Legal Random, Random

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Re: Legal Random, Random

#31

Post by ti-amie »

Supreme Court says Texas abortion providers may proceed with challenge of six-week ban, leaves law in effect for now

By Robert Barnes
Today at 1:00 p.m. EST

The Supreme Court on Friday left in place a Texas law that bans most abortions after six weeks, but provided a path for abortion providers to challenge what is the nation’s most restrictive law on the procedure.

The court’s splintered decision allows the providers to return to a district judge who once blocked the law, saying it violated the constitutional right to abortion.

That restarts the legal process that has seen the law remain in effect since Sept. 1, when the Supreme Court refused to step in to block it.

Eight justices said the abortion providers may bring the challenge. Chief Justice John G. Roberts Jr., writing for himself and the court’s three liberals, said the district judge should act quickly.

“Given the ongoing chilling effect of the state law, the District Court should resolve this litigation and enter appropriate relief without delay,” Roberts wrote.

The decision was both a partial victory and a disappointment for abortion rights supporters. They had asked the court to block the law while the legal process continued, but have not found the necessary five votes.

Amy Hagstrom Miller, who as president and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance, is lead plaintiff in the case, said that while Wednesday’s outcome offered “hope,” the legal process has been “excruciating” for patients and staff alike.

“We’ve had to turn hundreds of patients away since this ban took effect, and the Supreme Court’s refusal to block the law means the heartbreak doesn’t end,” she said in a statement, imploring the lower court judge to act expediently. “ … We hope this law is blocked quickly so we can resume the full scope of abortion care we are trained to provide.”

Justice Clarence Thomas, an avowed critic of the court’s abortion jurisprudence, wrote that he would not have allowed the lawsuit to continue. Justice Sonia Sotomayor, on the other hand, issued a blistering statement on the court’s refusal to block the law, called S.B. 8.

“The Court should have put an end to this madness months ago, before S.B.8 first went into effect,” wrote Sotomayor, who was joined by fellow liberal justices Stephen G. Breyer and Elena Kagan.

The court’s refusal to block the law “betrays not only the citizens of Texas, but also our constitutional system of government,” she wrote.

While the case over Texas’s law is procedural, the Supreme Court has signaled it is ready to make dramatic changes in the judicial rules governing abortion rights. In debating a Mississippi law that bans almost all abortions after 15 weeks, some justices earlier this month indicated they are open to overturning Roe v. Wade, which for nearly 50 years has said there is a constitutional right to abortion before fetal viability.

Marjorie Dannenfelser, president of the national antiabortion group Susan B. Anthony List reacted saying: “We celebrate that the Texas Heartbeat Act will remain in effect, saving the lives of unborn children and protecting mothers while litigation continues in lower courts.”

“Meanwhile,” she added, “we anxiously await the Court’s decision in the [Mississippi] case in which the court is directly considering the constitutionality of laws that protect unborn children and mothers prior to viability.”

Access to abortion in Texas has been dramatically curtailed, and abortion providers said many who wanted the procedure were forced to leave the state.

Nancy Northup, who heads the Center for Reproductive Rights, which is representing the providers, chastised the court for having “abandoned its duty to ensure that states do not defy its decisions.”

“For 100 days now,” Northup said in a statement, “this six-week ban has been in effect, and today’s ruling means there is no end in sight.”

The court’s decision, wrote Justice Neil M. Gorsuch, was a procedural one.

“In this preliminary posture, the ultimate merits question — whether S.B.8 is consistent with the Federal Constitution — is not before the Court,” he wrote. “Nor is the wisdom of S.B.8 as a matter of public policy.”

The Texas cases raised complicated questions about legal procedure precisely because S.B. 8 was intended to avoid federal court review.

The issue for the justices was whether the law could be challenged in federal court, where judges compelled to follow Supreme Court precedent have stopped other states from enacting similar bans on early abortions.

