Mississippi had banned most abortions after 15 weeks of gestation. Its law was obviously unconstitutional, at least insofar as the court has interpreted the Constitution since 1973. But the state asked the court to ignore stare decisis based on its purported concern for “the health of the maternal patient, the dignity of the unborn child, and the integrity of the medical profession.”
At least four justices thought this argument was worth considering, a portentous sign for reproductive freedom. At minimum, the court’s ultraconservatives appeared likely to allow abortion restrictions before Roe’s fetal-viability threshold, about 24 weeks.
Before the court got to Dobbs, however, Texas offered up Roe’s head on a silver platter. In an unsigned one-paragraph ruling issued around midnight on Sept. 2, Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett accepted.
The majority’s opinion sidestepped its own “serious questions” about SB 8’s constitutionality and lazily avoided the real-world implications of letting the law take effect, framing the decision as narrow and technical. It was neither. Faced with a frontal assault on a long-established precedent, the ultraconservatives hid behind a technicality transparently designed to flout the Constitution and created a roadmap for states to circumvent civil rights protections.
About 54,000 women received abortions in Texas in 2020, nearly three-quarters of whom were women of color, according to the state’s department of health. In a court filing, abortion providers said that at least 85 percent of Texas abortions took place after six weeks, the point at which fetal cardiac activity is usually detected but before many women know they’re pregnant.
That’s when SB 8 bans abortion.
Other states passed so-called heartbeat bills, but federal judges laughed them out of court. So Texas devised a sort of Rube Goldberg enforcement mechanism. Instead of having police and health inspectors enforce its unconstitutional law, it would de-facto deputize random zealots and busybodies to act as Uterus Cops, awarding them bounties to sue abortion providers, nonprofits, insurance companies and anyone else who helped a woman access an “illegal” procedure.
Because state officials weren’t involved, Texas argued, abortion providers had no one to sue in federal court, so a federal judge couldn’t strike down the law. And because women seeking abortions can’t be sued, they have no standing to sue, either.
The entirety of Texas’s case was a juvenile taunt: We found a loophole, nanny-nanny-boo-boo. And that was good enough.
“The Court’s order is stunning,” Justice Sonia Sotomayor wrote in a fiery dissent. “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.”
“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,” she continued. “… Today, the Court finally tells the Nation that it declined to act because, in short, [Texas’s] gambit worked.”
Since you’ll soon see Texas’ law replicated in every Republican state — Florida’s Senate is already working on it — its particulars are worth digging into. To call SB 8 extreme doesn’t do justice to the word “extreme.”
Let’s begin with the fact that it contains no exceptions for rape or incest. While a rapist can’t sue a provider for aborting the product of his assault, anyone else can — the rapist’s frat brother, for instance.
And while the law makes exceptions for “medical emergencies,” providers must detail the emergency in the patient’s medical records, which the providers must then turn over in discovery to anyone who filed lawsuits: jealous exes, abusive parents, internet stalkers, fundamentalist creeps, anti-abortion vigilantes. (Providers must likewise document a negative “heartbeat” test.) The Health Insurance Portability and Accountability Act doesn’t prevent the disclosure of records relevant to litigation.
There’s no penalty for frivolous, fake or vindictive claims. In fact, abortion opponents have every incentive to file lawsuits by the truckload. If they win, they collect “not less than $10,000 for each abortion that the defendant performed or induced [or] aided and abetted.” What’s more, judges must award “injunctive relief sufficient to prevent the defendant from violating” the law again — i.e., possibly closing a facility, even if abortion is only 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 provided or aided an illegal abortion, but judges are prohibited from ordering plaintiffs to pay defendants’ expenses even if their case gets tossed.
SB 8 is meticulously designed to be abusive. Whether or not abortion clinics adhere to the law, they’ll be buried by legal fees and subpoenas and compelled to betray confidential information to people who wish their patients ill. Women who seek abortions will expose their friends and relatives to financial liability. Abortion providers have already begun canceling procedures.
Those with means will travel to obtain abortions; clinics in Kansas, Colorado, Oklahoma and New Mexico have been inundated with calls from Texas. (It’s also worth noting that every state but one neighboring Texas has passed a “heartbeat law” of its own, and these four states together contain less than 20 clinics offering abortions.) Those without will either be forced to give birth in a state with one of the worst child-welfare rankings in the country or try to handle things themselves. (Right now, 90,000 grown-ups are ingesting horse dewormers to cure a viral infection because of something they saw on Facebook. What measures do you think desperate teenagers Googling for DIY abortion tips will attempt?)
The court’s ruling holds open the possibility of revisiting SB 8 once providers have targets to sue, and maybe that will happen. But the justices showed their hand. They weren’t hoodwinked by Texas’ cleverness. They believe women have no right to make their own reproductive choices. Everything else is window dressing.
Indeed, the decision brought into sharp relief the fact that support for abortion rights and opposition to expanding the Supreme Court are mutually exclusive. So far, however, President Biden and other Democratic leaders haven’t squared that circle.
Maybe they should follow the majority’s reasoning to its natural (and terrifying) conclusion. Under the justices’ logic, there’s nothing now stopping Texas or any other legislature from — as Justice Sotomayor put it — “outsourcing the enforcement of unconstitutional laws” in order to ban pharmacies from selling birth control, prohibit companies from advertising in newspapers that criticize politicians, or bar contractors from building mosques.
The ruling goes exactly — and only — as far as the justices’ political beliefs, 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 outlawed handguns by allowing strangers to sue anyone who ‘aids and abets’ their purchase, does anyone seriously believe the ultraconservative justices … would shrug and say, ‘Too bad, there’s absolutely nothing SCOTUS can do!’?”
In one paragraph, the court’s majority — secured by Donald Trump and Mitch McConnell, but the culmination of a generation-long conservative project to overtake the federal judiciary — left no doubt that it will be a political creature, functioning as an arm of a far-right movement driven by cultural grievances and dismissive of democratic norms.
Nine months ago, congressional Republicans tried to overturn a presidential election based on obvious lies that sparked a deadly riot. Republican legislatures have since turned those lies into widespread restrictions on voting rights, while also passing laws targeting the right to protest and demanding that schools whitewash racial history. Now women’s autonomy is on the chopping block.
The Supreme Court won’t serve as a bulwark against this rising authoritarian tide; if anything, it will encourage it.
This is the game now. Democrats need to start playing.
To be fair to Biden, selling his party’s moderates on court-packing will be a Sisyphean task. But that doesn’t mean it’s not a fight worth having. The court’s actions demand an acknowledgment that preserving institutional traditions matters less than protecting the rights the institution is trampling.
This is no time to meet extremism with timidity.
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