S019 v the South

[S019]

Greetings honorable justices,

Today I am suing to declare the S.21.4.1 also known as The Southern Heartbeat Act as unconstitutional.

My case rests on a few points, particularly constitutionality and precedent.


The last time that the court offered an opinion on abortion rights in Politics Fan v the South, the court wrote in the majority opinion that "The limitations the state can place upon abortion access, must be tailored to only cover such legitimate government purposes without being overly broad. For example, hypothetically, a total ban against certain medical procedures would likely be unconstitutional, as no legitimate government purpose would exist to justify preventing doctors from performing procedures they believe to be appropriate and in the best interests of their patients."

The recent Southern law includes the following provision: "(1) a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child or failed to perform a test to detect a fetal heartbeat."

According to this article: https://www.whattoexpect.com/pregnancy/fetal-development/fetal-heart-heartbeat-circulatory-system/, that could be a ban on abortions within 5 weeks of pregnancy. In the view of the petitioner, this is an absolutely a restriction that would be "overly broad."

The legislation also creates a form of vigilante enforcement in this bill which seems to clearly go way beyond "legitimate government purposes:" "Any person, other than an officer or employee of a state or local governmental entity in this region, may bring a civil action against any person who:
(A)  performs or induces an abortion in violation of this statute;
(B)  knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this statute, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this statute; or
(C)  intends to engage in the conduct described in the prior two subsections"

In other words, the South intends to allow for random people to take people who they suspect may have had an abortion to court, even if they actually don't have proof of it, as is evidenced by Clause C, where the word "intends" is clearly far too weak of a word to justify actually bringing criminal charges. It is not clear at all to the petitioner how this in any way serves "legitimate government purposes," instead it seems to create an unworkable system where anyone can accuse anyone and they simply need to show "intent," the legislation still does not even explain to what degree "intent" must exist to justify a court case.

As previously ruled by the court in Politics Fan v the South, Sections 5 and 14 of the federal constitution protect the right to privacy, which the court also ruled included the right to choose an abortion.

"Section 5. No person shall be deprived of life, liberty, or property without due process of law."

"Section 14. The enumeration of certain rights in this Constitution shall not be construed as to deny or disparage those natural rights and liberties herein unlisted."

There is the inclusion of a right to privacy in the South, and while it says said right is not absolute, the right to privacy, in the form of right to elective abortion has clearly been regulated way too far to be consistent with the clause:

5. Right to Privacy — All people, in addition to the inalienable rights given to them by this constitution, shall have the right to privacy. This right is not absolute and can be regulated by the state by appropriate legislation.

This regulation is in no way appropriate and is in clear violation of both federal law and directly contradicts past Supreme Court precedent.

Thus, it is the view of the petitioner that current abortion law in the South violates a woman's right to privacy, and we humbly ask the court to strike the law down.

[windjammer]

This has been seen.

[ilikeverin]

Writ of certiorari in the case of S019 v the South has been granted.

Petitioner's brief is expected by 5:00 pm default forum time on 11/26/2021. Respondent's brief is expected by 5:00 pm on 11/29/2021. Any amicus curiae briefs are expected by 5:00 on 11/30/2021. Additional time may be granted at the discretion of the court; we are aware of the holiday.

[reagente]

Petitioner has failed to file a brief by the deadline, and indeed has still failed to file a brief days later. Under such circumstances, I believed it was impossible for the South to file a proper brief in response, since we were unsure of the complete extent and nature arguments brought against us.

Regardless, I observe the following:

Petitioner  has failed to establish why Section 13 of S.21.4.1 is constitutionally invalid. S.21.4.1 §13 makes "every provision, section, subsection, sentence, clause, phrase, or word" (and every application of the provisions) severable from each other.

When Petitioner requested "the court to strike the law down" in his petition for certiorari, he failed to acknowledge severability. Accordingly, it appears that petitioner is either asking the court to strike down constitutionally valid severable provisions, or that petitioner has failed to actually a state a judiciable claim.

Petitioner has failed to establish why Section 8 of S.21.4.1 is constitutionally invalid. S.21.4.1 §8 prevents the Southern Government, its agents, and its employees from enforcing the provisions of this act. Any relief which bars Southern Government enforcement of the act is superfluous because the Southern Government already does not enforce this act.

