacy acknowledged in Griswold v. Connecticut and protected from state intrusion by the Fourteenth Amendment?

Conclusion

6–1 DECISION 

MAJORITY OPINION BY WILLIAM J. BRENNAN, JR.

In a 6-to-1 decision, the Court struck down the Massachusetts law but not on privacy grounds. The Court held that the law's distinction between single and married individuals failed to satisfy the "rational basis test" of the Fourteenth Amendment's Equal Protection Clause. Married couples were entitled to contraception under the Court's Griswold decision. Withholding that right to single persons without a rational basis proved the fatal flaw. Thus, the Court did not have to rely on Griswold to invalidate the Massachusetts statute. "If the right of privacy means anything, wrote Justice William J. Brennan, Jr. for the majority, "it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."

Sen. Specter Questioning Alito At His Confirmation Hearing

Haven't had time to read the whole thing - it's very long - but I thought reviewing Justice Samuel Alito's confirmation hearing might offer us some insight.  Unfortunately, it's another sunny day and Alaska is calling loudly.  So I offer you this short bit where the committee chair Sen. Arlen Specter questions Alito:

Chairman SPECTER. Judge Alito, the commentators have characterized Casey as a super precedent. Judge Luttig, in the case of Richmond Medical Center, called the Casey decision super stare decisis. In quoting from Casey, Judge Luttig pointed out, the essential holding of Roe v. Wade should be retained and once again re- affirmed. Then in support of Judge Luttig’s conclusion that Casey was super stare decisis, he refers to Stenberg v. Carhart, and quotes the Supreme Court, saying, ‘‘We shall not revisit these legal principles.’’ That is a pretty strong statement for the Court to make, that we shall not revisit the principles upon which Roe was founded, and the concept of super stare decisis or super precedent arises as the commentators have characterized it, by a number of different Justices appointed by a number of different judges over a considerable period of time. Do you agree that Casey is a super precedent or a super stare decisis as Judge Luttig said?

Judge ALITO. Well, I personally would not get into categorizing precedents as super precedents or super duper precedents, or any—

Chairman SPECTER. Did you say ‘‘super duper?’’ [Laughter.]

Judge ALITO. Right.

Chairman SPECTER. Good.

Judge ALITO. Any sort of categorization like that—

Chairman SPECTER. I like that.

[Laughter.]

Judge ALITO [continuing]. Sort of reminds me of the size of laundry detergent in the supermarket.

[Laughter.]

Judge ALITO. I agree with the underlying thought that when a

precedent is reaffirmed, that strengthens the precedent, and when the Supreme Court says that we are not—

Chairman SPECTER. How about being reaffirmed 38 times?

Judge ALITO. Well, I think that when a precedent is reaffirmed, each time it’s reaffirmed that is a factor that should be taken into account in making the judgment about stare decisis, and when a precedent is reaffirmed on the ground that stare decisis precludes or counsels against reexamination of the merits of the precedent, then I agree that that is a precedent on precedent.

Now, I don’t want to leave the impression that stare decisis is an inexorable command because the Supreme Court has said that it is not, but it is a judgment that has to be based, taking into ac- count all of the factors that are relevant and that are set out in the Supreme Court’s cases.

Chairman SPECTER. Judge Alito, during the confirmation hearing of Chief Justice Roberts, I displayed a chart. I do not ordinarily like charts, but this one I think has a lot of weight because it lists all 38 cases which have been decided since Roe, where the Supreme Court of the United States had the opportunity to—Senator Hatch is in the picture now.

[Laughter.]

Chairman SPECTER. It is a good photo op for Senator Hatch. Senator Leahy is complaining.

[Laughter.]

Senator LEAHY. Just balance it on Orrin’s head. Senator HATCH. Put that over by Leahy.

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Chairman SPECTER. He wants it on his side.

[Laughter.]

Chairman SPECTER. I think the point of it is that there have

been so many cases, so many cases, 15 after your statement in 1985 that I am about to come to, and eight after Casey v. Planned Parenthood, which is why it has special significance, and I am not going to press the point about super precedent. I am glad I did not have to mention super duper, that you did. Thank you very much.

Let me come now to the statement you made in 1985, that the Constitution does not provide a basis for a woman’s right to an abortion. Do you agree with that statement today, Judge Alito?

Judge ALITO. Well, that was a correct statement of what I thought in 1985 from my vantage point in 1985, and that was as a line attorney in the Department of Justice in the Reagan administration.

Today if the issue were to come before me, if I am fortunate enough to be confirmed and the issue were to come before me, the first question would be the question that we’ve been discussing, and that’s the issue of stare decisis. And if the analysis were to get beyond that point, then I would approach the question with an open mind, and I would listen to the arguments that were made.

Chairman SPECTER. So you would approach it with an open mind notwithstanding your 1985 statement?

Judge ALITO. Absolutely, Senator. That was a statement that I made at a prior period of time when I was performing a different role, and as I said yesterday, when someone becomes a judge, you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues.

