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USA: Abortion rights under threat

Friday 3 September 2021, by siawi3


Photo: Supreme Court Justices Brett Kavanaugh and Amy Coney Barrett arrive for the inauguration of President Joe Biden in Washington D.C. on January 20, 2021. (Photo: Jonathan Ernst/Pool/AFP via Getty Images)

Sotomayor Rips Right-Wing Justices as Supreme Court Effectively Overturns Roe v. Wade

In a blistering dissent, Justice Sonia Sotomayor slammed conservative justices for opting to “bury their heads in the sand” when faced with a “flagrantly unconstitutional law.”

Jake Johnson

September 2, 2021

The conservative U.S. Supreme Court issued an unsigned order in the dead of night Wednesday leaving Texas’ draconian abortion ban in place, a move that effectively overturns Roe v. Wade and imperils reproductive rights across much of the United States.

The high court’s decision—against which Justices Sonia Sotomayor, Elena Kagan, Stephen Breyer, and John Roberts dissented—lets stand the most restrictive abortion ban in the country, an unprecedented law that deputizes private individuals to sue anyone who performs an abortion or “aids and abets” one after around six weeks of a pregnancy.

“The court has rewarded the state’s effort to delay federal review of a plainly unconstitutional statute.”
—Justice Sonia Sotomayor

The law’s empowerment of private citizens rather than state officials to enforce the abortion ban was designed to make the new restrictions difficult to challenge in court. Plaintiffs who win their lawsuits against abortion providers and others—potentially including those who drive a person to a clinic to obtain the procedure—are entitled to $10,000 and the recovery of their legal fees, a reward that reproductive rights advocates have characterized as a bounty.

In her blistering dissent (pdf) against the 5-4 decision, Sotomayor condemned the Supreme Court’s most conservative justices for opting to “bury their heads in the sand” when faced with a “flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny.”

The Texas law, Sotomayor noted, “equates to a near-categorical ban on abortions beginning six weeks after a woman’s last menstrual period, before many women realize they are pregnant, and months before fetal viability.”

“The act is clearly unconstitutional under existing precedents... The respondents do not even try to argue otherwise. Nor could they: No federal appellate court has upheld such a comprehensive prohibition on abortions before viability under current law,” Sotomayor continued. “Taken together, the act is a breathtaking act of defiance—of the Constitution, of this court’s precedents, and of the rights of women seeking abortions throughout Texas.”

Turning her attention to the conservative justices who refused to block the law—Brett Kavanaugh, Amy Coney Barrett, Neil Gorsuch, Samuel Alito, and Clarence Thomas—Sotomayor wrote that “the court has rewarded the state’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the court’s precedents, through procedural entanglements of the state’s own creation.”

“The court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law,” Sotomayor added.

Legal analysts and advocates warned that the high court’s ruling all but spells the end for Roe v. Wade, a landmark 1973 decision that established abortion as a constitutional right—a right that has long been in the crosshairs of the conservative movement.

“We can stop debating about whether the court overturned Roe v. Wade. They did. So what if it’s on a technicality? It’s not a technicality to the people forced to carry pregnancies to term against their will,” wrote Jessica Mason Pieklo, executive editor of Rewire News Group. “In the immediate, it means that Roe is dead letter law in Texas. And probably Mississippi and Louisiana—the other states in the Fifth Circuit Court of Appeals. And it means more bad news is coming.”

“But it doesn’t mean people stop needing access to abortion,” she continued. “Nor does it mean that providers will stop providing that care. After this week though, it is undeniable that the abortion landscape is radically changed—for generations.”

According to the Guttmacher Institute, 22 states across the U.S. currently have laws that could be used to restrict or gut abortion rights. The research organization notes in its latest round-up that nine states have “unconstitutional post-Roe restrictions that are currently blocked by courts but could be brought back into effect with a court order in Roe’s absence.”

In Texas, the near-term consequence of the law—known as Senate Bill 8—could be the imminent closure of the massive state’s relatively few abortion clinics, many of which cannot withstand the risk of a wave of lawsuits.

“We can stop debating about whether the court overturned Roe v. Wade. They did.”
—Jessica Mason Pieklo, Rewire

“If this was a criminal ban, we’d know what this is and what we can and cannot do,” Jessica Rubino, a doctor at Austin Women’s Health Center, told the New York Times. “But this ban has civil implications. It requires a lawyer to go to court. It requires lawyers’ fees. And then $10,000 if we don’t win. What happens if everybody is sued, not just me?”

