Texas House Passses Strictest Abortion Bill In Nation

RichardGarfinkle

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. If the populace overwhelmingly supports limits on abortion, I do not see this as an issue as long as it remains Constitutional.


If you read Roe v. Wade, this law is unconsitutional on the face of it. Under Roe, abortion cannot be blanket prevented based on time. Life and Health must always be considered. These laws are being passed in direct defiance of current constitutional interpretation.
 

southbel

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If you read Roe v. Wade, this law is unconsitutional on the face of it. Under Roe, abortion cannot be blanket prevented based on time. Life and Health must always be considered. These laws are being passed in direct defiance of current constitutional interpretation.
Yes, I thought the same and agreed upthread on this point. So yes, this particular law will likely not hold up under judicial review. However, unless the conversation changes from one of strongly held camps on each side of the issue, the next law will be equally restrictive with only slight differences.
 

regdog

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Dear Rep. Jodie Laubenberg,

We are all born ignorant, but one must work hard to remain stupid.
Benjamin Franklin

Sincerely,
regdog

P.S. Oh and fuck you.
 

muravyets

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Okay, now to my contrary nature. I hate to cast aspersions on all conservative states because of this one woman's ignorant comments. While I think the politics of abortions has gotten out of hand, these are representatives of the people from their states. If the populace overwhelmingly supports limits on abortion, I do not see this as an issue as long as it remains Constitutional. I say this, knowing full well I am about to get slammed, because I am a huge proponent of each state doing what is in their best interest.

Seriously, I've met plenty of pro-lifers (being Southern and all). There are many of them that are genuine with their beliefs that life begins at conception. Perhaps the representatives are doing this at the people's will? Isn't that what they were elected to do?
No, and here's why:

Each state is a part of the nation governed at the federal level and ruled by the national Constitution. In all cases of conflict, federal law trumps state law. Federal law, as stated in the US Constitution, mandates equal protection under the law for all persons within US jurisdiction. Because of this, states do not have the right to discriminate against certain groups or curtail the rights of any one group without demonstrable compelling need, even if the majority of the state's voters desire such discrimination.

This is why federal power was used to end segregation even though the majority of southern voters wanted it (and it should be noted that majority of voters existed only because a significant number of residents within segregationist states had their voting rights violated as well).

State anti-abortion laws increasingly attack the civil and human rights of women, exclusive of men, and they do so increasingly obviously. These laws are unconstitutional, and the will of the majority is irrelevant to that.

Although, as rugcat points out below, the will of the majority has nothing to do with it in the first place. This is a minority viewpoint being imposed on the majority by political chicanery.

It's absolutely the issue. Your contention that the duly elected representatives reflect the will of the people does not hold water if those representatives gain power through cleverly (and in some cases, illegally) rearranging districts. They are no longer reflecting the wishes of the people they serve.

Plus, you haven't addressed the point that the will of the people in this case is squarely against what the legislators are doing -- so the idea that they are simply reflecting the wishes of their constituents is not true.

Not to mention that the Governor Perry called a special session to enact these laws. Far from it being a reflection of the will of citizens of the state, this legislation is a pet project of the right wing political forces determined to impose their own particular agenda of the people whether they want it or not.
This cannot be highlighted too much.

Trying to stay on topic here but Texas must have preclearance for voting district changes due to the Voting Rights Act. Thus, any gerrymandering would have to pass muster at the DOJ first.

...
Which is exactly why Tom Delay was convicted of felony crimes for political corruption connected to the wholesale gerrymandering of Texas he oversaw. [ETA: CORRECTION: He was convicted of money laundering for illegal campaign finance shenanigans, but the gerrymandering thing was one of the crimes the DoJ wanted to go after him for. However, they made a case on the campaign money, and that's why he's not in government anymore. /ETA.] Of course, however, the existence of the law didn't stop him from doing it, and his conviction for doing it did not erase the illegal redistricting of the state. So no, gerrymandering does not have to pass muster at the DoJ first. Very few people who are intent on breaking the law stop first to check with law enforcement about whether they can get away with it.