Chairman SPECTER. Judge Alito, coming to the role you had in the Solicitor General’s Office, where you wrote the memorandum in the Thornburgh case, urging restriction and ultimate appeal of Roe, that was in your capacity as an advocate. And I have seen your other statements that the role of an advocate is different from the role of a judge. But when you made the statement that the Constitution did not provide for the right to an abortion, that was in a statement you made where you were looking to get a job, a pro- motion within the Federal Government. So there is a little difference between the 1985 statement and your advocacy role in the Thornburgh memorandum, is there not?

Judge ALITO. Well, there is, Senator, and what I said was that that was a true expression of my views at the time, the statement in the 1985 appointment form that I filled out. It was a statement that I made at a time when I was a line attorney in the Department of Justice. I’m not saying that I made the statement simply because I was advocating the administration’s position, but that was the position that I held at the time, and that was the position of the administration.

Chairman SPECTER. Would you state your views, the difference as you see it between what you did as an advocate in the Solicitor General’s Office to what your responsibilities would be, are on the Third Circuit, or what they would be on the Court if confirmed as a judicial capacity?

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Judge ALITO. Well, an advocate has the goal of achieving the result that the client wants within the bounds of professional responsibility. That’s what an advocate is supposed to do, and that’s what I attempted to do during my years as an advocate for the Federal Government. Now, a judge doesn’t have a client, as I said yesterday, and a judge doesn’t have an agenda, and a judge has to follow the law. An important part of the law in this area, as we look at it in 2006, is the law of stare decisis.

Chairman SPECTER. Judge Alito, you have written some 361 opinions that I would like to have the time to discuss quite a few of them with you, but I am only going to pick up one in the first round, and that is an opinion you wrote in the Elizabeth Blackwell Health Center for Women v. Knoll, and that was a case where there was a challenge between a Pennsylvania statute, which required as a prerequisite to a woman getting Medicaid, that she would have had to have reported a rape or an incest to the police, and second, a requirement that there be a second opinion from a doctor that she needed an abortion to save her life. And that statutory requirement, those two provisions conflicted with a regulation by the Department of Health and Human Services. You were on the Third Circuit, which held that the Pennsylvania statute should be stricken in deference to the rule of the Health and Human Services Department. And Judge Nygaard entered a very forceful dissent say- ing that this was an interpretive rule and it was inappropriate to have that kind of an interpretive rule by the Department counter- vail a statute.

What was your thinking in that case? Had you been predisposed to take a tough line on a woman’s right to choose or on Medicaid support for someone who had been raped, you would have upheld the statute. What was your thinking in that case?

Judge ALITO. Well, what you said is correct, Senator. I cast the deciding vote there to strike down the Pennsylvania statute, and I did it because that’s what I thought the law required. I thought the law required that we defer to the interpretation of the Federal statute that had been made by the Department of Health and Human Services. If I had had an agenda to strike down any—I’m sorry, to uphold any regulation of abortion that came up in any case that was presented to me, then I would have voted with Judge Nygaard in that case, and that would have turned the decision the other way.

I’ve sat on three abortion cases on the Third Circuit. In one of them—that was the Casey case—I voted to uphold regulations of abortion, and in the other two—the Elizabeth Blackwell case and Planned Parenthood v. Farmer—I voted to strike them down. And in each instance, I did it because that’s what I thought the law required.

Again, you can find the whole transcript of the hearing here.

We are no longer at a point where these hearings serve the purpose they were intended for.  The Republicans first forays with far right judges - Bork, etc - were turned back.  But now it's just about whether one party or the other controls the Senate.  It used to be that most justices got approved by large majorities, now it's generally straight down party lines.  Not to mention McConnell block Obama appointments altogether and then rushing through Trump's.  

Pro Roe Rally In Anchorage

 Some photos of the Anchorage rally this afternoon.  If there were any candidates there, they weren't on stage and I didn't see/recognize them in the crowd.   There were lots of expressions of anger, but I didn't hear any of the speakers urging the crowd to vote for candidates who support women's rights, letting people know that the people who have given up voting are the people who can make a difference in the next election.  You want to keep the Court from getting even more misogynists?  Vote.  And get others who don't normally vote to vote.  More people didn't vote in the mayoral election last year than did.  10% more people voting for the right candidates would make all the difference.  

Texas Abortion Law Part II: What To Do Next

Part I was a look at parts of the law itself and the Supreme Court dissents.   

I was hoping here to start a list of things to do in response to the Texas abortion law ("The Texas Heartbeat Act"), but I still had questions that reading the law itself doesn't clarify. Articles and comments offer conflicting interpretations. So let me list some of my original questions:

1. What's a fetal heartbeat? 
2. What's the difference between a fetus and an unborn child?
3. Who may be sued?
4. Who may sue/prosecute someone for performing an illegal abortion?
5.  Can people be sued for helping Texas women get abortions outside of Texas?
6. What are the penalties for performing or aiding and abetting an illegal abortion?

