The right-wing wingnuts running Texas have finally figured out how to practically nullify Roe v. Wade. Many fear that other states will follow the Texas legal template of insulating the Texas government’s actions by deputizing the nationwide anti-abortion activists to enforce the new restrictions.

It’s a good tactic, what I would call the swarm. If a majority of the members of the Supreme Court were institutionalists, rather than agenda-driven political hacks in black robes, the Supremes would have stopped it last week. They will have another opportunity in a few weeks, but I think the vote will be the same (or so I fear).

The New DOJ Lawsuit

Yesterday, the Feds filed a lawsuit challenging the law in the Western District of Texas. Most of the district judges in that district are smart and fair. Based on past cases, the district court might well enjoin the abortion law, (despite some possible standing issues). I can’t say the same for the Fifth Circuit, not on the abortion issue anyway.

I going with the preliminary injunction will be overturned by the Fifth Circuit eventually, and in the short term, the Fifth will probably stay the injunction. The Supremes will probably do what it did last week (unless despite her religious beliefs Amy Barrett reveals herself to be a closet institutionalist).

This case is going to up the ante on the Mississippi abortion case which will be decided the next term (starting in early October). The challenges to the Texas law become moot if the Supremes overturn Roe. A few of the five conservative justices have already gone on record saying that the decision was wrongly decided. At their confirmation hearings, the three recent Trump appointees made the right noises that they haven’t decided the issue, never ever thought about it, (or that they never heard of the Roe decision but swore that they liked fish eggs).

The Fed’s filing this lawsuit is surely welcome news to the pro-choice community (which is a large majority of the people in the US). And there might well be some good news in the short term from the district judge in the form of an initial preliminary injunction.

However, I don’t think the good news will stick, because at this point in time, both the Fifth Circuit and 5 Supreme Court members either are morally opposed to abortion or because of their original intent/textual view of the Constitution, they believe the founders did not actually create (or intended to create) Constitutional protection to women who want abortions.

(Under this obtuse view of the Constitution, the document is frozen in time. Thus, the rights given to Americans for however long the republic lasts, were only those rights explicitly thought about by a bunch of mostly old white guys, many of whom were farmers and slave owners. And yes, it’s really that moronic! And let’s remember, these were the folks that came up with the moral abomination but practical necessity of counting slaves as 3/5th’s of a person for census congressional representations or whatever the hell it was for. And did I mention that George Washington was bled to death by the best available standard of care medicine, (but perhaps I digress because of some of my other current cases).

So, I think we’re in for a roller coaster ride. The District Court will grant an injunction in the federal action, but I think that will be stayed by the Fifth Circuit, maybe immediately or after some limited briefing schedule. Then the abortion providers will be back facing the private bounty hunters. (except for recent state court injunction against the main anti-abortion group, and possibly others, for as long as that injunction is in place). Like I said, It’s a mess.

What about Congressional action?
Theoretically possible, but unlikely to the point that it’s not happening. There won’t be 10 or even 5 senators who will vote for the bill. It’s DOA at the Senate, except it will linger because the Dems nominally control the Senate. If you call control not being able to pass any legislation not related or stuffed into an appropriations bill, due to the filibuster rules.

Private Texas Attorneys to the rescue?

I have heard about efforts to solicit Texas lawyers to defend the anticipated lawsuits against abortion providers filed by the nationwide cadre of private bounty hunters. That’s certainly a good idea, but I don’t think it will make the abortion providers feel much safer. I think the pro-choicers need to get more aggressive, legally and otherwise.

Legally and lawsuit wise, you’ve got a lot of lemons, so make lemonade.

You’ve going to have a bunch of random anti-abortionists around the country complaining and seeking bounty against abortion providers. Well, another way to describe these bounty hunters is “co-conspirators.” A conspiracy is just a plan involving two to more people to achieve an illegal objective. Proof of a conspiracy requires proving a plan and an overt act. The overt act does not have to be an illegal act. It just has to be an act in furtherance of the objectives of the conspiracy.

Right now, there is a constitutionally protected right to abortion, and denial of a federal right is illegal and actionable, (and that is a basis of the federal lawsuit). So if and when these bounty hunters show up, seems to me they could be sued. The beauty part of conspiracy is that the plan doesn’t have to work or be formally implemented. It’s just proof of a plan and an overt act (and that the defendant agreed to participate, which can be by direct or circumstantial evidence).

What about the fact that Texas law allows and in fact authorizes what they are doing? Doesn’t matter. If people violate federal law in executing a state law, they are still liable.

Back in the 90’s I filed a lawsuit against New Jersey state insurance fraud investigations who I claimed were extorting money out of chiropractors and physicians whom the fraud department suspected of insurance fraud. The state statute specifically allowed the fraud department to offer civil settlements and so they claimed in their defense that was what they were doing. Although the judges on the case were skeptical of my case initially, they eventually got it, let the case proceed and right before trial the state gave up, settled, and while not admitting they did anything wrong, they agreed to stop doing it. The fraud department was then reconstituted. (The case is described in Chapter 6 of Galileo’s Lawyer. https://www.amazon.com/Galileos-Lawyer-Alternative-Complementary-Experimental/dp/0980118301//.)

The legal point/precedent is that it is possible to illegally execute or act under state law if what you are doing is a violation of federal law. I even had a RICO claim against these state fraud investigators, and I’m sure some clever pro-choice lawyers can figure out how to get these bounty hunters on RICO as well.

Well, what about the fact that they’re from all over the country?

Even better I say. Lemonade from lemons, or taking the fight to their home jurisdiction. Federal or state court? Both, but primarily state, if for no other reason, to try to keep these cases from the US Supreme Court based on the above. I hope I am wrong about the Supremes. In a few months, we will know the answer.

My bottom line is that I think the pro-choicers have to up their game to meet these new challenges, including the fact that the Supremes (or five of them) are likely to abandon their institutional obligations to the court and country.

As I look over the entire battlefield, what I see is that the Country is on the pro-choice side and I think pro-choice has greater, if largely as yet untapped resources. Those untapped resources were not necessary because until now, Roe, while knocked up a bit, has survived.

But now, it’s obviously different. So I would hope and guess that with proper nationwide organization, there will be an order of magnitude increase in the support (and no doubt, so the pro-choice organizations hope) to take this fight to the next level.

Rick Jaffe, Esq.