S019 v the South

[reagente]

Respondent response to the Sestak Amicus brief:

Subject-matter Venue:

I agree that the correct venue for Federal Constitutional questions is the Atlasia Supreme Court. However, petitioner in his brief explicitly states that:

this case is based on Southern law and not federal law

Petitioner has every right to file a federal law claim in this court, but their filing should be tailored to reflect that, and all state law claims ought to be sectioned off into a separate filing in the appropriate court (Southern Circuit Court).

Pre-Enforcement suits

I believe my brief was misunderstood. As Politics Fan v. South stated, it would be ridiculous to require "personal impact for all lawsuits." I agree with the Amicus writer that citizens should be able to stand for impossible plaintiffs (and that would-be petitioners shouldn't have to wait for an NPC simulation), and indeed I have suggested the possibility that petitioner was acting on behalf of NPC plaintiffs in his suit.

However, I do not believe that petitioner should be able to use this virtual representation to circumvent ordinary standing requirements. If a petitioner wants to represent NPCs - they have every right to do so - but they should be subject to the standing requirements of those NPC individuals. To do otherwise would essentially make the Atlasia Circuit Courts a dead letter.

Right to an Abortion

Amicus writer fails to mention that the law upheld by Politics Fan v. South (the Abortion Safety and Guidelines Act (2018)) did amount to a complete ban on Abortion after 14 weeks (except to save the life of the Mother), because it operated in concert with the "South Aborting Regulation Act (2016)" which prevented medical facilities from performing abortions after 14 weeks (except to save the life of the Mother). By requiring medical facilities to perform all Abortions, the Abortion Safety and Guidelines Act functioned as a 14 week abortion ban, and this court was surely aware of that.

Regarding the permissibility of a six week threshold, rather than retype all of what I've said before, I will simply reiterate what I said in my brief (and subsequent comment to Justice PiT) that six weeks operates as the threshold where a clear majority of Women are aware of pregnancy (or could have been aware of pregnancy) with notice that they could have acted to exercise their right to family planning.

Severability

I disagree strongly with the Amicus writer's statement that:

The suggestion being made here is that the court should be required to find the narrowest possible set of cases for which there is constitutional violation, list out all of these cases, and then rule that enforcement is permitted in all of these cases.

I, nor the law, requires this court (or any other court) to list out all of "the narrowest possible set of cases for which there is a constitutional violation". The court may list what it wants.

Should a court find any section, or set of words, of this act facially constitutional, those discrete applications will be excluded from civil enforcement. This S.21.4.1 §13 (3) simply amounts to an instruction to the Southern Circuit Court that severability will not be interpreted broader than what is required by a court.

Section 13, subsection 6, of S.21.4.1 is clearly applicable only to the Southern Circuit Court. The Southern Region cannot not write laws which bind the Atlasia Supreme Court.

Nevertheless, this provision simply operates to prevent severability from being ignored (and the whole law overturned) on the grounds that the regional legislature did not intend the possible re-writing of the law created by a court's decision. This section is a statement of affirmation from the Southern legislature that we emphatically believe the law should stand, regardless of whatever changes are compelled by a court.

[windjammer]

Thank you reagente.
By the way for the record we have not forgotten this, still being debated.

[windjammer]

Statement from the Supreme Court

The Supreme Court has come to a unanimous decision on striking down Section 9 of the Southern Heartbeat Act and on recognizing S019's standing.

However, the Supreme Court couldn't come to a unanimous decision on the rest of the bill.


Justice Bacon King, along with Justice Ilikeverin, have written the majority opinion striking down entirely the law. Justice Gass has joined this opinion.

Chief Justice Windjammer, joined by Justice Pit, has written the minority opinion, recognizing S019's standing, striking down section 9 of Southern Heartbeat but disagreeing with the majority decision of the Court to entirely strike down the law.

[ilikeverin]

Supreme Court of Atlasia
Nyman, DC
S019 v. the South

Opinion of the Court

(Justices ilikeverin and Bacon King delivered the opinion of the Court, joined by Justice Gass3268)

Before us, we are presented with an act passed by the South entitled the "Southern Heartbeat Act". As judges, we must wield our powers judiciously, mindful of the fact that we are not elected by the Atlasian people, and give deference to the political branches when appropriate. But, in asking us to defer to Southern Chamber of Delegates, respondents ask us to turn our back on established Atlasian legal procedure, yield to legislative chicanery through a novel enforcement method against an established constitutional right, and overthrow the separation of powers, to say nothing about the contents of the bill itself. This Court has come to different conclusions about whether a right to abortion access is present in the Constitution (see opinion concurring in part and dissenting in part from Windjammer, C. J.), in line with the differences of opinion among many reasonable, intelligent, and moral citizens of our nation. However, we are unanimous in opposing the core principle of this law: an inglorious and furtive attempt to reinstate the doctrine of nullification, and to ask us, as a Court, to condone this. We cannot and must not.