Texas officials said the challenges must come in Texas courts after the civil suits have been adjudicated, but the law sets up obstacles that could delay a final decision for years.

Texas calls S.B. 8 a “heartbeat” bill — it prohibits abortions after cardiac activity is noted in the embryo. There is no exception for rape or incest, and the abortion patient cannot be sued.

The law is enforced by private citizens rather than the state government. Any individual can sue anyone who aids or abets a prohibited abortion. Successful lawsuits would result in an award of at least $10,000 to the person who filed the complaint — at oral argument, some justices referred to the award as a “bounty.”

Gorsuch wrote that the state’s judges, clerks and attorney general were not proper defendants in the case. But he said it could go forward against executive licensing officials who have regulatory authority over the providers.

Roberts wrote that was too cramped a view of the state’s responsibility for the law. His opinion in the case, joined by the court’s liberals, focused on what he called Texas’s attempts to undermine the judiciary’s role in determining the constitutionality of laws.

“Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review,” Roberts wrote. He quoted from an 1809 Supreme Court opinion that said attempts by state legislatures to annul judgments of the courts make a “mockery” of the Constitution.

“The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake,” he added.

The case presumably returns to U.S. District Judge Robert L. Pitman, who previously rejected a request from Texas officials to dismiss the lawsuit from abortion providers and scheduled a hearing to consider whether to block the six-week ban before it took effect.

But he was preempted by the U.S. Court of Appeals for the 5th Circuit, which called off the hearing pending further review and declined to halt the law. Pitman is likely to quickly issue an injunction while the renewed litigation is pending.

In a separate proceeding brought by the Biden administration, Pitman characterized the six-week ban as an “unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right,” adding that he would not “sanction one more day of this offensive deprivation of such an important right.”

But Pitman’s order would be reviewed by the 5th Circuit, which already has overruled him twice. And that could return the issue to the Supreme Court.

A stay from Pitman “will provide a reprieve for abortion providers, though for how long?” said Melissa Murray, a New York University law professor, who is closely following the litigation.

On Friday, the court said it should not have granted review of the case brought by Biden’s Justice Department, and dismissed it in the court’s parlance as “improvidently granted.” Sotomayor dissented from that decision.

Anthony Coley, a spokesman for the department, said in a statement that the administration became involved in the case because Texas’s law “was specifically designed to deprive Americans of their constitutional rights while evading judicial review.” The department, Coley said, “will continue our efforts in the lower courts to protect the rights of women and uphold the Constitution.”

The cases are Whole Woman’s Health v. Jackson and United States v. Texas.

Ann E. Marimow contributed to this report.
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Re: Legal Random, Random

#32

Post by JazzNU »

ponchi101 wrote: Fri Dec 10, 2021 3:17 pm I did say it was a serious question. And your answers are always read.
Got really busy with work today, sorry about that. I'll post something tomorrow.
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Re: Legal Random, Random

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Post by JazzNU »

JazzNU wrote: Sat Dec 11, 2021 1:57 am
ponchi101 wrote: Fri Dec 10, 2021 3:17 pm I did say it was a serious question. And your answers are always read.
Got really busy with work today, sorry about that. I'll post something tomorrow.
And then I was busy yesterday being Aunt Jazz. So instead you're going to get deep thinking on a football Sunday. 😊
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Re: Legal Random, Random

#34

Post by ti-amie »

This is both legal and political news but in the end it has to do with a SCOTUS ruling so I put it here. I hope New York State follows suit although with Gov Hochul having to run on a ticket that bot upstaters and downstaters (read NYC) she can't do anything until the election is decided. Great move by Newsom.

