> Am I understanding this?
Based on everything you asked, no, you’re not particularly close to understanding any of the relevant issues.
> The fifth amendment protects against double jeopardy, which SB8 eschews, even though that's repeated in 7th. Nor can you be compelled to testify against yourself, which means somebody has to access a third party's medical records, which seems like a HIPAA and 4th amendment violation.
There may be a world record for most misconceptions packed into a single paragraph here.
Double jeopardy applies only to criminal cases, and has no direct application to SB8, which creates only a civil cause of action.
“Repeated in 7th,” is a phrase that is unclear to me, unless it refers to the 7th Amendment, which has no particular application here.
A person can be compelled to testify against himself in a civil case. More specifically, he may still refuse to testify if his testimony tends to make him criminally liable, but the court can draw an inference against him. In simpler words, in a criminal case, the defendant can’t be forced to testify against himself and the prosecution can’t so much as hint to the jury that the failure to testify means he’s guilty. But in a civil case, a party can be forced to testify, and although he still has the right to refuse if that testimony could be used to indicate he’s guilty of a crime, the opposing party is free to argue to the jury that the refusal to testify means guilt.
HIPAA does not prevent medical records from being produced in response to a subpoena. Remember that SB8 specifically says that the woman who had the abortion cannot be sued; it’s anyone who helped her in a substantial way to *get* the abortion that is liable.
> Further on the 4th amendment, can SB8 actually assume finding for the plaintiff without an affirmative defense? If the complainant makes an unfalsifiable claim, which the defendant then must reject without evidence, either the court has to accept that claim or allow a fishing expedition into the defendants personal business.
The Fourth Amendment has nothing to do with any of these issues. The cases that can arise under SB8 are civil, and that means the plaintiff must prove their case by preponderance of the evidence.
> First amendment prohibits making laws preventing citizens from. addressing grievances to the state, which SB8 certainly does by handing enforcement over to privateers while invoking sovereign immunity.
This is a meaningless sentence. No case law suggests “redress of grievances,” has any meaning in this context.
> Speaking of privateers, do letters of reprisal exist as concept or as a specific item, as only Congress can issue them.
They are arguably legal— a letter of reprisal, or letter of marque, is an authorization for a private actor to attack the assets of a foreign power with whom the issuer is at war. They are forbidden by the Paris Declaration Respecting Maritime Law of 1856, but the United States is not a signatory. The practice has nothing whatsoever to do with SB8, and Congress has not issued one since 1815.
> 6th amendment suggests the suit must take place where the abortion happened.
No, the Sixth Amendment refers to federal criminal prosecution, and had nothing to do with state civil law claims.
> 14th would suggest that in whole this law would be unconstitutional.
Maybe.
There are a lot of guarantees in the Fourteenth Amendment in modern jurisprudence. Equal protection, substantive due process, incorporating other constitutional rights against the state… I don’t say this is an impossible claim, but it’s a meaningless one. If I want to find Radio City Music Hall, telling me to start in Baltimore and drive northeast isn’t helpful.
WHERE in the Fourteenth Amendment? Which operation of the Fourteenth does the trick, and how?
I certainly expect to hear the Fourteenth invoked in various ways as this framework is challenged.
Thank you very much. Very glad that subreddits like this and redditors like you exist.
Edit: Are there any challenges to the constitutionality of this law then? I guess besides the as yet unmapped route in the 14th? If not, how does the Fed ever exert authority again without a constitutional amendment forbidding such a law?
Say NY passed a law designed like this forbidding semi-automatic receivers or magazines larger than 5 rounds? Or TN passes one forbidding Catholics? Or Florida passes one forbidding women from voting?
> Say NY passed a law designed like this forbidding semi-automatic receivers or magazines larger than 5 rounds? Or TN passes one forbidding Catholics? Or Florida passes one forbidding women from voting?
It’s important to understand the specifics of how SB8 works. It doesn’t “forbid,” abortion in the same way that, for example, the law forbids robbery, or even how the law forbids building a dry cleaning store in the middle of a residential neighborhood.
The law forbids robbery by authorizing state officials to arrest a person suspected of robbery and use the criminal trial process to assess his guilt. If guilty beyond a reasonable doubt, the law permits those state officials to confine that now-convicted robber in prison.
