By Kenneth Tiven in New York
Five conservative justices of the US Supreme Court used an unsigned order to refuse a case that now turns anti-abortion law over to vigilantes in Texas for enforcement. With the three justices appointed by former President Donald Trump, the Court has abandoned all pretence of impartial justice. It was an astonishing departure from court practices, making clear that the far-right political movement is desperate to retain power in a country where majority white rule is threatened by demographic reality in the next two decades.
Here is what happened: The Texas legislature passed a draconian anti-abortion law banning the procedure after six weeks. Since most people don’t know they are pregnant that early in pregnancy, it effectively bans the procedure for all but a very few. This is the first of what they call “fetal heartbeat” laws to go into effect despite Roe vs Wade still standing. The Texas legislature came up with a devious way to circumvent federal jurisdiction—it prohibits the state’s judicial and law enforcement from enforcing the abortion law. Instead, it deputises state citizens as vigilantes or bounty hunters to turn in anyone who provides, arranges or gets an abortion past the first six weeks of pregnancy. All of this is in civil court actions with large cash prizes for prosecuting their neighbours’ medical procedures.
The Supreme Court decisions say, in effect, we don’t understand the law because it depends upon a transparent scheme to dodge judicial review, one written so that it is beyond the court’s ability. Planned Parenthood and other organisations called the Texas’ right to life law a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights while evading judicial scrutiny on technicalities. It puts abortion right back in the centre of the national political debate heading into the next year’s mid-term elections.
Travis County Judge Maya Guerra Gamble in Austin, Texas, the state capital, has issued a temporary restraining order blocking anti-abortion groups from suing abortion providers, because the judge said: “The medical providers faced probable, irreparable, and imminent injury” if they were sued by the private group in connection with abortions as early as six weeks into pregnancy. For Texas women seeking medical attention, this is a critical issue.
For hypocrisy displayed by Texas Republican politicians consider this contradiction—wearing a pandemic mask is a personal choice, but women’s healthcare must be controlled by the government. Moreover, Texas passed legislation eliminating any license to openly carry a handgun. On the governor’s desk is a measure that would dramatically limit options for voting, aimed at the four large metropolitan areas where Democrats are a majority in the large rural state. Republicans want to continue to control Texas any way they can.
The Supreme Court, in its three centuries, has managed brave decisions, dreadful decisions and no decisions. Roe vs Wade in 1973 guaranteed a woman’s right to abortion, which has been a sustaining political and social issue in the United States. It has been whittled away but its elimination has been a key target for the ultra-right Christian voters. Polling suggests that the vast majority of Americans—to one degree or another—believe a woman has the right to control her own body.
Two of the three liberal justices were clearly outraged as jurists and as females. Justices Sonia Sotomayor wrote: “The Legislature fashioned this scheme because federal constitutional challenges to state laws ordinarily are brought against state officers who are in charge of enforcing. By prohibiting state officers from enforcing the Act directly and relying instead on citizen bounty hunters, the Legislature sought to make it more complicated for federal courts to enjoin the Act on a statewide basis… It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.”
Justice Elena Kagan wrote:
“Today’s ruling illustrates just how far the Court’s ‘shadow-docket’ decisions may depart from the usual principles of appellate process. That ruling, as everyone must agree, is of great consequence. Yet the majority has acted without any guidance from the Court of Appeals which is right now considering the same issues. It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail. In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow-docket decision-making which every day becomes more unreasoned, inconsistent, and impossible to defend.”
Chief Justice John Roberts joined the minority in dissent, but could not convince the newest justices Brett Kavanaugh and Amy Coney Barrett to join him, nor did he have any impact on Neil Gorsuch. Justices Samuel Alito and Clarence Thomas, court veterans had always been considered on the anti-abortion side of the issue.
The justices understand the scheme was devised to circumvent their authority and they endorsed it. No debate, no hearings, nothing but a notation that they won’t take up the case. This is how democracy gets whittled down to irrelevance. When Justice Anthony Kennedy, a swing vote, rather cynically retired while Trump was in the White House, he was replaced by Kavanaugh, putting the majority to overturn Roe vs Wade on the court. But the avoidance of taking a signed position in this instance was confirmation that court packing brings the naked exercise of power. Giving the state role to vigilantes with the promise of $10,000 is essentially a form of legal secession from the US Constitution. By removing the state and putting this into the realm of civil law, they can circumvent Americans’ constitutional rights by making them impossible to exercise. Chief Justice John Roberts, concedes that the vigilante scheme is a problem writing: “I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.”
