Joe Biden should do more to fight the Texas Abortion Ban

Protesters take part in the Women's March and Rally for Abortion Justice in Austin, Texas, on October 2, 2021. - The fight for abortion rights took to the streets in the United States, with hundreds of demonstrations planned as part of a new "Women's March" aims to counter an unprecedented conservative offensive to limit termination of pregnancies.  (Photo by Sergio FLORES / AFP) (Photo by SERGIO FLORES / AFP via Getty Images)

Protesters take part in Women’s March and demonstrate against Texas SB 8, an almost total ban on abortion, in Austin, Texas, on October 2, 2021.

Photo: Sergio Flores / AFP via Getty Images

If there was a glimmer of optimism last week that Texas’ authoritarian new abortion law would soon be overturned in court was hoped quickly dotted. On Wednesday, a federal judge temporarily blocked the law known as SB 8 — the most restrictive law against abortion in the country, a de facto abortion ban — as part of a lawsuit the State Department has filed against the state of Texas.

Last week’s events provide a painful reminder of the difficulties that those seeking to fight the abortion ban in Texas in federal courts will face.

“This court will not punish another day for this offensive deprivation of such an important court,” said U.S. District Judge Robert Pitman said in the order that blocks the law. Two days later, Texas successfully challenged the judge’s ruling for the infamous anti-abortion 5th U.S. District Court.

Friday night, the abortion ban was back. The dizzying turn was not unexpected: Texas would always appeal the judge’s ruling, and the 5th circuit was always next to the state.

Last week’s events provide a painful reminder of the difficulties – as they are designed – that those who want to fight the abortion ban in Texas will face. The Ministry of Justice is right to sue this blatantly unconstitutional law, but the architects of the abortion ban ensured that it would be shielded from scrutiny by the federal court, the constitutionality was condemned.

There was a good sign in the showdown: The federal government was finally getting involved in an issue of reproductive rights at the state level, something prior to democratic administrations had been disgusting. But if the lawsuit in the Department of Justice reflects the Biden administration’s willingness to bend conventions around federal inaction, we should demand far more than this likely judicial legal intervention when it comes to reproductive rights.

When the abortion ban in Texas came into effect in September after the 5th circuit canceled a hearing on its constitution and the Supreme Court refused to intervene, I argued at the time that we can not trust the courts to defend reproductive rights. Roe v. Wade is for now, but perhaps not much longer, still on the books. Nevertheless, in Texas, an abortion after six weeks – before many people even know they are pregnant – is illegal.

Constitutional challenges to the abortion ban appear to stem from the leap because the law allows private individuals rather than state authorities to sue abortion providers along with anyone believed to have helped a person access an abortion, including an Uber driver, who took someone to a clinic. For each successful case, these bounty hunter plaintiffs will receive $ 10,000; Unlike most civil lawsuits, the plaintiff does not even have to prove that they have been harmed in any way.

SB 8 is based on the doctrine of “sovereign immunity” as protection against federal law challenges: Individuals can only enforce their constitutional rights vis-à-vis the government and its agents, but private citizens must be the plaintiffs in SB 8 cases.

Infamous 5th circuit

A group of abortion providers tried to block the law for constitutional reasons – such as a violation of Roe – by suing a number of Texas officials and judges. The Fifth Circuit dismissed the case, arguing that state officials were the target of the wrong defendants because SB 8 claims that state actors cannot enforce the law.

There are, of course, legal loopholes in the armor of the abortion ban that the Ministry of Justice is trying to do. The government rightly requirements that the law violates people’s constitutional rights to access abortions before so-called fetal viability — which is true, but a fact that is unlikely to see the law overturned. The lawsuit also alleges that the abortion ban violates federal law “by claiming to prohibit federal agencies from performing their responsibilities under federal law.”

Although this claim is justified, the efforts of the federal government can come to naught. First, it must prove that it initially has a lawsuit against Texas in federal court. A party must be able to show that they have been directly harmed by the party they are suing for in order for the case to be heard in the federal court. It is not clear that the government reaches this standard, which is a further disgusting irony, as plaintiffs bringing SB 8 civil cases have not suffered any personal injury to sue an abortion provider.

The limits of government action are, of course, not just a matter of possible de jure mistakes. The Fifth Circuit is a profound right-wing court and stands as a consistent barrier to reproductive justice. The support the judges have shown Texas in this case so far can be expected to continue.

This is the same appeals court that upheld an absurd previous Texas attempt to close abortion clinics by requiring abortion doctors to have concession privileges in a hospital within 30 miles of the clinics where they work – a law that was eventually overturned of the Supreme Court. Last year, a 5th circuit dom allowed Republican Texas Gov. Greg Abbott to block access to abortions as part of a Covid-19 ordinance banning surgeries and procedures that were not “immediately medically necessary.”

“The court is notoriously ideological and results-oriented — and with the addition of four new Trump-appointed judges, it will become even more so,” The Intercept’s Jordan Smith wrote of the 5th Circuit in 2019.

Other roads

Legal researchers have highlighted other avenues that the Ministry of Justice could take to challenge SB 8. Eg. The Ku Klux Klan Act of 1871 was passed to protect the civil rights of former slaves of Americans targeted by white supremacist vigilantes; the same law could apply to prospective bounty hunters in Texas.

“The Attorney General should announce as soon as possible that he will use federal law to the extent possible to deter and prevent bounty hunters from applying the Texas Act,” wrote Harvard Law School Professor Laurence Tribe. “If Texas wants to allow private vigilantes to scare abortion providers from serving women, why not make bounty hunters think twice before embarking on that intimidation?”

It is certainly a strategy to be embraced — but one that presupposes that anti-abortion guards will be deterred by the threat.

It goes without saying that Congress should cement the right to abortion to legislation, but without abolishing the filibuster, no such effort can succeed at the moment.

There are other untapped federal resources that should be deployed in this crucial fight if the government is really committed to protecting what is left of the right to an abortion.

If the president meant what he said in swore to “launch a whole-government effort” to protect the right to abortion in Texas, then we must demand that he quickly live up to his word. SB 8 will not be the last of such schemes. The Food and Drug Administration should immediately allow the sale of medical abortion pills at pharmacies and by mail, rather than in person through a physician. The pills should be made available upon request without a prescription.

There are other untapped federal resources that should be deployed in this crucial fight if the government is really committed to protecting what is left of the right to an abortion. “The U.S. government can invest in places and provide abortion delivery personnel that are subject to federal laws that are not subject to state restrictions or, for that matter, lawsuits under laws like SB8,” wrote Mary Ziegler and Rachel Rebouché in the Washington Post. “Federal staff would be immune from lawsuits initiated by private citizens. ”

As Republican states have decimated reproductive rights over the years, grassroots activists have consistently led the way in giving people access to abortions, be it by sharing resources, circulating abortion pills, homes that need to cross state borders, or building national networks. not dependent on the hierarchies of the major non-profit organizations. If the federal government wants to stand up for reproductive justice, it is these grassroots activists who must be considered the experts in the field.

Such is the state of the American criminal justice system that if even the government wants to protect constitutional rights, it must learn to abide by the law. To be sure, the executive in this country has a long history of taking out-of-court actions for far less noble reasons.

Those at the forefront of the fight for universal abortion have long looked beyond the courts and the law; we have every reason to demand that the government do the same.

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