Petitioner, a citizen of Lincoln, has failed to establish that he has suffered an injury in fact by the passage of S.21.4.1.

Petitioner has failed to establish why Section 11 of S.21.4.1 is constitutionally invalid. S.21.4.1 §11 establishes that the venue for civil actions under S.21.4.1 are Southern Courts and prevents removal to another venue "without written consent of all parties".  If the petitioner (or unnamed co-petitioners) establish their injury in fact on the grounds that they faced civil litigation in the South as a result of S.21.4.1, petitioners have failed to establish why removal to the Atlasian Supreme Court is justified.

Given the following observations, I request that this lawsuit be dismissed for failure to state a claim for which relief can be granted.

[S019]

I apologize for the delay, I will put up a more basic brief tonight, but would like to postpone any other proceedings to at or after December 24 due to RL obligations.

[Attorney General, Senator-Elect, & Former PPT Dwarven Dragon]

Amicus Brief

I apologize for the delay, I will put up a more basic brief tonight, but would like to postpone any other proceedings to at or before December 24 due to RL obligations.

"before", so, now?

I urge the Court to dismiss the case due to the Plantiff's clear and basic disrespect for the court's time and proper understanding of the English language, as well as his lack of standing. While there may indeed be legitimate arguments against this law (I think an argument that Politics Fan v The South requires the state to actively provide and protect some form of a right to abortion, which the law explicitly does not do, could hold water), the plantiff is showing himself unable to professionally conduct this case. Indeed, why did the plantiff file this case when he did, given that he likely knew he would not be able to commit time to it? Further, as a citizen of Lincoln, nor the Plantiff nor myself for that matter have any authority to challenge this law, as we cannot be affected by its contents, which apply only to the South and hold no relevance to citizens of other regions as a result.

[S019]

Disclaimer: I apologize to the court if elements of this brief may seem similar, but I will be re-using elements from my Lincoln brief, which addressed a very similar albeit less harsh law

The Brief:

Greeting honorable justices,

The brief will first focus on the issue of precedent. The Supreme Court has addressed the issue of reproductive rights before in the case Politics Fan v the South.

In addition to covering personal privacy, this right also has some extension that covers marriage, procreation, contraception, as well as family planning; this is evident in cases such as Loving v. Virginia and Griswold v. Connecticut, both of which were decided within the common law jurisdiction of the United States based upon Constitutional language in their Bill of Rights that is verbatim identical to our own Article I.

The court ruled that a right to privacy not only exists but it extends to other types of privacy other than simply personal privacy, including family planning. It is the view of the petitioner that the issue of abortion is one of family planning, and thus under this decision the right to elective abortion should be protected.

The court also noted in this case that real life precedent does apply due to the principle of common law:

Again, the intention of our Constitution’s authors is clear: inclusion of identical language means our own judiciary can look to its real-world United States counterpart for guidance. This does not mean real-world precedent applies to our nation in any meaningful way, of course, but it is a natural element of common law judicial systems that we can look to other common law systems for guidance whenever no controlling precedent exists.

Therefore, it can be assumed that the real-life cases which provided much of the reasoning behind the extension of the right to privacy to abortion, one of which is Roe v Wade also apply as valid precedent, due to the principle of common law.

In the majority opinion in Roe v Wade, Justice Harry Blackmun wrote:

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

The Southern region has elected to clearly impose a detrimental standard on women seeking pregnancies in the South. The legislation in question would ban nearly all abortions after a fetal heartbeat.

(1) a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child or failed to perform a test to detect a fetal heartbeat.

It is of the view of the petitioner that this regulation clearly violates the right to privacy established in Politics Fan v South and the "detrimental" standard cited in Roe v Wade, which helped influence the decision of Politics Fan v South.

https://www.whattoexpect.com/pregnancy/fetal-development/fetal-heart-heartbeat-circulatory-system/

The fetal heart can start beating as early as 5 weeks

Unfortunately, many women in fact do not know they are pregnant until as late as 10 weeks, almost double the possible time limit for having an abortion.

https://www.self.com/story/realize-pregnancy

The petitioner believes this is a clear right to privacy as the women may not even be aware of her pregnancy until the time for legal abortion has already passed.

Additionally, in Politics Fan v South, Justice Bacon King wrote:

The limitations the state can place upon abortion access, must be tailored to only cover such legitimate government purposes without being overly broad.

