There is an old story about a man who comes upon another man in the dark on his knees looking for his wedding ring under a street lamp. Sympathetic, the man joined the stranger on his knees and looked for almost an hour until he asked if the man was sure that he dropped it here. “Oh no,” the stranger admitted, “I lost it across the street, but the light is better here.”
The story came to mind yesterday when U.S. Attorney General Merrick Garland was widely covered in pledging that the Justice Department would defend women in Texas seeking abortions. Garland appears to be answering a different question than the one raised by the new law.
The announcement in the press release came after President Joe Biden promised a “whole government” response to the new Texas abortion law. However, Garland was pledging to enforce a law that has long been robustly enforced. The Freedom of Access to Clinic Entrances Act (FACE) to “protect those seeking to obtain or provide reproductive health services.” It specifically protects against the use or threat of force and physical obstruction that injures, intimidates, or interferes with a person seeking to obtain or provide reproductive health services or to exercise the First Amendment right of religious freedom at a place of religious worship.
That is not the basis of the new threat posed by the Texas law to abortion services. The Texas law exposes providers to private enforcement of a rule that sets an abortion bar during the pre-viability stage of a pregnancy.
The fanfare given by the DOJ to the use of the FACE reflects the limited range of possible options for the Justice Department. Indeed, as I previously wrote, efforts to create a new federal law or new federal enforcement effort to create a new basis for challenges by pro-life litigators.
137 thoughts on ““The Light is Better Here”: Garland Pledges To Protect Abortion Clinics From “Attack””
Garland has just sued Texas. I think he mentioned stopping state judges from hearing civil cases.
Federalism is still the Constitutional system we operate under. Garland knows he’s going to be reversed. He is just attempting to throw sand in the gears.
iowan2 knows he’s commenting without having even bothered to read the suit.
Iowan, any law that invites individuals with no standing to sue is almost certainly a defective law.
Anon– Iowan, any law that invites individuals with no standing to sue is almost certainly a defective law.”
Where and how is standing created?
Young, how does one determine a person is too remote from the complaint to have standing? That is a very difficult question and open to interpretation. Obviously there is a lot of confusion about the issue of standing as so many factors might be entertained and weighted differently by different people. .
It still isn’t clear who DOJ would sue. Even if sovereign immunity is waived, there is no statewide injunction available.
JOSH BLACKMAN | 9.9.2021 12:39 AM
On September 2, President Biden threatened to sue Texas over S.B. 8. Attorney General Garland issued a statement about possible prosecutions under the FACE Act. However, it is unclear how that statute would even be relevant, since clinics are not performing abortions now. Laurence Tribe wrote that DOJ should prosecute Texans under the KKK Act. But after Tribe’s advice on the eviction moratorium case crashed and burned, I suspect his cachet in the White House has diminished.
If the United States files suit against Texas, or Texas state officials, the defense of sovereign immunity is no longer available. But that is only one hurdle. It still isn’t clear who the United States would sue. I don’t think a suit against Texas, as a whole, would even work. State governments are not unitary entities. Indeed, the federal government routinely rails against non-party (nationwide) injunctions. There is no equivalent statewide injunction against everyone in the state.
Moreover, the suits against state court judges is problematic for a reason that hasn’t gotten much attention. State court judges must decline to opine on the constitutionality of the law. Were judges to defend the law, they would be forced to recuse. Given that they cannot defend the law, judges lack the requisite adversity for Article III standing. In other words, litigation against state judges is a sham. There are so, so many reasons why suing state judges cannot work. I still have yet to seen anyone explain how the Supreme Court could have “blocked” the Texas law given only a single judge was present, and he declined to defend the law.
“The Biden administration is preparing to sue Texas over its new law banning most abortions, people familiar with the matter said, an action that would set off a federal-state clash at a time when the future of abortion rights becomes an ever-more-pressing question before the courts.”
Here’s a copy of the suit, U.S. v. the State of Texas: https://www.justsecurity.org/wp-content/uploads/2021/09/lawsuit-doj.pdf
“I don’t believe Roberts. (see how that works?)”
Yes, of course you are free to have different beliefs than me. Duh.
“Cite the precedent you insist exist.”
I already did, in my September 8, 4:25 PM to you.
“In this case, not a single lawsuit has been filed. Which is the reason no judge has ruled the law unconstitutional.”
