A Little Hannah Arendt For Labor Day

 "With the term vita active, I propose to designate three fundamental human activities:  labor, work, and action.  They are fundamental because each corresponds to one of the
basic conditions under which life on earth has been given to man.

Labor is the activity which corresponds to the biological process of the human body, who's spontaneous growth, metabolism, and eventually decay are bound to the vital necessities  produced and fed into the life process by labor.  The human condition of labor is life itself.

Work is the activity which corresponds to the unnaturalness of human existence, which is not imbedded in, and whose mortality is not compensated by, the species' ever-recurring life cycle.  Work provides an "artificial" world of things, distinctly different from all natural surroundings.  Wthin its borders each imdividual life is housed, which this world itself is meant to outlast and transcend them all.  The human condition of work is wordliness.

Action, the only activity that goes on directly between men without the intermediary of things or matter, corresponds to the human condition of plurality, to the fact that men, not Man, live on the earth and inhabit the world.  While all aspects of the human condition are somehow related to politics, this plurality is specifically the condition - not only the conditio sine qua non, but the  conditio per quam -  of all political life.  Thus the language of the Romans, perhaps the most political people we have known, used the words "to live" and "to be among men" (inter homines esse) or "to die" and "to cease to be among men" (inter homines esse desinere) as synonyms."

Later, she elaborates on the distinction between labor and work.

"THE LABOUR OF OUR BODY AND THE WORK OF OUR HANDS"

"The distinction btween labor and work which I propose is unusual.  The phenomenal evidence in its favor is too striking to be ignored, and yet historically it is a fact that apart from a few scattered remarks, which moreover were never developed even in the theories of their authors, there's is hardly anything in either the pre-modern tradition of political thought or in the large boy of modern labor theories to support it.  Against this scarcity of historical evidence, however, stands one very articulate and obstinate testimony, namel, the simple fact that every European language, ancient and modern, contains two etymologically unrelated word for what we have to come to think of as the same activity, and rtains them in the face of their persistent synonymous usage."

"Thus Locke's distinction between working hands and a labouring body is somewhat reminiscent of the ancient Gree distinction between the cheirotechnēs, the craftsman, to whom the German Handwerker corresponds, and those who, like "slaves and tame animals with their bodies minister to the necessities of life," . . .

I thought I would find an easy passage from Hannah Arendt's The Human Condition that would clearly distinguish between work and labor on this Labor Day.  But I forgot that Arendt makes my blog posts seem like extremely shallow tweets. But it seemed to be a fitting thought exercise for Labor Day.  

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.]

A Cloud Break

Sun finally came out late this afternoon.  I've been on the laptop way too long.  So I got in another bike ride.  But I quickly realized the sun might be short lived.   Those clouds surely had a lot of water in them.  

Just about halfway and I passed through a tour group getting prepared to return south.

On the way back the clouds was even more ominous.   It started raining.  Not too hard.   I was briefly back in the sun, but couldn't find a rainbow.  

And it was sunny again when I got home.  I'm 11 kilometers closer to Bangkok.  17 km to Ayutthaya and then 30 more to Bangkok.  To understand these last travel reference see this post from May this year when I started this bike 'tour.'

Redistricting Board Update For Next Week's Map Making Sessions

Here's the update: 

"Good morning subscribers,

 

The agenda for the upcoming Alaska Redistricting Board Meetings is attached. Most of the week will be Map Drawing Work Sessions working toward the goal of adopting the Proposed Redistricting Plan (aka draft plan) by Friday.  There is no schedule for when the board will take up any particular communities, but if that changes during the Tuesday meeting, I’ll let you know.

 

Since the board will be starting the mapping process for the Proposed Redistricting Plan on Tuesday, there are no drafts to send out at this time.   I do not anticipate much for the board packet other than testimony which I will distribute once it’s compiled.

 

A few notes about next week:

1. Schedule: 
1. Tuesday, 9/7 will start at 10:30am (please note time change from initial meeting notice)
2. Wednesday, 9/8 will end by 3pm to accommodate the Legislature’s meeting schedule.
3. Friday, 9/10 will end by 1:30pm to accommodate the Legislature’s meeting schedule.
2. Public Testimony: will be taken at the beginning and end of each meeting and before the board adopts the Proposed Redistricting (aka Draft) Plan.  
1. In-person: please be sure to be in compliance with the Legislative Council’s COVID-19 Mitigation Policy (attached). I would encourage anyone giving in-person testimony to also email their comments, so the board has access to your specific recommendations for reference during the mapping process.
2. Teleconference: from Anchorage 563-9085; from Juneau 586-9085; from anywhere else: 844-586-9085
   Please note that Anchorage and Juneau cell phones numbers should use the corresponding numbers regardless of where you are currently located.
3. Written: can be sent testimony@akredistrict.org.  Written testimony will be compiled at the end of the day and distributed at the next meeting. 