The Southern law also includes this enforcement mechanism

  Any person, other than an officer or employee of a state or local governmental entity in this region, may bring a civil action against any person who:
(A)  performs or induces an abortion in violation of this statute;
(B)  knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this statute, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this statute; or
(C)  intends to engage in the conduct described in the prior two subsections
(2)  If a claimant prevails in an action brought under this section, the court shall award:
(A)  injunctive relief sufficient to prevent the defendant from violating this statute or engaging in acts that aid or abet violations of this statute;
(B)  statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced in violation of this statute, and for each abortion performed or induced in violation of this statute that the defendant aided or abetted

The government has chosen to outsource law enforcement to private individuals, since the enforcement of this law is not being carried out by the government, the petitioner strongly questions whether or not there is indeed a legitimate government purpose here. The petitioner would respectfully ask the court, even if it chooses to uphold the law, to indicate that enforcement should be done by the government.


Next, we will look at the issue of constitutionality:

As already mentioned, the Atlasian Supreme Court has affirmed a right to privacy, and has ruled, consistent with the pre-reset case of Roe v Wade, which serves as common law precedent, that said right does extend to abortion.

"Section 5. No person shall be deprived of life, liberty, or property without due process of law."

"Section 14. The enumeration of certain rights in this Constitution shall not be construed as to deny or disparage those natural rights and liberties herein unlisted."

The court has previously ruled that Sections 5 and 14 establish the right to privacy as a right entitled to all citizens of the Atlasian Republic. While this case is based on Southern law and not federal law, it can be understood that the citizens of the South also enjoy these rights by virtue of being Atlasian citizens, this sentiment is also supported by the constitutions of both the South and Atlasia.

Section 1. All persons born or naturalized in the Republic of Atlasia, and subject to the jurisdiction thereof, are citizens of the Republic of Atlasia and of the Region in which they reside, and shall in all cases be afforded equal protection under the law.

5. Right to Privacy — All people, in addition to the inalienable rights given to them by this constitution, shall have the right to privacy. This right is not absolute and can be regulated by the state by appropriate legislation.

The Southern Constitution does limit the right to privacy, however it is the view of the petitioner that this regulation is not appropriate and is a clear slap in the face to the right of privacy, due to the reasons outlined above. The remedy we seek is a strike-down of the law in its entirety.

I thank the court for their time.

[Continential]

snip

Looks like someone is salty about not being liked for being an anti-semite.

[S019]

Amicus Brief

I apologize for the delay, I will put up a more basic brief tonight, but would like to postpone any other proceedings to at or before December 24 due to RL obligations.

"before", so, now?

I urge the Court to dismiss the case due to the Plantiff's clear and basic disrespect for the court's time and proper understanding of the English language, as well as his lack of standing. While there may indeed be legitimate arguments against this law (I think an argument that Politics Fan v The South requires the state to actively provide and protect some form of a right to abortion, which the law explicitly does not do, could hold water), the plantiff is showing himself unable to professionally conduct this case. Indeed, why did the plantiff file this case when he did, given that he likely knew he would not be able to commit time to it? Further, as a citizen of Lincoln, nor the Plantiff nor myself for that matter have any authority to challenge this law, as we cannot be affected by its contents, which apply only to the South and hold no relevance to citizens of other regions as a result.

I meant after, my bad, it is fixed now in any case.

[windjammer]

SO19,
I will have only one question. You're using the same arguments you used last time (right of privacy,...) and the outcome of the previous ruling to argue that this law should be overturn while in the last ruling, the supreme Court upheld the law.

Why should the supreme court overturn a law based on arguments that you used for a trial that ended up upholding the abortion law?

[S019]

SO19,
I will have only one question. You're using the same arguments you used last time (right of privacy,...) and the outcome of the previous ruling to argue that this law should be overturn while in the last ruling, the supreme Court upheld the law.

Why should the supreme court overturn a law based on arguments that you used for a trial that ended up upholding the abortion law?

I believe that the case that I made last time was weakened by the fact that the legislation was not as harsh, and also I made the mistake of arguing in favor of the trimester framework created by Roe v Wade and ignored that it was thrown out in Planned Parenthood v Casey, these oversights have been removed, and I believe this case more accurately aligns with what we accept to be current judicial precedent.