I

A

Before entering into discussion of the merits of this case, we must first dispense with some discussion of the standing and venue for this case. The respondent claims the petitioner does not have standing to challenge the law, because the petitioner cannot claim injury. But this bears no resemblance to established Atlasian principles of standing. As we have stated repeatedly in cases such as Politics Fan v. The South and Beck v. Atlasia, standing takes a much different form in Atlasia from other common law jurisdictions. Citizens are certainly allowed, and even encouraged, to challenge laws on constitutional grounds without being directly affected by the law, as such direct effects are quite rare in the circumstances of our nation. As such, S019 meets constitutional muster to serve as a petitioner in this case. As an Atlasian citizen, S019 is entitled to concern about the nature of this law with respect to the Atlasian constitution.

B

Respondent also asserts that the petitioner has chosen an incorrect venue for the petitioner's argument. Petitioner advances an argument about the constitutionality of this law with regard to the constitution of the South. We concur that these portions of the petitioner's argument are not appropriate for the Supreme Court as a first venue, but, as shall shortly be seen, this is not relevant to our findings in this case.

II

In Section 9 of the Southern Heartbeat Act, the South proposes to sidestep an established constitutional right by establishing a novel and opaque punitive mechanism. The function of this law is to punish people providing abortion services after a fetal heartbeat is detected. Rather than attempting to regulate an unwanted behavior through the criminal law code, as would be appropriate, the law creates a new civil law procedure to provide enforcement instead. Indeed, by outsourcing punishment to any person who is not "an officer or employee of a state or local governmental entity in this region", and by paying those people for their service to the region, the South seeks to create a dedicated cadre of bounty hunters, without any formal public status but capable of wielding enormous power.

This makes a mockery of criminal justice. Of course a region has the power to create new types of civil procedures that seek to redress wrongs or take into account new realities of the world. The Court recognizes the growing field of environmental law, for instance, where private citizens can sometimes enter into civil procedures that would have been impossible decades ago. However, in scope and consequences, this novel mechanism is far more dangerous. Most notably, this novel civil procedure seeks to invalidate a constitutional right that was recognized and affirmed in Politics Fan v. the South years ago. The idea that a constitutional right can be ignored simply because a government entity has created a new way to try to subvert it must be opposed. You cannot render a constitutional right inoperable simply because you have chosen a confusing mechanism to enforce the law destroying that right.

Consider, for instance, a law that establishes that handguns are henceforth illegal to be possessed by private citizens. This would likely be considered unconstitutional. Now, imagine that the mechanism for enforcing this act was that any citizen anywhere, so long as they were not "an officer or employee of a state or local governmental entity", could sue the owner of a handgun. By the logic of the South and this Act, this bill would suddenly be rendered perfectly constitutional.

Indeed, it is worth considering whether any constitutional rights would be safe from this argument. Consider a situation in which the justices of the Supreme Court decide to vacation on Jekyll Island in Georgia after issuing this decision. While making sandcastles on the beach, the South decides to pass a law making it illegal for any member of the Supreme Court of Atlasia to step foot inside its borders. This is a clearly unconstitutional bill of attainder. Yet, by the logic of the South in the present case, established constitutional rights may freely be rescinded if the mechanism by which those rights are removed is perpetuated by private citizens in civil proceedings. Although the South may be upset by our presence inside their region, it is not likely that this is the outcome that anyone would prefer.

Section 9 is, therefore, blatantly unconstitutional. Politics Fan v. the South makes it clear that, although certain limits on the time and place of abortions may be constitutional, a constitutional right to abortion services does exist. A region may not establish such broad penalties for exercising an established constitutional right.

III

A

Perhaps foreseeing this type of challenge, the South gives us Sections 13 and 14, setting out a very detailed set of constraints upon the Court about the manner and place that we may make a ruling in this case. It is the case that the legislative and executive branches have a proper interest in the functioning of the judiciary branch. Yet this does not extend, as Section 13 posits, to tell us what the proper interpretation of severability is. This is a galling violation of the separation of powers; this is, properly, a judicial question which parts of a law may be severed from one another.