 

Please feel free to contact board staff if you need any additional information.  Since we’ll be at the Anchorage LIO in meetings most of next week, the best way to contact us is via email.

 

Juli Lucky

Staff, Alaska Redistricting Board

(907) 563-0300 main office

(907) 251-9295 cell"

Here's the agenda that was attached:

"Date: September 7 - 10, 2021 

Time: Tuesday, September 7: 10:30am; Wednesday, September 8: 9:00am; Thursday, September 9: 9:00am; Friday, September 10: 9:00am 

Place: Anchorage Legislative Information Office, Denali Conference Room, 1st Floor 1500 West Benson Blvd, Anchorage 99503 Live Video/Audio Web Stream: www.akl.tv Teleconference public testimony dial-in numbers: Anchorage 563-9085, Juneau 586-9085, Other 844-586-9085 

Agenda 

1. Call to Order and Establish Quorum 

2. Adoption of Agenda 

3. Public Testimony Dial into one of the phone numbers above and indicate to the operator that you wish to testify 

Review of Maps Submitted through Web Mapping Tool www.akredistrict.org/create 

4. Staff Report: Mapping Process, Identified Challenges 

5. Map Drawing Work Session 

6. Public testimony 

7. Adoption of Proposed Redistricting Plan(s) 

8. Guidance to Third-Party Map Drafters 

9. Adjournment "

 

 

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. . . "

 

Maybe Vietnam Is The Wrong War For Afghanistan Comparisons

 We keep hearing that Biden has ended the US's longest war.  Technically that's true, but also technically, the Korean War isn't over.  There's never been a peace treaty.  And the US has about 28,500 troops still in Korea, some 60 years after the active shooting war is over.  

There are 80,000 US troops stationed in Japan.  

And 35,000 more in Germany.

What's different about Germany, Japan, and Korea from Vietnam and Afghanistan?  First Germany and Japan.  Both were soundly defeated in WWII.  Germany was divided by the Soviet Union, the US, France, and England.  The Soviet Union, which controlled East Germany, was seen as the biggest threat to West Germany.  

Japan was also soundly defeated and ruled by the Allied forces, though effectively headed by General Douglas MacArthur.  A democratic Constitution for Japan was created under MacArthur's leadership.  Japan's two greatest adversaries were neighboring China and the Soviet Union.  Again, the US presence served as protection for the severely battered post-WWII Japan.  

South Korea was threatened by North Korea supported by the Chinese.  The US helped keep the North Koreans and their Chinese allies from taking over South Korea.  

In all three cases, the US was seen as a military protection from outside invasion - China in Korea's case, the Soviet Union and China in Japan's case, and the Soviet Union in West Germany's case.  

In contrast, both in Vietnam and Afghanistan, the US was supporting a government that was more aligned with foreign powers.  Vietnam had recently gotten rid of the French colonial rulers.  The US came in backing the Catholic French colonial Vietnamese against the indigenous Buddhist Vietnamese.  

In Afghanistan, again, the Kabul government was aligned with the US against Afghan groups - Taliban and local tribal leaders.  It's more complicated than that, of course, but basically the Muslim nation was fighting a basically Christian outside force.  

In both Vietnam and Afghanistan, there was outside support for the North Vietnamese and the Taliban, but it was to oust was was seen as an occupying force from the West.  

So in the cases of Vietnam and Afghanistan, the US military was fighting a war, far away from home, in a country they knew little or nothing about.  They didn't speak the language and needed interpreters or locals who spoke English to communicate.  They couldn't tell their friends from their enemies.  Their opponents were fighting for their homeland and to expel the invaders.  

Perhaps this is one of the key lessons we should have learned.  We can support countries that see us as allies against their fight against a feared enemy.  We oughtn't, otherwise, be outsiders picking a side in a civil war, especially in countries we (the average US citizen and the soldiers) know little or nothing about.  

And, of course, we should not assume that what happens us in the future will be exact matches to what happened in the past.  We must be careful to choose our models carefully and to weigh various factors.  

And the world has to figure out how to protect humans from their own ruthless rulers.  It's all very thorny and no one emerges unscathed.  

