Messin' with Texas:P

WE REALLY FINALLY DID IT! YOU MANIACS! YOU BLEW IT UP!



(Never mind that Charlton Heston would probably have been all in favor of this:P)

"This," being the end-run by the Texas Lej and Guv to get around Roe v. Wade in what are probably its dying days. A full-on challenge will be argued before the Supremes this fall, with a decision likely dispensed in June, but the Red State crazies continue to fall over themselves to save those millions of OMG DEDDD BABBBBBEEZZZ! that just can't wait that long.

I have to admit, it's brilliant. So is the science behind the hydrogen bomb, but I rather prefer we not proliferate THAT too much, either. (Shit- I don't think I ever noticed that "proliferate" includes the word "prolife." Fitting, because their "going nuclear" on this issue is just going to lead to a litigation arms race- or it should, anyway. I'll get back to that after laying out more of the background.)

The replusive Texas law falls into two essential halves: substantive and procedural. The substantive is nothing new: blahblah dedbabeez blahblah fetal heartbeat blahblah no way you're gonna know you're preggers until it's too late*  blahblah try to find a complying clinic in the six weeks you've got to do it blahblah.  These are blatantly unconstitutional as the law stands- today- and most federal judges, even the nutty ones, feel compelled to enjoin them- for now- if the substance of the law goes on to a procedural rule that criminalizes the act, or puts the STATE in the position of enforcing it.  The Texas law's evil brilliance is that it specifically bars state officials from doing anything to enforce it or penalize anybody- section 171.207 says-

Sec. 171.207.  LIMITATIONS ON PUBLIC ENFORCEMENT.
   (a)  Notwithstanding Section 171.005 or any other law, the
   requirements of this subchapter shall be enforced exclusively
   through the private civil actions described in Section 171.208.  No
   enforcement of this subchapter, and no enforcement of Chapters 19
   and 22, Penal Code, in response to violations of this subchapter,
   may be taken or threatened by this state, a political subdivision, a
   district or county attorney, or an executive or administrative
   officer or employee of this state or a political subdivision
   against any person, except as provided in Section 171.208.

Since Roe depends on Fourth and Fourteenth Amendment protections that pass through to the states, they are theoretically limited to action BY the states- just like the First Amendment didn't prohibit Godaddy from shutting down their Snitchin' site- so they came up with the Tarrant County Mountie Bounty system to, first, do the harm.

That next section, 171.208, confers an almost unlimited right on private parties- our new generation of bounty hunters- to sue ANYONE connected with a prohibited abortion, whether they had it or performed it or abetted it or paid for it or, not theoretically, THOUGHT about any of the above.  They can sue in any county of Texas (it has 254 of them, compared to our girlyman 62) and are immune from motions to change venue. If they can prove a violation, they can collect  a minimum of TEN... THOUSAND.... DOLLARS! per violation plus their attorneys fees; if they lose, they are immune from having to pay any of the winner's fees or court costs.

 And five Supreme Court hacks ruled last week, in an unsigned opinion, that, well golly gee shucks we're not ruling on the MERITS or anything, but this is just too hard for us, so let's see how it goes.

It's not going well for Texas in the early days. In addition to the main snitching site being bounced to the skeevy offshore host of 8chan (and being bombed with false reports and Shrek memes),  at least one federal District Judge has seen through the bullshit and banned such suits against a named set of "major" providers.  Texas-based corporations are feeling boycott pressure. The Church of Satan has declared abortion a sacrament and will allow anyone to adopt it as a "sincerely held religious belief." Still, I'm thinking outside the, um, box here. 

Which gets us to our arms race for this kind of law. The strategy is so brilliant, I see absolutely nothing stopping similar blue-state legislation on things that will drive them out of their cotton-pickin'-by-slaves minds:

- A private right of action against anyone who refuses to get vaccinated, or won't wear a mask, or aids and abets in that form of resistance!

- Put our own state's current SAFE Act for gun control, already held repeatedly to be constitutional, in private hands, so I can sue anybody who packs heat or aids and abets the heat packers!

- Put the little guys on an even playing field with those precious ovarian eggs! Require all men to account for their every sacred sperm on a periodic (heh) basis, with a $10,000 bounty for anyone who can capture the evidence, on hidden camera or attached to a blue dress!

Bet THOSE would suddenly get the attention of these red state lejjers, who until now were very in favor of "tort reform" to keep cases from clogging up the courts.

