Good morning! It’s Thursday, September 2, 2021. Election Day 2022 is 432 days away. Election Day 2024 is 1,160 days away.
Leading today’s newsletter: There was some breaking news overnight from the Supreme Court on Texas’ six-week abortion ban. Here’s what you should know about the new law and how the justices ruled...
Supreme Court declines to block Texas abortion law
The Supreme Court refused on Wednesday to block a Texas law banning abortions as early as six weeks into pregnancy, now the nation’s most restrictive abortion statute.
In an order released just before midnight, the court’s five most conservative justices — Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas — allowed the law to stand on procedural grounds.
Chief Justice John Roberts joined the court’s liberal wing — Stephen Breyer, Elena Kagan, and Sonia Sotomayor — in dissent. The court’s order came almost 24 hours after the law had already gone into effect at the beginning of the day on Wednesday.
The Texas law, which prohibits abortions in the state once a fetal heartbeat can be detected (usually around the sixth week of pregnancy), was designed by Republican lawmakers specifically to avoid a pre-enforcement challenge. Instead of being carried out by state officials, the law is set up to be enforced by private citizens suing abortion providers.
However, the lawsuit against the statute targeted a state judge, which a majority of justices said was the wrong defendant — just as the law’s authors intended — since it would be citizens handling the enforcement.
“Federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves,” the unsigned majority opinion said. “And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.”
The majority added that the lawsuit “raised serious questions regarding the constitutionality of the Texas law at issue,” anticipating that other challenges to the statute would follow, although they would have to be aimed at citizens who bring abortion suits to court.
Each of the four dissenting justices filed separate opinions. “The court’s order is stunning,” Sotomayor wrote in hers, the most fiery of the foursome. “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.”
Kagan, meanwhile, blasted the majority for deciding such a major case on the “shadow docket,” which the justices have increasingly used in recent years to rule on emergency lawsuits — without public oral arguments.
While 13 other states have passed laws banning abortions after detection of a fetal heartbeat, the Texas law is the first to go into effect across the nation. (The others, lacking Texas’ never-before-used enforcement mechanism, were blocked in court.)
The Texas law, known as Senate Bill 8, also goes farther than many of its predecessors in other ways: Although a patient cannot be sued for seeking an abortion after six weeks, almost anyone who assists them could be, from doctors to someone who paid for the procedure. “Even an Uber driver taking a patient to an abortion clinic” is a potential defendant, the New York Times noted.
Private citizens bringing such lawsuits also do not need to be Texas residents or have to prove they sustained any injury stemming from the abortion. If the lawsuit is successful, defendants would have to pay the plaintiff at least $10,000 for each abortion they were involved in, along with paying the plaintiff’s legal fees. The law also does not make exceptions for rape or incest, although it does make an exception for abortions being performed due to a medical emergency.
About 85 percent of abortions in the state happen after the sixth week of pregnancy, making the new law a near-complete ban on abortions in the nation’s second-largest state.
The Supreme Court’s decision to let the law stand is the closest it has come to reversing the precedents established in Roe v. Wade (which established a constitutional right to an abortion) and Planned Parenthood v. Casey (which prohibited states from imposing an “undue burden” on abortions before fetal viability, which takes place around the 24th week of pregnancy.)
While litigation over the Texas law will continue in lower courts, other Republican-controlled states are likely to adopt laws with the same novel enforcement mechanism. The Supreme Court may yet have to rule on one of them; in any event, abortion will return to the court’s docket soon. The justices have already agreed to take up Dobbs v. Jackson Women’s Health Organization in the upcoming term, a challenge to Mississippi’s law banning abortions after 15 weeks of pregnancy.
What else you should know this morning.
Tropical Storm Ida. “The governors of New York and New Jersey declared a state of emergency late on Wednesday as record-breaking rains from tropical storm Ida led to flooding and hazardous conditions on the roads, with media reporting at least nine deaths.” Reuters
Afghanistan. “The U.S. estimates it left behind the majority of Afghan interpreters and others who applied for visas to flee Afghanistan, a senior State Department official said on Wednesday, despite frantic efforts to evacuate those at risk of Taliban retribution.” Wall Street Journal
At the border. “The U.S. government has lost contact with thousands of migrant children released from its custody, according to data obtained by Axios through a Freedom of Information Act (FOIA) request.” Axios
Policy Roundup: Legal
More legal headlines from this week, by Wake Up To Politics contributor Anna Salvatore.
More than three years after being indicted, disgraced Theranos founder Elizabeth Holmes will begin her trial this week for charges of misrepresenting her company’s blood-testing process. With the help of powerful backers such as Henry Kissinger and James Mattis, Theranos was valued at $9 billion in 2013 for its promises of quick, effective blood-testing for cancer and diabetes — that is, until the company was exposed as a scam.
Holmes, who pleads not guilty, will face charges this week of running a multi-million dollar scheme to defraud investors, doctors, and patients. “The most difficult thing to prove is intent,” UC Davis law professor Thomas Joo told CNN. “Did she intentionally lie in order to trick people?” Holmes will also argue that her business partner coerced her into the scheme through psychological and sexual abuse.
More legal headlines, via Anna:
- Survivors of the Yemeni civil war are asking the International Criminal Court to launch an investigation into potential war crimes.
- Postage fees are not an unconstitutional poll tax, ruled the 11th Circuit last Friday.
- A man on death row is suing so that a pastor can hold him during his execution. “It would just be comforting,” he told the New York Times.
- U.S. intelligence agencies will not have to disclose how much they knew about about Jamal Khashoggi’s murder, The Hill reports. The D.C. Circuit ruled on Friday that disclosures could present a serious national security risk.
What’s happening in Washington today. (All times Eastern)
→ President Joe Biden will receive his daily intelligence briefing at 9:30 a.m. At 11:30 a.m., he will deliver remarks on his administration’s response to Hurricane Ida. At 1:45 p.m., Biden will participate in a virtual event with rabbis from across the country to mark the Jewish High Holidays, which begin next week.
→ Vice President Kamala Harris will ceremonially swear in Ken Salazar, a former Colorado senator and Obama-era Interior Secretary, as U.S. ambassador to Mexico at 3 p.m. At 4:25 p.m., Harris and Labor Secretary Marty Walsh will meet with their staffs to discuss “progress to date and next steps” for the White House Task Force on Worker Organizing and Empowerment, which Harris chairs with Walsh as her vice chair.
→ White House Press Secretary Jen Psaki will hold her daily press briefing at 1 p.m.
→ U.S. public health officials will hold their weekly COVID-19 press briefing at 3 p.m.
→ The Senate is on recess until September 13.
→ The House is on recess until September 20.
→ The Supreme Court is on recess until October 4.
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