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Re: Legal Random, Random

#35

Post by JazzNU »

ponchi101 wrote: Fri Dec 10, 2021 12:49 am The gun culture in the USA is unlike any other in the Americas, Europe or Asia (as I said, Afghanistan and Yemen come to mind like places where there is also a "peculiar" relation between guns and men). After every single event like this one, the government of the USA does nothing about the problem: no laws, not even discussion in the chambers of power in the Congress. To us looking from the outside, it is very indicative that not only members of congress and the senate, belonging to the GOP, simply could not care less about this issue. Actually, it would seem that at least a fraction of the population is by now immune to these events and they have become normal.
So, IF THE GOVERNMENT AND THE POWERS THAT BE, do nothing about the main issue (gun ownership by people that simply should not own a gun) or implement safety and security measures to protect the population, why should individual, civilian organizations with no mission statement regarding this issue be held accountable and responsible for the events? We have seen what other countries have done after events like this: Dumblane, Utoya and Port Arthur were met by swift response by the governments. In the USA, nothing ever happens.
Why should the school be liable when the government approves de facto these events?

Splitting this into 2 posts.

So this is an attempt to answer some of this, but I doubt you'll be happy with the majority of this, so I'll say that up front, because it's not going to magically become New Zealand here. What you're making is more of a philosophical argument in large part than a legal one. I barely know where to start, but will begin here. First and foremost, the government doesn't approve of these events. When something like this happens, there are efforts to make changes, at the state and national level most times. There is a numbness to them, but not a desire to keep the status quo. There is majority public support for making changes to the gun laws. But there is a powerful gun lobby that limits or flat out derails what is done every time legislation is put forth. And I don't know enough about the governments you're referencing, but I'd guess that they don't have the constitutional wording and history associated with the Right to Bear Arms as the US does. And I'd also guess that they don't have the similar a similar gun lobby and as powerful gun manufacturers in their countries that are contributing to slow changes in gun laws.

There's also just a misunderstanding of how gun laws are written here. Why can't we just do what the UK and many other countries do? The UK doesn't give gun rights in their Constitution like the US does. Limiting ownership and rights is much easier because of this. Now, our forefathers didn't count on any of the modern guns we are dealing with, but the gun manufacturers and gun enthusiasts and in turn the NRA doesn't care about that. They take any limitation proposed as an infringement that will result in the road to no guns.

You can take Mexico as another example and it's indicative of quite a few countries. They once had the right to bear arms in their Constitution in a similar manner to the US, but have since adopted a newer constitution (coming out of a Revolution) that altered that right to something much more limited and controlled. But the US? We still have our 1776 Constitution (and 1791 Bill of Rights) with the mindset to match it where the Right to Bear Arms is concerned. When you're comparing the US to other countries, you'd need to look at that countries' constitution. More often than not, they've been forced to update their Constitution, typically for a great good reason, for having gained independence most often, within the last 100 years where gun ownership means something much different than it meant to our forefathers and the wording reflects a more modern sensibility because there's much greater knowledge of how guns can and have been used. Our republic's comparative stability has been a detriment on this issue.

When you say "simply should not own a gun" that is a philosophical argument or an opinion, not a legal argument. Basically every sane non-criminal has the right to bear arms here. Should they? Different question. For that to be a reality, where most people would not be able to own a gun, or for instance, to be allowed to own something like "no more than 5 hunting rifles unless an active member of the armed forces or a officially recognized local, state, or federal police or protection agency", in the current mindset, that basically means a Constitutional Amendment, which is a herculean task. Not remotely what other countries have done to get rid of guns following shootings to my knowledge, which is essentially to pass a piece of legislation with a majority or a supermajority of their legislative body. To take away the right to gun ownership entirely is not that simple here. It requires the same effort that was necessary to remove slavery from the books in the US (hopefully without a war). In the 230 years since the first set of Amendments to the Constitution (aka the Bill of Rights), there have only been 17 Amendments to the Constitution.

