For the second time in as many days, the United States Supreme Court has allowed a horrifying new Texas law designed to punish anyone who tries to end a pregnancy or helps another to end a pregnancy to remain in force, beginning the long-feared dismantling of the Court’s decades-old Roe v. Wade decision.
The 5–4 decision, handed down by the Court’s extremist right wing majority, allows Texas’ right wing Republican state government to begin enforcing its absurd scheme to give Texans who want to control the reproductive rights of others the ability to sue anyone involved in ending a pregnancy in Texas.
Reproductive care clinics in the Lone Star State are planning to cease providing abortions as a consequence, in a huge blow for reproductive health.
“We are devastated by today’s ruling,” Amy Hagstrom Miller, the chief operating officer of Whole Woman’s Health (which took the case to the Supreme Court) said in a statement posted on Facebook after the Court’s ruling was released.
“Our patients are scared and confused and desperately trying to figure out what they can do to get an abortion. We don’t know what will happen next.”
“There were seven million women of reproductive age in Texas as of 2019, and if most or all legal abortion care in the state were shut down, the average one-way driving distance to an abortion clinic would increase from twelve miles to two hundred and forty-eight miles, twenty times the distance,” the Guttmacher Institute noted in an analysis published yesterday about the law’s ramifications.
“Put another way, that would increase the drive time by nearly 3.5 hours each way on average (if driving nonstop at seventy miles per hour) and could necessitate an overnight stay.” The analysis went on to point out that Texas’ northern and eastern neighbors also have barriers to reproductive healthcare.
The five justices responsible for the decision are George H.W. Bush appointee Clarence Thomas, George W. Bush appointee Samuel Alito, and Trump appointees Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
Chief Justice John Roberts joined the Court’s three remaining liberals (Stephen Breyer, Sonia Sotomayor, and Elena Kagan) in dissent.
“The Court’s order is stunning,” Justice Sotomayor began in her blistering dissent, cosigned by Justices Breyer and Kagan. “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand,” she wrote.
“Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly fifty years of federal precedents,” she observed.
“Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention.”
“The Act,” Sotomayor’s dissent summarized a few paragraphs later (for the benefit of anyone not familiar with the law) “authorizes any private citizen to file a lawsuit against any person who provides an abortion in violation of the Act, ‘aids or abets’ such an abortion (including by paying for it) regardless of whether they know the abortion is prohibited under the Act, or even intends to engage in such conduct.”
“Courts are required to enjoin the defendant from engaging in these actions in the future and to award the private-citizen plaintiff at least $10,000 in ‘statutory damages’ for each forbidden abortion per-formed or aided by the defendant. In effect, the Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.”
“Without full briefing or argument, and after less than seventy-two hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions,” Justice Kagan added in a concurring dissent.
“The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State’s behalf. As of last night, and because of this Court’s ruling, Texas law prohibits abortions for the vast majority of women who seek them — in clear, and indeed undisputed, conflict with Roe and Casey,” Justice Kagan added.
“The Midnight Court of the five right wing justices operates in the shadows because any hint of the light of reason or legal soundness or respect for precedent or fealty to the Constitution would have their decisions bursting into flames,” columnist David Rothkopf tweeted, tacking on to Kagan’s comments.
In the wake of the Supreme Court’s initial failure to block Texas’ SB 8 yesterday, President Joe Biden and Vice President Kamala Harris released statements blasting the Court’s inaction and calling on Congress to respond.
“This extreme Texas law blatantly violates the constitutional right established under Roe v. Wade and upheld as precedent for nearly half a century,” President Joe Biden’s statement said.
“The Texas law will significantly impair women’s access to the health care they need, particularly for communities of color and individuals with low incomes.”
“And, outrageously, it deputizes private citizens to bring lawsuits against anyone who they believe has helped another person get an abortion, which might even include family members, health care workers, front desk staff at a health care clinic, or strangers with no connection to the individual.”
“My administration is deeply committed to the constitutional right established in Roe v. Wade nearly five decades ago and will protect and defend that right.”
Harris made similar comments, emphasizing: “The Biden-Harris administration will always fight to protect access to healthcare and defend a woman’s right to make decisions about her body and determine her future.”
With the Supreme Court now having refused to uphold Texans’ constitutional rights, progressives are discussing how best to respond.
Several activists and organizational leaders have suggested that the administration ought to push for the repeal of the Hyde Amendment and provide federally funded healthcare clinics which don’t restrict access to abortion. In the short term, they suggest the administration could use its authority to empower reproductive services to be offered on military bases and at VA hospitals.
Another idea that could help Texans would be making mifepristone and misoprostol more widely available. Those are medications that can be used to safely end a pregnancy at home without the need for a trip to a clinic.
In the wake of the Court’s indefensible refusal to uphold Roe v. Wade, Democratic elected officials in Washington and Oregon have stressed that abortion remains legal and accessible in the Pacific Northwest.
Governor Jay Inslee had this to say:
Today’s lack of leadership from the U.S. Supreme Court will having chilling effects on reproductive rights in this country far beyond Texas. Now that the Supreme Court has allowed Texas’ extreme anti-abortion law to stand, it won’t be long until many Republican-controlled legislatures in other states use it as a template to deepen disparities in abortion access between states.
We are fortunate that this has no impact on people seeking an abortion in Washington. We deeply value maintaining strong access to reproductive health and abortion services. We have strengthened our laws around preserving access to reproductive services in recent years, and we will continue to protect people’s rights.
In Texas, this step leads directly to stripping the rights of pregnant people based arbitrarily on where they live – and even penalizing anyone who assists someone in leaving a state to obtain safe abortion care. This is a health equity issue: the Texas law will have a disproportionate impact on lower income communities. These health care services are critical. This law overreaches by allowing private citizen groups to intervene in other people’s medical care.
The Texas law weaponizes civil suits by activists to enforce this draconian law rather than the state owning its decision. The Supreme Court failed to act to protect the people of Texas, and other states who will soon be subject to similar laws, without the decency of providing an explanation of their inaction.
Americans have been failed by this series of decisions, and Republicans must be held accountable for them.
Insurance Commissioner Mike Kreidler made similar comments:
The Republican Party in Texas has once again shown its blatant disregard for women’s rights. The new law that effectively bans abortions in the state cannot be allowed to stand.
The Texas law is a threat to women’s health and – if allowed to stand – could become a model for other states to restrict the ability of women to make choices about their own health.
Texas Republicans have become America’s own version of the Taliban. Once again, Republicans are showing how little they care for women’s rights and health.
I will do everything in my power to make sure this Taliban-like move by Texas never finds a place in the State of Washington.
U.S. Senator Patty Murray declared:
The Senate can and must act legislatively to protect the legal right to abortion for every American, regardless of where they live. Women of color and people with low incomes are the ones who abortion bans like SB8 hurt the most.
Unless the filibuster is changed or abolished, a standalone bill protecting reproductive rights won’t go anywhere in the Senate.
However, Congress does have an opportunity to add provisions that would protect reproductive rights to the pending American Jobs & Families Plan. And it should.