From what I've read, the "trick" in the Texas anti-abortion law is

something that hasn't been seen before. Are there other instances of that
kind of tactic? If not, kudos, of sorts, to whomever came up with it.

As a political [not legal, apologies] matter this could rein in the Supreme Court on other "social" issues. What if they made it a similar no-risk third-party tort to refuse service to someone who is gay? Or to a school district that restricted LGBT students' use of facilities? Or even noise regulations or overtime parking?

another political comment [apologies, again :o)] I think the Supreme
Court's decision was scandalous. Not because of its substance but because
I thought that in questions of sort-of "uncharted territory" they would act
to minimize the harm while lower courts sorted out the details.

/Bernie\
--
Bernie Cosell Fantasy Farm Fibers
bernie@fantasyfarm.com Pearisburg, VA
--> Too many people, too few sheep <--

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Bernie Cosell <bernie@fantasyfarm.com> wrote:

From what I've read, the "trick" in the Texas anti-abortion law is

something that hasn't been seen before. Are there other instances
of that kind of tactic? If not, kudos, of sorts, to whomever came
up with it.

It hasn't been tried before in this way (as far as I am aware of)
because it isn't proper, it isn't legal and in the end it won't hold
up. I think all the Supreme Court justices know that. But five of
them wanted to unambiguously signal that Roe v. Wade is over.

As a political [not legal, apologies] matter this could rein in
the Supreme Court on other "social" issues. What if they made it
a similar no-risk third-party tort to refuse service to someone
who is gay? Or to a school district that restricted LGBT
students' use of facilities? Or even noise regulations or
overtime parking?

I'll guarantee that if a state copies the Texas law word for word but
exchanged "gun ownership" for "abortion" the Court wouldn't be nearly
as kind to it.

another political comment [apologies, again :o)] I think the
Supreme Court's decision was scandalous. Not because of its
substance but because I thought that in questions of sort-of
"uncharted territory" they would act to minimize the harm while
lower courts sorted out the details.

That's normally what courts do. In this case they apparently wanted
to maximize the harm, so that when they overturn Roe v. Wade but also
disallow the Texas statute, people will be relieved rather than
outraged.

--
Stu
http://DownToEarthLawyer.com

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On 9/3/2021 5:49 PM, Bernie Cosell wrote:

From what I've read, the "trick" in the Texas anti-abortion law is

something that hasn't been seen before. Are there other instances of that kind of tactic? If not, kudos, of sorts, to whomever came up with it.

As a political [not legal, apologies] matter this could rein in the Supreme Court on other "social" issues. What if they made it a similar no-risk third-party tort to refuse service to someone who is gay? Or to a school district that restricted LGBT students' use of facilities? Or even noise regulations or overtime parking?

another political comment [apologies, again :o)] I think the Supreme
Court's decision was scandalous. Not because of its substance but because
I thought that in questions of sort-of "uncharted territory" they would act to minimize the harm while lower courts sorted out the details.

/Bernie\

An excellent analysis of why the Supreme Court's handling of this case
was ill-considered:

https://reason.com/2021/09/03/conservatives-should-worry-about-the-texas-abortion-law-too/?utm_medium=email

Basically, anti-gun states could use the exact same technique to put gun
stores out of business. Or anything else they don't like but which is
supposed to be protected by the Constitution.

--
I do so have a memory. It's backed up on DVD... somewhere...

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On 9/3/2021 11:42 PM, Stuart O. Bronstein wrote:

Bernie Cosell <bernie@fantasyfarm.com> wrote:

From what I've read, the "trick" in the Texas anti-abortion law is

something that hasn't been seen before. Are there other instances
of that kind of tactic? If not, kudos, of sorts, to whomever came
up with it.

It hasn't been tried before in this way (as far as I am aware of)
because it isn't proper, it isn't legal and in the end it won't hold
up. I think all the Supreme Court justices know that. But five of
them wanted to unambiguously signal that Roe v. Wade is over.

As a political [not legal, apologies] matter this could rein in
the Supreme Court on other "social" issues. What if they made it
a similar no-risk third-party tort to refuse service to someone
who is gay? Or to a school district that restricted LGBT
students' use of facilities? Or even noise regulations or
overtime parking?

I'll guarantee that if a state copies the Texas law word for word but exchanged "gun ownership" for "abortion" the Court wouldn't be nearly
as kind to it.

another political comment [apologies, again :o)] I think the
Supreme Court's decision was scandalous. Not because of its
substance but because I thought that in questions of sort-of
"uncharted territory" they would act to minimize the harm while
lower courts sorted out the details.

That's normally what courts do. In this case they apparently wanted
to maximize the harm, so that when they overturn Roe v. Wade but also disallow the Texas statute, people will be relieved rather than
outraged.

"Minimize the harm" may be subjective to an extent. If they see abortion
as being the harm (and not that the harm is to the rights of the
pregnant female), then they may see a stay of execution as causing more
harm.

