The Texas Abortion Law Is Unconventional Because It Had to Be

After Roe v. Wade, many people think abortion is off limits to democracy. It isn’t.

Source: The Texas Abortion Law Is Unconventional Because It Had to Be

There has been so much ill-informed commentary on Texas Senate Bill 8, the Heartbeat Act, that I feel compelled to explain its provisions and defend its logic. I am the author of the bill, which Gov. Greg Abbott signed in May.

The law does not ban abortions after six weeks. It requires that a physician performing an abortion first check for a fetal heartbeat. If there is a heartbeat, the physician may not abort the child. When a physician performs an abortion without checking for a heartbeat, or finds a heartbeat and performs the abortion anyway, he has performed an illegal abortion.

Unlike other such laws passed in other parts of the country, the Heartbeat Act does not empower any governmental authority to mete out punishment for the crime. Instead it decrees that the doctor may be sued for breaking the law.

The mother cannot be sued, and we have bolstered programs to support expectant mothers. Last year the state’s Alternatives to Abortion program provided support to more than 100,000 pregnant women and adoptive parents through counseling, classes, car seats, diapers and other necessities. This year we added more than $20 million to the program, bringing total funding to over $100 million.

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Many crimes have a civil analog. Someone who commits a criminal assault, for instance, may be sued in civil court for assault and battery (recall the civil O.J. Simpson trial). Someone who steals property from another may be pursued for the civil tort of conversion. In almost every case, the person wronged, and therefore the person who brings the claim, is the plaintiff.

In the case of abortion, the wronged party has been extinguished. If we can’t depend on criminal enforcement, even if Roe is overturned, and the party who directly suffered harm cannot bring a claim, what’s left? Someone else must enforce the law.

In contexts other than abortion, citizens often sue to enforce laws that are otherwise difficult for the government to enforce through traditional channels. “Qui tam” actions, in which an individual sues on behalf of himself and the people, were enacted in the U.S. as early as the first Congress. Texas law, for example, allows individuals to sue on behalf of the state to recover money taken by Medicaid fraud.

No, the Texas Abortion Law’s Enforcement Mechanism Isn’t Unprecedented

It repurposes a legal tactic that progressives have been using to great effect for a century.

Source: No, the Texas Abortion Law’s Enforcement Mechanism Isn’t Unprecedented

But these are not the only principles at work in the law, and for several centuries Anglo-American law has made some limited provisions for third-party enforcement of rights. Known as relator actions, these special proceedings are precedents for the Texas law that should be familiar to most lawyers. A well-known example in American law is the whistleblower qui tam action, which incentivizes people with knowledge of public fraud to pursue legal remedies against the perpetrators. Another familiar example is inter partes review of patents, in which citizens ask the Patent Office to invalidate patents alleged to be unmeritorious. The principle used to justify relator actions is that someone who abuses or infringes a public right should not get away with it simply because officials lack the resources, willingness, or access to evidence necessary to hold him to account.

It is difficult to imagine two public wrongs that are more significant than the intentional killing of a human being (in legal terms, murder) or the removal of a human being’s arm or leg (in legal terms, mayhem). If unborn human beings are persons, then abortion is murder, and many abortions involve mayhem. One could fail to recognize the precedents for the Texas law only if one assumes that murdering and dismembering unborn persons is not a legal wrong.

Ironically, Chief Justice Roberts, in his dissent, failed to mention that the Supreme Court’s own precedents already authorize private persons to assert the rights of third parties in abortion lawsuits. Since 1976, the Court has allowed abortionists to assert the rights of their female patients in court when attempting to block enforcement of abortion laws, even laws that secure the health and rights of those very same female patients. No other medical professionals are permitted to assert their patients’ rights in order to obtain immunity from the law. And the Court has never allowed anyone to initiate a lawsuit against abortionists on behalf of their unborn victims. This anomalous asymmetry seems not to have been lost on Texas legislators, even if it apparently escaped Chief Justice Roberts’s notice.

The Court has often ignored basic doctrines of American jurisprudence when progressive causes are at stake, and not just in abortion cases. Most projects of social engineering that the Left has constructed over the last century, from zoning ordinances to discrimination commissions, blur the distinction between public and private rights. And the Court makes many progressive aims achievable when it allows leftist activists to assert rights not their own. For example, eugenics laws, such as the Virginia statute that the Court enthusiastically endorsed in the 1927 decision Buck v. Bell, empowered institutional administrators to pursue the forcible sterilization of vulnerable Americans when they deemed it to be in the “best interests of the patients and of society.”

It is easy to understand why abortion proponents have selective memories of these legal precedents and so little interest in the jurisprudential principles that undergird the rule of law; murder and mayhem are inherent legal wrongs, and the only way to portray abortion as a “right” is to tear apart the fabric of American law and to ignore what the Constitution actually says.