Also, I'm not sure the Voting Rights Act covers gerrymandering because redistricting is not a change in the manner of conducting elections. However, someone better versed in election law should probably chime in on this.

Of course, it's moot now, since as of this morning, the Voting Rights Act doesn't cover much of anything, it seems.

Is that the same act that conservatives are hoping the SCOTUS will overturn? The one Judge Scalia termed "racial entitlement?" Texas has been throwing up new plans for the last ten years.

...

They just did overturn it. Heard it on the news just a few minutes ago. I invite all here to imagine the torrent of obscenities and curses exploding in my skull right now.
 

southbel

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I'll leave the redistricting alone on this since that's all likely to change soon anyway.

As to the other - equal protection under law. Point me to the federal abortion law. It's afforded to the states, with Roe v Wade providing the Constitutionality of the law. In fact Roe v Wade goes into fairly good detail as to when it is and is not in the interest of the state during a woman's pregnancy based on trimesters. There is only one federal law on abortion and that is the ban on partial birth abortion.

Thus, the states are not trumping federal law in this case. They must be Constitutional though. Since the exception for the health of the mother was not included in the Texas law, I believe it will not stand up to judicial review.

However, you are absolutely incorrect in saying there is a federal abortion law that trumps state law. The matter of the Constitutionality of this law is now in the court's hands (once it gets there).
 

rugcat

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Also, I'm not sure the Voting Rights Act covers gerrymandering because redistricting is not a change in the manner of conducting elections.
I believe it does if the gerrymandering is based upon racial lines, i.e. cramming as many racial minorites as possible into one district to ensure the other surrounding districts will increase their white majority and thus control.

Texas tried this a couple of years ago

After Texas won four new seats in the 2010 reapportionment process -- something which was due almost entirely to growth in the state's Latino population -- its state legislature attempted to circumvent the Voting Rights Act. In a November 2010 email obtained by the Mexican American Legal Defense Fund and presented as evidence in court, a Texas legislative staffer suggested drafting new districts by identifying communities with a large number of voters with “Spanish” surnames and low voter turnout, then lumping them together into an opportunity district.

http://www.huffingtonpost.com/2012/...ng-discriminated-latino-voters_n_1838030.html
 

RichardGarfinkle

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I'll leave the redistricting alone on this since that's all likely to change soon anyway.

As to the other - equal protection under law. Point me to the federal abortion law. It's afforded to the states, with Roe v Wade providing the Constitutionality of the law. In fact Roe v Wade goes into fairly good detail as to when it is and is not in the interest of the state during a woman's pregnancy based on trimesters. There is only one federal law on abortion and that is the ban on partial birth abortion.

Thus, the states are not trumping federal law in this case. They must be Constitutional though. Since the exception for the health of the mother was not included in the Texas law, I believe it will not stand up to judicial review.

However, you are absolutely incorrect in saying there is a federal abortion law that trumps state law. The matter of the Constitutionality of this law is now in the court's hands (once it gets there).

The Constitution as interpreted by the Supreme Court is the relevant federal law. The States do not get to make laws that go against the Constitution. So long as Roe v. Wade is held, it is de jure the meaning of the Constitution on the matter of abortion. Therefore, no state may pass a law that contradicts it.

If you look at what the court has allowed in terms of whittling away abortion rights, it has been on matters of notification, delay etc. This law bans abortion beyond 20 weeks under all circumstances. It explicitly goes against Roe v. Wade, which is unless and until overturned part of the supreme law of the land.
 

southbel

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The Constitution as interpreted by the Supreme Court is the relevant federal law. The States do not get to make laws that go against the Constitution. So long as Roe v. Wade is held, it is de jure the meaning of the Constitution on the matter of abortion. Therefore, no state may pass a law that contradicts it.