“My staff is nervous,” she added. “They’ve been asking, ’What about our families?’”

Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, said in a statement earlier Wednesday that “we are heartbroken that this law has not yet been blocked.”

“Last night, our waiting rooms were filled with patients and their loved ones, and our staff were pouring their hearts out trying to help every person they could up until 11:59 pm—the minute before S.B. 8 went into effect,” said Hagstrom Miller. “But today, we will be forced to turn away most Texans seeking an abortion. Anti-abortion politicians in Texas can no longer hide behind the guise of health or safety—this is an abortion ban, plain and simple. It robs Texans of their ability to make decisions about their health and their futures. We have been here before, and we’ll continue serving our patients however we legally can and fighting for their right to safe, compassionate abortion care.”

With fundamental reproductive rights under assault from the courts and Republican-led states, Democratic members of Congress are facing growing pressure to respond with legislative action.

In a joint statement on Wednesday, Congressional Pro-Choice Caucus co-chairs Rep. Diana DeGette (D-Colo.) and Rep. Barbara Lee (D-Calif.) and Congressional Progressive Caucus chair Rep. Pramila Jayapal (D-Wash.) said Congress must “immediately take action to enshrine the right to access abortion into federal law.”

“The House should immediately pass the Women’s Health Protection Act... to ensure that states like Texas cannot ban this critical health service, and we urge the Senate to do whatever is necessary to send it to the president’s desk,” the lawmakers said. “Congress must also continue to strike down other restrictions on access to abortion in federal law, including bans on insurance coverage like the Hyde Amendment.”

The three House Democrats also urged the Biden administration to uphold its “commitment to protecting the right to abortion.”

“We call on Attorney General Garland to explore whatever steps the Department of Justice can take to respond to this blatant violation of Texans’ constitutional rights,” they said. “Everyone—no matter their income, where they live, or how they’re insured—has the right to make their own decisions about their bodies and their lives, and we are committed to promoting policies that protect the reproductive freedom of all people.”



House Speaker Nancy Pelosi (D-Calif.) holds her weekly press conference at the U.S. Capitol on August 25, 2021 in Washington, D.C.(Photo: Kevin Dietsch/Getty Images)

Slamming ’Cowardly’ Supreme Court, Pelosi Announces Vote on Abortion Rights Bill

“This ban necessitates codifying Roe v. Wade,” the House Speaker said.

Jake Johnson

September 2, 2021

Speaker Nancy Pelosi announced Thursday that the House will vote on a bill to guarantee abortion rights nationwide after the chamber returns from recess later this month, a legislative effort aimed at countering the U.S. Supreme Court’s decision to greenlight Texas’ unprecedented assault on reproductive freedoms.

“The Supreme Court’s cowardly, dark-of-night decision to uphold a flagrantly unconstitutional assault on women’s rights and health is staggering.”
—House Speaker Nancy Pelosi

“Upon our return, the House will bring up Congresswoman Judy Chu’s Women’s Health Protection Act to enshrine into law reproductive healthcare for all women across America,” Pelosi (D-Calif.) said in a statement, slamming the new Texas law barring abortions after six weeks of pregnancy as a “catastrophe.”

“The Supreme Court’s cowardly, dark-of-night decision to uphold a flagrantly unconstitutional assault on women’s rights and health is staggering,“Pelosi added.”This ban necessitates codifying Roe v. Wade."

The House is scheduled to return to session on September 20.

Unveiled by Chu (D-Calif.) and several other congressional Democrats in May, the Women’s Health Protection Act would establish a federal statutory right to abortion care “free from medically unnecessary restrictions that single out abortion and impede access.”

“Our legislation reaffirms what the Supreme Court established fifty years ago: access to abortion is a fundamental right,” Chu said upon introducing the measure.

The bill currently has 189 co-sponsors in the House and 48 in the Senate. Sens. Joe Manchin (D-W.Va.) and Bob Casey (D-Pa.) are the lone Democratic holdouts in the upper chamber.

In a tweet Thursday, Chu applauded Pelosi for vowing to bring the Women’s Health Protection Act to the House floor for a vote in the wake of the high court’s refusal to block Texas’ near-total abortion ban.

“Unlike the Supreme Court, we were elected,” Chu wrote. “And we were elected on the promise we would protect the rights of women no matter where they live. This is how we do that!”