Alaska's Dismal COVID Data

 I track Alaska's COVID numbers on a chart I started March 15, 2020.  I also make a small summary of the numbers each day.  That got too tedious to post here with the regular posts every day, so they're hidden in a tab under the banner above: Alaska Daily COVID Count 3.

The numbers continue to get worse and worse.  Normally I keep the comments to a minimum and focus on the numbers.  But I couldn't help myself today.  This is all so avoidable, but the kids in the third grade classroom who still haven't learned to clean up after themselves and can't stand it when another kid has something that don't have (even if they don't even want it), well those kids (and their various enablers) are keeping this pandemic going.  

Here's today's update. You have to actually go to the tab to see the table with all the numbers.  

"Wednesday, September 1, 2021 -  For all the folks complaining about how Biden got us out of Afghanistan, yet didn't really work hard to get past the 20 years of wishful thinking about how well the Afghan army and government were doing, think carefully about your beliefs that COVID is a hoax, that herd immunity will make it disappear, that younger people don't get sick or die, that masks and vaccines don't matter.  You're thinking like those so focused on myths about American exceptionalism and our ability to make anything happen because ... we are America.  The Alaska numbers are worse once again and it's the fault of a Governor who cares more about his agenda of cutting government and getting reelected than about the lives of Alaskans.  It's the fault of people profiting from slick podcasts and websites that spread misinformation and alternative medicines that range from useless too dangerous.  It's the fault of people so vested in some mythical better time in America that they believe anything that supports their false vision.  

Sorry, but four more people died yesterday.  That's adding to the four who died the day before.  13 more were hospitalized.  Another new record of COVID hospitalizations was set: 181 or 161(20) - the (20) are COVID positive or suspected who are on Vents.  That sounds like nothing, but  BEING ON A VENT IS HORRIBLE!  This is from Yale Medicine

"The goal is for patients to be awake and calm while they are on a ventilator, but that can sometimes be difficult; many require light sedation for comfort, Dr. Ferrante says.

“Sometimes, patients develop delirium, or an acute state of confusion. And when patients become confused, they might try to pull out their endotracheal tube, which connects them to the ventilator,” she says. “Patients with delirium can be lucid one moment and confused the next. Although we try to avoid sedation as much as possible, particularly in delirious patients, we may have to give some sedation to prevent people from causing self-harm, like pulling out the breathing tube.”

Furthermore, patients with ARDS often feel a natural instinct to take in very big breaths, Dr. Ferrante adds. “Very large breaths can be harmful to an ARDS patient’s lungs, so we try to have their breath size match what we have set on the ventilator,” she says. 

Typically, most patients on a ventilator are somewhere between awake and lightly sedated. However, Dr. Ferrante notes that ARDS patients in the ICU with COVID-19 may need more heavy sedation so they can protect their lungs, allowing them to heal."

Here's another description from the Medical School at Ohio State University.

22 available ICU beds in Alaska, six in Anchorage.  That's a slight improvement, thanks, I guess to the four people who died.  

761/765 new resident cases. Yet another one day record for 2021.  Not the kind of records we want.  Also, 37 new non resident cases.

About 11,000 tests.  Test Positivity dipped slightly.  Yesterday was the highest TP of 2021 and today is the second highest at 7.47.  You can't fly on this 747 though.  

And with Matsu having the 3rd worst Alaska vaccine record at 44%  (one or more shots) yet hosting the State Fair and trying to open schools without masks, be assured things are going to get worse before they get better."

Folks, it's probably not people who read this blogs.  But people you know are insuring that more people get sick and die of COVID.  It's a shrinking minority.  

63% of US adults (18+) are fully vaccinated.  That means 37% of adults are not.  63%-37% is a landslide in an election.  

55% of Alaskan (12+ not 18+) are fully vaccinated.  That means 45% are not.  But this includes kids from 12 to 18, not just adults over 18.  55% to 45% is still a pretty decisive win in an election.  If you interact with non-vaxxers, be polite.  Ask them about their family life when they were kids.  How well did the siblings get along?  How did they get along with their parents?  I suspect for many of them, that is the crux.  They're still rebelling against parental authority.  Whatever they are told by their parental authority substitute, they'll do the opposite.

Beautiful Day For Hike Along Eklutna Lake

 Didn't get to the keyboard until about 5:30 pm today because we went to Eklutna Lake to take advantage of the beautiful day.  Maybe low 70s, sunny with some decorative clouds.  And it's a Tuesday so it shouldn't be crowded.  And it wasn't.  Although it's not far (maybe 20 miles away) we haven't been there since our kids were little.  Just going to offer you some pictures.  

Looking north.  We started near the low point on the left.  