B

It is clear that the provisions of this law are not severable from one another. The law has one overriding and strong purpose: to penalize abortions that occur after the development of a fetal heartbeat and to make the lives of those who aid people obtaining abortions after that point more difficult. Every other part of the law either seeks to refine this goal or to render it more challenging for this Court, or any Court, to prevent this purpose. The provisions of this bill are not severable from one another; they are clearly and fundamentally related to one another and towards challenging the constitutional right to an abortion.

IV

We must evaluate, then, whether this law is an unconstitutional overreach against the right to privacy that the majority opinion in Politics Fan v. the South lays out. To quote the opinion, "a general right to abortion access does exist". The question is whether this law unconstitutionally hinders this right. The answer is clearly in the affirmative. There is no compelling governmental interest and the bill is as broadly tailored as possible; the law cannot pass strict scrutiny.

To be sure, Politics Fan v. the South acknowledges that some regulations on abortion access are constitutional, including restrictions on the place and manner of abortion. This law contains no such nuance. This law forbids effectively all abortion after five weeks after conception unless there is an amorphous "medical emergency exists that threatens the life of the pregnant woman". Many, many pregnancies will be forced to come to term as a result of this act. As stated in the amicus from Sestak, perhaps about 40% of pregnancies, at minimum, are not discovered until after six weeks of gestation. This fact is particularly galling because women with sufficient resources to cross regional lines, or to obtain these abortions in secrecy, will still have access to their constitutional rights guaranteed to them by Politics Fan v. the South. These rights will be denied to those without those resources. A right to privacy that exists only for the privileged is no right at all.

V

Certainly it is interesting that the verbal phrases "hold laws unenforceable" and "strike down" have slightly different denotations, and we are tickled that in other common law jurisdictions (e.g., the United States of America) this may lead to some differences in interpretation. But, in Atlasia, we are happy to leave these debates to the semanticists. The plain reading of the petitioner's request is obvious.

VI

The decision to banish the enforcement mechanism to the swamp of legalistic argle-bargle from which it emerged is unanimous. Additionally, it is the position of the Court that the central provision of the law does not meet strict scrutiny standards. Notwithstanding the law's own insistence that its provisions are severable from one another, they are not; the law all points towards a single purpose. We therefore strike down this law and hold it unenforceable.

[windjammer]

Supreme Court of Atlasia
Nyman, DC
S019 v. the South

Minority Opinion of the Court

(Chief Justice Windjammer delivered the minority opinion of the Court, joined by Justice Pit)

After consideration of the submitted briefs and the facts of the case, the Court has come to a divided decision. While Justices illikeverin, Gass and BaconKing agreed to completely struck down the law. Chief Justice Windjammer and Justice Pit disagreed with this decision, opting to uphold the law except Section 9 that should be struck down.

It is the belief of Chief Justice Windjammer and Justice Pit that the current Atlasian constitution doesn’t guarantee the right of having an abortion. Abortion is fundamentally a legislative issue and the Southern Legislature has legally exercised this right by reducing the time limit for having an abortion in this bill.

However, section 9, by de facto transforming citizens into some kind of abortion hunters, awarding them some financial compensations while not having any kind of personal interests in that matter, undermines the constitutional right of all citizens of having a fair trial. This would de facto be really similar with the witch hunts that happened in Europe during the Middle Age that sentenced to death many innocent women for the personal gains of a few accusers. The Founding Fathers were well aware of this dark period of history and they wrote the Bill of Rights to avoid these witch hunts to happen again.

Thus, we concur with the majority striking down Section 9, we dissent on the rest: the rest of the law should have been upheld as there is no constitutional right for having an abortion.

[Associate Justice PiT]

     In addition to joining the Chief Justice's opinion and concurring in substance with Sections I and II of the majority opinion, I join the majority on Section III-A in stating that the legislative body cannot dictate severability to the Court.

[windjammer]

I concur as well with the majority opinion of the Court on Sections I, II and III A.

[At-Large Senator LouisvilleThunder]

As the court has issued its opinion, the South has issued an enforcement response. 

Executive Order #13
Sections 1-7 of the Southern Heartbeat Act shall continue to be enforced in full ONLY by members of the Southern national guard under the command of the Governor. The private citizen enforcement mechanism shall cease to be recognized.