That’s false, and if you were paying attention, you’d know that it’s false. I already pointed out to you that a district court and a 5th Circuit panel had ruled the law was unconstitutional, in my September 8, 12:34 PM response to you. How do you think they came to rule on it? A lawsuit had been filed! (In fact, more than one was filed. SCOTUS ruled on a different one.) You responded to that comment, but apparently you couldn’t be bothered to read the entire thing and think about what it meant. As I said earlier, you are not trying to have a sincere discussion here.
I am as conservative as they come. But this law in Texas is an end run around Roe. But the real test for the will be in the Mississippi case. That being said this whole issue has a glaring unknown, Or at the minimum a contentious conundrum. When does life begin? One major problem I see is the Peterson case in California. He was convicted of a double murder because he killed his wife while she was pregnant. Which way is it? Is an unborn child a human life or not? You can’t have it both ways.
The issue of when life begins is irrelevant to the matter of abortion or criminal penalties for causing the death of a fetus as a result of harm done to its mother. A woman has the right to choose whether to terminate an unwanted pregnancy up to the age of fetal viability, at which point the state can regulate the procedure. On the other hand, if someone shoots a pregnant woman in the abdomen or a drunk driver runs her down and her fetus dies as a result, most states treat this as an additional criminal offense to the assault or attempted murder of the mother. In the case of an elective abortion, the mother has made the choice. In the case of a criminal act, the mother had no choice.
I agree that fetal viability could be the determining factor as apposed to when life begins. But it certainly doesn’t work the way Northam stated. That after a botched abortion the ” doctor and mother would have a conversation”. So if the fetus is deemed viable, which is nebulous, would an abortion be prohibited?
And the choice factor doesn’t apply. Either it is viable, using your criteria, and therefore a life, or it is not.
That’s not what “viable” means in this context: it means capable of independent life outside of the womb.
Northam wasn’t talking about abortion when he said the ” doctor and mother would have a conversation,” he was talking about births where the newborn has severe medical problems that make it unlikely that the newborn can live.
Not the way I remember it. It was in reference to an unsuccessful abortion. Even if your premise is correct, the doctor has taken the an oath to do no harm. There’s no discussion to be had. The doctor must do all possible to save the newborn. The mother at that point can’t give the ” ok kill it” order.
If you looked it up instead of relying on your memory, you’d find that he said “It’s done in cases where there may be severe deformities, there may be a fetus that’s non-viable. So in this particular example, if a mother is in labor, I can tell you exactly what would happen. The infant would be delivered. The infant would be kept comfortable. The infant would be resuscitated if that’s what the mother and the family desired, and then a discussion would ensue between the physicians and the mother.” Maybe you’re not aware that a woman may be pregnant with a non-viable fetus and then go into labor.
And no, the doctor does not have to do all that’s possible to save a non-viable newborn, any more than a doctor has to do everything possible to save someone in hospice. Our laws allow doctors to only provide palliative care for both non-viable newborns and people in hospice, and parents have medical power of attorney for their children, including newborns, unless the court has specifically named a substitute. The mother isn’t giving an ” ‘ok kill it’ order.”
Just to add a bit of information. In my past readings France and Switzerland (not the only) would let the infant die if the size or weight was below a certain level.
You don’t know what Northam was talking about. You pretend to be a mind-reader, but you are not.
But you obviously are. I saw the video. It doesn’t take a mind reader. Just need to understand English.
In English, Northam said “It’s done in cases where there may be severe deformities, there may be a fetus that’s non-viable.” He’s talking about things like anencephaly.
Now who is mind reading?
Total anencephaly is an example of a “case where there may be severe deformities, there may be a fetus that’s non-viable.”
When a law is declared unconstitutional under existing case law is it the case law that is being used as a source document or is it the Constitution? If the case law is bad and the Constitution has been misinterpreted where goes the Constitution?
There’s A Straight Line From US Racial Segregation To The Anti-Abortion Movement
In the first four months of 2021, Republican lawmakers introduced over 360 bills to restrict voting rights and 536 bills to restrict abortion rights. The tandem nature of all these restrictions is no fluke. These restrictions reflect Republican priorities: ‘Limiting the rights of women and minorities’.
You see, the Republican party is largely composed of older White guys in smaller towns. They were born into a world White males ruled. But that old order has been under siege for many years. It was hoped that Donald Trump could bring back the good ole days. And when Trump was voted out, his followers responded with fury on January 6.
Below are sample paragraphs from an article that appeared in yesterday’s edition of The Guardian. It was written by Randall Balmer, a professor at Dartmouth College who has spent years researching the so-called ‘Christian Right’. Balmer stresses that Roe vs Wade was ‘not’ the catalyst that galvanized the Christian Right into a political movement. It was instead a decision by the IRS to deny tax exempt status to schools that practiced pro-segregation policies.