Looking South

People in the canoe are not us.  They just paddled by while we were on the shore having lunch.

Redistricting Board Info On Public Testimony, Mapmaking

 There are about seven nascent blog posts battling it out in my brain.  Waiting for them to decide which one I should tackle first.  Too lazy today to try to make them behave.  

So this email from the Redistricting Board is my easy way out.

"Hello Subscribers,

 

In addition to the existing website portal for testimony at: akredistrict.org/map-comment, you may now email testimony to: testimony@akredistrict.org.  Any comments submitted through the portal or the testimony@akredistrict.org address will be included in the next board packet and added to the official record. 

 

NOTE: The Board has announced that oral public testimony will be taken at the beginning and end of every meeting. Following up oral testimony at a meeting with an email is a great way to make sure that board members understand your specific recommendations as they consider map proposals.

 

I hope everyone has had a chance to check out the public mapping tool available now at akredistrict.org/create.  While the board is happy to receive ideas for smaller areas, statewide (40-district) map plans will be prioritized for presentation at the board meeting currently planned for September 17. 

 

If you, or a group you are affiliated with, are planning to present a plan to the Board, please:

• let board staff know in advance so we can work with you to schedule a presentation time on the 17th and address any technical requirements – you can respond to this email or give us a call at (907) 563-0300 (we are planning to give everyone a 30-minute time slot, but that is subject to change depending on how many presentations there are);
• while map drawing, keep in mind the Constitutional criteria of contiguity, compactness, socio-economic integration, and population – see our website athttps://www.akredistrict.org/mapping-criteria for more information on these criteria;
• do include geographic labels that help the Board understand the borders of districts, including names of cities and villages, landmarks, streets, and geographic features such as rivers, lakes, and mountains; BUT
• do not include labels that are related to politics, elections, or demographic information such as incumbent names or addresses, political party membership, voter history, or statistics on voting age population, race, ethnicity, or gender.

 

Please feel free to contact board staff with any additional questions,

 

Juli Lucky

Staff, Alaska Redistricting Board

(907) 563-0300 main office

(907) 251-9295 cell

 

 

Upcoming Board Meetings and Important Dates:

September 7 – 10, 2021: Map Drawing Work Sessions; Discussion and Adoption of Draft Plan(s)

September 11, 2021: Day 30

September 17, 2021: Presentations of Submitted (3rd Party) Plan(s)

September 21, 2021: Discussion and Adoption of Additional Draft Plan(s)

NOTE: the meeting schedule between September 21 and November 9 is being developed

November 10, 2021: Day 90: Adoption of Final Redistricting Plan"

The Mayor's Attempt To Take Control Of The Library - Part Of A National Conservative Effort?

I wrote the title before doing some research.  I wasn't sure,  but now it looks like the answer is Yes!!

It was one thing when the new very conservative mayor of Anchorage tried to appoint Sami Graham head librarian despite the fact that she lacked the basic qualifications for that position.  (Like a masters degree in library science and experience as a librarian.)  But seconds after her appointment was rejected by the Anchorage Assembly, he appointed her his chief of staff and said she would also be in charge of libraries.

Why?  I know that Republicans have made a strong effort to elect conservatives to school boards,  We are already seeing conservatives being disruptive at the Anchorage School Board over COVID restrictions.  This isn't just a local effort. but I didn't know about libraries.  But it seemed consistent.  What kinds of things would they like to change?

Well I checked the internet.  Here are some things we might expect:

• Getting rid of books that deal with racism and non-English books ("Critical Race Theory" is the rallying cry)
• Getting rid of libraries' community center functions
• Slashing budgets, cutting back hours

This July 31, 2021 Truthout article relates the story of a conservative takeover of the Niles, Illinois library board.  It begins by highlighting the election of a conservative to the library board along with two other conservative candidates.  There were also some other conservatives already on the board.

"Since their swearing in on May 19, the new board has wasted no time in imposing its agenda. “Their focus is to change the very nature of the library,” Lynch says. “They’ve already slashed the budget from $7.4 to $5.9 million, fired staff or reduced their hours, gone from being open 70 hours a week to being open 54, and eliminated outreach to schools and nursing homes.” In addition, she says, longtime library director Susan Dove Lempke felt she had to resign from her position after clashing with Makula and the other conservatives over the cutbacks."

The Niles-Maine Public Library is not the only program facing draconian cutbacks or a right-wing takeover. In fact, in places ranging from Kootenai County, Idaho, to Ann Arundel County, Maryland, to Lafayette Parish, Louisiana, to the town of Frisco, Texas, local efforts are underway to limit what libraries offer — especially when it comes to promoting racial equity and gender inclusivity.

