Patterico's Pontifications

1/25/2022

Planned Parenthood Drops Challenge to Lubbock’s Ban on All Abortion

Filed under: General — Patterico @ 8:26 am



Ed Whelan has the details:

In May 2021, the voters of Lubbock—the 11th-largest city in Texas—overwhelmingly approved a measure (Proposition A) that outlaws abortion in Lubbock. The ordinance took effect on June 1, 2021. Like the Texas Heartbeat Act, the Lubbock ordinance provides that it may be enforced only by private civil lawsuits brought against individuals who perform or aid or abet abortions in Lubbock, and it prohibits the city of Lubbock and its officials from enforcing its ban. Unlike the Texas Heartbeat Act, the Lubbock abortion ban applies from conception, rather than when a fetal heartbeat is detectable.

A judge dismissed the lawsuit for lack of standing and Planned Parenthood has abandoned the appeal. Ed’s conclusion:

In his concurring opinion in Webster v. Reproductive Health Services (1989), Justice Scalia lamented that it “appears that the mansion of constitutionalized abortion law, constructed overnight in Roe v. Wade, must be disassembled doorjamb by doorjamb, and never entirely brought down, no matter how wrong it may be.” But that ramshackle house of horrors finally appears to be collapsing.

I’m more concerned. There is no limiting principle here that says that this approach for avoiding court review applies only to phony and made-up constitutional rights. San Francisco could ban all private gun ownership tomorrow using this scheme. Portland could create a private cause of action against anyone who utters a statement that a specified minority group finds offensive. And under the Lubbock/Texas rubric, there’s not a damn thing you could do to stop it in federal court.

That should frighten everyone.

34 Responses to “Planned Parenthood Drops Challenge to Lubbock’s Ban on All Abortion”

  1. Indeed. I find it amazing the PP has no standing. Under this kind of law “standing” seems to be what everyone has.

    Kevin M (38e250)

  2. This statute and others like it should be struck down, for the extreme breadth of what might to subject to it, for giving standing to, well, anyone, and for the heads-I-win, tails-I-don’t-lose damage assessments.

    This is simply lynch law applied to civil court.

    Kevin M (38e250)

  3. Yeah, I’m frightened by this tactic and I hope SCOTUS (could they?) address it during their Dobbs ruling.

    whembly (7e0293)

  4. This isn’t out of the blue. Some environmental law allows “the public” to have standing.

    Kevin M (38e250)

  5. It’s what they do in Texas. I doubt very much that any other State has the “necktie party” “court system” that Texas does. I can tell you that this kind of law would never work in Illinois. Against guns or against abortion or against putting ketchup on a hot dog.

    And which makes the “case and controversy” requirement of federal courts a good thing, as frustrating as it may seem now.

    nk (1d9030)

  6. And isn’t Lubbock where the local district judge’s ex-husband killed his girlfriend’s ex-husband a little while back that we read about? Are there places like Lubbock in California, is what I’m getting at.

    nk (1d9030)

  7. What I hope is that the federal courts getting habeas corpus and Section 1983 petitions from Texas prisoners will pay them a little closer attention now, that’s what I hope. Like they used to do with the judgments of miners’ courts. No presumption of validity, and no upholding a death sentence.

    nk (1d9030)

  8. This, and the other Texas abortion law, are terrible laws independent of outcome. That conservatives are in some cases supporting this i another example of abandoning principles when they don’t get you the results you want.

    Also at 6 weeks the fetal heart is 2 tubes that have fused in the middle. You can detect pulsation at that point and we call that a heart beat. But the fetal heart hasn’t fully developed until week 10. So the description of the other terrible Texas law isn’t very accurate.

    Time123 (9f42ee)

  9. @4

    This isn’t out of the blue. Some environmental law allows “the public” to have standing.

    Kevin M (38e250) — 1/25/2022 @ 9:24 am

    Really? Could you expound on this?

    whembly (a112c1)

  10. Patterico is right, this is a legal strategy for destroying the country.

    And if the fascists keep up on their current path, I will be in favor of destroying it, because it will no longer be the USA.

    john (cd2753)

  11. Some environmental law allows “the public” to have standing.

    RICO allows a private action against the Mafia, too. So does the Internal Revenue Code against tax cheats, for a cut of the recovery. Same for corporate crime whistleblowers. The last two go back to Roman times, and are labeled qui tam. Environmental suits have their roots in actions to abate a public nuisance.