The real obstacle for the bill is the Senate, which Democrats control by the slimmest of margins. Even if Senate Democratic leaders are able to get all 50 members of their caucus on board, they will still need to win the support of at least 10 Republicans as long as the 60-vote legislative filibuster remains in place.

Numerous Democratic lawmakers and reproductive rights groups emphasized that reality following the Supreme Court’s decision, which analysts said effectively overturns Roe v. Wade and opens the door for other Republican-led states to replicate Texas’ abortion ban.

“The choice before us today is do we keep the filibuster or do we protect abortion rights?” Sen. Ed Markey (D-Mass.) tweeted Thursday. “Do we allow the stolen Republican SCOTUS majority to remain forever or do we protect abortion rights? Do we allow the far-right to have the last word on Roe v. Wade or do we fight back?”



Photo: Pro-choice protesters march down Congress Avenue at a protest outside the Texas state capitol on May 29, 2021 in Austin, Texas. Thousands of protesters came out in response to a new bill outlawing abortions after a fetal heartbeat is detected signed by Texas Governor Greg Abbot. (Photo: Sergio Flores/Getty Images)

WTF: Texas Has Made It Legal to Sue Anyone Who Helps a Woman Get an Abortion

Under this law, anyone, anywhere in the United States, can sue anyone who helps a patient in Texas access abortion after six weeks of pregnancy.

Miriam Berg

September 2, 2021

by Planned Parenthood Action Fund

With one of the most extreme abortion bans this country has ever seen now in effect, politicians, neighbors, and even complete strangers can sue anyone who helps a person access an abortion in Texas after six weeks. This is a full-scale assault on abortion access.

1. What is Texas’s six-week abortion ban (S.B. 8)?

It’s a dangerous law set that took effect on September 1, and which rewards people who block a Texan from getting an abortion.

If allowed to take effect, S.B. 8 will ban abortion in Texas after about six weeks of pregnancy— which is well before many people even know they’re pregnant.

But it’s not just a ban. It’s a ban with a BOUNTY. Under this law, anyone, anywhere in the United States, can sue anyone who helps a patient in Texas access abortion after six weeks of pregnancy.

2. A ‘bounty’? Are cowboys getting rewarded for stopping abortions?!

Texas officials wrote the law to encourage vigilantes—legally. An unprecedented provision within the abortion ban emboldens ordinary citizens to enforce it. In fact, the abortion ban offers a cash incentive to people who file lawsuits against someone they think is breaking the law.

The law awards at least $10,000 for every lawsuit that successfully blocks a pregnant person from getting an abortion in Texas. And there are no limits on the number of lawsuits, so there could be a rush of suits from organized anti-abortion activists.

“If the barista at Starbucks overhears you talking about your abortion, and it was performed after six weeks, that barista is authorized to sue the clinic where you obtained the abortion and to sue any other person who helped you, like the Uber driver who took you there.”
— Melissa Murray, New York University law professor, via New York Times

3. Who can sue to block a pregnant person from an abortion?

Under Texas’s abortion ban, literally anyone from any state would have the authority to go to court and get an order to block a patient’s abortion in Texas. That means ANY private individual—such as an abusive boyfriend, a controlling parent, random strangers or even abortion protesters—could block a Texan from getting an abortion after six weeks of pregnancy.

4. Who could get sued?

Lawsuits could target a doctor, friend of a person seeking abortion, taxi driver, health center, nonprofit group (such as a church or abortion fund), or anyone else who helps assists a patient get a safe, constitutionally protected abortion after six weeks of pregnancy.

5. What’s happening in the courts?

A broad range of plaintiffs represented by the Center for Reproductive Rights, Planned Parenthood Federation of America, the ACLU, and others filed a lawsuit asking a federal district court to block Texas’s six-week abortion ban before its scheduled effective date of September 1.
6. What are the far-reaching consequences of Texas’s six-week abortion ban?

Beyond banning abortion in Texas, this law could serve as a blueprint for other states to take away your rights. Today it’s abortion, but tomorrow it could be the rights of LGBTQ+ couples, religious communities, gun owners, undocumented immigrants, or Black families.

7. How could federal courts rule on Texas’s six-week abortion ban?

If the federal courts let the Texas law stand, then we could take this fight to the Supreme Court.

Meanwhile, conservative justices make up a solid majority on the Supreme Court. And they’re set to hear arguments later this year in a case that challenges Mississippi’s ban on abortions after 15 weeks of pregnancy. Mississippi has asked the Supreme Court to overrule Roe v. Wade.