Question #1 Since the law makes hearing a fetal heartbeat the point when abortion may not be performed,  medical opinions (which differ from what the law makers apparently intended) on when the fetal heartbeat can be heard may well be significant.  

#2 probably does not have significant legal consequences, though people will argue about this endlessly.

#3  The answer appears to be people who help people get abortions and doctors who perform them, but not the women who get abortions.  Though 'help' is pretty vague.

#s 4 and 5 are key issues.  #4 because the law was designed to avoid being blocked by courts because governmental entities can't prosecute.  #4 because the law doesn't seem clear on this.  

#6 I'm still having trouble figuring out.

Finally, I suspect that they threw all kinds of crap into this law to:

• See what would stick
• Jam up the courts
• Scare people out of seeking and offering abortions
• Because they could

What's a fetal heartbeat?

This piece From NPR says sonogram 'heartbeats' are really noises generated by the machine and aren't real heartbeats.

"The Texas abortion law that went into effect this week reads: "A physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child."

"When I use a stethoscope to listen to an [adult] patient's heart, the sound that I'm hearing is caused by the opening and closing of the cardiac valves," says Dr. Nisha Verma, an OB-GYN who specializes in abortion care and works at the American College of Obstetricians and Gynecologists.

The sound generated by an ultrasound in very early pregnancy is quite different, she says.

"At six weeks of gestation, those valves don't exist," she explains. "The flickering that we're seeing on the ultrasound that early in the development of the pregnancy is actually electrical activity, and the sound that you 'hear' is actually manufactured by the ultrasound machine."  [emphasis added]

So, will the time frame be challenged to when an actual heart beat and not a synthetic sonogram machine heart beat is heard?

 

What's the difference between a fetus and an unborn child?

The Texas law definitions include:

"(7)AA"Unborn child" means a human fetus or embryo in any stage of gestation from fertilization until birth."

But (again from NPR):

"In fact, "fetus" isn't technically accurate at six weeks of gestation either, says Kerns, since "embryo" is the scientific term for that stage of development. Obstetricians don't usually start using the term "fetus" until at least eight weeks into the pregnancy."

But, I guess legislatures can create legal definitions that differ from scientific definitions.  All you need is a majority.  

Who may be sued?

It's clear from the law that the physician performing the abortion and anyone aiding or abetting someone getting an abortion, including paying for the abortion may be sued.  But some people think the woman herself can't be prosecuted.  The law says:

("b)AA This subchapter may not be construed to:

(1)AA authorize the initiation of a cause of action against or the prosecution of a woman on whom an abortion is performed or induced or attempted to be performed or induced in violation of this subchapter;"

But is that only for that subsection of the law?   This AP article agrees that abortion patients can't be sued:

"It allows any private citizen to sue Texas abortion providers who violate the law, as well as anyone who “aids or abets” a woman getting the procedure. Abortion patients themselves, however, cannot be sued."

The following passage from a Texas Planned Parenthood site also suggests the woman herself is exempt:

"This provision lets anyone sue an abortion provider and anyone else who helps a patient access abortion care that is prohibited by SB 8. Anyone who successfully sues an abortion provider will be entitled to at least $10,000 and a court order preventing them from providing abortions in the future."

But what exactly does 'aid and abet' or 'help' mean?  If I tell someone where they can get an abortion, is that against the law?  Presumably not because the law states:

"(g)AA This section may not be construed to impose liability on any speech or conduct protected by the First Amendment of the United States Constitution, as made applicable to the states through the United States Supreme Court’s interpretation of the Fourteenth Amendment of the United States Constitution, or by Section 8 Article I,TexasConstitution."

Using the logic of Citizens United, people could argue that giving a woman money or an airplane ticket is a form of free speech.  (Of course you can argue anything.  But it has to persuade the judges.)

There are also some issues that arise because an abortion before the heartbeat is still legal in Texas.  What if aid is given earlier but the eventual abortion is later?

Who can sue someone for performing an illegal abortion?

[An attorney friend pointed out, when I used the word 'prosecute' that citizens can sue, but not prosecute.  Only governmental units can do that.  And probably, but I'm not sure, agencies like Departments of Justice or Legal Departments.] 

I think this is relatively clear.  No governmental entities can prosecute.  Only private individuals anywhere can sue.  From Planned Parenthood again:

"That means anyone, anywhere in the country — from anti-abortion protesters to out-of-state lobbyists — can sue an abortion provider, abortion funds, or anyone who “aids and abets” someone seeking an abortion that is prohibited by SB 8, regardless of whether they are directly involved or even know the patient."

Here's the law:

"shall be enforced exclusively through the private civil actions described in Section 171.208. No enforcement of this subchapter, and no enforcement of Chapters 19 and 22, Penal Code, in response to violations of this subchapter, may be taken or threatened by this state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this state or a political subdivision against any person, except as provided in Section171.208. 

Preventing the state or state subdivisions from prosecuting was done to avoid the law from being blocked by the courts.

However, although they can't prosecute:

(h)AANotwithstanding any other law, this state, a state official, or a district or county attorney may not intervene in an action brought under this section. This subsection does not prohibit a person described by this subsection from filing an amicus curiae brief in the action.