    But what distinguishes them all from the Texas law is that are secondary/auxiliary, to a criminal or civil action by the government.

    nk (1d9030)

  12. Really? Could you expound on this?

    There’s a beach town in California right now suing Exxon for climate change on the allegation that the rising seas will flood them all out.

    nk (1d9030)

  13. I am not up on the law–But the ADA+California Law seem to be setup the same way… A private plaintiff sues businesses for damages that don’t meet ADA requirement:

    https://sanfrancisco.cbslocal.com/2021/08/02/serial-plaintiff-turns-california-ada-lawsuits-into-lucrative-cottage-industry/

    Garcia has filed more than 100 lawsuits this year alone. He’s what is referred to as a “serial plaintiff” in a cottage industry that is especially lucrative in California. That’s because while federal law doesn’t provide for damages, California state law does.

    “California, it’s dramatically out of whack, so to speak,” said Cris Vaughan, an ADA defense attorney. He says under California’s Unruh Act, civil rights law plaintiffs can also claim up to $4,000 dollars per visit. And they can visit the same business multiple times.

    “So that’s why we have so many of these lawsuits in California,” said Vaughan.

    ADA filings increased 21% percent to 6,055 in California in 2020, while other states saw a decline. The increase is mostly due to just a handful of serial filers like Scott Johnson, probably the most prolific. Others are getting close behind, including Garcia.

    The law firm that represents them is San Diego-based Potter Handy. According to court records it has filed over 1500 ADA lawsuits since January. “We are attorneys. This is a civil right that we specialize in,” said Potter Handy attorney Dennis Price.

    BfC (d57b68)

  14. @13, allowing people who are not directly harmed to sue is a bad policy. I can see some exceptions, such as for environmental laws allows claims to be filed before damage occurs but those need to be scrutinized closely.

    Time123 (9f42ee)

  15. Really? Could you expound on this?

    In California, any member of the public has standing to challenge an EIR. This is routinely used as a mole-generator by anti-development folks to force the developer to play whack-a-mole. Or at least pay them off.

    Here is an article about one of the rare cases where standing was denied, after the defendant in a suit made a (rare) effort to determine who the plaintiff actually was.

    https://www.ceqadevelopments.com/2017/12/20/fourth-district-upholds-use-of-ceqa-writ-action-discovery-directed-to-standing-issue-affirms-trial-courts-terminating-sanction-for-plaintiffs-failure-to-comply/

    Kevin M (38e250)

  16. BfC (d57b68) — 1/25/2022 @ 10:58 am

    –But the ADA+California Law seem to be setup the same way… A private plaintiff sues businesses for damages that don’t meet ADA requirement:

    But the plaintiff has to be personally disabled. (no problem, law firms recruit them)

    In the if enviromental lawsuits, there has to be a connection, but the number of possible plaintiffs is vast. Anyone nearby claiming to be impacted by the environmental change or possibility of one. And the organizations suing surely have some members there.

    Planned Parenthood probably couldn’t sue Lubbock in federal court because they probably had no offices there. They wanted the precedent.

    Sammy Finkelman (c49738)

  17. The difference, of course, is that if San Francisco banned all private gun ownership, a gun owner would violate the law and could be confident of victory in the higher courts. That is not true of abortion providers.

    mikeybates (f0864a)

  18. ……I hope SCOTUS (could they?) address it during their Dobbs ruling.

    They won’t, because this issue is not part of the case.

    Rip Murdock (d2a2a8)

  19. Planned Parenthood probably couldn’t sue Lubbock in federal court because they probably had no offices there. They wanted the precedent.

    Planned Parenthood of Lubbock.

    Rip Murdock (d2a2a8)

  20. The difference, of course, is that if San Francisco banned all private gun ownership, a gun owner would violate the law and could be confident of victory in the higher courts. That is not true of abortion providers.

    I suppose there would be a degree of consistency if the same logic which led the judge to conclude that Planned Parenthood had no standing to sue regarding abortion laws were also evenly applied to the NRA suing over gun regulations. If the judge said, “No, only a pregnant woman seeking an abortion has standing,” and then also “No, only a gun owner whose weapon has suddenly become illegal has standing,” then that’s at least consistent. But I would prefer that these advocacy groups — annoying as they truly are — be allowed to address these issues on behalf of all of us.

    JVW (ee64e4)

  21. Ed Whelan approved:

    But in an excellent ruling, federal district judge James Wesley Hendrix dismissed Planned Parenthood’s lawsuit for lack of jurisdiction.