If the courts rule against abortion access in these two cases, it will radically alter abortion access for generations to come.

8. What was the current state of abortion access in Texas before S.B. 8?

It was already extremely difficult to access safe, constitutionally protected abortion in Texas because the state imposes many burdensome restrictions and obstacles. This includes forcing patients to receive in-person state-mandated “counseling” (which discourages abortion); forcing patients to make two trips to a health center 24 hours apart to receive care; banning telemedicine for medication abortion; banning public and private insurance coverage for abortion; and requiring parental consent and notification to obtain an abortion.
© 2021 Planned Parenthood Action Fund, Inc.

Miriam Berg is a digital content writer and producer at Planned Parenthood Federation of America.



by Jewish Currents

Sept 2 , 2021

Demonstration against Senate Bill 8 in San Antonio, Texas, September 1st, 2021. Photo: Carlos Kosienski/Sipa via AP

This week’s newsletter comes from Arielle Swernoff, the author of “How to Give Yourself an Abortion”—a guide to self-managed abortion using misoprostal pills, illustrated by Mattie Lubchansky, that appeared in our Fall 2019 issue and has become, depressingly, the most-visited article of all time on the Jewish Currents website. Arielle spoke with Charlie Hughes, who works at an abortion fund in northern Texas, about the virtual ban on abortion that became law in Texas yesterday morning—which the Supreme Court upheld in a 5-4 ruling last night—and how abortion funds are now scrambling to provide low-income Texans with access to reproductive care.

Two other Jewish Currents articles from the past year that are worth revisiting right now are Jenny Brown’s “It’s Time to Re-Radicalize the Abortion Movement,” which argues for a post-Roe v. Wade strategy that doesn’t depend on the courts, and Katarzyna Boni’s “The Power of the Polish Women’s Strike,” a firsthand dispatch from another country facing severe judicial rollback of abortion.


David Klion

Newsletter Editor

Yesterday, Texas enacted its six-week abortion ban, Senate Bill 8 (SB8), effectively banning some 85% of abortions taking place in the state. Republican-controlled state legislatures have attempted to pass six-week abortion bans across the South and the Midwest for years, but all previous efforts were either vetoed by governors or struck down by the courts. The difference between earlier legislation and SB8 is that Texas claims the state itself won’t enforce the law; instead, private citizens are now encouraged to sue anyone they suspect of “aiding or abetting” an abortion after six weeks, for which they can collect a bounty of $10,000, plus legal fees. The abettor can be a friend, a clergy member, an abortion provider, or even a rideshare driver who collects a fare taking a pregnant person to their appointment.

Abortion providers and other groups had been appealing to the Supreme Court to block SB8, noting that it violates Roe v. Wade, which recognizes a constitutional right to abortion up until the point of fetal viability (about 22 to 24 weeks gestation). Instead, last night, the Court upheld the law using its “shadow docket,” an increasingly controversial process through which the court decides cases on an emergency basis and without hearing arguments, or even attaching justices’ names to the ruling. Now, abortion advocates worry that Republican state legislators and anti-abortion activists will draft copycat bills in other states, and that abortion could become illegal in huge swaths of the country. This is no idle fear: 22 states already have laws on the books that could be used to severely restrict or ban abortion should Roe be formally overturned.

Abortion funds, which provide financial support for people seeking abortions, have been on the frontlines of the fight for reproductive freedom in Texas and across the country. Since neither Medicaid nor many private insurance plans cover abortion, these funds provide a vital financial lifeline for pregnant people. They are also prime targets of SB8, which positions them as likely defendants in the court cases to come. Anti-abortion groups have already set up websites and tip lines to encourage “pro-life whistleblowers” to point fingers.

There are plenty of clarifying legal analyses of the Court’s decision, but I wanted to hear from people on the ground about what SB8 means for Texans seeking abortion, the infrastructure that helps them, and the future of reproductive freedom nationwide. I was lucky to be able to speak with Charlie Hughes, the intake director at Texas Equal Access Fund (TEA Fund), a nonprofit serving people seeking abortions in North, East, and West Texas, including the panhandle (disclosure: I am a volunteer with the TEA Fund). Our conversation has been condensed and edited.

Arielle Swernoff: What does SB8 going into effect mean for people in Texas who are seeking abortions? Who’s going to be impacted the most?