[windjammer]

Thank you S019, I don't have any other questions.
I have contacted reagante regarding this court case so he could defend the south.

[Bacon King]

Any word?

[reagente]

Respondent brief:

Honorable Judges,
This brief will respond to the arguments outlined in petitioner’s brief. I will try to organize this brief by dividing it into procedural and substantive arguments, beginning with the former.

Improper Venue

Article V, Section 2 of the Atlasia Constitution establishes that “The judicial power of each of the several Regions shall be vested in a Circuit Court composed of the Associate Justice chosen from that Region, and no Region shall establish any other court or judicial authority.”

In recognition of this vested power, §11 of S.21.4.1 requires that the venue of original jurisdiction for civil actions under the act would be the Southern Circuit Court (as the only established Southern Court), and furthermore prevents removal to another venue "without written consent of all parties".  Petitioner did not file in the Southern Circuit Court.

In response, petitioner may assert that the Atlasia Supreme Court is the proper venue, claiming that this is a controversy “between a Region and citizens of another Region.” (See Atlasia constitution, Article V, Section 3). It is not in dispute that Petitioner is a citizen of Lincoln.

Petitioner, as far as I can tell, is attempting to file a pre-enforcement suit (petitioner cannot readily claim to be a defendant - or even a proxy for defendants - in civil action, because the plaintiffs for such an action have to file in the Southern Circuit Court and the dispute is not before that court), which creates a number of problems.

If petitioner is acting as a proxy for Southern citizens in pre-enforcement suit, there would be a lack of diversity jurisdiction. Mirroring the American Constitution, Article V, Section 3 of the Atlasian Constitution does not extend to controversies between a region and citizens of that region. If petitioner is filing in his individual capacity for a pre-enforcement, I am at a loss for how there is an actual controversy, since petitioner has not shown that he has suffered any injury, nor is at imminent risk of suffering an injury. In either case, this court is not the proper venue of original jurisdiction for this case.

Additionally, Petitioner even acknowledges that “this case is based on Southern law and not federal law” (see Petitioner brief). If the Southern Circuit Court is not the court of original jurisdiction on Southern law, what residual judicial power does that court even retain?
In summary, I am of the view that petitioner has not filed in the proper venue and/or lacks jurisdiction to file this case.

Failure to state a judiciable claim

I believe that the petitioner has not asked for relief that the court can properly granted.

Petitioner asks for a “strike-down of the law in its entirety” (see Petitioner’s brief). This is not relief that can actually be granted. In common law systems, courts do not “strike down laws,” they bar enforcement of the act. This except from the American 5th Circuit Case of Pool v. City of Houston (http://www.ca5.uscourts.gov/opinions/pub/19/19-20828-CV0.pdf) elucidates this undisputed principle:

It is often said that courts "strike down" laws when ruling them unconstitutional. That's not quite right. See Jonathan F. Mitchell, The Writ-of- Erasure Fallacy, 104 VA. L. REV. 933, 936 (2018). Courts hold laws unenforceable; they do not erase them. Id. Many laws that are plainly unconstitutional remain on the statute books. Jim Crow-era segregation laws are one example.1 See Gabriel J. Chin et al., Still on the Books: Jim Crow and Segregation Laws Fifty Years After Brown v. Board of Education, 2006 MICH. ST. L. REV. 457 (highlighting the segregationist laws still present in the codes of several states); see also Josh Blackman, The Irrepressible Myth of Cooper v. Aaron, 107 GEO. L.J. 1135, 1199 (2019) (noting that the Texas law criminalizing sodomy at issue in Lawrence v. Texas, 539 U.S. 558 (2003), remains in the state code).

Perhaps it is the case that petitioner actually meant to prevent the Southern Region from enforcing this law, which might explain why the Southern Region was listed as a defendant. However, §8 of S.21.4.1 prevents the Southern Government, its agents, and its employees from enforcing the provisions of this act. Accordingly, any relief which bars Southern Government enforcement of the act is superfluous because the Southern Government already does not enforce this act. The American Supreme Court has dismissed a similar pre-enforcement lawsuit against many listed defendants on the grounds that those listed defendants did not have enforcement power over the law (see Women’s Whole Health v. Jackson; https://www.supremecourt.gov/opinions/21pdf/21-463_3ebh.pdf)

Even if one presumes that petitioner can achieve relief through barring enforcement of the law, the requested relief is improper. The Petitioner’s requested relief applies to “the law in its entirety” (see Petitioner’s Brief).