If you look at what the court has allowed in terms of whittling away abortion rights, it has been on matters of notification, delay etc. This law bans abortion beyond 20 weeks under all circumstances. It explicitly goes against Roe v. Wade, which is unless and until overturned part of the supreme law of the land.
And I agreed that it will be overturned by the courts. But that was not the argument presented to me upthread. It was the supremacy of federal law over state. It's a distinction from Constitutionality but an important one. Of course, the courts and gov't both tend to look the other way on both of these when it pleases them so it's never a 100% guarantee that a law will be overturned, even if obviously un-Constitutional.
 

RichardGarfinkle

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And I agreed that it will be overturned by the courts. But that was not the argument presented to me upthread. It was the supremacy of federal law over state. It's a distinction from Constitutionality but an important one. Of course, the courts and gov't both tend to look the other way on both of these when it pleases them so it's never a 100% guarantee that a law will be overturned, even if obviously un-Constitutional.

This is a supremacy matter. The Constitution is the supreme law of the US and it is specifically federal law. All federal law flows from the US constitution. State laws flow from state constitutions. The supremacy of federal law is rooted in the supremacy of the constitution. If it weren't then the unconstitutionality of a state law wouldn't matter.

To lay it out in boring detail.
1. The constitution is the supreme federal law,
2. Federal law is supreme over state law.
3. The Supreme Court's interpretation of the constitution is what the constitution is deemed to mean.

Therefore, the Supreme Court's decision in Roe v. Wade trumps state laws as a matter of supremacy.
 

Xelebes

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This is a supremacy matter. The Constitution is the supreme law of the US and it is specifically federal law. All federal law flows from the US constitution. State laws flow from state constitutions. The supremacy of federal law is rooted in the supremacy of the constitution. If it weren't then the unconstitutionality of a state law wouldn't matter.

To lay it out in boring detail.
1. The constitution is the supreme federal law,
2. Federal law is supreme over state law.
3. The Supreme Court's interpretation of the constitution is what the constitution is deemed to mean.

Therefore, the Supreme Court's decision in Roe v. Wade trumps state laws as a matter of supremacy.

In Canadian law, for reference sake, the concept is called ultra vires. There is only one way out of it is the Notwithstanding Clause which has been threatened a couple times in the past but politically prohibitive as to not have been exercised.
 

southbel

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This is a supremacy matter. The Constitution is the supreme law of the US and it is specifically federal law. All federal law flows from the US constitution. State laws flow from state constitutions. The supremacy of federal law is rooted in the supremacy of the constitution. If it weren't then the unconstitutionality of a state law wouldn't matter.

To lay it out in boring detail.
1. The constitution is the supreme federal law,
2. Federal law is supreme over state law.
3. The Supreme Court's interpretation of the constitution is what the constitution is deemed to mean.

Therefore, the Supreme Court's decision in Roe v. Wade trumps state laws as a matter of supremacy.
Supremacy clause is in play when federal statutes conflict with state law (see drug laws for example). This new law from Texas is a Constitutional question. It will go to the courts, in all likelihood, to determine if this new law is un-Constitutional based on case law (Roe v. Wade for example). My prediction is that it will not hold up to judicial review.
 

blacbird

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The Constitution as interpreted by the Supreme Court is the relevant federal law. The States do not get to make laws that go against the Constitution.

Unfortunately they do get to make such laws, which stand until a court ruling blocks them. Normally this would start by implementation of some form of judicial injunction, and then get fought out via litigation.

caw
 

southbel

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Unfortunately they do get to make such laws, which stand until a court ruling blocks them. Normally this would start by implementation of some form of judicial injunction, and then get fought out via litigation.

caw
Precisely my point.
 

missesdash

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Her comment about rape victims being "cleaned out" has totally ruined my day.
 

muravyets

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I'll leave the redistricting alone on this since that's all likely to change soon anyway.