Evangelicals considered abortion a “Catholic issue” through most of the 1970s, and there is little in the history of evangelicalism to suggest that abortion would become a point of interest. Even James Dobson, who later became an implacable foe of abortion, acknowledged after the Roe decision that the Bible was silent on the matter and that it was plausible for an evangelical to hold that “a developing embryo or fetus was not regarded as a full human being”.
in 1971 the Southern Baptist Convention had passed a resolution calling to legalize abortion. When the Roe decision was handed down, some evangelicals applauded the ruling as marking an appropriate distinction between personal morality and public policy. Although he later – 14 years later – claimed that opposition to abortion was the catalyst for his political activism, Jerry Falwell did not preach his first anti-abortion sermon until February 1978, more than five years after Roe.
Still, it took some time for opposition to abortion to take hold among evangelicals. According to Frank Schaeffer – who produced a series of anti-abortion films called Whatever Happened to the Human Race?, featuring his father, Francis Schaeffer, and C Everett Koop, who later became Ronald Reagan’s surgeon general – the evangelical response was at best tepid when the films appeared early in 1979.
Edited from: “There’s A Straight Linke From US Racial Segregation To The Anti-Abortion Movement”
The Guardian, 9/7/21
“In the first four months of 2021, Republican lawmakers introduced over 360 bills to restrict voting rights and 536 bills to restrict abortion rights. ”
In the first 4 months, Biden has let in thousands of illegal immigrants with many murderers and rapists. At the same time, the left has tried to make voting so open that voting isn’t secure. Having one vote per person isn’t the leftist way. They want elections to be a sham.
“They were born into a world White males ruled. ”
White males were the majority, and plenty of others have held office. The above statement can only be said in this fashion by a racist.
Biden didn’t “let in” illegals: they have a right to apply for asylum and they are being housed until their cases come up. Where’s the proof that any of them are “murderers and rapists”? The “Left” hasn’t done anything to make voting insecure. Where’s the proof? There isn’t any.
Texas Whistleblower Site Has Trouble Staying Online
Providers Bothered By Privacy Concerns
The site ProLifeWhistleblower.com was removed from its original web host by the provider GoDaddy on Friday before being suspended by its new host, an agency known for providing services to far-right groups.
Created by Texas Right to Life, an evangelical Christian group, the site allowed people to anonymously submit information about potential violations of the new law – which makes it illegal to help women in Texas access abortion after the sixth week of pregnancy.
In recent days, internet users have protested against the site by flooding it with false reports, memes and even porn in the hopes of rendering it less effective.
The website’s difficulties were compounded when GoDaddy, which provides the servers where the website lives, said the site had violated its privacy policies that bar the sharing of third-party personal information including data related to medical issues such as abortion.
The site was then moved to Epik, according to domain registration data first reported by Ars Technica. Epik is known for its “anything goes” attitude towards web hosting, servicing sites that other companies have deplatformed elsewhere for hate speech and other content violations – including 8chan, Gab and Parler.
According to reports from the Daily Beast, Epik contacted the website about potential violation of its own rules concerning the collection of medical data about people obtaining abortions.
A Texas Right to Life spokeswoman, Kimberlyn Schwartz, said on Tuesday that the website was in the process of moving to a new host, but was not yet disclosing which one.
Edited from: “Texas Abortion Whistleblower Website Forced Offline”
Today’s The Guardian
Prosecution under ancient Athenian law was by private citizens, not governmental officials. Any Athenian citizen who so wanted (ho boulomenos) could bring such an action. If too few citizens on the jury voted to convict, that citizen would face certain disabilities, like not being able to prosecute any more.
Ancient Athens was a lot more democratic than our present plutocracy disguised as an elective democracy.
You omit that only free men were considered citizens in ancient Athens, and women, children, and slaves were not. If you think that’s more democratic than at present in the US, perhaps you’re a free male.
Anonymous, you don’t see around the corners and you never walk around one to see what is there. You missed the boat. All you want to do is create an argument and make yourself look like a fool.
Biden giving a talk says he is supposed to stop here and walk out of the room.
Whoever is pulling his strings would do the world a favor if they had Biden stop and walk out of the White House.
Human life (me, you, “the People” and our Posterity) develops in stages, in processes, with systems and functions (except consciousness that science discerns correlation but not origin and expression), that have been completely mapped. Life evolves from conception (the source) until Her Choice or her Choice. The latter can be in self-defense, or in a planned parent/hood clinic where the child is disarmed, and without a voice, and while in a prone and vulnerable position, scalped and killed. Demos-cracy is aborted in darkness (e.g. wicked solution).
