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Thursday, May 16, 2019

Getting the nomenclature right

I am picking on this CNN article, but it is common to the erroneously framed discussion of what happens next with Alabama's abortion law. The governor signed the bill yesterday and by its terms it becomes effective six months after it takes effect, so mid-November. Plaintiffs are getting ready to sue.*

[*] The lawsuits are ripe and plaintiffs have standing even suits are filed before the law takes effect in November. Courts treat cases as ripe when filed before a delayed effective date, at least absent some indication that the situation could change before the effective date, which is unlikely here. The most recent cases to highlight this principle were the challenges to the Affordable Care Act, which were brought years before most provisions (such as the individual mandate) took effect.

What will not happen: The courts will not stop the law from taking "effect." The courts will not "block" or "stop" or "halt" the law. Courts do not have the power to do that through private litigation, as it would impinge on the legislative power. A law takes effect whenever the enacting legislature says it takes effect and courts cannot block or halt that. The statute will remain part of the laws of Alabama forever (unless repealed), a monument to the political moment.

What will happen: The courts will enjoin the Alabama executive from enforcing that law against certain persons, presumably a class or clients of a Planned Parenthood facility. The statute remains part of the laws of Alabama, but the state executive cannot enforce it, on pain of contempt of court.

Posted by Howard Wasserman on May 16, 2019 at 08:24 AM | Permalink


If one party refuses to recognize the other party's right, the right-holder must go to court to vindicate that right. House Dems believe they have a right to see Trump's tax returns; if Treasury does not recognize that right, the House must go to court to vindicate that right. A has a right to gather on the street to express his political views; if the government stops him from doing so (by arresting him when he tries), he must go to court to vindicate that right. Same things if Alabama refuses to recognizes B's right to control her pregnancy by enforcing (or threatening to enforce) this law. None of these involve "permission"--they involve legal mechanisms for vindicating rights.

As I said in the original post, I expect the lawsuit will be a class of women or Planned Parenthood on behalf of its potential clients, which is all women in the state. So the injunction should be broad, if the plaintiffs and the court do it right. My point is simply that this legislation is "in effect" and remains part of Alabama law; it just cannot be enforced.

Posted by: Howard Wasserman | May 18, 2019 12:22:43 PM

J - the words you are looking for are class action lawsuit.

Posted by: Salem | May 17, 2019 12:07:39 PM

You may accurately be describing how law works. But a vision of law that opens up the possibility that every woman who wants to exercise her constitutional right to end her pregnancy will have to obtain a court order to do so makes a pretty big mockery of the idea of constitutional rights to begin with. A right you can’t exercise without getting permission first might be better than no right at all, but the old phrase “Justice delayed is justice denied” comes to mind.

Posted by: J | May 17, 2019 10:49:46 AM

Yes, if "take effect" means "becomes the law of the state of Alabama." And this is where non-universality of the injunction comes into play. If the injunction is limited to the parties (as I have argued, to everyone's repetitious dismay, it should be), then there is no court order stopping the executive from enforcing that law against non-parties. That enforcement against others is possible only if the law has taken effect--if it is part of the law of Alabama.

Posted by: Howard Wasserman | May 16, 2019 7:33:08 PM

Usually I love lawyerly nitpicking but if a state law is found to be repugnant to federal law such that its enforcement is enjoined, does it really "take effect" in any meaningful sense of the term?

Posted by: Teri | May 16, 2019 7:20:36 PM

And, the case will eventually reach the Supreme Court where the court will find a way to limit a woman's right to choose. There are five votes to limit or end abortion. We can thank liberal democrats for supporting conservative nominees. For example, strong abortion advocate, Nora Demleitner, testified on behalf of Alito during his hearings. She declared, "Let me explain to you why I believe that Samuel Alito deserves to sit on the highest Court and why his confirmation will, in fact, not pose a threat to the rights of women, to the rights of minorities,immigrants, or other vulnerable groups."

Demleitner knew who Alito was; she had been his clerk. Yet her own career was more important than a woman's right to choose. There are lots of others like Demlitner.

Posted by: Scott | May 16, 2019 3:29:59 PM

By the way, the legislator or the bill itself, explicitly recognizes such possibility, and take it to account, here I quote Sec 8 to the bill:

Section 8. The construction of existing statutes and regulations that regulate or recognize abortion in Alabama that are in conflict with or antagonistic to this act shall be repealed as null and void and shall recognize the prohibition of abortion as provided in this act. If this act is challenged and enjoined pending a final judicial decision, the existing statutes and regulations that regulate or recognize abortion shall remain in effect during that time.

End of quotation:

And by the way, it is " unless repealed " by another law, repealing it, explicitly so.


Posted by: El roam | May 16, 2019 9:44:43 AM

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