Charlie Hughes: It’s taken me a little while to get my head around it, because it’s a different type of ban than we’ve ever seen before. SB8 encourages everyone from local abortion protesters to family members to report and sue anyone assisting a person getting an abortion after six weeks. That means abortion providers, clinic staff, funds that help patients pay for their health care, and even someone who drives a patient to a clinic can be sued. Family members, friends, rideshare drivers—it doesn’t really matter. SB8 paves the way for anti-abortion activists to bring endless frivolous lawsuits against abortion providers, with the goal of eating away our funding and our capacity to help people.

The impact is going to be huge. Lots of people in Texas think abortion is already illegal, and this just further stigmatizes it. Texans who are already marginalized—people of color, indigenous people, young people, people living in rural areas—are already facing so many barriers. This is going to further criminalize access to abortion for all of them, whereas people with more resources who don’t need any assistance will always have better access. According to our data, the vast majority of Texans who get abortions do so after six weeks, and they’re going to have to go out of state because of SB8.

AS: One particularly scary piece of this law is the so-called abortion bounty. Can you talk a little bit more about that, and what impact it might have on your work and the work of abortion funds?

CH: That particular part of the law is really horrible. It means that if anyone brings a case against us, we have to pay for their court costs, and will be fined a minimum of $10,000. That money is taken away directly from people trying to access abortion care. What’s especially frustrating is that it incentivizes people to make those claims, since they don’t have to pay for their own lawyer fees. If you want to sue anybody, you can just do it, without any kind of deterrent. It encourages people to turn on their loved ones, because everyone loves someone who has had an abortion.

We have to follow the law, so we’re going to be helping the minority of people seeking abortions in the first six weeks, and then we’re going to be there to support people who are further along to find places that are not in Texas where they can get the care they need. It’s a big pivot for us, to help people find those resources out of state.

AS: On Twitter, it feels like a lot of people are just tuning in to what’s happening in Texas. But this didn’t happen overnight. Texas and other states have been trying to claw back protections for abortion for a long time.

CH: Yeah, sadly, this is just the latest blow to abortion rights. It was already extremely difficult for people in Texas to get the care that they needed when they needed it. When someone finds out that they are pregnant and decides that they want an abortion, the first thing that happens is that they discover how much it’s going to cost [ed. note: In Texas, this can be anywhere from $300 to $1,500]. There’s a ban on both public and private coverage for insurance, so the abortion costs come straight out of the patient’s pocket. That’s already a big burden for a lot of people. There are also mandatory waiting periods: Texas’s waiting period is 24 hours, and there’s state-mandated counseling, which forces people to make two trips to the clinic. So that might mean they have to take more time off work, and since we don’t have paid sick leave, that ends up being a pay cut.

Beyond that, Texas is huge. All of our clinics are based in the cities, so we have a lot of rural communities where people have to travel a long way to get to a clinic that has abortion care. We already had a ban on abortions after 20 weeks, after which a patient would have to travel out of state, which brings lots of additional financial burdens. But now, most likely at least 75% of our callers will be going out of state.

We’ve always had misinformation and stigma around abortion. We ran a poll that showed that 42% of Texas voters don’t know that abortion is legal. This is part of why abortion funds have to be really scrappy, especially in Texas. We’ve been fighting for a long time, and we’ll just continue, because people need abortion care. Abortions are still going to happen no matter what.

AS: How are grassroots groups and abortion funds preparing to respond to this particular law?

CH: We already went through an abortion ban last year when Texas Gov. Greg Abbott used the Covid-19 pandemic as an excuse to ban all abortions in our state, and we had to help people navigate new barriers and go out of state. It’s sad to say, but we’ve had a helpful window into what’s going to happen now, which in a sense is a good thing because we’ve been able to identify more clinics beyond the closest ones we used to work with, which have been filling up. That’s what a lot of the funds are doing right now—just connecting with clinics that are willing to work with us. We can’t send everyone to the same out-of-state clinic because they’ll be overwhelmed, so we’re branching out.

Right now, we serve 110 out of 254 counties in Texas. We have a relationship with all the clinics in this area, so we’re familiar with the landscape and we’re able to tailor our support based on regional needs. But now we may need to start coordinating with other funds on where we send people.

AS: Yeah, I’ve been thinking about how people from Texas might have to travel to Louisiana, which right now is dealing with Hurricane Ida!