But how can Texas even think this would hold up as-is or even anywhere
close to it? Stu may be right in that it may be the thinking of "yeah,
SCOTUS overturns this law and then we we pass one later that's not as
bad, people will be saying 'it could have been worse.'"

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On Friday, September 3, 2021 at 6:49:20 PM UTC-6, Bernie Cosell wrote:

As a political [not legal, apologies] matter this could rein in the Supreme Court on other "social" issues. What if they made it a similar no-risk third-party tort to refuse service to someone who is gay? Or to a school district that restricted LGBT students' use of facilities? Or even noise regulations or overtime parking?

Once a bona fide plaintiff comes along and sues in a private civil action under the Texas Heartbeat Act, I expect the courts to refuse to enforce the statute on the same grounds as that used in SCOTUS's 1948 Shelley v. Kraemer
decision.

In Shelley v. Kraemer, SCOTUS agreed that private parties could abide
by racially restrictive covenants. Contractual terms can be whatever.
But SCOTUS then roared: Private parties may not seek judicial
enforcement of a racially restrictive covenant, because judicial enforcement would be a state action in violation of the Fourteenth Amendment.

As plaintiffs sue in private civil actions pursuant to the Texas Heartbeat
Act, I expect the courts will start throwing out the suits on pretty much
the same grounds as the 1948 Supreme Court decision: A court's
enforcement of the Texas Heartbeat statute is a state action that
violates the Fourteenth amendment. 

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On 9/9/2021 2:02 AM, Elle N wrote:

On Friday, September 3, 2021 at 6:49:20 PM UTC-6, Bernie Cosell wrote:

As a political [not legal, apologies] matter this could rein in the Supreme >> Court on other "social" issues. What if they made it a similar no-risk
third-party tort to refuse service to someone who is gay? Or to a school
district that restricted LGBT students' use of facilities? Or even noise
regulations or overtime parking?

Once a bona fide plaintiff comes along and sues in a private civil action under
the Texas Heartbeat Act, I expect the courts to refuse to enforce the statute on the same grounds as that used in SCOTUS's 1948 Shelley v. Kraemer decision.

In Shelley v. Kraemer, SCOTUS agreed that private parties could abide
by racially restrictive covenants. Contractual terms can be whatever.
But SCOTUS then roared: Private parties may not seek judicial
enforcement of a racially restrictive covenant, because judicial enforcement would be a state action in violation of the Fourteenth Amendment.

As plaintiffs sue in private civil actions pursuant to the Texas Heartbeat Act, I expect the courts will start throwing out the suits on pretty much
the same grounds as the 1948 Supreme Court decision: A court's
enforcement of the Texas Heartbeat statute is a state action that
violates the Fourteenth amendment.

There's nothing in the law dealing with race or making any racial
distinctions.

However, Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982) (https://supreme.justia.com/cases/federal/us/459/116/) seems to deal
with EXACTLY this very thing.

"A Massachusetts statute (§ 16C) vests in the governing bodies of
schools and churches the power to prevent issuance of liquor licenses
for premises within a 500-foot radius of the church or school by
objecting to the license applications."

"Held: Section 16C violates the Establishment Clause. Pp. 459 U. S. 120-127.

Section 16C is not simply a legislative exercise of zoning power but
delegates to private, nongovernmental entities power [...] ordinarily
vested in governmental agencies"

"Section 16C substitutes the unilateral and absolute power of a church
for the reasoned decisionmaking of a public legislative body acting on
evidence and guided by standards on issues with significant economic and political implications,"

What would be really interesting is the way the Texas law says that any section, paragraph, phrase or word can be severed from the rest and will
remain in effect even if other parts are struck down.

The law basically says two things of interest here:

1) Private parties can enforce it via civil suits.

2) State entities are NOT to enforce it.

If SCOTUS says (1) is unconstitutional along the lines of Larkin vs
Grendel's Den, Inc, then it's severed and the rest of the law remains in effect, *including* (2). So now Texas is in the "egg on the face"
position of having a law that can't be enforced.

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On Friday, September 10, 2021 at 7:37:03 AM UTC-6, Mike Anderson wrote:

On 9/9/2021 2:02 AM, Elle N wrote:

On Friday, September 3, 2021 at 6:49:20 PM UTC-6, Bernie Cosell wrote:

As a political [not legal, apologies] matter this could rein in the Supreme
Court on other "social" issues. What if they made it a similar no-risk
third-party tort to refuse service to someone who is gay? Or to a school >> district that restricted LGBT students' use of facilities? Or even noise >> regulations or overtime parking?

Once a bona fide plaintiff comes along and sues in a private civil action under
the Texas Heartbeat Act, I expect the courts to refuse to enforce the statute
on the same grounds as that used in SCOTUS's 1948 Shelley v. Kraemer decision.

In Shelley v. Kraemer, SCOTUS agreed that private parties could abide
by racially restrictive covenants. Contractual terms can be whatever.
But SCOTUS then roared: Private parties may not seek judicial
enforcement of a racially restrictive covenant, because judicial enforcement
would be a state action in violation of the Fourteenth Amendment.