    Rip Murdock (d2a2a8)

  22. It frightens me that gubmint hacks would abuse the law , but as long as they stay off my property, frightening them won’t be an issue.

    mg (8cbc69)

  23. The problem is that federal courts are unwilling to enjoin state courts from hearing particular cases. While it would seem a good thing here, there are other reasons why it would make a bad precedent.

    Kevin M (38e250)

  24. The difference, of course, is that if San Francisco banned all private gun ownership, a gun owner would violate the law and could be confident of victory in the higher courts

    But it would not BE San Francisco banning the guns. It would be Joe Liberal down the road suing you for a gun that makes him feel unsafe. And if he loses, he doesn’t owe you a dime, but if he wins, you have to pay up. And all his neighbors can sue you in individual actions. Even if you win them all, you go broke defending.

    Kevin M (38e250)

  25. Would the 2nd Amendment analogy be to allow suits against those who sell guns but not against gun owners? It seems like these laws allow civil suits against providers, not the people getting abortions, but I’m not sure.

    Lubbock County. like many small Texas counties, prohibited liquor sales for decades. The liquor stores were only on the county lines in the “dry” counties and the neighboring “wet” counties profited from those ordinances. I guess this is how it would work for abortion providers and gun sales, too. Having a right to something doesn’t mean you can compel someone to provide it or require laws that make it immune from suit.

    DRJ (03cb91)

  26. OT (but not by much): San Jose is first U.S. city to mandate gun owners carry insurance and pay a fee

    In two separate votes, the San Jose City Council on Tuesday night passed a first-of-its-kind ordinance requiring residents who own a gun to carry liability insurance and pay an annual fee aimed at reducing gun violence — a divisive move that is sure to set off a series of legal challenges.

    A tax on an enumerated Right, one with its own amendment. I suspect that this, if constitutional, would allow cities and states to tax all kinds of “rights.” Want to speak at the city council meeting? Do you have a paid-up license? Want an abortion? There’s this tax, rapidly increasing for each week since conception. Or perhaps they weigh the fetus.

    Kevin M (38e250)

  27. Arrgh.

    OT (but not by much): San Jose is first U.S. city to mandate gun owners carry insurance and pay a fee

    In two separate votes, the San Jose City Council on Tuesday night passed a first-of-its-kind ordinance requiring residents who own a gun to carry liability insurance and pay an annual fee aimed at reducing gun violence — a divisive move that is sure to set off a series of legal challenges.

    A tax on an enumerated Right, one with its own amendment. I suspect that this, if constitutional, would allow cities and states to tax all kinds of “rights.” Want to speak at the city council meeting? Do you have a paid-up license? Want an abortion? There’s this tax, rapidly increasing for each week since conception. Or perhaps they weigh the fetus.

    Kevin M (38e250)

  28. Most homeowners and renters insurance already covers guns and civil liability for gun accidents, no differently than any other personal property.

    nk (1d9030)

  29. Sure but we still have courts. Insurance isn’t the answer to everything.

    DRJ (02d0b8)

  30. I understand concern about constitutional rights,, but it would worry me more if we decide to limit civil suits.

    DRJ (02d0b8)

  31. Courts is how an orderly society settles problems.

    DRJ (02d0b8)

  32. Court is not courts.

    DRJ (02d0b8)

  33. > There is no limiting principle here that says that this approach for avoiding court review applies only to phony and made-up constitutional rights.

    This is the legal technology which will destroy federal enforcement of constitutionally protected rights, across the board. A century hence, when the histories of this time are written, _Whole Womens’ Health_ will stand as one of the worst decisions in American legal history. But we’re going to have to go through decades of abusive state practices, and a political movement aimed at undoing them (which will take as long to be successful as the political movement aimed at undoing Roe) to get there, and nobody reading this blog will live to see it overturned.

    Congratulations, anti-abortion judicial conservatives. This travesty is on y’all.

    aphrael (4c4719)

  34. > But it would not BE San Francisco banning the guns. It would be Joe Liberal down the road suing you for a gun that makes him feel unsafe. And if he loses, he doesn’t owe you a dime, but if he wins, you have to pay up. And all his neighbors can sue you in individual actions. Even if you win them all, you go broke defending.

    That’s *entirely the point* to the Texas abortion legislation and its copycats elsewhere. The courts won’t hand them the victory they want, so they cut the courts out of the process and enable activists to use the court system to harass people into compliance.

    aphrael (4c4719)


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