CH: I’m not sure there are any clinics open in Louisiana right now. People from Louisiana were coming to Texas! People usually prefer to drive to their appointments, but if you’re going to have to get on a plane anyway, you can go anywhere, not just to a neighboring state.

AS: Today, all eyes are on Texas, but obviously, this is going to have implications beyond Texas. Looking forward, what do you think SB8 might mean for the rest of the country?

CH: Right now there are about 15 states that have passed near-total abortion bans—most of which have been blocked by the courts and are not in effect. This Texas ban is unique because the responsibility of reporting falls on regular citizens. Now that it’s been upheld by the Supreme Court, I could see other states trying to put more onus on citizens rather than the state to enforce existing bans. They’ll see Texas as a guide. But the Supreme Court also has the upcoming Mississippi case, which could actually overturn Roe. [Ed. note: This fall, the court will hear Dobbs v. Jackson Women’s Health Organization, a challenge to a Mississippi law that bans abortion after 15 weeks of pregnancy, a case that is expected to decide the fate of Roe v. Wade.] If that happens, clinics in regions like the Northeast will be extremely busy. But I intend to keep fighting regardless.

AS: What can someone reading this interview do to support continued abortion access and reproductive justice?

CH: First of all, people need to understand that funding abortion is a radical act of compassion. As I said, everybody loves someone who’s had an abortion. Abortion funds are a lifeline to people who need care, don’t know where to start, and don’t have anybody to talk to. So support your local abortion fund, wherever that may be, and support other funds, too. Right now, this law is trying to scare people away from us, so the best way to respond is to support us, both financially and by speaking out on social media or wherever else.



The Deviousness of Texas’s New Abortion Law

Mary Ziegler

September 1, 2021

Source: The Atlantic

The statute is the culmination of a decades-long strategy to end abortion without actually banning abortion.

Last night, the Supreme Court faced an unprecedented emergency application. Unless the Court acted, abortion would be functionally illegal in Texas.

In May, the state had adopted a version of a “heartbeat bill” that went into effect today. So-called heartbeat bills prohibit abortions once a physician can detect fetal cardiac activity, usually around the sixth week of pregnancy, before most people know that they are pregnant. Texas lawmakers had considered such a bill before but balked at the prospect of a possible loss in court—and the thought of forking over legal fees to Planned Parenthood. S.B. 8, the law that now prevails, promised to give conservative lawmakers everything they wanted: the ability to ban abortion with none of the risk.

The key, as Texas lawmakers saw it, was not to criminalize abortions. Instead, the state has authorized private citizens in the state—quite literally any private citizen—to file lawsuits against anyone who performs or “knowingly … aids or abets” an abortion after the sixth week of pregnancy. When plaintiffs in these suits succeed—and many inevitably will—they will receive at least $10,000 from defendants and an injunction preventing a provider from performing any more abortions after six weeks of pregnancy.

Relying on individual activists to flood the courts with lawsuits might seem riskier for anti-abortion-rights lawmakers (the state would need to find a supply of willing plaintiffs rather than doing the job itself) than an outright ban, but the opposite is true. Texas designed its bill to make it nearly impossible to challenge in court.

That’s because state lawmakers and judges can shield themselves using a doctrine called “sovereign immunity,” which typically prevents someone seeking to block a state law from suing the state itself. The Supreme Court created an exception to that rule in a 1908 case called Ex parte Young: Someone challenging the constitutionality of a law can sue the state officer charged with enforcing it. But in Texas, there arguably is no such officer, because only private citizens can sue to enforce the law. Abortion providers could wait to get deluged in court, find themselves buried under $10,000 damage awards, and argue that those penalties are unconstitutional. But virtually no doctor seems ready to do that—the state’s providers have responded to the law by no longer offering abortions after the sixth week of pregnancy.

The idea of using lawsuits to end abortion emerged decades ago. Unsurprisingly, it first gained steam in Texas. In the 1990s, Mark Crutcher, an anti-abortion-rights activist from the Dallas metroplex, tried to create a self-help industry for members of his movement. He put out instructions on how to write letters to the editor and how to stay on message in debates. But he was convinced that civil lawsuits could gut Roe v. Wade. He sent out “Spies for Life” to gather evidence on whether providers in the state were doing anything wrong. And he provided lawyers across the country with a 79-page manual detailing how to sue abortion doctors for medical malpractice. The result, he hoped, would be skyrocketing insurance rates for abortion clinics and legal bills that most doctors would be unwilling to pay.

