WASHINGTON—Much is being made of several conservative justices appointed by Trump expressing concerns Monday about how the outrageous Texas abortion law is written to avoid federal judicial review.
While those concerns are well-founded, those justices should be immediately concerned for the health and lives of women in Texas endangered each day that the law remains in effect. People die when they are denied access to legal and safe abortions still constitutionally guaranteed to them as long as Roe v. Wade remains the law of the land. It is incumbent upon the justices then that they immediately freeze the unconstitutional Texas law even before they litigate anything else.
The Supreme Court majority failed to do that in September when they essentially said, in response to a challenge to the law, that because they had never seen anything like it, they would not halt it—the Constitution and the lives of women be damned.
The question they took up Monday was whether the federal government could sue Texas for violating the civil rights of women seeking an abortion, though the Lone Star State’s right-wing GOP-dominated government wrote the measure deliberately to take the state out of enforcing it—and thus out of federal court review.
Texas, as might be expected, said “no.” Biden administration Solicitor General Elizabeth Prelogar, the government’s top lawyer in literally her first day on the job, said “yes.” And the only two unions, the Service Employees and AFSCME, that joined a friend-of-the-court brief on the hurriedly scheduled case, agreed with her, for their own civil rights reasons.
SEIU, AFSCME, the Leadership Conference on Civil Rights, which wrote that brief and nine other groups raised the specter that if Texas could halt one civil right by turning enforcement over to “private citizens” and paying them bounties to stop that right, there is nothing to prevent other red states from doing the same thing to other civil rights. That includes workers’ rights.
Prelogar opened her argument by bluntly stating “Texas designed SB8 to thwart the supremacy of federal law in open defiance of our constitutional structure. States are free to ask this court to reconsider its constitutional precedents, but they are not free to place themselves above this court, nullify the court’s decisions in their borders, and block the judicial review necessary to vindicate federal rights.
“As this case comes to the court, there are three principal questions: First, is Texas responsible for this law? Second, can the United States sue to hold Texas to account? And third, is injunctive relief”—a federal court order halting Texas in its tracks—”available? And the answer is ‘yes,’ down the line.”
“The key issue is that denial of their constitutional right to a legal and safe abortion is a direct and immediate threat to the health and lives of the women of Texas,” said Amy Hagstrom Miller, the CEO and president of Whole Women’s Health on national television Tuesday morning.
In the other case involving the Texas law, heard first in the back-to-back sequence, Marc Hearron, attorney for a women’s health clinic, outlined all the obstacles SB8 throws in the way of a woman seeking an abortion in Texas.
“The chilling effect, in this case, is created by the combination of delegation of enforcement of a public policy to the general public at large…and all of the special rules created in order to turn the Texas state courts into a tool that can be used to nullify the exercise” of a woman’s right to choose, Hearron told Justice Amy Coney Barrett, who seemed to be worried about the constitutional implications.
“And regardless of the outcome, it is the threat of filing an unlimited number of cases in counties all across the state” where a decision in one county court has no impact elsewhere “and where the state has even made it so more difficult to get an attorney by making attorneys liable” for the winners’—vigilantes’—attorneys’ fees, Hearron told Justice Sonia Sotomayor.
The Texas law, pushed by right-wing GOP Gov. Greg Abbott, the right-to-life movement, and white so-called evangelical Christians, basically outlaws abortion after five weeks of pregnancy.
That flies directly in the face of federal standards, set down in the Supreme Court’s famous Roe v. Wade ruling almost 50 years ago, and elaborated on in a 1992 case from Pennsylvania, Planned Parenthood v. Casey. Justices from both sides of the political spectrum pointed out—and so did Prelogar—that had the state itself enforced SB8, federal courts would have immediately tossed it as unconstitutional.
Instead, Texas turned over enforcement to private citizens, saying they could file civil suits against anyone who aided and abetted an abortion after five weeks, in any one of the state’s 254 counties, not just the one where the abortion was sought. And they’d get $10,000 bounties each if they won.