  I don't completely understand this, but my understanding is a court could block a government entity from taking action.  But it can't block all potential people who might sue, before the fact.  That's the logic argued by the five member majority of the Supreme Court.  

Can people be sued for helping Texas women get abortions outside of Texas?

My assumption has been 'no.'  How could they forbid Texans to do something that's legal in another state?  That would be like saying gambling and smoking marijuana are illegal in Texas and Texans can't do those things in states where they are legal. I've searched the new law for the word "Texas" and it shows up 16 times - mainly before Constitution and various Codes.  Since women having abortions can't be sued by this statute.  They could do this.  And since the doctors and clinics aren't in Texas, it doesn't seem likely Texas would have jurisdiction over them.  That leaves people who might help pregnant women get out of Texas for an abortion.  I'm guessing they just left it vague and are leaving it up to their vigilantes to test this in court.  I haven't been able to find this exact question addressed online.  

If an attorney or two can clarify this that would be helpful.

What are the penalties for performing or aiding and abetting a women to get an abortion? 

There's a minimum $10,000 per abortion performed by doctors for the doctors.  And for people who aided and abetted.

(2) statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced in violation of this chapter, and for each abortion performed or induced in violation of this chapter that the defendant aided or abetted; 

It gets even stickier:

(2) knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this chapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this chapter;

So, first we get "knowingly engages in conduct" but at the end we get "regardless of whether the person knew."   Perhaps they mean if you knew you were taking someone to get an abortion, but even if you didn't know it would be an illegal one.  So, if you take someone to get a legal abortion, but it turns out there's a fetal heartbeat and the abortion is performed anyway, you would be liable.  There is language that says it's "an affirmative defense" if the defendant can prove they conducted research that led them to believe that the doctor would comply with the law.  But the proof "with a preponderance of evidence" of that the research is on the defendant.  

That can only be intended to stop people from getting legal abortions as well as illegal abortions.    

Defendants who win their cases cannot be awarded legal fees.

(i)  Notwithstanding any other law, a court may not award costs or attorney’s fees under the Texas Rules of Civil Procedure or any other rule adopted by the supreme court under Section 22.004, Government Code, to a defendant in an action brought under this section.

So if you're wrongfully accused, you still have to pay all your attorney fees.  I don't think, though, that if an organization provides free attorneys, they could be sued for 'aiding and abetting.'  But maybe only because the legislators didn't think of it.  

Conclusions 

• The intent of this law was to make it as difficult as possible for women to get abortions in Texas by making it illegal
• to perform an abortion after a fetal heart beat can detected
• to assist anyone trying to get an abortion
• The law was written so that Governmental entities couldn't prosecutors and allowing ordinary citizens to sue.  This was done to avoid having the law blocked by a court. (It worked with the Supreme Court's initial ruling.)
• The penalties $10,000 per abortion are high enough to discourage most doctors from performing proscribed abortions and to scare most people from helping women to get an abortion
• Unclear to me is whether the legislators think this will also prevent Texas women from getting abortions outside of Texas
• They probably don't have jurisdiction, but since ordinary citizens will file the lawsuits, there's a good chance that many will even for abortions outside of Texas
• We can only start imagining some of the consequences:
• I've already seen one Tweet where a guy was going to get women pregnant and then claim the $10,000 award for turning them in.  (He didn't realize you can't sue the women.) 
• This adds to the encouragement of vigilantes that Trump began and we can see predators pursue pregnant women and the people around them
• There will be a surge of revenge law suits filed against people whether they've been involved in a legal abortion, illegal abortion, or no abortion at all
• Planned Parenthood's income will rise steeply
• Rape and incest are not excepted in this legislation.  Any man who wants to father as many children as possible will be tempted.  
• Relations between sexual partners will change
• perhaps birth control use will go up for women and some men
• men could sue or threaten to sue anyone they think might help their pregnant girl friend or spouse get an abortion, including her parents
• Underground abortions will increase and more women will die from them
• There will be a market for bogus, but profitable, abortion potions/techniques that 
• probably won't work
• could harm the mother and/or fetus
• There will be political consequences because a fairly large majority of US citizens approve of abortion.  They will become more active running for office and voting

That's just a couple minutes of conjuring up ideas.  I'm sure you can think of many I've missed.  The next step is determine the most effective ways to fight this law and to help Texas women who need an abortion to get one.  

[NOTE:  I'm not an attorney.  I'm trying to glean from the law itself and from what reputable reporters have to say about the law.  I understand that statues are complicated and may seem clear in one section, but there may be another section that voids it.   Don't base any medical or legal action on this blog post.  It's just my way of sorting out some of the issues.]

