*Laurence Tribe may have the answer, to TX abortion ban;

[elleng]

coming up on Rachel show.

This may be the solution I've hoped for.

https://en.wikipedia.org/wiki/Grendel%27s_Den

https://www.mtsu.edu/first-amendment/article/681/larkin-v-grendel-s-den-inc

https://supreme.justia.com/cases/federal/us/459/116/

YAY!!!

[msongs]

1. watching. if the state passes a law to allow something to happen, the state is liable nt

[elleng]

2. The issue in the case referenced seems to be WHO has the authority to enforce.

[SheltieLover]

4. I've thought about this

But I'm not a lawyer.

Ty for posting!

[StarfishSaver]

3. I'm not sure this case is applicable.

In Larkin v. Grendel's Den, the state delegated its authority to approve or disapprove liquor licenses to churches and schools by allowing them to veto liquor licenses of any business within 500 ft.

The Texas law is different. The state isn't delegating any of its authority to a private entity - the state does not have any authority to sue people who aid and abet women who have abortions. Instead, it's creating a private right of action to allow private citizens to sue other private citizens for damages.

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. The challenged statute thus enmeshes churches in the processes of government and creates the danger of “[p]olitical fragmentation and divisiveness on religious lines,” Ordinary human experience and a long line of cases teach that few entanglements could be more offensive to the spirit of the Constitution. (Citations omitted)

I doubt that the Larkin precedent would apply to this situation, although some of the reasoning the Court used could be useful. But it will be interesting to see - I'm curious to hear what Prof. Tribe has to say.

[elleng]

5. Government can't delegate sole authority over a public decision.

https://www.mtsu.edu/first-amendment/article/681/larkin-v-grendel-s-den-inc

[StarfishSaver]

8. I know.

But that's not what the Texas law does.

[elleng]

10. *As with the Massachusetts liquor law, the Texas abortion law delegates quintessentially

governmental power to private parties — in Texas, to literally anyone on earth with an objection to abortion, giving that individual or organization the unilateral and unfettered power to inflict criminal punishment on whoever assisted a woman, within the past four years, to terminate a pregnancy without being able to prove that the fetus didn’t have detectable cardiac activity.

In the Grendel’s Den case, in which a church vetoed the restaurant’s liquor license, we sued the state functionaries charged with ultimately handing out liquor licenses or respecting whatever veto was filed. So too here in the Texas case. Anyone threatened with the prospect of paying a bounty of between $10,000 and an unlimited amount (including all attorney fees) to whoever sues them for assisting a woman to end her pregnancy — damages that don’t reflect harm to the bounty hunters and are therefore wholly punitive — could sue the court officer charged with collecting the penalty to prevent that collection from ever taking place. Nothing the Supreme Court said or did in its Sept. 1 midnight decision rules that out. And Supreme Court cases striking down punitive damages that grossly exceed any harm to the plaintiff collecting them are obviously relevant where, as here, harm to the plaintiff is zero.

Someone confronted with the threat of having to pay such a bounty could also sue the bounty hunter directly rather than sue any state official. The reason? That veto-wielder would indisputably be acting “under color of law,” triggering the availability of Section 1983, the bedrock for civil rights lawsuits. And any group threatening to go after clinics or others helping women could be sued for damages, including punitive damages, for conspiring to violate a person’s civil rights under 42 USC sec 1985, without having to meet any “color of law” requirement.

Just as the prospect of federal criminal prosecution could make those tempted to invoke the Texas system think twice before becoming bounty hunters, combining that prospect with the knowledge that anyone you sue in Texas to collect a bounty could immediately countersue for double or triple damages should serve to thaw the chill that the Texas Legislature was counting on to stamp out abortions in that state.