Week 5 is the start of the “embryonic period.” This is when all the baby’s major systems and structures develop.
The embryo’s cells multiply and start to take on specific functions. This is called differentiation.
Blood cells, kidney cells, and nerve cells all develop.
The embryo grows rapidly, and the baby’s external features begin to form.
Your baby’s brain, spinal cord, and heart begin to develop.
Baby’s gastrointestinal tract starts to form.
It is during this time in the first trimester that the baby is most at risk for damage from things that may cause birth defects. This includes certain medicines, illegal drug use, heavy alcohol use, infections such as rubella, and other factors.
Weeks 6 to 7
Arm and leg buds start to grow.
Your baby’s brain forms into 5 different areas. Some cranial nerves are visible.
Eyes and ears begin to form.
Tissue grows that will become your baby’s spine and other bones.
Baby’s heart continues to grow and now beats at a regular rhythm. This can be seen by vaginal ultrasound.
Blood pumps through the main vessels.
There is no mystery in sex and conception. A woman and man have four choices: abstention, prevention, adoption, and compassion, and, still six weeks. Baby steps.
That said, the edge cases of involuntary (rape… rape-rape) and superior (incest) exploitation can and should be addressed separately.
Can they abort the baby, cannibalize her profitable parts, sequester her carbon pollutants, and have her, too?
Anonymous the Stupid, the behavior you are complaining about is reprehensible, but in this world dealing with liars that intend to use force, one has to call them out even if the level of decency falls.
I so happen to be known as a very polite guy, but I also know the streets. When dealing with dirt I recognize that sometimes I have to get my hands dirty.
Blogs of this nature should exist at the highest level, but that is impossible when there is too much trash in the streets.
No Exceptions For Rape Or Incest
But Abbott Promises That Rapists Will Be Eliminated
Texas Gov. Greg Abbott on Tuesday defended a new state law banning most abortions that also does not provide exceptions for cases of rape or incest, saying it does not force victims to give birth even though it prohibits abortions before some women know they’re pregnant.
Abbott, a Republican, added that Texas would strive to “eliminate all rapists from the streets” while taking questions during his first press conference since the law took effect last week.
Recent surveys by the U.S. Department of Justice found that most rapes go unreported to police, including a 2019 survey that found about 1 in 3 victims reporting they were raped or sexually assaulted.
Abbott was asked about the new abortion restrictions while signing into law an overhaul of Texas’ election rules.
“Texas will work tirelessly to make sure that we eliminate all rapists from the streets of Texas by aggressively going out and arresting them and prosecuting them,” Abbott said.
It’s amazing how Republicans fail to grasp the optics of moments like this. No exceptions for rape or incest. “But don’t worry, we’ll eliminate all rapists”!
While Abbot says Texas would strive to “eliminate all rapists from the streets”, Joe Biden is permitting rapists to illegally enter the nation.
Hypocrisy reigns on the left side of the aisle.
“‘Texas will work tirelessly to make sure that we eliminate all rapists from the streets of Texas by aggressively going out and arresting them and prosecuting them,’ Abbott said.”
Why hasn’t he already been working tirelessly to “eliminate all rapists from the streets of Texas”? If working tirelessly were sufficient to stop rape, why does rape still occur in Texas?
Abbott is dishonest, and he is trying to avoid answering the question of why he wants to force a rape victim to have to carry the pregnancy to term if she uses emergency contraception but it fails, or she is too traumatized to use emergency contraception, and then she doesn’t realize that she’s pregnant until she’s 7 weeks along.
“Abbott is dishonest”
No, you are. On the one hand you support Biden bringing in illegal aliens without regard to their temperament or criminal histories. On the other hand you want to call Abbott dishonest for wanting to take a strong hand against rapists.
What is it that you don’t like about women?
Nice poem, you should listen to it and see how it reflects the ugliness of your actions.
You should listen to it and see how it reflects the ugliness of yours.
Yes, anonymous, there is ugliness, but the ugliness starts in your corner. It has to end in your corner.
“Abbott is dishonest, and he is trying to avoid answering the question of why he wants to force a rape victim to have to carry the pregnancy to term if she uses emergency contraception but it fails, or she is too traumatized to use emergency contraception, and then she doesn’t realize that she’s pregnant until she’s 7 weeks along.”