It is more difficult to understand why conservative legal luminaries who are not pro-abortion would portray the Texas statute as unique and unprecedented. Perhaps they have lost sight of the principles that render the rule of law coherent. The Court often abandoned those principles early in the 20th century in order to ratify progressive projects of social engineering. The only innovation of Texas legislators was to use the Left’s tactics in defense of our society’s most vulnerable.

Trump must be extremely clean if this is all the NY prosecutors came up with

After years of prosecutors targeting Trump in search of a crime, Trump Organization CFO Allen Weisselberg “surrendered early Thursday to New York authorities for arraignment in the first criminal indictment arising from a two-year investigation into the former president’s company,” according to the AP.

The charges relate to paying perks for executives without showing those perks on their W-2 forms and paying income taxes and payroll taxes on those perks.

I bet the WaPo, NYT, and other media outlets will have trouble finding those charges against other corporations, so I am sure they will advocate for going after all corporations and entities for this crime because they always want equal treatment under the law, don’t they?

All corporations, including the WaPo and the NYT, should now be investigated to make sure that no executives ever get free stuff, like country club dues or special transportation, without paying income and payroll taxes.

Jewish Voice

Donald Trump must be extremely clean because, after years of targeted investigations by the IRS, the FBI, the media, Congress, and N.Y. prosecutors, this is all they could come up with.  That is clearly evidence that this was a witch hunt in search of a crime instead of an investigation because there was evidence of a crime.

The DNC and Hillary campaign committees were having so much trouble finding dirt on Trump that they had to pay a foreign national over $10 million to create a fictional dossier to destroy him.  The media and other Democrats even had to create the lies about Russian collusion in their efforts to take Trump out.  There was never one piece of evidence of Russian collusion, but since Trump’s low-tax, smaller-government policies were very popular and were lifting people of all races and all education levels up, he had to be destroyed.  After all, the media and other Democrats care about power, not great results, so they had to intentionally mislead the public.

Cy Vance’s Trump case is straight from a banana republic

WELL, BIDEN’S AMERICA IS A BANANA REPUBLIC: Cy Vance’s Trump case is straight from a banana republic — punish your political enemies. “Corporations almost never get criminally prosecuted for this sort of thing, but Vance wanted the name ‘Trump’ in his indictment. You can bet that he would have indicted The Donald if he had the goods. The feds — who’ve been auditing Trump’s taxes forever — haven’t filed charges.”

Related: Trump Organization indictments are a travesty of justice. “Vance acquired years of Trump Organization tax records, yet all he’s found is an alleged failure to pay proper taxes on corporate perks like cars, tuition and apartments. Any other company and it’s a civil suit, an audit, perhaps a hefty fine. If Vance had any evidence suggesting serious fraud (as press leaks long suggested), he’d have included them already. . . . All that Vance & Co. really have is partisan hate, not evidence.”

Source: WELL, BIDEN’S AMERICA IS A BANANA REPUBLIC: Cy Vance’s Trump case is straight from a banana repub…

DOJ Lawsuit Against Georgia Over Voting Law May Backfire

“I’m highly skeptical and I think they may ultimately regret this move. It could indeed clarify this issue in a way the Biden administration does not want” – Professor Jonathan Turley The post first appeared on Le·gal In·sur·rec·tion .

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Ed Morrissey of Hot Air made a great point about this. He suggests that the White House played along as Democrats whipped their base up into a frenzy about this, but that won’t matter in court:

The courts won’t be interested in the political history; they will want to review the final version of the bill itself. As fact-checkers have repeatedly pointed out, Joe Biden and his administration have repeatedly and ridiculously mischaracterized the law. For instance, the claim that the bill restricted early voting is entirely rubbish, as the Washington Post’s Glenn Kessler pointed out in March:

One of the biggest changes in the bill would expand early voting access for most counties, adding an additional mandatory Saturday and formally codifying Sunday voting hours as optional. Counties can have early voting open as long as 7 a.m. to 7 p.m., or 9 a.m. to 5 p.m. at minimum. If you live in a larger metropolitan county, you might not notice a change. For most other counties, you will have an extra weekend day, and your weekday early voting hours will likely be longer.

Source: DOJ Lawsuit Against Georgia Over Voting Law May Backfire

Battles over AIDS privacy should block vaccine passports

AIDS was a very scary disease in the 1980s but gays successfully fought to keep their status private. The same reasoning should apply to COVID vaccinations.

It’s entirely possible that I am completely misremembering my 1980s and 1990s history, but I don’t think I am. If I’m correct about it, those battles should stand as a bulwark against an industry’s demands that people must show their vaccination status to take advantage of their services. (I’m talking to you airlines, stadiums, and any other place that demands proof of vaccinations.)