Texas Abortion Law Part I: The Law And The Supreme Court Dissents

 I'm trying to pull together points about the new Texas anti-abortion law.  You can see the law itself here.  I'm not going to discuss the issues related to whether women should have access to abortion, whether the religious and other arguments about when life begins or that abortion is murder.  I will assume here that abortion is not murder and the women have the right to end a pregnancy.  I'll only mention this once the hypocrisy of arguing for the right not to wear a mask or not get a vaccine during a pandemic, while arguing that women do not have the right to decide, with their doctors, if they should get an abortion.  

OVERVIEW

• Parts of the new Law
• Parts of the dissents by Supreme Court Justices
• Sotomayor
• Breyer
• Roberts
• My thoughts of steps to be taken to aid women needing an abortion.  [This will be a second post.  There's more than enough in this one already.]

PARTS OF THE NEW TEXAS LAW

Note there are different parts of the law - not clearly indicated that way in the law - that cover different aspects:

• specific details of the prohibition of abortion and conditions
• discussion of previous abortion laws and their continued existence
• manner of prosecution (not by state or governmental officials, but by private citizens)
• damages to be paid for violation of the law, including attorney fees, etc.
• lots of legal posturing to prevent court nullifications of the law (This is not necessarily a bad thing in and of itself.  Certainly laws that opponents of this law might favor are also crafted so they withstand court scrutiny.)
• severability language - that says if one part of the act is ruled unconstitutional, that part will be thrown out but the rest will stand
• long lists of what doctors must report about abortions they perform

I'm just going to give some examples of what the law actually states.  You can go to the link to see the whole statute.  Parts of the statute pasted in without spaces for some lines.  I've tried to fix those, but I may have missed some.   It begins like this:

AN ACT

relating to abortion, including abortions after detection of an unborn child’s heartbeat; authorizing a private civil right of action.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTIONA1.AAThis Act shall be known as the Texas Heartbeat

Act.

SECTIONA2.AAThe legislature finds that the State of Texas never repealed, either expressly or by implication, the state statutes enacted before the ruling in Roe v. Wade, 410 U.S. 113 (1973),that prohibit and criminalize abortion unless the mother’s life is in danger.

Note:  They never repealed any of the unconstitutional abortion laws post Roe v. Wade and it appears from other parts of the law (which say this law doesn't not affect other existing abortion statutes) that they're hoping those old laws will come back into effect.

(7)AA"Unborn child" means a human fetus or embryo in any stage of gestation from fertilization until birth.

Throughout the bill, the cross out the word "fetus" and replace it with "child."  And here they are saying it is a "child" immediately at fertilization.

Sec.A171.205.AAEXCEPTION FOR MEDICAL EMERGENCY; RECORDS. (a)AASections 171.203 and 171.204 do not apply if a physician believes a medical emergency exists that prevents compliance with this subchapter.

So there is an exception to prevent a medical emergency.  It requires extensive paperwork detailing all the conditions the doctor must consider.  

Sec.A171.208.AACIVIL LIABILITY FOR VIOLATION OR AIDING OR

ABETTING VIOLATION. (a)AAAny person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who:

(1)AAperforms or induces an abortion in violation of thischapter;

(2)AAknowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this chapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this chapter; or

(3)AAintends to engage in the conduct described by Subdivision(1)or(2).

(b)AAIf a claimant prevails in an action brought under this section,thecourtshallaward:

(1)AAinjunctive relief sufficient to prevent the defendant from violating this chapter or engaging in acts that aid or abet violations of this chapter;

So anything anyone does to help someone abort a fetus with a heart beat is now illegal.  If you drive someone to the clinic (even if you don't know if there is a heart beat or not). If you help pay for the abortion, including insurance companies, you are violating the law.  What I'm trying to find here is clarification of whether helping to get an abortion outside of the state of Texas would also be illegal. I suspect not, because the language is always "in violation of this act" and 'this act' doesn't forbid abortions outside of Texas.  

[UPDATE Sept 3, 2021 2pm:  Constitutional Attorney Lawrence Tribe says, in a Guardian piece,  taking someone out of state would also be a problem:

"Worse still, if women try to escape the state to access abortion services, their families will be on the hook for offering even the smallest aid. If friends or family of a woman hoping to terminate her pregnancy drive her across state lines, or help her organize money for a plane or bus ticket, they could be liable for “aiding and abetting” a now-banned abortion, even if the procedure itself takes place outside Texas."]

S.B.ANo.A8 (2)AAstatutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced in violation of this chapter, and for each abortion performed or induced in violation of this chapter that the defendant aided or abetted; and 

(3)AAcosts and attorney’s fees.

(c)AANotwithstanding Subsection (b), a court may not award relief  under this section in response to a violation of Subsection (a)(1) or (2) if the defendant demonstrates that the defendant previously paid the full amount of statutory damages under Subsection(b)(2)in a previous action for that particular abortion performed or induced in violation of this chapter, or for the particular conduct that aided or abetted an abortion performed or induced in violation of this chapter.

(d)AANotwithstanding Chapter 16, Civil Practice and Remedies Code, or any other law, a person may bring an action under this sectionn ot later than the sixth anniversary of the date the cause of action accrues.