In the Grendel’s Den case, the unbridled veto power interfered not with a service to which anyone had a constitutional right, like abortion, but just with serving liquor. It was simply being governed by someone unaccountable to nobody that offended the Constitution. In the Texas case, even a judge or justice convinced that Roe v. Wade was wrongly decided and that there is no constitutional right to end a pregnancy would need to confront the long line of precedent establishing that due process of law, enshrined in the Fourteenth Amendment, does not permit, to quote the court in Grendel’s Den “delegate[ing] to private, nongovernmental entities power to veto … a power ordinarily vested in agencies of government.” As the court said, it is difficult in such situations to imagine “any ‘effective means of guaranteeing’ that the delegated power ‘will be used exclusively for secular, neutral, and nonideological purposes.’ ” As one of us wrote in 1973 in defending the court’s Roe v. Wade ruling, abortion is particularly fraught with deeply religious as opposed to secular concerns and commitments. Just because the religion clauses are not directly implicated by the Texas scheme, it doesn’t follow that the long line of decisions into which Grendel’s Den fits becomes irrelevant in the effort to legally defang the Texas abomination.'

https://www.bostonglobe.com/2021/09/07/opinion/how-massachusetts-case-could-end-texas-abortion-law/

[StarfishSaver]

12. See my comment below

The last sentence in your excerpt is key.

[elleng]

13. Thanks. 'That makes a lot of sense.'

Happy Prof. Tribe is with us.

[Pobeka]

9. Apparently the state has the authority to allow certain types of suits?

Just a random brainstorm, take it or leave it

[StarfishSaver]

14. Yes.

But the state is not delegating its authority to create private causes of action.

[Ocelot II]

15. I am wondering whether the granting of a private right of action

to prevent or interfere with conduct the state has made unlawful despite the fact that it is (so far) constitutionally-protected would constitute state action that can be reviewed by a court. Whether a private person can be considered a state actor depends on whether that person is performing a function usually reserved to the government, or whether a private action has the force of law on others. Check out Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991), where the issue was whether a private litigant in a civil case may use peremptory challenges to exclude jurors on account of their race.

Although private use of state-sanctioned private remedies or procedures does not rise, by itself, to the level of state action, Tulsa Professional, supra, 485 U.S. at 485 U. S. 485, our cases have found state action when private parties make extensive use of state procedures with "the overt, significant assistance of state officials." 485 U.S. at 485 U. S. 486; see Lugar v. Edmondson Oil Co., 457 U. S. 922 (1982); Sniadach v. Family Finance Corp., 395 U. S. 337 (1969). It cannot be disputed that, without the overt, significant participation of the government, the peremptory challenge system, as well as the jury trial system of which it is a part, simply could not exist.

It might be a stretch, but maybe you could argue that by providing a structure and incentives for private lawsuits specifically intended to hinder the exercise of a constitutional right, the state has gone beyond merely sanctioning those lawsuits and has effectively made those plaintiffs into the agents of the state. What do you think?

[StarfishSaver]

16. I think that's reasonable, but it is a stretch. That was the point

The state was very clever in setting this up the way they did - among other things, they moved the action away from the state into private hands, but did it in a way that doesn't delegate their authority. Opponents will have to jump through hoops to create the requisite basis for challenging this under Constitutional grounds. It certainly can be done, but it's not a straight shot.

[Ocelot II]

17. Given the current Supreme Court it might be even more of a stretch, but

I expect the legal kitchen sink will be thrown at Texas; hard to say what will work, but I expect far better minds than mine to come up with far better arguments.

[StarfishSaver]

18. I agree - Texas won't know what hit it.

[Mersky]

6. How a Massachusetts case could end the Texas abortion law

We successfully invoked the civil parallel of the Ku Klux Klan Act to prevent the neighbor of a Harvard Square restaurant from wielding a state-conferred veto power over the issuance of any liquor license within a 500-foot radius.

By Laurence H. Tribe and David RosenbergUpdated September 7, 2021, 3:08 p.m.

https://www.bostonglobe.com/2021/09/07/opinion/how-massachusetts-case-could-end-texas-abortion-law/

[elleng]

7. Thanks.

In the S.Ct: https://supreme.justia.com/cases/federal/us/459/116/

'To respond to the ban’s violation, Attorney General Merrick Garland should treat bounty hunting under SB-8 as a criminal deprivation of civil rights, leading to possible federal prosecutions under two sections of the Ku Klux Klan Act of 1871. That law was passed to protect the civil rights of previously enslaved Americans who were targeted for extrajudicial violence by white supremacist vigilantes.