What I remember is that AIDS was terrifying when it first appeared because it was contagious and had a 100% mortality rate. Keep that mortality rate in mind as you contemplate COVID’s mortality rate in America.

The CDC’s numbers show that COVID has only a 1.8% mortality rate (577,857 deaths out of 32,446,915 cases). While I suspect both numbers are inflated because everyone who died with COVID was identified as having died from COVID and because the tests used to diagnose cases are way too sensitive, the relative number is probably close. So, again, we’re talking about a 1.8% mortality rate compared to the fact that AIDS started out more deadly than the Black Death in the mid-14th century.

What I also remember is that AIDS in America was most common in the gay community. This was so because of gay sexual practices (multiple partners, often in a single night, plus a form of sex that was more likely to result in blood flowing). That meant that gays were terribly worried that they would be stigmatized as modern-day lepers. That is, merely being gay would imply that someone carried a contagious disease with a 100% mortality rate.

This stigma meant that gays were denied health insurance, jobs, medical care, etc., simply because they were gay, irrespective of their actual health, Medical privacy suddenly became extremely important.

And here’s where my memory might be failing me but I don’t think so: To protect against a stigma that applied whether or not someone had AIDS, the gay lobby successfully mounted a campaign to make a person’s health status completely private. That health campaign was eventually federalized in 1996 as the Health Insurance Portability and Accountability Act (aka HIPAA).

HIPAA completely muzzles health care providers from sharing any health information about a patient without the patient’s explicit permission. The point is to ensure that, if someone has AIDS or any other contagious disease, that information is strictly between the patient and his healthcare providers. Employers don’t get to know. Family members, insurance companies other than the one currently covering the patient, airlines, sports stadiums, etc. — as to all of them, the information is in a lockbox and they don’t have the key.

While HIPAA applies only to health care providers because it was developed for a disease as to which there was (and still is) no vaccine, the principle behind it should apply globally. The way I see it, demanding proof of someone’s vaccine status should fall into the same “It’s none of your damn business” category as AIDS information or any other medical information. My body, my privacy — and you should not be able to discriminate against me because I opt for privacy.

Source: Battles over AIDS privacy should block vaccine passports

[Josh Blackman] What Do “Many” of the 140+ Law Professors Think About the First Amendment and Impeachment?

[This letter is not unanimous. Indeed, the signatories are quite fractured about impeachment, the First Amendment, and Brandenburg] On Friday, nearly 150 law professors signed a statement about President Trump’s First Amendment defenses.

Source: [Josh Blackman] What Do “Many” of the 140+ Law Professors Think About the First Amendment and Impeachment?

If you laid 140+ law professors end-to-end, would they reach a conclusion?

Speech and Sedition in 2021

The progressive press decides that dissenters should be suppressed.

Most Americans learn in school about flagship political excesses in U.S. history like Joe McCarthy’s 1950s inquisitions, the post-World War I Red Scare and the Alien and Sedition Acts of 1798. Yet a recent Washington Post opinion piece purports to explain “what the 1798 Sedition Act got right.”

The law banned a wide range of political speech and publication. It was passed by the ruling Federalists to suppress the rival Democratic-Republicans, whom they saw as seditious. The Post piece argues that though their solution was “flawed,” the Federalists had reason to worry about “unregulated freedom of the press.”

We highlight this as one example among many of the emerging appetite for viewpoint suppression among journalists, intellectuals and Democrats in the wake of the Trump Presidency. They increasingly see domestic enemies wherever they look, and are devising ways to use levers of power to restrict, regulate and boycott opposition. It’s an extraordinary and ominous turn in a democracy.

Many calls to sanction opposition media come from voices that claimed to be most alarmed by Donald Trump’s attacks on the free press. Margaret Sullivan, the Post’s media columnist, wrote this week that “corporations that advertise on Fox News should walk away,” declaring that the outlet’s “role in the 400,000 U.S. lives lost to the pandemic and in the disastrous attack of Jan. 6” has been “deadly.”

Nicholas Kristof of the New York Times called for “pressure on advertisers to withdraw from Fox News so long as it functions as an extremist madrasa.” He added that “cable providers should be asked why they distribute channels that peddle lies.” A CNN writer asserted that providers like Comcast “have escaped scrutiny and entirely dodged this conversation.” By conversation he means political bullying from the left.

Wall Street Journal

Impeachment 2.0 – No, the Senate cannot convict Trump after he leaves office

At best, supporters of post-departure Senate impeachment conviction could say there is an argument for it, but it’s complicated. Opponents merely need to point to the words of the Constitution. The post first appeared on Le·gal In·sur·rec·tion .

Source: Impeachment 2.0 – No, the Senate cannot convict Trump after he leaves office

If they can, does that mean Obama can be impeached? Maybe get Nixon while we’re at it. The notion of moot-ness seems to be moot.