§13 of S.21.4.1 makes "every provision, section, subsection, sentence, clause, phrase, or word" (and every application of the provisions) severable from each other. While my pre-brief remarks raised severability as an issue, Petitioner still failed to address severability in his brief.
Accordingly, it appears that petitioner is either asking the court to strike down constitutionally valid severable provisions (I think it strains credulity to argue that a simple statement of legislative findings or requirements for doctors to maintain records about procedures are unconstitutional), or that petitioner has not actually stated the actual claim for relief he seeks.

In summary, I do not believe the petitioner has requested relief that is justiciable.

Right to Privacy under the Atlasian Constitution

Petitioner contends that S.21.4.1 violates a right to privacy. I agree that Politics Fan v South would be the appropriate precedent to examine under the doctrine of stare decisis. While Roe v. Wade might be informative (though it should be noted that Roe v. Wade is not controlling precedent in the United States, Planned Parenthood v. Casey is), I disagree with petitioner’s utilization of that case as binding precedent.

The petitioner’s argument essentially boils down to a contention that any gestational limit is an impermissible violation of right to privacy if a Woman might not know she is pregnant until after the gestational limit. I believe this is a misreading of Politics Fan v. South. Politics Fan v. South upheld the substance of the South Aborting Regulation Act and Abortion Safety and Guidelines Acts, which set a 14 week gestational limit. It is not unheard of for Women to not be aware that they are pregnant after this deadline (particularly if a woman has irregular periods). As the majority of Women are aware of pregnancy and the possibility of impending pregnancy before six weeks (see the following article: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5269518/), I contend that S.21.4.1 preserves the right to privacy.

Legitimate Government purpose

Petitioner attempts to make the argument that there is not a legitimate government purpose for S.21.4.1.

§3 of S.21.4.1 lists a number of legislative findings highlighting why S.21.4.1 seeks to achieve legitimate aims (such as protecting women’s health, the health of the unborn child, and providing a woman relevant information about the viability of their unborn child). Petitioner does not address the merits of these legislative findings. Instead, petitioner takes particular issue with the civil enforcement mechanism, arguing that it cannot be narrowly tailored because it “outsource law enforcement to private individuals” (see Petitioner brief).

This is a problematic statement for two reasons. First, there is no criminal penalty listed in S.21.4.1, so I think it is misleading to characterize this as “law enforcement”, which is commonly understood to be a state exercising police powers on behalf of the citizenry. Second, the premise advanced by the petitioner seems at odds with the entire civil law system. Laws are routinely enforced without any government intervention.

Right to Privacy under the Southern Constitution

Petitioner also advanced an argument that S.21.4.1 is impermissible under the Southern Constitution because it violates Article II, Section 5 of the Southern Constitution (establishing a Right to Privacy). The Southern Constitution notes that “This right is not absolute and can be regulated by the state by appropriate legislation.” My aforementioned statements in this brief’s section regarding Right to Privacy establish how this legislation is appropriate. 

Problematically, in invoking this argument, Petitioner appears to be asking the Supreme Court to interpret regional law. Once again, it appears apparent to me that this case is before the wrong court. The Southern Circuit Court should interpret the meaning of the Southern Constitution.

Conclusion

In summary, I believe that petitioner has failed to advance a credible argument for why the court should bring about a “strike-down of the law in its entirety”. I move that the court dismiss the case for failure to state a judiciable claim.

I thank the court for its time.

[Associate Justice PiT]

     To the petitioner, what do you make of the respondent's claim that this case should have been brought originally in the Southern Circuit Court? Likewise, what do you say in response to the respondent's claim that "the South" is not a valid defendant for the purposes of this law?

     To the respondent, since you make the argument that six weeks is not substantively different from fourteen weeks as a legal cutoff with respect to preserving a woman's right to privacy, what do you think would constitute a legally unreasonable cutoff that would run afoul of precedent?

[Sestak]

I plan to file a brief as amicus in the next two days. I hope this isn’t too late.

[windjammer]

I have personally no question. Thank you for your time reagente

[Bacon King]

I plan to file a brief as amicus in the next two days. I hope this isn’t too late.

is this still coming?