But the new Texas law, which other states are rushing to clone, has fatal constitutional flaws — entirely apart from its attack on abortions protected by Roe v. Wade. The court’s notorious five-justice majority, which included all three of Donald Trump’s nominees, suggested that the court hadn’t previously encountered legislative schemes that confer on private individuals the power to veto the provision of lawful services. It purported to be procedurally stymied from blocking the Texas law’s manifest goal of snuffing out abortion services and wrecking the lives of many women during the year or more it will take the court to ultimately strike the Texas law down or admit that it is jettisoning Roe v. Wade.

Not true. And a Massachusetts case established the precedent.

Decades ago, recalling the court’s early 20th-century invalidation of just such schemes in cases involving land use and zoning, we successfully invoked the civil parallel of the Ku Klux Klan Act to prevent the neighbor of Harvard Square restaurant Grendel’s Den from wielding a state-conferred veto power over the issuance of any liquor license within a 500-foot radius. That statute was enacted by Congress specifically to provide a federal judicial remedy for violations of constitutional rights when state judicial remedies were blocked, as they clearly are by the structure of the Texas abortion law.

In an 8-1 opinion by Chief Justice Warren Burger, no liberal himself, the Supreme Court in 1982 held that such veto power could easily be invoked for religious, ideological, or other illicit reasons that could well be undetectable, making the scheme unconstitutional on its face.

That same danger has again reared its ugly head.'

[StarfishSaver]

11. Thanks for posting this. I see what Prof. Tribe is arguing - and I agree with him

He's not saying that the Grendel's Den precedent alone supports invalidation of the Texas law. He's pointing to the case as one of many religious establishment cases that together could form the basis for tossing out the law.

"Just because the religion clauses are not directly implicated by the Texas scheme, it doesn’t follow that the long line of decisions into which Grendel’s Den fits becomes irrelevant in the effort to legally defanging the Texas abomination."

That makes a lot of sense.

[Ocelot II]

19. If anybody can figure out an angle it's Tribe.

And it's also consistent with Edmonson v. Leesville Concrete, coming from a different angle. A very long time ago I used and heavily underlined an early edition of Tribe's constitutional law book, never imagining then that he'd become a famous liberal legal star...

[Scrivener7]

20. That's promising.

[Retrograde]

21. I think at least 5 minds on the SC are already made up

I'd like to believe that reason and precedent will prevail, but with Alito, Thomas, Kavanaugh, Barrett, and Gorsuch on the bench I'm very afraid.

[Arazi]

22. Tribe obviously hasn't been told he must wait for the DOJ to figure out a challenge

Clearly he hasn't been scolded to await upon Garland and his DOJ before criticizing and urging action asap.

Impatience with Garland's lack of public pushback means he's undermining Biden doncha know



Can't believe the impudence of Tribe to get ahead of DOJ messaging on this!

[Scrivener7]

27. Yes, but Garland is permitting the enforcement of an existing law that says you can't storm

an abortion clinic! All hail! And shame on you for not bowing down to his brilliant strategy of announcing that an existing law, that has nothing to do with the Texas law, will STILL be enforced!

When they know that they STILL can't storm an abortion clinic, they'll back right off prohibiting abortions that occur more than 6 weeks after the last period (meaning 2 or 3 weeks after conception)! And South Dakota will just drop that prohibition of termination medications they're working on! Because you can't storm abortion clinics! STILL.

You just obviously don't understand the intricacies of the law.

[Mr.Bill]

23. Sadly, one must also consider

that this Supreme Court will vote 5-4 in favor of Texas regardless of what arguement is made. There are people sitting on this court that have spent their entire careers in pursuit of the destruction of Roe v Wade. I will even go as far as saying they are being paid, one way or another to do just exactly that.

I sure hope I am wrong. It just wouldn't surprise me, though.

[LeftInTX]

24. I thought they would vote to overturn the 2020 election, but they rejected Dan Paxton

So I am hopeful..
Not because the issue is abortion (well sorta) but because of the scheme.

If a blue state sets up a similar scheme with a liberal issue, such as mask mandates and suing, it could possible null the Texas law...Same scheme, but a different issue. It would be interesting to see how they rule.

[LetMyPeopleVote]

25. I agree with Tribe's analysis

Link to tweet

[elleng]

26. Yes