Abortion: When absolute immunity isn’t?
Kate Cox is a pregnant 31 year old Texas Resident. Her doctor has informed her that her pregnancy is at serious risk. Her fetus has a rare genetic disorder that is very likely to result in a stillbirth outcome. As a result, this stillbirth could ultimately render Kate’s health at serious risk, it could risk potential future fertility issues and it could even be potentially fatal for Kate herself. Let’s explore.
Judicial Review
Kate has sued the state of Texas for a stay to allow her to have an abortion in the State of Texas. A lower Texas court ruled in Kate’s favor by issuing a stay of Texas’s strict anti-abortion law, thus allowing her to have an abortion. However, Ken Paxton quickly intervened and petitioned the Texas Supreme Court to rescind that lower court’s stay.
The Supreme Court has issued a summary judgement against the lower court ruling to prevent Kate from having an abortion in the State of Texas. The ruling cited that Kate’s medical circumstances don’t justify the lower courts ruling and don’t allow for her to have an abortion. Here’s where the problems for these judges (and Ken Paxton) arise.
Suing Court Judges
Court judges are granted absolute immunity when performing their judicial job duties so long as what the judges are doing remains within their jurisdiction. What is jurisdiction? That’s a really good question, one that needs another court to truly decide and clarify in a case like this.
Jurisdiction is, in short, whether the judge’s responsibility of being a judge is actually at play when the judge’s ruling took place. Meaning, as long as the judge exercised his or her judicial responsibilities faithfully both within the jurisdiction of the court (locale) and within the judge’s own specific jurisdiction (handling of judicial responsibilities), then the judge and by extension, all court staff performing court responsibilities enjoy absolute immunity from lawsuits. This means that so long as jurisdiction remains in place, then the judge’s absolute immunity prevents the judge (and staff) from being sued for his or her judicial actions in that court.
Where does jurisdiction end?
Good question. A question that doesn’t really have solid answers. In Kate’s case, jurisdiction should theoretically end once court judges (and legislators) begin dispensing medical advice. Not only is dispensing medical advice a practice limited to licensed doctors and other licensed medical professionals, dispensing medical advice is well outside of a judge’s jurisdiction unless they are also a duly licensed medical professional. Nothing in any court of law should allow or authorize a judge to practice medicine without a license. Not only is a judge not a doctor, dispensing medical advice is not part of ANY judge’s job description.
What does this mean? It means that any judge who chooses to intervene in a medical case and who opines that a person doesn’t fit the medical criteria for any specific medical treatment, THAT is the very definition of dispensing medical advice and, likewise, the illegal practicing of medicine.
Medical Business
If judges wish to get into the business of dispensing medical advice to defendants, then they should be required to not only attend medical school, they must also take on a medical license by passing the medical board exams for their state. Justices are not medical doctors and have no rights to dispense medical advice, not even in their court of law as a judge… which is why any rulings that duly dispense medical advice sit well and truly outside of any judge’s jurisdiction. However, because this is a legal issue, it would require another court to rule if what the judge decided fits within or outside of that judge’s judicial jurisdiction. From where this author sits, dispensing medical advice is not and should never be within a judge’s job role (aka jurisdiction).
Immunity Undone
What does this mean for cases like Kate’s in Texas? It means that Kate and her lawyer should sue each and every judge sitting on the Texas Supreme Court because each and everyone who made that medical advice ruling firmly went outside of their jurisdiction to make that medical advice ruling. Why? Because they are not dispensing justice, they are dispensing medical advice. No one should ever mistake a judge for a doctor or vice versa. When judges get into the medical business, they’re firmly well outside of their judicial jurisdictional boundaries.
When a judge falls outside of their jurisdictional boundaries, their absolute immunity is vacated and they are firmly subject to lawsuits. Specifically in this case, practicing medicine without a license, reckless endangerment, negligent homicide (should Kate die) and perhaps several others.
In Texas, being found guilty of practicing medicine without a license is a third degree felony, punishable by 2 to 10 years in prison and a fine of up to $10,000. Ken Paxton could also be found guilty of practicing medicine without a license depending on what wording was sent over to the Texas Supreme Court to urge them to review this case.