[Sestak]

S019, Petitioner

V.

SOUTHERN REGION


BRIEF OF FORMER PRESIDENT SESTAK AS AMICUS CURIAE

Amicus is a former President of Atlasia and a  veteran of the game and of its judicial system specifically. Amicus seeks to make a few general points as well as a few comments on aspects of Respondent’s brief.

I. VENUE AND STANDING

I would like to note that both the venue and standing-based objections of Respondent are based on the functioning of parallel real-life court systems and ignores how this game’s judiciary has always operated. Indeed, Respondent claims that this case must be a dispute between the Southern region and of (one or multiple of) its citizens and therefore should be held in Southern Circuit Court. However, questions under the Federal Constitution have always been subject to the original jurisdiction of this Court if it should choose to take them; as it has already done in this case. Respondent gives no convincing argument as to why this should be reversed. Indeed, the case which we are taking to be precedent here, Politics Fan v. The South, was argued initially before this full Court under the same circumstances. Indeed, startements made to attorneys by the Chief Justice in that case make it clear that this is the appropriate venue for such a case.

The second point made by Respondent is that because the Southern Region cannot enforce this act they are an improper defendant. Here Respondent is on a clear mission to send this court on a farcical chase that will end up right back here again. He suggests that since the Southern Region cannot enforce this act that this lawsuit is ‘pre-enforcement’, and should not be allowed to go forward unless private entities begin to file suit under the cause of action created by the statute. I note first that the rulings of the RL United States Supreme Court made in 2021 have absolutely no value as precedent in this court, and also that they would be severely impractical  within the confines of this game. No player within Atlasia can have or perform an abortion within the jurisdiction of Atlasia, as players are real people in the real world and abortions within the jurisdiction of Atlasia are fictional procedures performed by and on fictional people. The only remaining plausible suggestion of Respondent’s claim here is that we should await NPCs filing under the new cause of action against other NPCs. However doing this would necessitate either play acting or an NPC scenario ahead of time by Petitioners, or involvement of the Game Moderator’s office on something outside its prerogative. Both of these demands have never been required before by any case before this court (again, see Politics Fan, in which no such playacting or NPC scenario was required). We echo the opinion of the Court in that case:

  With the context of our simulation in mind, it is clear that requiring a personal impact for all lawsuits would render our Judiciary completely meaningless. No case could ever possibly meet such criteria.

   We therefore must conclude that no standing requirements can feasibly exist within our system. Any citizen is allowed to file a lawsuit on any law. By virtue of their participation within our shared government simulation, they must inherently be accepted as a relevant interested party for the purposes of seeking judicial remedy against unconstitutional laws existing within said simulation.

I see it as common sense that this ruling, allowing all citizens to stand in for otherwise impossible plaintiffs, also be extended to allow the region to stand as defendant in place of impossible defendants whom it has allowed to engage in enforcement actions that are alleged to violate the Federal Constitution. The Southern Region has created, through this statute, a severe penalty for participation in certain actions. Petitioner is asking for a bar on enforcement of this penalty in all cases; that ought to be enough for this Court.




II. THE RIGHT TO ABORTION AS SET OUT IN POLITICS FAN V. THE SOUTH

Respondent, here, engages in a gross misreading of the facts in Politics Fan v. the South. In that case, he says, this Court upheld a hard gestational limit in 14 weeks on abortions. Yet this Court did no such thing! The ruling in Politics Fan was merely that certain restrictions on the time and place in which abortions can occur after that limit passed.

The two active portions of the decision at question here are as follows: (emphasis mine)

   Therefore, while the right to privacy can be discerned from various components of Article I, it can with certainty and simplicity be understood to exist as an unlisted natural right for the purposes of Article I, Section 13 (which states in full: “The enumeration of certain rights in this Constitution shall not be construed as to deny or disparage those natural rights and liberties herein unlisted”).
In addition to covering personal privacy, this right also has some extension that covers marriage, procreation, contraception, as well as family planning; this is evident in cases such as Loving v. Virginia and Griswold v. Connecticut, both of which were decided within the common law jurisdiction of the United States based upon Constitutional language in their Bill of Rights that is verbatim identical to our own Article I. Again, the intention of our Constitution’s authors is clear: inclusion of identical language means our own judiciary can look to its real-world United States counterpart for guidance. This does not mean real-world precedent applies to our nation in any meaningful way, of course, but it is a natural element of common law judicial systems that we can look to other common law systems for guidance whenever no controlling precedent exists. Using this guidance, combined with the intention of our founders, indicates that a general right to abortion access does exist.

