What Now for Roe?

Get ready for vigilante litigation

What we know and don’t know this morning.

  • Roe v. Wade has not been overturned. But…

  • The omens are not auspicious.

To say that we are watching something unusual and confusing play out is an understatement:

  • Based on current law and precedent, the Texas law which bans most abortions after 6-weeks is clearly and unambiguously unconstitutional. But…

  • By a 5-4 ruling, the court nevertheless has allowed it to go into effect. "The Court’s order is stunning,” Justice Sotomayor wrote in her dissent. “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.”

  • The majority opinion acknowledges “serious questions regarding the constitutionality of the Texas law,” but cited “complex and novel antecedent procedural questions” in refusing to issue an emergency order to put the law on hold.  

  • As a result, the court punted on more detailed constitutional scrutiny. “In reaching this conclusion,” the majority wrote, “we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”

  • In other words, there’s a lot more to come, and we don’t know how the rule will rule on the substantive issues. But…

  • The signals, rhetoric, and body language of the justices suggest that this court is moving toward at least a partial gutting of the court’s major precedents — Roe and Casey.

The court’s three liberals and Chief Justice Roberts all issued separate — often stinging dissents.

[Roberts] joined the court’s three liberals to say he would have kept the law from being implemented while the legality of the law was weighed in court. He described the Texas statute’s enforcement plan as “not only unusual, but unprecedented” and said it deserved more exacting judicial scrutiny.

That unusual and unprecedented enforcement mechanism is also genuinely bizarre public policy that takes us into uncharted legal territory.

In case you haven’t been following this, the Texas law allows pretty much anybody to file a lawsuit against anyone even remotely involved in an abortion (except the mother herself). It creates an incentive for this sort of vigilante litigation. As the Wapo notes: “Individuals who are sued under the ban could be required to pay the person who brought the lawsuit at least $10,000 for each abortion the defendant was involved in.”

"In effect,” Sotomayor wrote in her dissent, “the Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures."

“It’s like a citizen’s arrest,” one pro-life activist explained. “If someone runs through a red light right in front of you, you go to a policeman and say, ‘Hey, did you see that?’ ”

Texas Right to Life began soliciting “anonymous tips” on its website and asking for volunteers to “join the team of pro-lifers working to enforce” the law. An online form asks tipsters to submit information about how the abortion ban may have been violated and to name a clinic or doctor potentially involved. The organization says it will “ensure that these lawbreakers are held accountable for their actions.”

What, one wonders, can possibly go wrong with a policy that encourages neighbors, family, friends, co-workers, and complete strangers to spy on and sue one another?

The court’s ruling is a win for the pro-life movement, but it may prove to be a catastrophic victory. You don’t have to be pro-choice to think this is simultaneously reckless and dystopian, and I’m guessing that this won’t play well.

The sue-your-neighbor-bounty law could also have some unintended consequences:

My advice: Take a deep breath, and hang on. The reaction today is going to be volcanic, and social media and cable TV alike are going to be dumpster fires of hyperbole, anger, celebration, outrage, and really bad takes.

Happy Thursday.


McCarthy’s Obstruction.

As you know, on Tuesday, Minority Leader Kevin McCarthy threatened retaliation against telecom companies who complied with requests for information from the House Select January 6 Committee. If they cooperated with the investigation, McCarthy warned, “a Republican majority will not forget.”

Since we are deep into legal analysis this morning, I wanted to share an email from a savvy reader:

Charlie - I was a high level federal prosecutor for a long time and I head the white collar practice at an AMLAW100 firm.  What the minority leader did looks to me to be a crime - obstructing the investigation of a congressional committee.  See 18 USC 1505 and 1515.  

Section 1505 of Title 18, United States Code, as amended by the Victim and Witness Protection Act of 1982, forbids anyone from corruptly, or by threats of force or by any threatening communication, influencing, obstructing, or impeding any pending proceeding before a department or agency of the United States, or Congress. In 1996 Congress enacted a clarifying amendment to 18 U.S.C. § 1515, which defines the term "corruptly" as used in section 1505 to mean "acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information." False Statements Accountability Act of 1996, Pub. L. No. 104-292, §3, 110 Stat. 3459, 3460.