One wonders how killing an innocent viable child somehow vindicates a rape victim. It’s tantamount to the cops responding to a bank robbery and letting the bank management shoot the bystanding customers because who could bear seeing the witnesses to the crime over and over.
“killing an innocent viable child ”
An embryo isn’t viable at 7 weeks.
A fetus isn’t viable at 10 weeks.
A fetus isn’t viable at 15 weeks.
A fetus isn’t viable at 20 weeks.
Casey already allows states to outlaw abortions for viable fetuses, with an exception if the mother’s life is endangered. As a lawyer, you should know that. So why do you dishonestly pretend that these abortions are “killing an innocent viable child”?
If you were the moral person you pretend to be, you wouldn’t base your response on a false assumption that you presumably know is false.
A straw clown masquerading in a straw man’s clothing. A woman and man have four choices, and still six weeks. Baby steps.
Garland needs to spend his time and taxpayers’ $$ on something other than killing babies! The TX law applies to babies whose heartbeats are detected .. real live babies.
There isn’t a heart at 6 weeks, so there is no heartbeat. There are heart cells that start to move together, and electrical activity from those cells.
Garland has a sworn duty to uphold the Constitution, and SCOTUS has ruled that women have a constitutional right to abortion prior to viability, so Garland has a sworn duty to protect the right to abortion prior to viability.
You’ll have to point out the “viability”clause.
The battle has always been the same. SCOTUS requires the constitution to make determinations. Lacking the constitution….’The States or the People….The people rule themselves. The People are not ruled by unelected oracles.
“You’ll have to point out the “viability”clause. ”
No, I only have to support my actual claim, which was about SCOTUS’s ruling (in Planned Parenthood v. Casey):
“Consideration of the fundamental constitutional question resolved by Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, principles of institutional integrity, and the rule of stare decisis require that Roe’s essential holding be retained and reaffirmed as to each of its three parts: (1) a recognition of a woman’s right to choose to have an abortion before fetal viability and to obtain it without undue interference from the State, whose previability interests are not strong enough to support an abortion prohibition or the imposition of substantial obstacles to the woman’s effective right to elect the procedure; (2) a confirmation of the State’s power to restrict abortions after viability, if the law contains exceptions for pregnancies endangering a woman’s life or health; and (3) the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.”
“SCOTUS requires the constitution to make determinations”
Yep. And the Constitution states that “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people,” and SCOTUS has explained why they believe that the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendment imply a right to privacy.
If you think that there has to be a “privacy” clause in order to have a right to privacy, then you have a fundamental misunderstanding of the Constitution.
Do you disagree that there is a right to privacy? If so, please explain why, addressing the Supreme Court’s opinions in their privacy rulings.
(To be honest, I doubt you will. Seems to me that you like to challenge me, but you’re not actually interested in having a sincere exchange where you defend your own views. But I’d be happy for you to prove me wrong about that.)
None of your bolded language appears in the constitution. Viability is not a constitutional construction. If the people, through their elected representatives create those standards, the courts could not overrule them…without direction from the constitution.
I keep pointing out SCOTUS has exceeded their reach as defined by the constitution, and in direct opposition to the 10th amendment.
Your response is SCOTUS is Royalty. Their decisions are the same as law handed down from infallible robbed Gods. The People must obey and cannot challenge. The Notion of a self governing Populace is just that. A notion, of no value.
“None of your bolded language appears in the constitution.”
I never said that it does. I specifically said that it was from a SCOTUS ruling.
“Your response is SCOTUS is Royalty. …”
No, that wasn’t my response at all.
And as I suspected, you were unwilling to answer my question: Do you disagree that there is a right to privacy? If so, please explain why, addressing the Supreme Court’s opinions in their privacy rulings.
Since you aren’t trying to have a good faith discussion with me (a sincere discussion where you try to understand what I *am* saying, refrain from attributing beliefs to me that aren’t mine or even close to mine, where you’re willing to answer reasonable questions, …), I guess we’re done.
Do you disagree that there is a right to privacy?
Yes there is a right to privacy.
That however has no bearing on the Peoples desire to protect the most vulnerable. That is exactly what the People were doing before Roe. Protecting the sanctity of life. Do I have the right to privacy as I work in my lab to aerosolize the ebola virus. and engineer a way to disperse it over NYC? No. And Privacy is not my shield, because my actions are illegal. Just like killing the unborn was illegal. Roe did not nothing about privacy. It is the smoke screen. Roe overturned legislation protecting life. Something well within the power of the people.
You’ll have to point out the privacy clause. /sarc
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