[Bacon King]

As the court has issued its opinion, the South has issued an enforcement response. 

Executive Order #13
Sections 1-7 of the Southern Heartbeat Act shall continue to be enforced in full ONLY by members of the Southern national guard under the command of the Governor. The private citizen enforcement mechanism shall cease to be recognized.

Let me see if I understand this correctly because lmao

You've ordered the region's national guard to enforce this law? A law that LITERALLY prohibits any element of the regional government from enforcing it??

Like, setting the nullification attempt aside for a second here, this is definitely the most absurd legal paradox I've ever witnessed

No enforcement of this statute may be taken or threatened by this region, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this region or a political subdivision

[At-Large Senator LouisvilleThunder]

As the court has issued its opinion, the South has issued an enforcement response. 

Executive Order #13
Sections 1-7 of the Southern Heartbeat Act shall continue to be enforced in full ONLY by members of the Southern national guard under the command of the Governor. The private citizen enforcement mechanism shall cease to be recognized.

Let me see if I understand this correctly because lmao

You've ordered the region's national guard to enforce this law? A law that LITERALLY prohibits any element of the regional government from enforcing it??

Like, setting the nullification attempt aside for a second here, this is definitely the most absurd legal paradox I've ever witnessed

No enforcement of this statute may be taken or threatened by this region, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this region or a political subdivision

I guess this makes things interesting.

Unrelatedly, I also figured the court approves of nullification considering the decision with Koopa v. Fremont that claims regions have the full authority to regulate tobacco products.

[windjammer]

In accordance with the court's ruling, we hereby enjoin the Southern government, and all subdivisions and officers thereof, from enforcing any portion of the Southern Heartbeat Bill

[At-Large Senator LouisvilleThunder]

In accordance with the court's ruling, we hereby enjoin the Southern government, and all subdivisions and officers thereof, from enforcing any portion of the Southern Heartbeat Bill

You should have gotten Bacon King and Ilikeverin to rule differently then.

[Mr. Reactionary]

As the court has issued its opinion, the South has issued an enforcement response. 

Executive Order #13
Sections 1-7 of the Southern Heartbeat Act shall continue to be enforced in full ONLY by members of the Southern national guard under the command of the Governor. The private citizen enforcement mechanism shall cease to be recognized.

Let me see if I understand this correctly because lmao

You've ordered the region's national guard to enforce this law? A law that LITERALLY prohibits any element of the regional government from enforcing it??

Like, setting the nullification attempt aside for a second here, this is definitely the most absurd legal paradox I've ever witnessed

No enforcement of this statute may be taken or threatened by this region, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this region or a political subdivision

Its OK.  AG Truman would have to enforce this opinion and he believes in regional nullification. So does the Court when its something Truman wants.

[Bacon King]

LT if you wish to actually make a case that you have the authority to nullify or otherwise ignore the court's decision, i encourage you to file suit to overturn the enjoinment (call it "In re Southern Heartbeat Bill" or something) because any further posturing on your end will accomplish nothing except perhaps earning you the contempt of this court

edit: likewise, Mr. Reactionary or any other concerned citizen is free to file suit as well

[Unconditional Surrender Truman]

I would be fascinated to know when I ordered the national guard (or any regional agency) to enforce an unconstitutional law! But I suspect Klarence Thomas will not be able to answer.

[Ancestral Republican]

The Court giveth, the Court taketh away.

[Deep Dixieland Senator, Muad'dib (OSR MSR)]

As the court has issued its opinion, the South has issued an enforcement response.  

Executive Order #13
Sections 1-7 of the Southern Heartbeat Act shall continue to be enforced in full ONLY by members of the Southern national guard under the command of the Governor. The private citizen enforcement mechanism shall cease to be recognized.

Let me see if I understand this correctly because lmao

You've ordered the region's national guard to enforce this law? A law that LITERALLY prohibits any element of the regional government from enforcing it??

Like, setting the nullification attempt aside for a second here, this is definitely the most absurd legal paradox I've ever witnessed

No enforcement of this statute may be taken or threatened by this region, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this region or a political subdivision

Its OK.  AG Truman would have to enforce this opinion and he believes in regional nullification. So does the Court when its something Truman wants.

The Court giveth, the Court taketh away.

HS Falseman gives and HS Falseman and takes away.