Litigation Nation

Welcome to Litigation Nation.

I'm your host, Jack Sanker.

Today's stories in Texas, new abortion laws have survived constitutional scrutiny, but police and prosecutors are pushing the envelope in terms of an enforcing the civil ban on abortion.

A Ukrainian Supreme Court Justice joins the fight against Russia, and police officers are deploying Disney music to avoid having videos of them uploaded to the Internet.

All of that and more.

Here's what you need to know.

Our first story.

So by now, most of you know that States with Republican governors and legislatures are tightening abortion regulations.

Texas recently banned abortion after six weeks.

It was the first of the civil bounty style laws that are now being passed in different States all over the country where a private citizen can sue someone who had an abortion or who aided someone else having an abortion like a doctor, for example, in a civil lawsuit and extract civil damages.

Many legal pundits, myself included, think that Roe v.

Wade, the US Supreme Court that affirmed the right to abortions, could be overturned based on the cases that are currently on the Supreme Court's docket this year.

As an aside, I'll also mention that these civil Bounties style laws are now being passed for all kinds of things.

In California, they recently passed a similar bill that would outlaw the purchase and possession of firearms.

In certain contexts, it seems as though these laws will be popping up all over the country as a workaround for otherwise unconstitutional regulations.

Now, I'll always remind people that we don't do the culture war in this show.

So if you want Hot takes on whether abortion is good or bad, it should be illegal or not.

You'll have to go somewhere else.

I also have this story to remind people that the culture war has real consequences because last week, a 26 year old woman in Texas was arrested for intentionally and knowingly causing the death of an individual by self induced abortion unquote.

So she was arrested for performing an abortion on herself.

Now, in Texas, abortions are illegal after six weeks after the state passed a law in 2021.

To that effect, the law is somewhat inconsistent, or at least in friction with the court ruling of Row.

But the Supreme Court declined to take the case and ruled on a bit of a technicality.

So Texas statute survives and abortions after six weeks are illegal.

However, the six week ban is enforced by civil lawsuits, not by criminal prosecution.

That's how the law was deemed to be constitutional.

So as a criminal matter, abortions in Texas after six weeks are not, per say, illegal.

But those that were to get an abortion after six weeks are subject to civil lawsuits.

Nonetheless.

The woman in this case was arrested, and the initial statement from the prosecutors was that she would be charged with murder.

Now, this is pretty wild in my opinion, because again, after six weeks, abortion is not criminally illegal in Texas.

Such that a mother who performs an abortion on herself could be charged with murder.

That's just not what the law is now.

The laws in Texas make abortion tantamount to murder are still technically on the books.

However, they were deemed unconstitutional way back in 1973 when the road decision came down.

Now, on late Sunday night, prosecutors in Texas came out and said that they made a mistake.

She cannot be charged for murder.

For the self performed abortion, she can't be prosecuted as a criminal matter.

Still, she was arrested.

She paid a bond on the $500,000 bail that was set, which I'm not entirely sure she'll get back now.

And the woman was obviously antagonized and traumatized by the arrest.

But here's what's got my brain going on this.

When the prosecutors and police officers arrested her, they published her name and have all but said publicly that the woman whose name I won't repeat, had an abortion and strongly implied that they had evidence that she had an abortion and gathered it for their investigation, but that she simply could not be charged criminally.

In effect, Texas police and prosecutors are all but setting her up to be sued in a civil suit by any concerned citizen who learned about her case.

And under the law in Texas, at least as far as I know, she will likely be found liable.

So I guess what I'm getting at here is the reason that this story is interesting is because Texas abortion bounty law is constitutional, according to the Supreme Court.

If it is enforced civilly, there is no criminal liability here.

But if law enforcement and prosecutors gather evidence, arrest, name the person who had the abortion publicly, then release them.

That's the state of Texas putting the ball on a tee for anyone who wants to file a civil lawsuit.

And while the caption on a lawsuit won't include the state of Texas in a scenario like that, it's obvious that the state of Texas would have been heavily involved in penalizing this woman.

So maybe the prosecutors who initially said they were charging with murder genuinely forgot the law.

Maybe the police who arrested her and investigated her were unaware of the law, too.

Or maybe this idea of notifying the public that there's a Slam dunk civil case against a woman who had an abortion right to be taken is a roundabout way of the state of Texas using state resources to enforce its policy against abortion.

By the way, if you're curious about the civil bounty legislations that are popping up all over the country, take a look at episode seven of our show.