Now, that doesn't mean there isn't support for change. There is, which is another reason there has been an attempt by every recent administration to reign in gun laws, it is on politically solid ground to advocate for it in many parts of the country. Public support tipped over when school shootings became less isolated, and has steadily risen since I believe Sandy Hook with it being a good deal over the majority since Parkland at the latest. That support isn't for the banishment of guns though, it's for increased gun control. But it still requires getting it past the gun lobby. And for the time being, the best we might get are some parameters on gun ownership, a few more limitations, more concrete background checks, and closing of loopholes. But even that has been very difficult, because like I said, any challenge to gun ownership, even a minute one, causes the gun lobby to close ranks.


If you're interested in more information about the NRA and their successful tactics, I recommend watching this Last Week Tonight segment, it's a good rundown of how they operate and defeat even small legislation.

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Re: Legal Random, Random

#36

Post by JazzNU »

Second part, specifically speaking to Oxford, Michigan and the school shooting. I think your (and many others) objection to the idea of this lawsuit is potentially more about it being a public school.

So let's change the fact pattern slightly. Let's say that there's a active shooter situation at Lehman Brothers that results in 4 people dead and 20 people are injured. The shooter is found to be a disgruntled employee whose biggest client was recently reassigned to another broker. And let's also say that Lehman Brothers commissioned a safety report 5 years ago, after several concerning workplace incidents in general but specifically in the financial services industry, on actions they could take to make their workplace safer and the recommendations included installing metal detectors at all entrances. None of these major recommendations were acted upon despite their Chief of Security bringing up the subject within the last year following an incident with an employee threatening their department director. After the investigation of the mass shooting, it's found that there were complaints made to HR by multiple employees about increasingly erratic and bizarre behavior of the employee and 4 other official complaints made to department heads about the mass shooter, including an angry blowup at the company Christmas party where the incident was witnessed by more than 50 employees, including several senior executives. On the day of the shooting, the employee was acting erratic, more so than usual, and it was reported to higher ups by several of his colleagues.

So let's stop there. If one of the victims or victim's families sue Lehman Brothers, do you think there's a fundamental issue with the lawsuit? Do you think there's something wrong with holding Lehman Brothers responsible for not taking precautions to better protect their employees?

Now, let's change out Lehman Brothers. And instead let's say this occurred at the headquarters, where there are offices and nothing else, so no manufacturing of any kind of the following - Smith and Wesson, Blackwater, Lockheed Martin or the NRA. Does the same objection to suing them remain as nothing other than a workplace that was supposed to keep you safe?

If you think it's okay to sue Lehman, Lockheed, etc, then your objection is really that you're uncomfortable with the school being the entity that someone wants to hold responsible, not so much the concept of the organization where the shooting taking place bearing some responsibility to keep those there safe.
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Re: Legal Random, Random

#37

Post by ponchi101 »

I wanted to give your posts some thought and read them again, before posting some more.
What I find interesting borders on cultural divisions. Because I am applying for Colombian citizenship I had to read their constitution, and there lies the difference in views. Your example about a shooter at Lehman Brothers makes a good case. But down here, it would not be Lehman Brothers responsibility. The constitution clearly states that the security of the population resides with the Government. I suspect that if events like these were to happen here (and I come back to the fact that these shootings are a uniquely American phenomenon, as nothing like that has ever happened in L. America) the population would immediately ask about the government's role, not what the location where such an event would take place could have done.
Perhaps I did not use proper words when saying that the Government (USA) APPROVES of these events, but there I gather we would be in disagreement. The GOP certainly DOES NOT care about these events, and the NRA has enough senators in their pocket to make it sure no amendment will be considered, much less passed. One last item that you mention is the impossibility to change the constitution in the USA. By now an almost 250 yo document, it may be outdated in many aspects, specially that second amendment. Here, the constitution dates from 1991, when the country decided it was time to review the previous one (1896). Maybe an exercise worth taking: constitution should be written or at least reviewed once a century. But that is a different conversation.
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Re: Legal Random, Random

#38

Post by ti-amie »

The people in the US who are always howling about the Second Amendment have a hit list of Amendments they'd like to do away with. I really hope no one here decides to open the can of worms that amending/updating the US Constitution would become.
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Re: Legal Random, Random