----

Until we can start fighting fire with fire, though? Some practical tips from a sometime litigator -on what to do if Gladys K. Snitch files one of these bullshit lawsuits against anyone in the Lone Star (And That's It's Yelp Rating) State:

- Plaintiffs seeking their $10,000 bounties will be subjecting themselves to the jurisdiction of courts, and to the state's rules of civil procedure. That means, before anyone collects their bounty, they will have voluntarily subjected themselves to discovery demands from the defendants, including interrogatories, demands for document production, litigation  holds on their physical and electronic communications, and depositions that they will typically be expected to share, at least initially, the cost of being recorded and transcribed. Lawyers who are whining about this law should be preparing rapid-response packages for defendants including these perfectly legal techniques. As every Big Law firm will tell you, "I'm entitled to it." Yes, it will potentially add to an attorneys fee award against the victim if the plaintiff ultimately prevails, but those awards only come at the end, and there's no exception to discharging them along with the $10,000 itself in bankruptcy. Those Big Law firms should be devoting major pro bono resources to helping anyone stuck with one of these suits- and they should be letting the maternity ambulance-chasing plaintiffs' lawyers know who they will be up against if they take one of them on contingency or for little upfront fee.

- Texas has an anti-SLAPP statute. Yes, really. They were initially intended to stop corporations and other pests from suing members of the public from discussing or opposing their evil plans.  As powerful a speaker-outer as Oprah Winfrey found herself faced with one of these "meat libel" cases in the 1990s. Somehow, in 2011, Texas passed one of these laws, similar to those adopted in many states including ours (but not by Congress for federal courts). Every one of these bounty cases should be initially met with a motion to dismiss on anti-SLAPP grounds, because the law specifically expedites the dismissal of civil cases brought to silence the expression of constitutionally protected speech and association rights. It further provides for the winner to receive attorneys fees from the SLAPPer for having to defend their bullshit lawsuits. As at least one guy as bright as me has observed, the new statute forgot to end-run this provision. Its attorneys fee provisions are under a different section of law than the ones referred to in this new abonimation.

- Use the technology. Texas is one of many states that has searchable electronic filing dockets. An official state court website encourages lawyers to spy on their opponents through it!

Finally, attorneys and paralegals can search case information from all 254 Texas counties at once!
    Track cases and get real-time alerts

    Track existing and potential clients

    re:Search and track opposing counsel

    re:Search and track expert witnesses

    new business with new case alerts

Knowing your opponent's most frequent tactics can help you develop a stronger argument.

You can see if they've taken on a similar case before with statewide search.

Use re:SearchTX to find out everything from how they handle discovery requests to what new cases they're taking on!

Creepy, if you ask me. But so's snitching on pregnant women.  Once a stable of usual suspects develops who are bringing these cases, they should be monitored, their filings scrutinized for anything the least bit unethical, and those findings reported to appropriate Bar authorities. Not  the ones in Texas, 'course, because I'm sure those good ole boys will give them Gold Lone Stars for saving DED BABBBBEEEEZZ. But lots of lawyers have multiple state admissions, and as Roodles Giuliani found out, unethical conduct outside your home state can get your ass suspended back where you came from.

----

Of course, the ultimate victory in this would come with a change in SCOTUS composition, whether by reform (OMGPACKING, say the people who rammed two of the most recent three onto the Court) or by, I don't know, the eldest justice in the rightwing branch suddenly choking to death on a pube hair on his Coke can or something.

I can just hear the hue and cry from the likes of Mitch McChinless  if Joe** was given the chance to replace that miserable man: It's not fair! You have to replace him with someone who won't change the balance of the Court!

Clarence Thomas replaced Thurgood Marshall on that bench. Shut up, Yertle.

----

* Almost forgot that asterisk.

One would think that a prime beneficiary of this stupid statute would be the little pink peecatchers which, somehow on television programs, reliably detect pregnancy the morning after the Sexy Time in question. But not in real life:

If you think you could be pregnant, it’s a good idea to take a test and make sure. If you are pregnant, you will need to begin prenatal care. Home pregnancy tests can differ in how early they’ll detect a pregnancy. In many cases, you might get a positive from an at-home test as early as 10 days after conception. For a more accurate result, wait until after you’ve missed your period to take a test. Remember, if you take a test too soon it could be negative even if you are pregnant.

And the mustaches in the Texas Lej twirl in perfect sync:P

 

** And I just added this one: "Joe," of course, not being Biden, but Manchin, who, as we all know, is the one who's REALLY in charge:P