Crutcher’s strategy was quite clever: eliminate abortion access without the kind of fanfare that a major Court decision would spur, mobilizing the opposition and risking a backlash. “Right now,” Crutcher wrote, “the future of abortion in America is in serious jeopardy simply because access to abortion is evaporating.”

Activists tried to run with Crutcher’s idea in the years that followed. Most focused on patients who claimed that they had not given informed consent to an abortion (Louisiana passed a law authorizing these suits, which the conservative Fifth Circuit upheld). But interest dried up because most anti-abortion-rights leaders had no interest in slipping under the radar. They wanted to attack Roe directly, secure a decision overruling it, and lay the groundwork for a decision recognizing fetal personhood under the Fourteenth Amendment and thereby making abortion unconstitutional.

S.B. 8 is the signal achievement of strategies like Crutcher’s. With this law, Texas focused on eliminating abortion, not repudiating Roe, and the Supreme Court’s response last night—or, more accurately, the lack thereof—spoke volumes. A district court had blocked the law from going into effect (concluding that state judges were the officials charged with enforcement), but the Fifth Circuit Court of Appeals issued a temporary stay of all proceedings in the lower court, including those involving efforts to block the law from going into effect. Providers filed an emergency appeal with the Supreme Court, and the clock began to run; the Court had until midnight yesterday to act before Texas’s ban went into effect.

When the clock struck midnight, the justices had done precisely nothing. There was no order allowing the law to go into effect or preventing its enforcement. As of this morning, the justices had still not spoken a word.

Some will hesitate to read too much into the Court’s silence—after all, Texas designed its law to be difficult to challenge. And the Court already has a major abortion decision coming up: Next summer, the justices will hand down a decision on a quite different abortion law—one that criminalizes abortion after the 15th week of pregnancy. Mississippi, unlike Texas, invited a constitutional challenge because state lawmakers are gunning for abortion rights. There is no guarantee that the justices will be willing to declare the end of abortion rights for the world to see, regardless of what they do or don’t say about S.B. 8. There is also no telling whether the Court may yet rule on Texas providers’ emergency requests.

But the Court’s silence is revealing. Imagine if Massachusetts had mandated vaccines for those with bona fide religious objections and allowed private citizens to use litigation to enforce that decree. Or if California had outlawed the private ownership of handguns. For decades, the Court has written that abortion is so divisive because it touches people’s most deeply held beliefs about life in the womb, the rights of women, equality between the sexes, and the role of doctors. Whatever else one could say about the Court’s abortion jurisprudence, the justices seemed to take these clashing beliefs seriously. Not anymore. The message from the High Court was one of stunning indifference. The Supreme Court looked at the prospect of a functional ban on abortion and saw no emergency at all.

In the 1990s, Mark Crutcher predicted that the path to ending abortion might be civil lawsuits. If the Supreme Court’s inaction is any indication, he just might have been right.

Mary Ziegler is a professor at the Florida State University College of Law. She is the author of Abortion and the Law in America: Roe v. Wade to the Present.



The US Supreme Court is Deciding More and More Cases in a Secretive ‘Shadow Docket’

Moira Donegan

August 31, 2021

These emergency rulings – short, unsigned and issued without hearing oral arguments – undermine the public’s faith in the integrity of the court

‘It seems like the majority-conservative court has transformed a rarely used tool into a way to achieve its preferred outcomes without having to justify its decisions to the public.’ , Photograph: Erin Scott/Reuters

Last week, it was Remain in Mexico. On Tuesday, the supreme court issued an order requiring the Biden administration to reinstate the Trump-era policy that required asylum seekers from Central America to stay across the border in Mexico while their claims are adjudicated. It was an uncommonly aggressive intervention into foreign policy, an area where previous courts have preferred a light touch, and it posed massive logistical, diplomatic and humanitarian crises at the border that will need to be rapidly resolved if the Biden administration is to comply with the order.

Two days later, it was the eviction moratorium. On Thursday, the court blocked an extension of the federal emergency ban on evictions, gutting a 1944 law that gave the CDC the authority to implement such measures to curb disease, and endangering the 8m American households that are behind on rent – who now, without federal eviction protection, may face homelessness.

Both of these orders last week were issued in the dead of night. Their opinions were truncated, light on the details of their legal reasoning, and unsigned. Vote counts were not issued showing how each justice decided. And despite the enormous legal and human impact that the decisions inflicted, they were the product of rushed, abbreviated proceedings. The court did not receive full briefs on these matters, heard no oral arguments and overrode the normal sequence of appellate proceedings to issue their orders.