The section above talks about financial penalties.  Note - people can snitch on someone for up to six years after an abortion has been performed.  

(e)AANotwithstanding any other law, the following are not a defense to an action brought under this section:

(1)AAignorance or mistake of law;

(2)AAa defendant’s belief that the requirements of this chapter are unconstitutional or were unconstitutional;

(3)AAa defendant’s reliance on any court decision that has been overruled on  appeal or by a subsequent court, even if that court decision had not been overruled when the defendant engaged in conduct that violates this chapter;

Note that section (3) here says that if a court ruled against the law and then later that was overturned, a doctor who performed an 'illegal' abortion during the time after it the law was suspended and before that suspension was overruled, would be liable.  That means even if there are stays and court cases suspending the law, doctors could be sued if they are later overruled.  EVIL.  

(f-1)AAThe defendant has the burden of proving an affirmative defense under Subsection (f)(1) or (2) by a preponderance of the evidence.

(g)AAThis section may not be construed to impose liability on any speech or conduct protected by the First Amendment of the United States Constitution, as made applicable to the states through the United States Supreme Court’s interpretation of the Fourteenth

As I've said, I'm not an attorney, but how can you just declare that this law does not violate the First Amendment.  They seem to be saying that if I tell someone where to get an abortion after a fetal heart beat, it's NOT a violation of the First Amendment to punish me for my speech.  (If they argue that this is because the law saves lives, then how is that different from disinformation about COVID?)

 

SUPREME COURT DISSENTS

I'm just going to give sections of the dissents.  You can see them in their entirety here.  I've bolded some sections I thought particularly noteworthy.

Sotomayor's dissent:

"JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and JUSTICE KAGAN join, dissenting.

The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engi- neered to prohibit women from exercising their constitu- tional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention. Ante, at 1. Because the Court’s failure to act rewards tactics designed to avoid judicial review and in- flicts significant harm on the applicants and on women seeking abortions in Texas, I dissent. . ."

The Act is clearly unconstitutional under existing precedents. See, e.g., June Medical Servs. L. L. C. v. Russo, 591 U. S. ___, ___ (2020) (ROBERTS, C. J., concurring in judg- ment) (slip op., at 5) (explaining that “the State may not impose an undue burden on the woman’s ability to obtain an abortion” of a “nonviable fetus” (citing Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992); internal quotation marks omitted)). The respondents do not even try to argue otherwise. Nor could they: No federal appellate court has upheld such a comprehensive prohibition on abortions before viability under current law.

The Texas Legislature was well aware of this binding precedent. To circumvent it, the Legislature took the extraordinary step of enlisting private citizens to do what the State could not. The Act authorizes any private citizen to file a lawsuit against any person who provides an abortion in violation of the Act, “aids or abets” such an abortion (in- cluding by paying for it) regardless of whether they know the abortion is prohibited under the Act, or even intends to engage in such conduct. §3 (to be codified at Tex. Health & Safety Code Ann. §171.208). Courts are required to enjoin the defendant from engaging in these actions in the future and to award the private-citizen plaintiff at least $10,000 in “statutory damages” for each forbidden abortion performed or aided by the defendant. Ibid. In effect, the Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures. 

The Legislature fashioned this scheme because federal constitutional challenges to state laws ordinarily are brought against state officers who are in charge of enforcing the law. See, e.g., Virginia Office for Protection and Advocacy v. Stewart, 563 U. S. 247, 254 (2011) (citing Ex parte Young, 209 U. S. 123 (1908)). By prohibiting state officers from enforcing the Act directly and relying instead on citizen bounty hunters, the Legislature sought to make it more complicated for federal courts to enjoin the Act on a statewide basis.

Taken together, the Act is a breathtaking act of defiance—of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas. But over six weeks after the applicants filed suit to prevent the Act from taking effect, a Fifth Circuit panel abruptly stayed all proceedings before the District Court and vacated a preliminary injunction hearing that was scheduled to begin on Monday. The applicants requested emergency relief from this Court, but the Court said nothing. The Act took effect at midnight last night.*

Today, the Court finally tells the Nation that it declined to act because, in short, the State’s gambit worked. The structure of the State’s scheme, the Court reasons, raises “complex and novel antecedent procedural questions” that counsel against granting the application, ante, at 1, just as the State intended. This is untenable. It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry. Moreover, the District Court held this case justiciable in a thorough and well-reasoned opinion after weeks of briefing and consideration. 2021 WL 3821062, *8–*26 (WD Tex., Aug. 25, 2021). At a minimum, this Court should have stayed implementation of the Act to allow the lower courts to evaluate these issues in the normal course. Ante, at 2 (ROBERTS, C. J., dissenting). Instead, the Court has re- warded the State’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the Court’s precedents, through procedural entanglements of the State’s own creation.

The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.

I dissent.

 

 Robert's Dissent

"CHIEF JUSTICE ROBERTS, with whom JUSTICE BREYERand JUSTICE KAGAN join, dissenting.

The statutory scheme before the Court is not only unu- sual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime. . ."