Before the stunning order, women nationally in the US had a constitutional right to abortion until the point a fetus can survive outside the womb, generally understood to be 24 weeks. This came from the landmark 1973 Supreme Court case Roe vs Wade but the Congress never secured the right in statute, relying on court precedent for nearly five decades. Social conservatives took a different tack, and over the same period passed more than 1,300 abortion restrictions, repeatedly challenging Roe again and again.
A Trump success is represented here, confirming three Supreme Court justices on a bench of nine and more than 200 federal court judges. Now, the decades-long right wing project to pack conservative jurists into the courts is on the edge of hits greatest prize—ending legal abortions. In Texas, the anti-abortion activists are ready to start hunting down their enemies. One leader, John Seago, said: “One of the great benefits, and one of the things that’s most exciting for the pro-life movement, is that they have a role in enforcing this law.”
For these reasons, many Texas abortion clinics have stopped providing abortions. As Justice Stephen Breyer noted in his dissenting opinion: “One of the clinic applicants has stated on its website that ‘[d]ue to Texas’ SB 8 law,’ it is ‘unable to provide abortion procedures at this time.’” The law normally prevents situations like this by allowing a party who faces an imminent risk of legal harm to sue to block a law before it is brought to bear against them. But, of course, SB 8 was drafted to frustrate such lawsuits. And the Supreme Court has now endorsed Texas’ effort to frustrate a pre-enforcement lawsuit. A recent NBC poll shows a majority of Americans—54 percent—believe that abortion should be legal in all or most cases. That includes clear majorities of women, young Americans, whites with college degrees and those living in the suburbs. However, majorities and pluralities of evangelical Christians, rural Americans, older Americans and southerners say that abortion should be illegal in all or most cases.
It is not clear today and won’t be for several months how the reaction to this assault on women’s basic human rights will motivate people to vote in 2022. It has tended to mostly motivate the right in the past. However, since 60 percent of Democratic voters are female, things have changed. It may motivate the young and the suburban white people they need to win elections. Remember that monster women’s march in Washington in 2017 after Trump’s inauguration was fundamentally about the probability of this issue. In a polarised America, this has become a reality and is likely to be a major political issue.
Michele Goodwin, chancellor’s professor of law and director of the Center for Biotechnology and Global Health Policy at UC Irvine School of Law, says:
“This hearkens back to the Fugitive Slave Act, which provided for citizen participation in the preservation of American slavery. It deputised citizens to surveil, to stalk, to apprehend people who were in violation of US laws by escaping themselves out of the inhumane condition of slavery. There were bounties that were provided for their success in surveilling and successfully apprehending individuals who dared to exercise liberty, autonomy, and freedom. When you think about this Texas law, there are certain analogs that eerily resemble that of the Fugitive Slave Act in that it provides for financial remuneration of those citizens who are able to successfully peg someone who has aided or abetted an individual in obtaining an abortion. What this means with the law written in such broad terms is that it could implicate the Uber driver, the Lyft driver, the bus driver, the receptionist who works at an abortion clinic, virtually anybody who has been in the path of a person exercising the constitutional right to terminate a pregnancy. It is a very dangerous law.”
—The writer has worked in senior positions at The Washington Post, NBC, ABC and CNN and also consults for several Indian channels
Landmark verdict on abortion
Roe vs Wade, (1973), was a landmark decision of the US Supreme Court in which the Court ruled that the Constitution of the United States protects a pregnant woman’s liberty to choose to have an abortion without excessive government restriction. It struck down many US federal and state abortion laws and prompted an ongoing national debate in the United States about whether and to what extent abortion should be legal, who should decide the legality of abortion, what methods the Supreme Court should use in constitutional adjudication, and what the role of religious and moral views in the political sphere should be. Roe vs Wade reshaped American politics, dividing much of the United States into abortion rights and anti-abortion movements, while activating grassroot movements on both sides.
The decision involved the case of Norma McCorvey—known in her lawsuit under the pseudonym “Jane Roe”—who in 1969 became pregnant with her third child. McCorvey wanted an abortion, but she lived in Texas, where abortion was illegal except when necessary to save the mother’s life. Her lawyers filed a lawsuit in US federal court against her local district attorney, Henry Wade, alleging that Texas’s abortion laws were unconstitutional. A three-judge panel of the US District Court for the Northern District of Texas heard the case and ruled in her favour. Texas then appealed this ruling directly to the US Supreme Court.