And see this for part of the DOJ’s own manual on this subject.  

The omnibus clause of 18 U.S.C. § 1505 parallels its counterpart in 18 U.S.C. § 1503 in language and purpose, and most of the law construing the latter is applicable to the former. Generally, a defendant may be found guilty under section 1505 if the government establishes that: (1) there was a proceeding pending before a department or agency of the United States; (2) the defendant knew of or had a reasonably founded belief that the proceeding was pending; and (3) the defendant corruptly endeavored to influence, obstruct, or impede the due and proper administration of the law under which the proceeding was pending. United States v. Price, 951 F.2d 1028, 1030-31 (9th Cir. 1991); United States v. Sprecher, 783 F. Supp. 133, 163 (S.D.N.Y. 1992).

I am not seeing an easy out for McCarthy on this.  I assume he will say his intention is not corrupt, but corrupt is interpreted to mean deliberately counseling witnesses to withhold documents without a good faith privilege, and instead to block the committee from getting the requested information.  McCarthy is a bit of a lunk, and he may well have stepped in it here.  I’m sure Merrick Garland has noticed. 

Maybe Kim Wehle has a take on this.  

[Name withheld]

I thought that was a good suggestion, so I forwarded the email to our resident constitutional scholar. Wehle responded:

Charlie,

I agree and Garland needs to step up soon. The inaction and unaccountability breeds more criminal activity. 

Kim

**

And now for some good news:


Left Behind.

Via NBC News:

WASHINGTON — A senior State Department official said Wednesday that it appeared a “majority” of Afghans who had worked for the U.S. military and applied for Special Immigrant Visas (SIVs) had not been successfully evacuated and remained in Afghanistan.

“I don't have an estimate for you on the numbers of SIVs and family members who are still there,'' said the senior official, who was in Kabul for the evacuation. ‘But I would say it's the majority of them, just based on anecdotal information about the populations we were able to support.”

State Department spokesperson Ned Price said that of about 31,000 people evacuated from Afghanistan to the U.S. between Aug. 17 and Aug. 31, roughly 23,000 were Afghan allies and family members considered “at risk” from the Taliban.


Calling out Cawthorne.

Stinging editorial in the Charlotte Observer about North Carolina’s most voluble member of the Sedition Caucus.

His fellow Republicans, including those in North Carolina, should respond. They should join Democrats in condemning Cawthorn and, in a bipartisan effort, censuring him in the U.S. House. Republicans surely would rather not target one of their own and face the possible wrath of their base, not to mention the former president. But Cawthorn can no longer be dismissed as a silly Congressman braying from the mountains of North Carolina. His rhetoric is dangerous, not only to his party but his country. It’s time to stop ignoring him.


Quick Hits

1. The Birth of the Biden Doctrine?

Bill Kristol is alarmed.

It’s not every day an American president in effect repudiates the preceding two decades of American foreign policy. That’s what Joe Biden has done.

And the fact that Biden was a senior member of the United States Senate for the first eight of those years—and supported much of our foreign policy then—and was then vice president of the United States for the next eight years makes his denunciation of the preceding two decades all the more remarkable.

Indeed, one could fairly say that of all his predecessors, the one Biden sounds most like is his immediate predecessor, the man he ran against and defeated, Donald Trump. So much so that, except for the nod to human rights, and the lack of cartoonish bellicosity in threatening those who would do us harm, one might be tempted to speak of a Trump-Biden Doctrine.


2. Are the Sacklers the Most Evil Family in American History?

Measured by deaths caused and damage wreaked, writes Saul Lelchuk in today’s Bulwark, the pushers of OxyContin have arguably caused more harm than any other American family.

For decades, the Sacklers sold a lethal drug while chiseling their eponymous letters on polished granite and marble across the country. They expect that we should thank them for their munificence and have the good manners to keep quiet.

We can’t get the lives back. But we can end the charade.


Cheap Shots

Lindsey bought the Humiliation Ticket… now he gets to take the ride:


I guess we’ve changed our mind about this whole cancel culture thing.