Breyer's dissent

JUSTICE BREYER, with whom JUSTICE SOTOMAYOR and JUSTICE KAGAN join, dissenting.

The procedural posture of this case leads a majority of this Court to deny the applicants’ request for provisional relief. In my view, however, we should grant that request.

I agree with THE CHIEF JUSTICE, JUSTICE SOTOMAYOR, and JUSTICE KAGAN. Texas’s law delegates to private indi- viduals the power to prevent a woman from obtaining an abortion during the first stage of pregnancy. But a woman has a federal constitutional right to obtain an abortion dur- ing that first stage. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 846 (1992); Roe v. Wade, 410 U. S. 113, 164 (1973). And a “State cannot delegate . . . a veto power [over the right to obtain an abortion] which the state itself is absolutely and totally prohibited from exercis- ing during the first trimester of pregnancy.” Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 69 (1976) (internal quotation marks omitted). Indeed, we have made clear that “since the State cannot regulate or pro- scribe abortion during the first stage . . . the State cannot delegate authority to any particular person . . . to prevent abortion during that same period.” Ibid. The applicants persuasively argue that Texas’s law does precisely that. . . "

 

"Women in power are targets of abuse"

That's an LA Times headline today.

The article goes on to say that mayors are subject to abuse at greater levels than the average person and

"A recent study published in the academic journal State and Local Government Review found that mayors — women and men — face greater levels of physical violence and psychological abuse than those in the general U.S. workforce, with social media being the most common channel for that abuse.
Female mayors were not only much more likely to face some form of violence or abuse, but they were also more likely to experience abuse of a sexualized nature.
“Women are facing more of this kind of abuse and violence, and more types of it,” Sue Thomas, a research scientist and co-author of the study, told me."

More specifically:

"If you are a woman who is so bold as to inhabit a vaguely public stage, chances are high that you will be called a lot of things that can’t be printed in a family newspaper. And then some.
It’s a truism that unfortunately appears to transcend industry or geography. Exist in public, and eventually an online mob will nitpick your looks, rate your sexual desirability in relation to your ability to do your job, and probably make threats vague and specific — regardless of whether you’re a female journalist, the founder of an indie game studio or trying to run a small city in the Central Coast region of California."

I would argue that one reason Trump's base doesn't shrink any further is that a sizable section of it includes men who are very much like Trump:  they're insecure about themselves, need constant adulation, are abusive to people with less power than themselves, particularly women. Trump is a role model who helps vindicate their own terrible behavior.  Of course they love him and vote for him.

I've long believed that the way to improve people's social interactions is to work to improve parenting.  How we are raised affects how we feel about ourselves and how we deal with conflict.  As much as I dote on my grandchildren, it's also true that babies can be very annoying and exhausting tor parents who aren't prepared for that responsibility. Even for parents who do everything right.   And for parents whose own parents were poor models, learning how to be a nurturing yet firm parent is difficult.

A study published by the National Institute of Justice, for example, states:

"Using carefully developed methods for eliciting retrospective reports of childhood abuse and neglect, a new study of inmates in a New York prison found that 68 percent of the sample reported some form of childhood victimization and 23 percent reported experiencing multiple forms of abuse and neglect, including physical and sexual abuse. These findings provide support for the belief that the majority of incarcerated offenders have likely experienced some type of childhood abuse or neglect."

The National Association of Adult Survivors of Child Abuse posts:

"Based on the reports we have, it's conservatively believed that in today's society 1 in 4 girls and 1 in 6 boys WILL BE sexually molested before they are 18 years old -- which means 1 in 5 of America's youth, or fully 20% to 25% of the population !!
In addition, as we mentioned we're concerned here at NAASCA with helping stop ALL kinds of child abuse, including sexual abuse, violence, emotional trauma and neglect, and the Center for Disease Control (CDC) believes that close to 50% of our youth will experience at least one of these.
In it's most recent study, a few years ago, the CDC estimated the lifetime cost to society for dealing with all issues related to the child abuse of just one year's worth of traumatized kids is $585 billion, an astonishing figure that obviously repeats each year !!!" (emphasis added)

I would argue that having loving parents is the best inheritance any child could have.  These are the truly privileged people in our society.  Furthermore it's clear that many people manage to survive and thrive despite forms of childhood mistreatment.  Just assume  kids raised in poverty manage to get financially secure. But they are the exception now.

All of us are guilty of neglecting these kids to some degree.  The Democrats, who championed all sorts of 'outsiders' saw whites - particularly white males - as a generalized privileged group.  They didn't recognize the pressures on males, they didn't distinguish those white males who had been physically or emotionally abused.  And in part that helped build a base for a candidate like Trump.

But the Republican steadfast focus on abortion is also at fault.  Even if the figure cited above of 50% of American youth experiencing some form of abuse is high (and remember, it could also be low), that's huge!   But the pro-life crowd focused mostly on abortion, not on healthy parenting for kids, not on sex education and the prevention of unwanted kids.  