Some locales are making opposition to critical race theory — either through books or community lectures and discussions — their core focus, but other locations are adding virulent opposition to comprehensive sex education and LGBTQIA+ acceptance in a trio of concerns. What’s more, while most of these opposition groups purport to be homegrown and grassroots, all have access to the support and resources (including model legislation) of numerous national right-wing organizations. These include the Alliance Defending Freedom, the American Legislative Exchange Council, the Family Research Council, Family Watch International, the Heritage Foundation and Project Blitz, as well as right-wing media outlets such as Breitbart, Fox News, the Daily Wire, Newsmax and the Washington Free Beacon. All told, NPR reports that as of late June, at least 165 local and national groups are working to “disrupt or block lessons on race and gender,” in both traditional classrooms and public spaces. 

This PBS News Hour article gives some reasons why libraries are under attack from conservatives.  Librarians, it argues, become activists simply by doing their jobs.  

“Libraries Are For Everyone.” That’s the message of a series of images created by Rebecca McCorkindale in the days after President Donald Trump announced the temporary travel ban on seven Muslim-majority countries. She never expected her signs of inclusion to go further than a handful of libraries.

"But by the time she’d woken up the following day, she had received messages from librarians across the world wanting their languages represented. And libraries across the country — in Illinois, Minnesota, California, Virginia — had begun putting up the images as posters, along with displays about books on Islam, empathy and being a good neighbor.

“Libraries are the heart of a community, for anyone and everyone that lives there, regardless of their background,” she said. “And so we strongly believe that libraries are not neutral. We stand up for human rights.”

The article chronicles the many ways that librarians became more activist during the Trump administration.  

The American Conservative also looks at the activism of librarians from a more critical perspective in ‘Woke’ Librarians Take Their Politics To Another Level.  It begins:

"Everyone knows the old caricature of the local librarian: a white, middle-aged woman, slightly plump, a bit intimidating, shushing patrons while wearing comfortable clothing—cardigans especially—and unflattering shoes. Sadly, a more damaging and likely more accurate moniker has emerged in the age of Google: anachronistic. Internet search has degraded the perceived value of public libraries as their staffs spend their time teaching the elderly how to use the Internet or scrambling around for eclipse glasses that the local news assured “can be picked up at your local library.”

However, librarians today are doing less shushing and more shouting, as the academic social justice movement has penetrated the library stacks."

It's all condescending and sexist.  Theseare the most flattering paragraphs of the article.  

Electric Lit's  contribution to this discussion is entitled "The Real Reason Conservatives Are Scared of Libraries : Easy access to information can show marginalized people that we’re not alone. Not everyone wants us to know that."

Conservatives hide behind taxes to justify shuttering libraries, but demographic data suggests a more sinister intention. Many of those who benefit from libraries are among the nation’s most vulnerable populations. According to a 2016 report by the Pew Research Center, “Library users who take advantage of libraries’ computers and internet connections are more likely to be young, black, female, and lower income.” In the Pew Center’s 2015 study, researchers found that “lower-income Americans, Hispanics and African Americans are more likely to say that libraries impact their lives and communities than other Americans.”

In February [2018], the Trump administration released a budget proposal that would effectively eliminate federal funding of libraries, an institution that serves homeless people, addicts, people of color, immigrants, and those living in poverty. The issue isn’t about the cost of libraries; it’s that conservatives believe some people simply aren’t worth the money. Even more insidiously, it’s that conservatives fear what happens when those people get access to information."

This is not just a US phenomenon.  In a Guardian article entitled  The Tories are savaging libraries – and closing the book on social mobility,  author John Harris first writes passionately about the important community benefits of libraries, and quotes Andrew Carnegie:

“A library outranks any other one thing a community can do to benefit its people. It is a never failing spring in the desert.”

After this lengthy list of how libraries improve society, he offers the sobering news that Britain's libraries are under serious attack:

"But does anyone in government care? Since 2010, at least 478 libraries have closed in England, Wales and Scotland. Over the same period, the number of books held by surviving libraries has dropped by 14m, while librarian numbers have been cut by around 8,000. Statistics released this week by the Chartered Institute of Public Finance and Accountancy show that over the past five years, loans of books have dropped by a quarter, and that spending on libraries by councils fell by £66m in 2016-17 alone."

The fact that Bronson pointedly made Graham in charge of libraries even after the Assembly rejected her as head librarian suggests that taking on these Republican goals for libraries was part of his plan.