Kate’s Health
If the Texas Supreme Court continues to hold that Kate’s medical case is outside of the boundaries of medical intervention to warrant a Texas stay, then the judges have dispensed medical advice against her actual licensed medical doctor’s own medical advice. Since when have judges become medical doctors? Since when do judges hold medical degrees and medical licenses? Since when do judges orders override a medical professional? They don’t when those orders are considered medical advice. Herein requires a court to make a ruling involving jurisdiction over these judges.
Meaning, Kate Cox needs to request her lawyer to sue each and every Supreme Court Judge (and Ken Paxton) for practicing medicine in the State of Texas without a license on the merit that the judges went outside of their jurisdiction by practicing medicine without a license. Again, practicing medicine without a license is and should be considered outside of a judge’s jurisdiction. No judge should be practicing medicine as part of their judge job duties. Thus, their judicial immunity is trumped by their practicing of medicine illegally.
Whether a lawyer would want to take on such a case to 1) establish if jurisdiction has been breached and if so, 2) if the judges practiced medicine without a license. Let’s let the court establish if these judges violated jurisdiction and, if so, then let Kate’s case against them proceed.
If Texas wants to play novel games with women’s health, then these judges need to have those same novel legal games played against them… and here is, just as Julie Andrews once sang as Maria von Trapp, “a very good place to start.”
Disclaimer: This article is intended strictly for informational purposes only. This article is strictly opinion and not intended to be, nor should be considered nor construed as legal advice in any way. Always consult a licensed attorney for legal advice.
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A gag order won’t work on Trump
Trump is quite the chatterbox! This guy has about as much respect for the law and the judicial system as a cat has for water. Trump genuinely thinks he’s the star of his own show, that rules simply don’t apply to him.
Judges might as well be invisible, because their orders go in one ear and out the other! If you’re thinking a gag order will shut him up, you might as well try silencing a parrot with a whisper. Let’s dive into the delusional world of Trump and his disregard for legal boundaries. Grab your popcorn, folks, let’s explore!
What is a gag order?
A gag order is an order, typically a legal order by a court or government, restricting information or comment from being made public or passed onto any unauthorized third party.
In other words, a gag order is a legally binding order against an individual by a judge that if breached will cause the judge to apply penalties against the person who breached the order. The penalites could include fine and/or jail time. If the gagged person is indicted and out on bond pending trial, that bond could be rescinded and the person could be remanded into custody, then placed into jail and detained until the trial.
Donald Trump’s Mouth
The difficulty is that Donald Trump cannot shut up. He’s a voluminous talker and will not allow anyone to prevent him from speaking, least of all people who work for the agencies he believes to be corrupt.
What exactly does that mean for a gag order from the Department of Justice? It doesn’t mean a gag order will work. It does mean that that the government will have to end up making some hard choices. The only thing that issuing a gag order will do is cause Trump to breach it, thus the reason for those hard decisions.
From Trump’s so-called “raid” on Mar-A-Lago (which wasn’t a raid at all), we already know Trump doesn’t respect such legal matters and simply won’t abide. The question is not whether Trump can respect a gag order, it’s whether Jack Smith and the Justice Department are willing to rescind Trump’s bond after Trump breaches the gag order to then place him into protective custody until the Justice Department’s trial. Yeah… unlikely.
Why rescinding Trump’s bond is important!
The only way Trump can truly be gagged is to place him into protective custody until the DOJ (or any other) trial commences. Additionally, while in protective custody, Trump must be forced to surrender all of his electronic devices and have no contact with anyone until the trial begins. Unless (or until) this step is taken, Trump will not stop attempting to interfere with the trial including tampering with evidence, destroying evidence, tainting or coercing witnesses, threatening judges and threatening or tainting the jury pool.
Trump’s being under 4 indictments for many different alleged criminal activities has not cooled Trump at all in performing even more criminal activities. The average person placed under criminal indictment would stop doing whatever it was that got them there. Not Donald Trump.
Why is he continuing? Because Trump absolutely 100% wants to ensure that he will not receive a fair trial. Trump is doing everything in his power to ensure that his trial is entirely problematic and unfair from the start. That means that during trial or even after it, he will have sufficient evidence to prove that the trial wasn’t handled in a fair and equitable manner claiming that the jury judgement must be thrown out. It doesn’t mean that a judge will agree with Trump, but he’ll keep appealing all jury decision (assuming guilty) all the way to the Supreme court (where Trump has a lot of “friends” who will likely rule in his favor).
