Mississippi had banned most abortions after 15 weeks of pregnancy. Its law was manifestly unconstitutional, at least to the extent that the court has interpreted the constitution since 1973. But the state asked the court to ignore stare decisis based on its alleged concern for “the health of the maternal patient, the dignity of the unborn child, and the integrity of the medical profession.”
At least four judges thought this argument was worth considering, a sign of reproductive freedom. At the very least, the court’s ultraconservatives seemed likely to allow abortion restrictions before Roefetal viability threshold, approximately 24 weeks.
Before the court reached Dobbsoffered, however, Texas Roehead on a silver platter. In a order in one piece issued around midnight on September 2, accepted Samuel Alito, Clarence Thomas, Neil Gorsuch, Brent Kavanaugh and Amy Coney Barrett.
The majority’s unsigned opinion removed its “serious question” about the constitutionality of SB 8 and lazily avoided the real consequences of allowing the law to enter into force, and formulated the decision as narrow and technical. It was neither. Faced with a frontal attack on a well-established precedent, ultraconservatives hid behind a technique designed to break the Constitution and create a roadmap for states to circumvent civil protection.
About 54,000 women received abortions in Texas by 2020, of which nearly three-quarters were women of color, according to State Department of Health. In a court of law archiving, abortion providers said at least 85% of Texas abortions took place after six weeks in which fetal heart activity is usually detected, but before many women know they are pregnant.
It was that time SB 8 prohibits abortion.
Other states passed so-called heartbeat bills, but federal judges laughed them out of court. So Texas devised a kind of Rube Goldberg enforcement mechanism. Instead of getting police and health inspectors to enforce its unconstitutional legislation, it would de facto deputize random zealots and busy bodies to act as uterine officers and give them bounty to sue abortion providers, nonprofits, insurance companies and anyone else who helped a woman with access to an “Illegal” procedure.
Because government officials were not involved, Texas argued, abortion providers had no one to sue in federal court, so a federal judge could not overturn the law. And because women seeking abortion cannot be sued, they also do not have the opportunity to sue.
The whole Texas case was a young mockery: We found a loophole, nanny-nanny-boo-boo. And that was good enough.
“The court’s ruling is astonishing,” Judge Sonia Sotomayor wrote in a burning disagreement. “Presented with an application to impose a flagrant constitutional law designed to prohibit women from exercising their constitutional rights and evading judicial control, a majority of judges have chosen to bury their heads in the sand.”
“Together, the law is a breathtaking act of defiance – the Constitution, for the precedents of this court and for the rights of women seeking abortion throughout Texas,” she continued. “… Today, the court finally tells the nation that it refused to act because, in short [Texas’s] gambit worked. ”
Since you will soon see Texas law replicated in every Republican state – the Florida Senate is already working on it – its information is worth digging into. Calling SB 8 extreme does not do the word justice.
Let’s start with the fact that it does not contain any exceptions for rape or incest. Although a rapist cannot sue a provider for interrupting the product of his assault, anyone else can – for example, the rapist’s rape brother.
And while the law makes exceptions for “medical emergencies,” providers must describe the emergency in patient records, which providers must then hand over for discovery to the person who filed lawsuits: jealousy, violent parents, Internet talkers, fundamentalist creeps, anti-abortion vigilantes. (Providers must also document a negative “heartbeat” test.) Act on the transfer and liability of health insurance does not prevent the disclosure of documents relevant to litigation.
There is no penalty for junk, false or vengeful allegations. In fact, opponents of abortion have every incentive to sue by truck. If they win, they collect “no less than $ 10,000 for each abortion that defendants performed or induced [or] helped and supported. “What’s more, the judges must issue” injunctions sufficient to prevent the defendant from violating “the law again – ie. possibly closing a facility, even though abortion is one of many services it provides.
If they lose, they still win. Defendants must pay plaintiffs ‘costs and attorneys’ fees if a judge finds that they have provided or assisted an illegal abortion, but judges are prohibited from ordering plaintiffs to pay if their case is dropped.
SB 8 is designed to be offensive. Whether abortion clinics comply with the law or not, they are buried by attorneys’ fees and subpoenas and forced to betray the trust of people who want their patients hurt. Women seeking abortion expose their friends to financial responsibility. Abortion providers have already started canceling procedures.
Those with funds will travel to get abortions; clinics in Kansas, Colorado, Oklahoma and New Mexico has been flooded with calls from Texas. Those without will either be forced to give birth in a state with one of them worst child welfare rankings in the country or try to handle things yourself. (Right now, 90,000 adults consumes horse worms to cure a viral infection because of something they saw on Facebook. How well do you think desperate teens googling for DIY abortion tips will work?)
The court’s decision opens up the possibility of revisiting SB 8 when providers have a goal to sue, and this may happen. But the judges showed their hand. They were not impressed with Texas wisdom. They believe that women have no right to make their own reproductive choices. Everything else is window decor.
The decision actually brought a strong relief, as did the support for abortion rights and opposition expand the Supreme Court are mutually exclusive. So far, however, President Joe Biden and other Democratic leaders have not squared that circle.
Perhaps they should follow the majority’s justification for its natural (and frightening) conclusion. Under the logic of the judges, there is now nothing to stop Texas or any other legislature from – as Sotomayor put it – “outsourcing constitutional law” to ban pharmacies from selling contraception, ban companies from advertising in newspapers criticizing politicians or bar contractors from building mosques.
The verdict goes precisely – and only – as far as the judges’ political convictions, not the law or the constitution, will take it. Think about it from the other direction.
As Slate‘s Mark Joseph Stern writes: “If California banned handguns by allowing strangers to sue anyone who ‘helps and supports’ their purchases, does anyone seriously believe that the ultra-conservative judges … would shrug their shoulders and say ‘too bad,’ there is absolutely nothing SCOTUS can do! ‘”
In one section, the majority of the court – secured by Donald Trump and Mitch McConnell, but the culmination of one generation-long conservative projects to overtake the federal judiciary – left no doubt that it will be a political entity that acts as an arm of a right-wing extremist movement driven off cultural complaints and dismissive of democratic norms.
Nine months ago, congressional Republicans tried to overthrow a presidential election based on blatant lies that sparked a deadly riot. Republican lawmakers have since turned these lies into extensive restrictions on the right to vote, at the same time as laws are adopted targeted the right to protest and requires schools whitewash race history. Now women’s autonomy is on the cutting edge.
The Supreme Court will not serve as a bulwark against this rising authoritarian tide; if anything, it will encourage it.
This is the game now. The Democrats need to start playing.
To be fair to Biden, it will be a sisyphean task to sell his party’s moderates on court packaging. But that does not mean that it is not worth a fight. The actions of the court require a recognition that the preservation of institutional traditions is less important than the protection of the rights which the institution violates.
This is not the time to face extremism with timidity.
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