Not only that, but SB8 said such vigilantes could sue anyone—from a doctor to a lawyer to a relative—aiding a woman seeking an abortion. And the law specifically said a victory for those who aided her quest would not stop other suits, involving the same or different abortions, elsewhere.
But the second peril, including for workers, was ‘If the justices let Texas nullify federal enforcement of one civil right, where would it stop?’ Trump-named Justice Brett Kavanaugh, other justices, and the Leadership Conference-SEIU-AFSCME friend of the court brief raised that question.
“A decision that would enable Texas to continue frustrating federal court review of a blatantly unconstitutional statute—simply by outsourcing enforcement of that statute to private parties—is not only contrary to the language, meaning, and core purpose of” a key civil rights law passed in 1871, “but would also provide a straightforward roadmap for other states and local governments to insulate patently unconstitutional laws from pre-enforcement challenge in the federal courts,” the unions and LCCR said.
“Such a stratagem would place civil rights” of their clients and members “at grave risk.”
The two unions weren’t the only ones worried by the implications. So were several justices.
“Can I ask you about the implications of your position for other constitutional rights?” Justice Kavanaugh told Texas Solicitor General Judd Stone. The friend-of-the-court brief “of the Firearms Policy Coalition says this will easily become the model for suppression of other constitutional rights with Second Amendment rights being the most likely targets,” Kavanaugh elaborated.
“And it could be free speech rights. It could be free exercise of religion rights. It could be Second Amendment rights if this position is accepted here. The theory of” the pro-gun group’s “brief is that it can be easily replicated in other states that disfavor other constitutional rights. Your response?”
Stone parried. “In several of those circumstances individuals who are concerned that a lack of immediate federal court access would…suppress their ability to exercise those rights have turned to Congress and succeeded,” he said. He cited an anti-gun control bill lawmakers passed.
“Well, for some of those examples, I think it would be quite difficult to get legislation through Congress,” Kavanaugh replied, deadpan.
Justice Elena Kagan hit the same point, from another direction. There’s “a basic principle of how our government is supposed to work and how people can seek review of unconstitutional state laws,” she told Stone.
“And the fact that after, all these many years, some geniuses came up with a way to evade…that” pro-choice “decision, as well as the command that the even broader principle that states are not to nullify federal constitutional rights and to say, ‘Oh, we’ve never seen this before, so we can’t do anything about it,’ I guess I just don’t understand the argument.”
Texan Solicitor General Stone, again speaking for his state’s right-wingers, again tried to parry the justice’s concerns. But what he cited, is—in practice—an outright lie since the law took effect in May.
“There is a separate provision of” SB8 “that specifically says nothing…basically prohibits individuals from asserting their constitutional rights” to choice on abortion, Stone claimed. He conveniently did not tell the justices abortions have virtually halted in Texas, with women in need fleeing to New Mexico, Louisiana, Oklahoma, and even as far as Southern Illinois for help.
Also left unsaid: Other GOP-dominated “red” states, notably Florida, have copycat laws waiting in the wings.
“To the extent the Texas legislature has either imperfectly or in an incomplete way recorded as a matter of state law” the Supreme Court’s 1992 Casey abortion ruling, “individuals may still erect that right fully and completely. Nothing in this law even pretends that Texas courts could evade that because it can’t,” Stone claimed, ignoring the facts on the ground in Texas.
The justices could take until next year to hand down a ruling, along with deciding a direct challenge from deep-red Mississippi, demanding the court completely toss out abortion rights after 15 weeks. That case will be heard Dec. 1.
That case could well allow the conservative-dominated Supreme Court to toss Roe v. Wade altogether. Nothing that justices said Monday regarding alleged concern about problems with the Texas law should be taken to mean that landmark ruling is out of danger.
What will be required is nothing less than a powerful united movement to maintain abortion rights and demand solid healthcare across the board for women and everyone else, especially as we approach the 2022 midterm elections.
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