As to the other - equal protection under law. Point me to the federal abortion law. It's afforded to the states, with Roe v Wade providing the Constitutionality of the law. In fact Roe v Wade goes into fairly good detail as to when it is and is not in the interest of the state during a woman's pregnancy based on trimesters. There is only one federal law on abortion and that is the ban on partial birth abortion.

Thus, the states are not trumping federal law in this case. They must be Constitutional though. Since the exception for the health of the mother was not included in the Texas law, I believe it will not stand up to judicial review.

However, you are absolutely incorrect in saying there is a federal abortion law that trumps state law. The matter of the Constitutionality of this law is now in the court's hands (once it gets there).
If I had said there was a federal abortion law that trumps state law, I would indeed be incorrect (eta: except for Richard's point re Roe, but still, it wasn't the point I was making). Fortunately, I did not say that.

I did say that federal law trumps state law. That is black letter, there is no disputing it.

I further said that the Constitution guarantees equal protection under the law. That is not a disputable fact, either.

The emerging argument regarding state abortion laws is the degree to which they damage the legal rights of women. As the states' laws become more and more egregiously invasive and restrictive, as well as punitive against women, it becomes more clear that they are subject to constitutional attack.
 

southbel

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If I had said there was a federal abortion law that trumps state law, I would indeed be incorrect (eta: except for Richard's point re Roe, but still, it wasn't the point I was making). Fortunately, I did not say that.

I did say that federal law trumps state law. That is black letter, there is no disputing it.

I further said that the Constitution guarantees equal protection under the law. That is not a disputable fact, either.

The emerging argument regarding state abortion laws is the degree to which they damage the legal rights of women. As the states' laws become more and more egregiously invasive and restrictive, as well as punitive against women, it becomes more clear that they are subject to constitutional attack.
There's always been state interpretation of SCOTUS rulings. Look at gun control - it's not the same across the nation even though there's an amendment and several rulings on the subject.

Supremacy is an issue but there is no federal statute on abortion except for the ban on partial birth abortion. There is case law but as with all case law (except in very, very narrow cases), it is open to interpretation. When that interpretation is called into question, there is a lawsuit and that law it put to judicial review.

Should the states constantly test the limits of case law? Maybe, maybe not. But they've been doing it for some time on several issues. As I've said before, this law will be challenged and my prediction is that it will be overturned.
 

muravyets

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There's always been state interpretation of SCOTUS rulings. Look at gun control - it's not the same across the nation even though there's an amendment and several rulings on the subject.

Supremacy is an issue but there is no federal statute on abortion except for the ban on partial birth abortion. There is case law but as with all case law (except in very, very narrow cases), it is open to interpretation. When that interpretation is called into question, there is a lawsuit and that law it put to judicial review.

Should the states constantly test the limits of case law? Maybe, maybe not. But they've been doing it for some time on several issues. As I've said before, this law will be challenged and my prediction is that it will be overturned.
I have noticed that disclaimer each time it's been posted. It doesn't make the argument about the relationship between state law and federal law any different. I'm sure we're both familiar with the specific clause of the Constitution that settles the matter.

I'm sure I also don't need to repeat that I never said there was a federal statute on abortion. Since I don't defend arguments I never made, that objection to what I did say is irrelevant and is not going to be addressed by me.
 

southbel

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I have noticed that disclaimer each time it's been posted. It doesn't make the argument about the relationship between state law and federal law any different. I'm sure we're both familiar with the specific clause of the Constitution that settles the matter.

I'm sure I also don't need to repeat that I never said there was a federal statute on abortion. Since I don't defend arguments I never made, that objection to what I did say is irrelevant and is not going to be addressed by me.
I was trying to point out it's an important distinction because statutes have very little room for interpretation. Since we're dealing with case law, I think this is why we so many various state laws pushing the limits of interpretation.

Perhaps I wasn't previously clear on why I think the distinction is important. I believe the lack of federal statute is allowing states like Texas to create these types of laws.

