NPI's Cascadia Advocate

Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's unconventional perspective on world, national, and local politics.

Wednesday, September 1st, 2021

Divided Supreme Court lets Texas’ horrifying anti-reproductive rights law stand… again

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.

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  1. […] Ten days ago, a five-mem­ber right wing major­i­ty on the Unit­ed States Supreme Court allowed Texas Sen­ate Bill 8 to go into effect, in what felt like anoth­er death knell for democ­ra­cy and the civ­il rights of women and peo­ple with uteruses. […]

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