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Of course right now it would be impossible, because you are so divided, but how open would you be for a NEW constitution? Written not by lawyers, senators or politicians, but by philosophers, humanists, people of renowned intellect? Would that be acceptable?
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Re: Legal Random, Random

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Post by ti-amie »

ponchi101 wrote: Tue Dec 14, 2021 7:00 pm Of course right now it would be impossible, because you are so divided, but how open would you be for a NEW constitution? Written not by lawyers, senators or politicians, but by philosophers, humanists, people of renowned intellect? Would that be acceptable?
Don't get me wrong. I think it's a great idea that the Constitution be updated. It's the GQP that worries me. There is no way they would accept "philosophers, humanists, people of renowned intellect" to do such a thing since they've been conditioned to think that people who fall into the categories you list think that they're better than them and don't have their interests at heart. It would be a s**t show.
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Re: Legal Random, Random

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Post by ti-amie »



TFG has 14 days to appeal.
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Re: Legal Random, Random

#42

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Which he will, again and again, until he dies at age 90 and will never spend one day in prison.
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Re: Legal Random, Random

#43

Post by JazzNU »

ponchi101 wrote: Tue Dec 14, 2021 4:09 pm Here, the constitution dates from 1991, when the country decided it was time to review the previous one (1896).
Decided it was time to review the previous one (1896)... after decades of violent conflict and political turmoil.

A large part of my political science focus was on Latin America and I also worked as a grad assistant on large-scale research project that was studying world constitutions. Maybe Colombia has reframed the reasons for their newer Constitution these days. It happens. But academics surely don't view it as merely thinking it was time to review the previous one.
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Re: Legal Random, Random

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Post by JazzNU »

I think updating the US Constitution is a terrible idea. Amendments are fine, starting from scratch as an update would be a fundamental mistake.

Keep in mind that to this day, other democracies still use that 1776 US Constitution and it's 1791 Bill of Rights as a template. Also keep in mind the way that the country held despite the attempts to attack this democracy in the last 5 years, it did not crumble because the US Constitution is a very strong one for democratic ideals. Many other similar attempts have been successful in other countries because they had lesser frameworks than the US does. The level of checks and balances others had weren't enough.

The way to remedy things is through legislation and through the Courts as has been done in the past. There are plenty of ways to correct or reign in what is imperfect through those means when fewer self-serving, self-righteous, antiquated, or bought-and-paid for morally bankrupt individuals are serving in those positions.
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Re: Legal Random, Random

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Post by ponchi101 »

JazzNU wrote: Wed Dec 15, 2021 2:40 am ...

Decided it was time to review the previous one (1896)... after decades of violent conflict and political turmoil.

A large part of my political science focus was on Latin America and I also worked as a grad assistant on large-scale research project that was studying world constitutions. Maybe Colombia has reframed the reasons for their newer Constitution these days. It happens. But academics surely don't view it as merely thinking it was time to review the previous one.
No. That was just my phrasing, not what academics say it was. The 1991 Constitution was spurred not because of decades of political violence; Colombia had been waging one civil war after another since it independence and the 1896 constitution was heavily influenced by religious principles. The Conservatives in Colombia wanted the country to be openly a RELIGIOUS democracy, with Catholicism firmly entrenched in the constitution, while the liberals wanted the country to be secular. For example, under the 1896 constitution, divorce was forbidden. So that makes it a century and a half of political turmoil.
So by 1990 the population wanted a new constitution because the old one had really become obsolete. As a matter of fact, the move for the constitutional change started with a popular movement in which newspapers printed the NEW CONSTITUTION ballot in their daily editions and people clipped it, filled it in and deposited in the voting booths. Because so many people did, the movement was successful.
But remember, when I write stuff, I am usually trying to make it light. So, again, I am sure that most historians will not use my phrasing to describe what happened.
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