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Tuesday, November 02, 2021

The Cart Before the Horse

I think the Court is taking the wrong approach to the S.B. 8 litigation. The better response was: "Stayed pending Dobbs." Then after Dobbs is handed down:  "Vacate and remand in light of Dobbs."  Dobbs might moot the S.B. 8 cases, or at least clarify the underlying substance.

Instead, the Court is going to decide complex procedural issues that they need not decide now. Worse still, they will probably feel pressure to decide those issues before Dobbs is argued on December 1st. I mean, what's the point of doing so after Dobbs is argued? At that point, the procedural issue might be moot to them, though only they will know until Dobbs comes out.  

Posted by Gerard Magliocca on November 2, 2021 at 12:17 PM | Permalink


Who can we turned to when we no longer have any place to go?

“Behold Your Mother.”- Jesus The Christ

The Memorare
Remember, O most gracious Virgin Mary, that never was it known that anyone who fled to thy protection, implored thy help, or sought thine intercession was left unaided.

Inspired by this confidence, I fly unto thee, O Virgin of virgins, my mother; to thee do I come, before thee I stand, sinful and sorrowful. O Mother of the Word Incarnate, despise not my petitions, but in thy mercy hear and answer me.


Dear Blessed Mother, Mary, Mirror Of Justice, Destroyer Of All Heresy, Who Through Your Fiat, Affirmed The Filioque, And Thus The Fact That There Is Only One Begotten Son Of God, One Word Of God Made Flesh, One Lamb Of God Who Can Take Away The Sins Of This World, Our Only Savior, Jesus The Christ, Thus There Can Only Be One Spirit Of Perfect Complementary Love Between The Father And His Only Begotten Son, Who Must Proceed From Both The Father And His Son, In The Ordered Communion Of Perfect Complementary Love, The Most Holy And Undivided Blessed Trinity, Please Intercede for us.💕

Posted by: Nancy | Nov 3, 2021 3:47:48 PM

Abortion specific ...

I am not alone in thinking that Dobbs won't (immediately at least) be so broad to allow "heartbeat bans."

Also, a stay factors in likely success. Again, the Texas law covers abortions restrictions there is a good likelihood the Dobbs result won't clearly accept. This includes lawsuits against minor aiders and abetters that go to the strength of the state interest.

Posted by: Joe | Nov 3, 2021 1:47:29 PM

I think this is one way to go.

But, SB8 is broader than one area of law. It uses a means that can be applied for any number of things.

So, not really seeing this as doing it.

Posted by: Joe | Nov 3, 2021 11:39:47 AM


Everyone likes to win and see their predictions come true. So what!? if we go wrong and if the Lords of the Law fail to appreciate our brilliance? Perhaps thus humbled we will become wiser and better in the longer term. Perhaps they too. Perhaps it turns out we were on to something and get vindicated in some form in the end.

Speaking for myself (and hopefully expressing the sentiment of a wider audience segment) Wasserman's and Rohde's high-caliber contributions to the SB8 discourse are appreciated, as much as are Josh Blackman's. Even Dorf's, who is prone to silencing pro-life commentary on this blog. Correct me if I am mistaken and we merely experienced technical difficulties in the comment moderation department.

Their efforts to devise a theory to financially destroy pro-life colleagues via Section 1983 liability less so. Appreciated, that is.

Shocking, much rather, what can emerge from inside of academic silos and echo chambers, and how holders of dissenting views and values are cast as enemies, maligned and denigrated.

As for moi, ironic to be deemed a colored-by-law agent of state, not to mention one under the purported thumb of AG Ken Paxton whom I can assure you is no friend of mine.

You can read my amicus brief in U.S. v. Texas - warts and all -- via the hotlink if you are willing to risk exposure to nonconformist argument.

Since I am not a member of the guild, you won't find it on the SCOTUS docket.

Posted by: Wolfgang P. Hirczy de Mino | Nov 2, 2021 3:06:42 PM

Not sure what logic determines which posts do or do not have comments turned on, but below is an excellent example of why they should remain off for any post that's even tangentially related to abortion.

Posted by: Oh, Nancy | Nov 2, 2021 2:18:26 PM

“And it wouldn't have screwed up our articles.”

True that🙂 although even though error has no rights, it can often serve to illuminate what is true, due to The Law Of Non-contradiction.

Godspeed to all who travel here💕

Posted by: Nancy | Nov 2, 2021 1:52:58 PM

“If this suggestion of personhood is established, [Roe's] case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [14th] Amendment.”- Roe v. Wade, 410 U.S. 113 (1973)

With respect, there is nothing complex about any State or The Federal Government recognizing that it is not possible for human persons to conceive a son or daughter, who is not, in essence a human person, and thus recognize the self evident truth that can be known through both Faith and reason, that every son or daughter of a human person, can only be, in essence, a human person. The complex web of procedural error occurs when you deny this self evident truth, and that initial Substantive Due Process error continues to produce Procedural error.

You have been you since the moment you were brought into being, at your conception.
Affirming that every son or daughter of a human person, can only be, in essence, a human person, and acting accordingly, in no way, shape or form, can be deemed to be, unconstitutional. I would suggest Texas begin with that self evident Truth, all human persons, because they possess equal human Dignity, are equal before The Law.

Posted by: Nancy | Nov 2, 2021 1:26:30 PM

And it wouldn't have screwed up our articles.

Posted by: Howard Wasserman | Nov 2, 2021 1:24:51 PM

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