  The law under scrutiny by the court, however, does not overreach legitimate government authority in such a manner. Regulating the locations where certain abortions can be performed to locations properly equipped to handle such procedures is legitimate, reasonable, and therefore constitutional.

As can be seen in the latter quote, this Court only stated that stipulating the location in which abortions can occur in the manner in which this law did was a reasonable regulation and therefore constitutional. Nothing was stated implying that all restrictions (let alone a complete ban) after the 14 week mark were automatically constitutional.

We now turn to the study linked by Respondent, at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5269518/ . Respondent makes the flimsy argument here that since a majority of women find out they are pregnant before six weeks, this is an acceptable limit that does not infringe on any rights. While the heartbeat requirement may preclude abortions as early as five weeks we will accept for argument’s same Respondent’s number of six weeks.

However, here, we find that Respondent’s own linked study has done him in. The data in the source (Listed in Table 2 of the source) gives an average gestational age of first awareness of pregnancy at 5.5 weeks, a number that increases to 5.7 weeks in the most recent time period studied. The standard error and sample size indicate a fairly wide distribution, so it seems a reasonable conclusion that at minimum around 40% of pregnancies are not discovered after 6 weeks.

Even more striking is the data for the subsamples of unwanted and mistimed pregnancies. The mean discovery time for these categories are 6.1 and 6.3, respectively; they increase to 6.6 and 6.7 in the most recent timeframe category. While mean and median are not the same these numbers can still be taken to indicate that if not a majority at least a near-majority of unplanned pregnancies are not discovered by the six week mark.

The Court in Politics Fan, in Part II of its opinion singled out family planning as a specific concern behind the general right to an abortion. Presumably, this means that the right to abortion is must be protected for the specific case of unplanned pregnancies. Yet this law would prevent termination of a full half of these pregnancies before they can even be discovered. There is no way the court’s recognition of a general right to abortion can be consistent with a law banning it for a full 40% of pregnancies and 50% of unplanned pregnancies. I point now once again to this Court’s previous opinion, this time the section delaying enforcement of the provisions in question in that case:

(Emphasis, again, is mine)

Without any advanced knowledge of the new limitation, hospitals may not yet be equipped to provide abortions of this type. In parts of the region where this is the case, it would mean that no women would have access at all, whereas in the rest of the region there would be no such issue. This results in an uneven application of the law, and an unequal limitation on the peoples’ rights.

Here the court refused to allow premature application of the provision in question because it would prevent a certain class of women from a geographical standpoint of being able to access abortion services. In this case, while the discrepancies would not be geographical, enforcement of the provisions in Section 4 would bar abortion as an option entirely in 40% of pregnancies and 50% of unplanned pregnancies. This is not only an unequal limitation on the peoples’ rights, it is in fact a complete abrogation of the right for a substantial portion of women. I reiterate that such a limitation must be incompatible with a general right to abortion.




III. SEVERABILITY

First, I make no objection here to the notion that the other portions of the bill are severable from Section 4 and can continue to be in force should this court bar enforcement of Section 4. Instead, I will focus on another set of provisions in the bill regarding the severability of applications.  First, the following:

(3)  If any court declares or finds a provision of this statute facially unconstitutional, when discrete applications of that provision can be enforced against a person, group of persons, or circumstances without violating the Atlasian Constitution and Southern  Constitution, those applications shall be severed from all remaining applications of the provision, and the provision shall be interpreted as if the legislature had enacted a provision limited to the persons, group of persons, or circumstances for which the provision's application will not violate Atlasian Constitution or Southern Constitution.

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. This places an absurd burden on the Court; it is essentially impossible for the Court to work out all of these cases. In addition, the text of section 4 links the legality of abortion to a heartbeat test. There is no way to alter this provision to limit its application other than to replace the heartbeat test with another test or to provide a separate ‘release valve’; for instance, a gestational age before which the requirement does not apply. However, nothing of the sort is found in the bill itself; the court would be creating another alternate limitation out of thin air, which it simply cannot do. In a pathetic attempt to magick away this problem, the statute also contains this laughable provision:

(6)  No court may decline to enforce the severability requirements of the preceding subsections on the ground that severance would rewrite the statute or involve the court in legislative or lawmaking activity.