As plaintiffs sue in private civil actions pursuant to the Texas Heartbeat Act, I expect the courts will start throwing out the suits on pretty much the same grounds as the 1948 Supreme Court decision: A court's
enforcement of the Texas Heartbeat statute is a state action that
violates the Fourteenth amendment.

There's nothing in the law dealing with race or making any racial distinctions.

That's not the point. The 1948 SCOTUS decision said the courts, being
state agents, cannot enforce violations of the constitution. Denying
someone housing because of their race violates the 14th amendment.

However, Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982) (https://supreme.justia.com/cases/federal/us/459/116/) seems to deal
with EXACTLY this very thing.

Thank you for this citation. This case appears to be getting traction
in the media. I saw someone reference it in the comments section
of a major online newspaper.

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On 9/10/2021 12:11 PM, A. C. wrote:

On Friday, September 10, 2021 at 7:37:03 AM UTC-6, Mike Anderson wrote:

On 9/9/2021 2:02 AM, Elle N wrote:

On Friday, September 3, 2021 at 6:49:20 PM UTC-6, Bernie Cosell wrote:

As a political [not legal, apologies] matter this could rein in the Supreme
Court on other "social" issues. What if they made it a similar no-risk >>>> third-party tort to refuse service to someone who is gay? Or to a school >>>> district that restricted LGBT students' use of facilities? Or even noise >>>> regulations or overtime parking?

Once a bona fide plaintiff comes along and sues in a private civil action under
the Texas Heartbeat Act, I expect the courts to refuse to enforce the statute
on the same grounds as that used in SCOTUS's 1948 Shelley v. Kraemer
decision.

In Shelley v. Kraemer, SCOTUS agreed that private parties could abide
by racially restrictive covenants. Contractual terms can be whatever.
But SCOTUS then roared: Private parties may not seek judicial
enforcement of a racially restrictive covenant, because judicial enforcement
would be a state action in violation of the Fourteenth Amendment.

As plaintiffs sue in private civil actions pursuant to the Texas Heartbeat >>> Act, I expect the courts will start throwing out the suits on pretty much >>> the same grounds as the 1948 Supreme Court decision: A court's
enforcement of the Texas Heartbeat statute is a state action that
violates the Fourteenth amendment.

There's nothing in the law dealing with race or making any racial
distinctions.

That's not the point. The 1948 SCOTUS decision said the courts, being
state agents, cannot enforce violations of the constitution. Denying
someone housing because of their race violates the 14th amendment.

Elle said:

"Once a bona fide plaintiff comes along and sues in a private civil
action under the Texas Heartbeat Act, I expect the courts to refuse to
enforce the statute on the same grounds as that used in SCOTUS's 1948
Shelley v. Kraemer decision."

and then:

"Private parties may not seek judicial enforcement of a racially
restrictive covenant, because judicial enforcement would be a state
action in violation of the Fourteenth Amendment."

Saying that "SCOTUS said that...judicial enforcement would be a state
action in violation of the Constitution" (notice the last word there)
would be applicable. But saying that (as an example) "judicial
enforcement would be a state action in violation of the Four Amendment"
in reference to a case where someone wanted to buy a gun or "judicial enforcement would be a state action in violation of the first Amendment"
in reference to a case where police searched a home would make no sense
at all.

However, Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982)
(https://supreme.justia.com/cases/federal/us/459/116/) seems to deal
with EXACTLY this very thing.

Thank you for this citation. This case appears to be getting traction
in the media. I saw someone reference it in the comments section
of a major online newspaper.

This one seems very applicable and as well as easier to work with in the general sense of "you can't pass off enforcement of the law to private
parties" and gets away from the whole "abortion is a (chose one of the following) [travesty|god-given-right]" hot potato.

The case was couched some as a "separation of state and church" issue
but it can also be looked at as applicable in a case of Bernie's
original "Or even noise regulations or overtime parking?" Now an
apartment complex may have the right to enforce noise restrictions or
parking rules on the property but the Texas law would be like saying
that the person who lives in the house across town can drive by and then
order a tow-truck to come tow a car from the apartment that's taking up
two parking spaces "just because I wanted to teach them a lesson."

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According to Mike Anderson <prabbit237@gmail.com.com>:

However, Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982)
(https://supreme.justia.com/cases/federal/us/459/116/) seems to deal
with EXACTLY this very thing.

I happened to live within walking distance of Grendel's at the time. The decision was a big deal locally (finally Grendel's can serve beer) and
got a lot of coverage in the national press.

The case was couched some as a "separation of state and church" issue
but it can also be looked at as applicable in a case of Bernie's
original "Or even noise regulations or overtime parking?" ...

The decision cited an earlier case, California v. LaRue, which said that
the state could prohibit nude dancing in bars, distinguishing them because
the government itself made that rule rather than delegating it to someone
else. The case was decided on the Establishment clause but it was clear
that the issue was the delegation, not the regulation.



--
Regards,
John Levine, johnl@taugh.com, Primary Perpetrator of "The Internet for Dummies",
Please consider the environment before reading this e-mail. https://jl.ly

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