Presidential Election
As we should already know, Trump is again running for President in 2024. The difficulty is that Trump seems intent on using his campaign as a crutch to keep himself out of prison… or more specifically out of detainment before trial. That doesn’t mean he doesn’t want to be President again. He does. But… that won’t stop him from using his campaign as a means of preventing his detainment in jail pending trial.
As it is now, Trump is out on bond for all of his pending trials. Bond agreements stipulate that any further violation of laws or of court orders may result in rescinding that bond which means remanding the person into custody.
Trump’s Legal Woes
Just to be crystal clear, Trump is now facing 4 criminal trials, two of them federal. Let’s enumerate each of them now:
- Jack Smith’s Federal trial involving Classified Documents. This indictment contains 37 felony counts.
- Jack Smith’s Federal trial involving the January 6th Insurrection. This indictment contains 4 felony counts.
- Fani Willis’s trial involving Georgia State Election Interference. This RICO indictment contains 13 felony counts against Donald Trump, but also includes more counts against 18 other co-conspirators.
- Alvin Bragg’s trial involving Falsifying Business Records in New York State. This indictment contains 34 felony counts.
For more information on each of these trials, Politico has a good article on this.
Daring the Courts to Take Action
Trump is intentionally taunting the justice department, every judge and every prosecutor presiding over his court trials by inciting his cabal into action. By taunting, I mean calling out his cabal of goons to dox and death threaten these officials performing their jobs. There is also no sign of him stopping this behavior.
In fact, if Trump is given a true gag order, there is zero doubt he will breach that gag order, not once, but many, many, many times. It’s not a matter of if, it’s a matter of when… but that’s not what matters.
What matters is how each trial judge will handle the breaches and what decision they will make involving those breaches. There are 4 pending trials, but only one trial judge can put him behind bars until their trial. If that judge is the one presiding over the federal trial, how will the 3 other trials proceed if he’s stuck in federal detainment?
It’s worse than simply just detaining him. Trump is absolutely begging the judges to attempt to gag him because he knows they won’t detain him in jail pending trial. They know that these judges do not have the spine to place a Presidential candidate behind bars pending trial. If the gag orders don’t work, and they most certainly will not, then what besides protective custody? Fining Trump again is fruitless. Not only will he not pay that bill, he won’t stop talking.
Gag orders won’t work because they simply can’t work on Donald Trump. With anyone else, a breached gag order for someone indicted would instantly lead to detainment in jail pending trial. With Trump, that’s not easily possible.
Again, it’s not what Trump does after he breaches a gag order, it’s what will each of the trial judges and the indicting prosecutors do when he does… and he most definitely will.
Will they attempt to detain him? Likely not.
Will a fine work? Definitely not.
Will Trump stop talking? No.
Where do we go from here?
Clearly, the prosecuting attorneys and the judges will have some intense soul searching to do. How do you reign in a person in this situation? Either they’ll need to devise a creative new solution or they’ll have to let Donald Trump slide.
I’d love to see these judges remand Trump into custody pending trial. However, I just don’t see that happening. No judge is likely willing to put their own career on the line to jail a former President… especially when he’s the purported front runner of the GOP. I personally don’t think that makes any difference. If a person has committed an alleged crime, then they need to be treated as any other person, regardless of their present role or aspirations.
The only clear choice for penalities is to move the trial up after each breach. Just as Judge Chutkin warned Trump, so too must Jack Smith and every other trial judge. For each breach Trump makes against a gag order, the trial gets moved earlier by one month. It’s the only solution to this dilemma. If they can’t or won’t jail him and take away his voice, then they must penalize him in other ways that hurt his chances at trial.
Trump should be sitting in pretrial detainment today. He shouldn’t even have been given a bond. On the campaign trail? Too bad, so sad, not my (or anyone else’s) problem other than Trump. If Trump wanted to be on the campaign trail, he should have ensured he didn’t break any laws prior to getting there. Pretrial detainment is the only answer to get Trump to comply with a gag order. Unfortunately, it will likely never happen.
Overall, these judges must make some hard choices if they wish to retain civility in their courts. Trump is intent on turning every trial into an unfair circus. It is the judges who must determine the best way to reign in Trump, but it is also crystal clear that Trump will not abide by any traditional legal approaches.
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