Jawbone Of An Ass

Trump brags after women lose abortion rights in Texas: 'We do have a Supreme Court that's a lot different' https://t.co/c9MZe8bQDd

— Raw Story (@RawStory) September 5, 2021

"The ruling was very complex and also probably temporary," he opined. "I think other things will happen and that will be the big deal and the big picture. So we'll see what will happen. But we're studying the ruling and we're studying also what they've done in Texas."

Somebody stuck that statement in front of him and told him to read it, a la "Anchorman."  His staff is desperately sticking fingers in the wind and judging where the parade is going so they can put Trump in front of it.

A TRO against enforcing the new law was issued by a Travis County district court on Friday.  It expires on the 17th; there is a hearing on a temporary injunction set for the 13th.  It only blocks Texas Right to Life (the other party in the suit) from finding people to sue Planned Parenthood.  Individual cranks are not effected, but rather like 1/6, without a leader most of those cranks won't even look for a lawyer who would take their case

The first fight on this law is going to be this provision allowing virtual strangers to sue for damages on behalf of other strangers (the fetus).  The standing issues there are gonna be rich.*  This is what Justice Kagan was talking about in her dissent, when she said the issues here haven't been considered by the Fifth Circuit yet (who, in the grand scheme of things, "advises" the Supreme Court.  It's not supposed to be a system of who decides last and finally, it's supposed to be a system of review of legal reasoning and issues of law that keeps the law stable and applied equally and equitably.  Part of Kagan's dissent is how the Supreme Court is on the verge of smashing that tradition (it is a powerful one, going to the legitimacy of the courts) in the name of ideology.  Clarence Thomas is the poster child for this dangerous and extra-legal thinking:  he'll burn it all down because he doesn't understand and he doesn't care.

The five Supremes who declined to get involved effectively (although not explicitly) ruled on the question of standing (they weren't very explicit about what they were doing at all, preaching it round ("we aren't overruling Roe!") and square (this law obviates Roe) at the same time.  Going after the novel legal procedure created by this law may end it before it lasts too long.  Granting people the right of redress because they don't like what somebody else is doing is a Pandora's box even the 5th Circuit (or, in this Texas case, the Texas Supreme Court) should want to nail shut and bury beneath the courthouse, as the saying goes.

We'll see.

*I have to add that the state has "standing" to bring criminal charges under a legal theory that has its roots in English common law, back when "subjects" were the property of the sovereign, and criminal cases were enforced against, basically, the non-landed gentry.  Anybody below the aristocracy was, by and large, chattel; property attached to the land they worked.  Now in medieval times this meant you were cannon fodder for whatever "noble" was fighting another "noble" for access to a bit more land.  Chivalry arose in response to this, a way of convincing knights to act on behalf of the powerless, rather than ride roughshod over them (be patient, I'm coming to my point).  As that idea trickled up to the King, it became the Crown's responsibility to protect the powerless from outlaws (literally those put outside the protection of the law), and eventually even against mere scofflaws.  To this day British criminal cases are charged in the name of the crown, so styled "R v. Jones," where the "R" is for "Rex" or "Regina," depending on who sits on the throne.  The idea was that injury to the King's subjects was injury to the King's property (akin to poaching on the King's lands, as everything on the lands belonged to the King as well).  So the King, later the state in the U.S. (state government or federal) had standing to bring a criminal charge on behalf of a crime victim, and alone had that authority (private criminal prosecutions were allowed in England once upon a time, IIRC, and I think were allowed here for a time).  

Civil cases, OTOH, had to be brought by the person injured.  Libel, for example, cannot be pursued if the person libeled is dead, or dies during the course of the suit, as the dead cannot be libeled. In general, you can't sue on my behalf if I have a case but choose not to pursue it. In general, civil claims end with the death of the plaintiff; so the question of law under this statute is:  how does this stranger to the case have standing to sue the pregnant woman, doctor, clinic, even driver or friend who said "Sure, you should do what you think is right", for damages? It seems to me antithetical to the most basic rules of jurisdiction and standing (standing being a subset of jurisdiction, because it's almost as fundamental but really the second question to be asked after invoking the authority of the court:  1) does the court have power (jurisdiction) to decide this case?  2) does the plaintiff have standing to bring it?.  Where, in other words, is the injury to the plaintiff? (some civil cases can be pursued by the estate of the deceased, depending on the suit and the grounds for it.  Obviously the dead can't testify, so the rules of evidence can come into play as to whether a trial is even feasible, even if the executor wants to pursue the case for the estate.  But that just shows how complicated these things can be.  There's never a simple answer because there's never a simple set of facts.)

Civil cases can be brought on behalf of minors, either through parents or legal guardians.  Parents are "legal guardians" for such purposes, but they are styled "as next friend" of a minor who is a plaintiff in a civil case.  That relationship has to be established in court before the plaintiff has standing to proceed.  How is a stanger "next friend" to the fetus of a woman they may not even know (the statute doesn't require any personal knowledge of the parties, just the ability to prove the allegations violative of the abortion limits)?  There are legal standards for who can be "next friend" to a minor; and I don't think any civil law contemplates a "next friend" to a fetus, not in the setting of an abortion procedure, or even contemplation of such a procedure.

Sorry, I'm going on a bit, but the more I examine this statute, the screwier it becomes.  I don't think it will be the final blow against Roe after all.  It is so badly written I think it will be tossed for wholly other reasons than its challenge to Roe.  If for no other reason, the courts don't want to throw the courthouse doors open in this fashion.  Standing is one of the ways the courts regulate who gets to petition them for redress of their grievances.  I suspect they are going to end this nonsense by declaring this breach of their rules is one up with which they will not put!