There are a lot of hurting people in the US.  Online anonymity along with an abuser in the White House has increased their opportunities to vent their own self-anger on to others.  

This is not an issue that will be resolved by just cracking down on apprehended offenders.  It needs a much larger societal approach to raising kids and developing a population of individuals who feel good about who they are.  

"I thought that they, like myself, simply wanted to 'save the lives of unborn babies.' I have come to the conclusion that I was a dupe."

I was going to have a couple of short links to interesting sites, but it's hard.  I know brief is good, but life is complicated and brief means simplifying the complications.  I do strive for clear, but not simple.  So I'm just going to do this one link on abortion.


How I Lost Faith In The Pro-Life Movement  - This post is several years old, and the basics are well known to anyone who has any awareness of the facts of abortion.  Basically:

• Promoting contraceptives decreases abortion more than anything else.
• Banning abortion doesn't decrease number of abortions, but increases deaths of mothers getting illegal and unsafe abortions.
• Much of the anti-abortion movement is men trying to control women

There's also an interesting discussion about when life begins and how the body sloughs off many fertilized cells naturally - more in women not taking birth control than in those using birth control pills.  Here's a sample of what it sounds like:

"I have to be honest, this blog post totally shocked me. I wondered about the numbers Sarah used, so I went looking for verification. As I did this I opted to use the pro-life movement’s own numbers on the rate of fertilized eggs that fail to implant for women on the pill. Remember, once again, that scientific studies have found again and again that the pill does not result in fertilized eggs failing to implant. However, I felt that if I used the pro-life movement’s own numbers I could not be accused of simply using studies with a liberal bias. And so I explored the numbers."

There's lots of numbers to back all this up, numbers most people don't have when discussing abortion.  And numbers I need to check up on (the link right above goes to another of her own posts that goes into more detailed numbers.  The author of all this this is listed as Libby Anne on the website Patheos which describes itself as:

"Patheos.com is the premier online destination to engage in the global dialogue about religion and spirituality, and to explore and experience the world's beliefs. Patheos is the website of choice for the millions of people looking for credible and balanced information about religion. Patheos brings together faith communities, academics, and the broader public into a single environment, and is the place where many people turn on a regular basis for insight, inspiration, and stimulating discussion."

Libby Anne's brief bio is:

"Libby Anne grew up in a large evangelical homeschool family highly involved in the Christian Right. College turned her world upside down, and she is today an atheist, a feminist, and a progressive. She blogs about leaving religion, her experience with the Christian Patriarchy and Quiverfull movements, the detrimental effects of the "purity culture," the contradictions of conservative politics, and the importance of feminism."

For now, I'm going to trust Patheos to have checked up on Libby Anne's background.  But I'll also email them and find out how they vet authors.  I'll let you know when or if I hear back.


Meanwhile, when the anti-abortion group pickets in front of Planned Parenthood, nearby, I'm going to give them all copies.  But I realize that for some people out their picketing, being anti-abortion is their self identity.  If they aren't anti-abortion, who will they become?  It's hard changing.

Cartographic Literacy - And The Bible On Abortion

A couple of links that might be of interest.  Both are examples, in their own way, of how people's understanding is influenced by how facts are presented.  

1. In one case it's about representations of the earth and the construct of poverty.  
2. In the other case it's about representations of a book - The Bible - and what it says about abortion.  

1.  Kenneth Field's So You Want To Make A Map? at Medium walks us through making a map, step by step.  The example map shows the world

Despite maps being one of the oldest media of communication, he tells us that people aren't that literate in reading them.

But cartography isn’t innate in our ability to communicate graphically. There’s a language, a syntax, and a grammar. It takes a little knowledge and some practice to know what works and how to make a map work well to mediate the message to the reader. In this article, I’m going to go through some of the choices you’re presented with in designing a thematic map (a map of a theme of data) and how they can help or hinder how people interpret it. It’s worth remembering that most people have no idea about how to understand the way in which the map and the choices made in making it affect their perception of it. You design the map to avoid as many of these potential pitfalls as possible by being a smarter mapmaker.

He walks us through a series of maps, each showing different ways to illustrate different ways to visually get points across better, explaining the changes step by step.


These are just two screenshots of different ways to indicate poverty levels.

And one more map just to whet your appetite for the others.

2.  The Bible Tells Us When A Fetus Becomes A Living Being

It begins:

"Many people think that a human being is created at the time of conception but this belief is not supported by the bible. The fact that a living sperm penetrates a living ovum resulting in the formation of a living fetus does not mean that the fetus is a living human being. According to the bible, a fetus is not a living person with a soul until after drawing its first breath."

It then goes on to cited a number of passages in the bible that show that today's far right religious proclamations of abortion as murder are contradicted by a close reading of the bible.  Examples such as:

"In Exodus 21:22 it states that if a man causes a woman to have a miscarriage, he shall be fined; however, if the woman dies then he will be put to death. It should be apparent from this that the aborted fetus is not considered a living human being since the resulting punishment for the abortion is nothing more than a fine;   it is not classified by the bible as a capital offense."