Thus, would the country benefit from a narrow and precise federal statute on abortion? This would effectively end the myriad of laws that change from state to state concerning abortion. Or should it remain at the state level?
 

muravyets

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I was trying to point out it's an important distinction because statutes have very little room for interpretation. Since we're dealing with case law, I think this is why we so many various state laws pushing the limits of interpretation.

Perhaps I wasn't previously clear on why I think the distinction is important. I believe the lack of federal statute is allowing states like Texas to create these types of laws.

Thus, would the country benefit from a narrow and precise federal statute on abortion? This would effectively end the myriad of laws that change from state to state concerning abortion. Or should it remain at the state level?
I don't think it would make much difference because those who wish to ban abortion in general will continue to challenge any and all laws maintaining its legal status. This is exactly what they are doing now with laws like the one under discussion, which is a direct challenge to Roe v. Wade which, as Richard pointed out, is the law the land by judicial decision. If there is federal legislation on the matter, then every such challenge may be doomed, but that won't make the challenges stop, nor will it necessarily lead to less interference with women's rights.

Personally, I would like to see a federal law protecting women's rights to access reproductive medical care including abortion as a matter of constitutional right, but I think there also needs to be firm enforcement of all such laws, including Roe, to impress on the states that nullification is not going to fly.
 

southbel

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I don't think it would make much difference because those who wish to ban abortion in general will continue to challenge any and all laws maintaining its legal status. This is exactly what they are doing now with laws like the one under discussion, which is a direct challenge to Roe v. Wade which, as Richard pointed out, is the law the land by judicial decision. If there is federal legislation on the matter, then every such challenge may be doomed, but that won't make the challenges stop, nor will it necessarily lead to less interference with women's rights.

Personally, I would like to see a federal law protecting women's rights to access reproductive medical care including abortion as a matter of constitutional right, but I think there also needs to be firm enforcement of all such laws, including Roe, to impress on the states that nullification is not going to fly.
I don't know what the answer is. However, if we can at the very least teach our populace enough so they do not have ignorant views like that of Ms. Laubenberg, I would call that progress. Really, I can't believe she said that.

In my personal opinion, I think abortion is an area where conservatives need to simply stop. It is not a winning position for them politically, even if their own personal views are pro-life. There is some movement in the conservative party, especially among the younger generation. However, the loudest voices do seem to be, at times, those with a strong opinion on abortion.

The younger Republicans part ways with the older set on social issues, including abortion. The best thing for the GOP is if these young Republicans become a force in the party as the older generation dies off. This is an article from 2012 but reflects this trend as well. I think there will come a time when the GOP's platform on abortion changes.

http://www.nytimes.com/2012/08/09/us/politics/young-republicans-erase-lines-on-social-issues.html
 

dolores haze

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I'm watching Senator Davis' attempt to filibuster. Never seen one in action before. Fascinating. Repubs objecting to her back brace.
 

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Unless it's a different abortion bill, which I don't think so, then this bill is currently being fillibustered in the Texas Senate by a democratic woman, who's doing it the old fashion way, standing and talking. It's also being streamed right now: http://www.youtube.com/watch?v=2Q8Hr0O20LY
It's quite interesting. The opposition has brought up charges that points in her filibuster are "not germane" and have given her two warnings. After a third, the senate will vote whether to end the filibuster.

Any member can bring up a point of order, and then the (GOP controlled) senate votes whether to sustain it. They've done so twice, and it looks like they will succeed a third time as well and thus quash the filibuster.
 

William Haskins

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It's quite interesting. The opposition has brought up charges that points in her filibuster are "not germane" and have given her two warnings. After a third, the senate will vote whether to end the filibuster.

Any member can bring up a point of order, and then the (GOP controlled) senate votes whether to sustain it. They've done so twice, and it looks like they will succeed a third time as well and thus quash the filibuster.

yeah it's tightly controlled and more than a little farcical. most filibusterers in the past have read verbatim from related case law to stay on target.