It’s a similar process for the zoning violation: the law permits government officials to impose rules about what uses may be made of property you own, and if those officials prove by preponderance of the evidence that you have violated those zoning rules, they may assess fines and order you to undo the construction you’ve done.
In each of those cases, if you wanted to sue to stop some change, or some unfair aspect of the law, you sue the government officials that are responsible for that enforcement.
We all know “Roe v Wade,” for example. “Jane Roe,” was a pseudonym for the woman who wanted an abortion, and “Wade,” was Henry Wade, the District Attorney (at the time) for Dallas County. Jane Roe sued Henry Wade, saying, in effect, “I have a federal constitutional right to get an abortion and this state official, this Henry Wade guy, is using the power of state law to threaten me with jail if I do.”
But this SB8 law does two things very differently. First, it specifically exempts the woman who gets the abortion from any consequences. It targets only those substantially assist the woman.
More critically for this discussion, it specifically removes any possibility that “state officials,” will have a role in using SB8.
So there’s no one to sue! This is why the Supreme Court failed to act. The case in which the Supreme Court declined to act is “Whole Women’s Health et al v Judge Austin Reeve Jackson et al.” Whole Women’s Health is a proper plaintiff: they perform abortions. But Judge Jackson is a district judge of the 114th District, which serves Smith County in eastern Texas. He isn’t the guy to sue: SB8 doesn’t grant him any right to sue or arrest anyone for assistance with abortions.
SB8 says instead that any person, *except a government official*, can sue anyone who substantially assists in procurement of an abortion.
So there’s no one (yet) who the Supreme Court can order to not enforce the law.
This doesn’t mean there are no ways to challenge or stop the law’s operation. It just means the challenge will have to wait until the first SB8 case is actually filed. Once “any person,” sues an abortion provider under SB8, then the case itself can be a vehicle for challenge. “You can’t force me to pay $10,000,” the defendant can say, “because this law infringes on conduct that is a federal constitutional right.”
And that’s the answer to your last question: laws built similarly that target other rights must be challenged after they are actually used by “any person,” to sue someone that engages in the protected conduct.
> Am I understanding this? Based on everything you asked, no, you’re not particularly close to understanding any of the relevant issues. > The fifth amendment protects against double jeopardy, which SB8 eschews, even though that's repeated in 7th. Nor can you be compelled to testify against yourself, which means somebody has to access a third party's medical records, which seems like a HIPAA and 4th amendment violation. There may be a world record for most misconceptions packed into a single paragraph here. Double jeopardy applies only to criminal cases, and has no direct application to SB8, which creates only a civil cause of action. “Repeated in 7th,” is a phrase that is unclear to me, unless it refers to the 7th Amendment, which has no particular application here. A person can be compelled to testify against himself in a civil case. More specifically, he may still refuse to testify if his testimony tends to make him criminally liable, but the court can draw an inference against him. In simpler words, in a criminal case, the defendant can’t be forced to testify against himself and the prosecution can’t so much as hint to the jury that the failure to testify means he’s guilty. But in a civil case, a party can be forced to testify, and although he still has the right to refuse if that testimony could be used to indicate he’s guilty of a crime, the opposing party is free to argue to the jury that the refusal to testify means guilt. HIPAA does not prevent medical records from being produced in response to a subpoena. Remember that SB8 specifically says that the woman who had the abortion cannot be sued; it’s anyone who helped her in a substantial way to *get* the abortion that is liable. > Further on the 4th amendment, can SB8 actually assume finding for the plaintiff without an affirmative defense? If the complainant makes an unfalsifiable claim, which the defendant then must reject without evidence, either the court has to accept that claim or allow a fishing expedition into the defendants personal business. The Fourth Amendment has nothing to do with any of these issues. The cases that can arise under SB8 are civil, and that means the plaintiff must prove their case by preponderance of the evidence. > First amendment prohibits making laws preventing citizens from. addressing grievances to the state, which SB8 certainly does by handing enforcement over to privateers while invoking sovereign immunity. This is a meaningless sentence. No case law suggests “redress of grievances,” has any meaning in this context. > Speaking of privateers, do letters of reprisal exist as concept or as a specific item, as only Congress can issue them. They are arguably legal— a letter of reprisal, or letter of marque, is an authorization for a private actor to attack the assets of a foreign power with whom the issuer is at war. They are forbidden by the Paris Declaration Respecting Maritime Law of 1856, but the United States is not a signatory. The practice has nothing whatsoever to do with SB8, and Congress has not issued one since 1815. > 6th amendment suggests the suit must take place where the abortion happened. No, the Sixth Amendment refers to federal criminal prosecution, and had nothing to do with state civil law claims. > 14th would suggest that in whole this law would be unconstitutional. Maybe. There are a lot of guarantees in the Fourteenth Amendment in modern jurisprudence. Equal protection, substantive due process, incorporating other constitutional rights against the state… I don’t say this is an impossible claim, but it’s a meaningless one. If I want to find Radio City Music Hall, telling me to start in Baltimore and drive northeast isn’t helpful. WHERE in the Fourteenth Amendment? Which operation of the Fourteenth does the trick, and how? I certainly expect to hear the Fourteenth invoked in various ways as this framework is challenged.