To be clear, this provision should hold about as much away with this court as one stating “No court may bar the enforcement of this law on the ground that enforcement would violate the right to privacy”; that is, absolutely none. Just to demonstrate the absurdity of the ask here, I present the following hypothetical: let us say these severance provisions exist instead for a law that makes the right to vote dependent on presenting that morning’s newspaper at the polling booth. In this case, we’re the provisions to bind the Court, it would be forced to give an outline of a government program distributing the morning paper to every individual, then go over each of the cases in which the distribution might fail, and then discuss every single valid option or combination of options to remedy these situations.

If faced with such a case, would this Court seriously attempt this Herculean (and very likely impossible) task? No! The Court would (rightly) laugh out loud at these provisions and bar enforcement of the provision entirely. If the Region then went on to institute a universal-newspaper program it believed to be sufficient it could then litigate the case again under those merits.

The exact same should apply here. As I have demonstrated, the tying of abortion legality to a heartbeat test cannot be consistent with the general right to abortion found by the Court in Politics Fan v. The South. Nor is there any way to limit the scope of this restriction so that this does not occur without introducing entirely new statute that does not come from any part of the bill. This Court should bar enforcement of Section 4 in its entirely, and should the Southern Region return with additional/alternate stipulations it believes render the provision valid, then the case may be litigated again on those merits.

[reagente]

To the respondent, since you make the argument that six weeks is not substantively different from fourteen weeks as a legal cutoff with respect to preserving a woman's right to privacy, what do you think would constitute a legally unreasonable cutoff that would run afoul of precedent?

A legally unreasonable cutoff that runs afoul of precedent would be one that occurs early enough in pregnancy that a clear majority of Women would be unaware of pregnancy or the possibility of pregnancy, such that they couldn't possibly act in time to exercise their right to privacy.

Four weeks would be clearly impermissible, since most women do not know they are pregnant at that point, and this is around when the first missed period (a telltale sign of possible pregnancy) occurs. Five weeks as a cutoff might be sufficient for awareness (Pregnancy tests are most accurate at, or just before, this point), but there would probably be serious questions about if there's enough time for women to actually exercise the right to privacy.

At Six weeks, I think there is sufficient empirical evidence that a clear majority of Women who wish to exercise the right to privacy would have been aware (or would have had the ability to be aware) of their pregnancy such that they would have enough time to obtain an Abortion. The threshold advanced by S.21.4.1 is probably the lowest allowable threshold under past precedent given the current state of medical technology.

[S019]

     To the petitioner, what do you make of the respondent's claim that this case should have been brought originally in the Southern Circuit Court? Likewise, what do you say in response to the respondent's claim that "the South" is not a valid defendant for the purposes of this law?

On the first count, I would say that this law is in violation of the federal constitution, as it directly goes against the federal right to privacy as interpreted by the Court in Politics Fan v South. I do agree that this case could be argued in the Southern Court, but I am arguing about its constitutionality at the federal level. Additionally, the entire Court has taken regional abortion cases in the past, and I see no reason to change that precedent. As for the South not being a valid defendant, I find this to be quite absurd. While the South has outsourced enforcement to the private sector, as legal or illegal as that may be, ultimately the Southern government is the one who is permitting these outside actors to infringe on the right to privacy of Southern women. They are enabling the violations of the right to privacy  and thus they are indeed a valid defendant.

[Associate Justice PiT]

     I would like to thank both the petitioner and respondent for their time. Those are all the questions I have.

[Bacon King]

Does the respondent have no response to the points raised in the amicus brief submitted by former president Sestak?

[reagente]

Does the respondent have no response to the points raised in the amicus brief submitted by former president Sestak?

I will write a brief rebuttal in the next few days.

[reagente]

Does the respondent have no response to the points raised in the amicus brief submitted by former president Sestak?

I will write a brief rebuttal in the next few days.

Will be a bit delayed as earlier this week I tested positive for COVID-19 and that's disrupted my schedule quite a bit. Hopefully will have this done on Friday, but definitely will by Saturday.