Welcome to the “shadow docket”, the so-called emergency proceedings that now constitute the majority of the supreme court’s business. Minimally argued, rarely justified and decided without transparency, shadow docket orders were once a tool the court used to dispense with unremarkable and legally unambiguous matters. To have an issue addressed on the shadow docket, a litigant has to apply for “emergency relief” – usually to stop a decision against them from a lower court from going into effect while appeals proceed. Traditionally, applicants would need to demonstrate that they would suffer “irreparable harm” if their petition wasn’t granted immediately. So one historical use of the shadow docket has been in federal death penalty cases, where the court has used the emergency proceeding to affirm or deny requests for stays of execution.

But in recent years the court has largely dispensed with any meaningful application of the irreparable harm standard, and instead has entertained emergency relief petitions from more and more litigants, issuing shadow docket rulings on increasingly significant and controversial legal questions without the rigor or transparency that such issues demand.

The term “shadow docket” was coined in 2015 by a conservative law professor to refer to the thousands of supreme court actions each term that defy the “normal procedural regularity” of the federal appellate process. A newer, expanded version of the shadow docket began to emerge in 2017, when the Trump administration came to power. Previously, shadow docket emergency requests had rarely been used to advance the interests of the governing administration. From 2001 through 2016, the Department of Justice applied for these emergency relief interventions from the court only eight times. During the four years of Trump’s presidency, however, the justice department applied 41 times. The use of shadow docket requests by Trump’s justice department especially accelerated after 2018, when Justice Anthony Kennedy retired and was replaced by Brett Kavanaugh, initiating the court’s rightward lurch.

The gambit worked. Of those 41 requests, the supreme court granted 28 of them in whole or in part, denying the Trump administration outright only four times – much more generous than the court has been to other litigants. Bypassing lower courts, the Trump administration was able to solicit the supreme court for a green light for border wall funding and construction, for a ban of transgender troops in the military, for a ban of immigrants from Muslim majority countries, and for many, many executions during the administration’s 11th-hour killing spree in the latter half of 2020.

Ultimately, many of the policies that the court used the shadow docket to keep in place were never declared legal: they were simply rescinded when Trump left office. It was only because of the supreme court’s unusual intervention via the shadow docket that they were able to be enacted at all. If this seems like the court merely deferring to the prerogatives of the executive, rest assured that it isn’t: the court’s shadow docket has not been similarly generous towards Biden administration claims.

In this way, the shadow docket’s expanded use raises troubling questions – both for transparency, and for the separation of powers. What does it mean for popular sovereignty when the unelected supreme court can overturn the actions of elected officials seemingly at whim, without reading briefs, without hearing arguments and without having to assign judges’ names to their opinions or make any effort to explain their reasoning? The supreme court’s cryptic, late-night shadow docket decrees risk overextending the court’s already tremendous power, and its lack of transparency shrinks the already slim opportunities for oversight. There is considerable potential for abuse, and there are also simple logistical problems: without a real accounting of the justices’ reasoning, lower courts are left to guess why a certain decision was handed down, rendering them less equipped to interpret precedent.

And all of this is before we get to the shadow docket’s real problem: it further undermines the already severely damaged public trust in the court. The justices and the legal elites who flatter them like to say that the supreme court is composed of neutral, apolitical arbiters of the law. But this mythology conflicts with a growing public perception of the federal judiciary as protectors of Republican priorities. This impression is not helped by the reality that the court’s decisions on the shadow docket seem much less consistent in their legal reasoning than they do in their politics. In light of this, it is tempting to conclude that the court has transformed the once-anodyne tool of the shadow docket into a way to achieve the preferred outcomes of the conservative majority without having to justify its own actions to the public.

Steve Vladeck, a University of Texas law professor and one of the shadow docket’s most prominent critics, summarized the danger in an article in the Harvard Law Review. The shadow docket, he writes, “risks the perception that the rule is not one for the federal government in general, but for the federal government at particular moments in time – perhaps depending on the identity (or political affiliation) of the sitting president, or perhaps, more granularly, depending on the political or ideological valence of the particular government policy at issue”.

With respect to Professor Vladeck, maybe the shadow docket does not risk such a perception – maybe it reaffirms it.

Moira Donegan is a Guardian US columnist