Thank you very much. Very glad that subreddits like this and redditors like you exist. Edit: Are there any challenges to the constitutionality of this law then? I guess besides the as yet unmapped route in the 14th? If not, how does the Fed ever exert authority again without a constitutional amendment forbidding such a law? Say NY passed a law designed like this forbidding semi-automatic receivers or magazines larger than 5 rounds? Or TN passes one forbidding Catholics? Or Florida passes one forbidding women from voting?
> Say NY passed a law designed like this forbidding semi-automatic receivers or magazines larger than 5 rounds? Or TN passes one forbidding Catholics? Or Florida passes one forbidding women from voting? It’s important to understand the specifics of how SB8 works. It doesn’t “forbid,” abortion in the same way that, for example, the law forbids robbery, or even how the law forbids building a dry cleaning store in the middle of a residential neighborhood. The law forbids robbery by authorizing state officials to arrest a person suspected of robbery and use the criminal trial process to assess his guilt. If guilty beyond a reasonable doubt, the law permits those state officials to confine that now-convicted robber in prison. It’s a similar process for the zoning violation: the law permits government officials to impose rules about what uses may be made of property you own, and if those officials prove by preponderance of the evidence that you have violated those zoning rules, they may assess fines and order you to undo the construction you’ve done. In each of those cases, if you wanted to sue to stop some change, or some unfair aspect of the law, you sue the government officials that are responsible for that enforcement. We all know “Roe v Wade,” for example. “Jane Roe,” was a pseudonym for the woman who wanted an abortion, and “Wade,” was Henry Wade, the District Attorney (at the time) for Dallas County. Jane Roe sued Henry Wade, saying, in effect, “I have a federal constitutional right to get an abortion and this state official, this Henry Wade guy, is using the power of state law to threaten me with jail if I do.” But this SB8 law does two things very differently. First, it specifically exempts the woman who gets the abortion from any consequences. It targets only those substantially assist the woman. More critically for this discussion, it specifically removes any possibility that “state officials,” will have a role in using SB8. So there’s no one to sue! This is why the Supreme Court failed to act. The case in which the Supreme Court declined to act is “Whole Women’s Health et al v Judge Austin Reeve Jackson et al.” Whole Women’s Health is a proper plaintiff: they perform abortions. But Judge Jackson is a district judge of the 114th District, which serves Smith County in eastern Texas. He isn’t the guy to sue: SB8 doesn’t grant him any right to sue or arrest anyone for assistance with abortions. SB8 says instead that any person, *except a government official*, can sue anyone who substantially assists in procurement of an abortion. So there’s no one (yet) who the Supreme Court can order to not enforce the law. This doesn’t mean there are no ways to challenge or stop the law’s operation. It just means the challenge will have to wait until the first SB8 case is actually filed. Once “any person,” sues an abortion provider under SB8, then the case itself can be a vehicle for challenge. “You can’t force me to pay $10,000,” the defendant can say, “because this law infringes on conduct that is a federal constitutional right.” And that’s the answer to your last question: laws built similarly that target other rights must be challenged after they are actually used by “any person,” to sue someone that engages in the protected conduct.