We covered the gun laws in California that are pretty similar to the Texas regulation, and I would expect to see more of these types of regulations popping up in different contexts among the 50 States.

Up next, could you imagine any of the current Supreme Court judges or any federal appellate judge, for that matter, serving in an active combat zone because that's what Ivan Mischenko, a Ukrainian Supreme Court judge, is currently doing.

First of all, he's still updating his LinkedIn page, at least at the time of recording this episode.

So we think that he's doing okay.

And that's good news.

And I'm referring to and above the law article that linked to a log is that article.

Apparently, Miss Chenko has a background in commercial litigation.

Let's go commercial litigators and swap robes for army fatigues.

Now, it's reported that Ms.

Cenko, who has been pictured with an assault rifle and a full military uniform, took his family out of Keith to safety before returning to fight alongside other reservists.

He was quoted in Polish media saying, quote, It doesn't matter who is the lawyer, who is the prosecutor, who is the judge.

We have all United unquote.

He is reported to have said that many courts in Ukraine are continuing to operate despite the invasion, but he was more useful at this stage in combat rather than in court.

Here's the coolest part is call sign is dread.

As in Judge Dread, which was a comic book series turned into a movie in the 90s.

It's iconic.

This just absolutely rocks.

Good luck, Judge.

Give them help.

Our last story.

And similar to the first story, here's another example of state actors using the threat of civil private enforcement to get what they want.

And this is from above the law.

In Santa Ana, California, police officers who are investing in a neighborhood around 11:00 p.m..

At night last week started blasting Disney songs from their vehicles as they conducted their investigation.

They were playing the hits, including You've Got a Friend in Me from Toy Story.

A few songs from Encanto.

Residents in the neighborhood were working up late as these songs were played from the loudspeakers of the vehicles.

Video of the investigation was uploaded to YouTube, and City Council member Jonathan Hernandez showed up and was shown talking to police officers.

He asked, quote, Why are you doing this? And a police officer then said on video, quote, Because they get Copyright infringement.

So the rest of this is from the local ABC Eyewitness News source who reached out to a professor of music and Copyright at Berkeley Online, Dr.

Michael Harrington.

Quote, I've been reading about it and seeing it on YouTube, Harington said he was talking about officers playing music without purchasing rights to it a tactic to discourage recording.

I think it's clearly illegal because it is a public performance, Harrington said of the officers playing the music loud enough for the public to hear.

In addition, when the videos are shared, the person posting it risk fines are even getting banned from the streaming or social media platform.

Youtube has bots that go around, and if they match the song that they're hearing and then if it's on YouTube and it wasn't cleared, then the music, the song and the recording and the Copyright, all that gets taken down and then the person who posted it, who was trying to be a good citizen and say, watch what this cop did or cops, they should be prosecuted.

That person now gets Copyright strike for doing an act that's far more important than what the police are doing, Harrington said unquote.

So like the Texas story we just talked about, here's a scenario where the state this time it's California can't prohibit an activity directly through, say, criminal charges.

In Texas, it's abortion.

In California, it's filming the police, but they are able to nonetheless chill that activity or make it costly on people by setting them up for civil lawsuits.

Looking at this further, apparently playing Disney or other copyrighted music during investigations while being filmed by citizens has become a common tactic among responding police as lightweight cameras and cellphone cameras are now ubiquitous.

I'm not sure if what the police are doing is illegal.

I think it may be a first amendment violation, but I'm not an expert.

But YouTube's Copyright algorithm will take those videos down regardless and will shut down the channels that would have uploaded them.

So police are, in effect, getting what they want.

They're discouraging people, recording them while doing their investigations and are chilling the protected first amendment activity thereof.

I think the trend of state actors using threats of civil lawsuits to enforce their policy might be something to keep an eye on going forward.

It does feel a bit loophole and undermining the intent of the constitutional protections in supreme court cases that are at play here, both in the abortion and in the first amendment context.

All right, everyone, that's the show.

We put this one together late before our Tuesday deadline to get it out.

As a reminder, your host is a practicing attorney with a day job and sometimes that gets in the way of putting the show out.

So this episode may be on the shorter side, but we think it's a good one regardless.

We're on episode 17 now of this project.

It's been work in progress as we navigate the podcasting process, but we think that the product is getting better every episode.

We appreciate everyone who's been along so far and hope to grow the show over the next couple of months.

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You get your shows and we'll talk to you next week.