[“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.”]
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SCOTUS RULING ALLOWS TEXAS TO DEPUTIZE CITIZENS AS ANTI-ABORTION
POLICE
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Marjorie Cohn
September 3, 2021
Truthout
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_ “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.” _
, Heather Scheder
Donald Trump’s installation of three radical right-wing
“justices” on the Supreme Court is paying off for the forces
trying to overturn _Roe v. Wade_
[[link removed]]_. _On
September 1, in a 5-4 vote, the high court allowed the most
restrictive anti-abortion law in the country to go into effect, in
_Whole Woman’s Health v. Jackson_
[[link removed]]. SB 8
[[link removed]], known as the “Texas
Heartbeat Act,” bans all abortions after physicians detect, or
should have detected, a fetal heartbeat. That generally occurs at six
weeks of pregnancy, when most women don’t even know they’re
pregnant.
The split vote on the Court signals the likelihood that the
“justices” — who were so quick to allow Texas’s Machiavellian
law to take effect — will seize the opportunity next term to
overturn _Roe v. Wade _when it considers the constitutionality of a
Mississippi law
[[link removed]]
banning abortion after 15 weeks. That would open the floodgates to
similar legislation in other states preventing women from having
abortions.
About 85 percent to 90 percent
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of Texas women who have abortions are at least six weeks into their
pregnancy, which means the law will prohibit nearly all abortions in
the state. There is no exception for rape or incest. Women in Texas
will now have to travel to another state to secure an abortion or
resort to life-threatening back alley coat-hanger abortions.
The drafters of SB 8 established a novel scheme to prevent lawsuits
against state officials by privatizing enforcement and deputizing
private persons to sue people who provide abortions. The bill gives
any non-governmental person the right to sue abortion providers and
those who “aid and abet” them, financially or otherwise. The
defendants could include anyone — doctors, nurses, friends, spouses,
parents, domestic violence counselors, clergy members or Uber drivers.
Defendants must pay plaintiffs who win their lawsuits a $10,000 bounty
plus attorneys’ fees. In other words, Texas is bribing its residents
to sue people who help women get abortions.
President Joe Biden said
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the Court’s action in _Woman’s Whole Health _“unleashes
unconstitutional chaos and empowers self-anointed enforcers to have
devastating impacts.” He added, “Complete strangers will now be
empowered to inject themselves in the most private and personal health
decisions faced by women.” Biden is launching a
“whole-of-government” response, directing the White House Counsel,
Gender Policy Council, Health and Human Services and Justice
Department to determine what “legal tools we have to insulate women
and providers from the impact of Texas’ bizarre scheme of outsourced
enforcement to private parties.”
Abortion providers in Texas challenged SB 8 in federal court. A U.S.
district court judge scheduled a hearing about whether to block the
Texas law. But the Fifth Circuit Court of Appeals canceled the
hearing. The plaintiffs asked the Supreme Court to stop SB 8 from
taking effect, or in the alternative, to permit the district court
proceedings to continue.
Texas is bribing its residents to sue people who help women get
abortions.
In an unsigned one-paragraph order
[[link removed]], Clarence
Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney
Barrett left the Texas law in place with no analysis of the
constitutional issues at stake. They wrote, “[I]t is unclear whether
the named defendants in this lawsuit can or will seek to enforce the
Texas law against the applicants in a manner that might permit our
intervention.” The majority said they were not drawing “any
conclusion about the constitutionality of Texas’s law,” and their
order “in no way limits other procedurally proper challenges to the
Texas law, including in Texas state courts.” Meanwhile, the law will
prevent most women from seeking abortions in Texas.
John Roberts, Elena Kagan, Sonia Sotomayor and Stephen Breyer
dissented and filed four separate opinions. Roberts wrote, “We are
at this point asked to resolve these novel questions — at least
preliminarily — in the first instance, in the course of two days,
without the benefit of consideration by the District Court or Court of
Appeals.” The Court was asked to do this, he added, “without
ordinary merits briefing and without oral argument.” So, why rush to
allow implementation of a law that may well be unconstitutional?
Roberts emphasized that “the Court’s order is emphatic in making
clear that it cannot be understood as sustaining the constitutionality
of the law at issue.”
Breyer stated, “[A] woman has a federal constitutional right to
obtain an abortion during that first stage,” citing _Roe v. Wade_
and _Planned Parenthood v. Casey. _And, he wrote, “a State cannot
delegate … a veto power [over the right to obtain an abortion] which
the state itself is absolutely and totally prohibited from exercising
during the first trimester of pregnancy.”
Sotomayor declared, “The Court’s order is stunning. 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, “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.”
Kagan objected to a lack of full briefing and argument before “this
Court greenlights the operation of Texas’s patently unconstitutional
law banning most abortions.”
The Women’s Health Protection Act of 2021 (WHPA), which would codify
_Roe v. Wade_, is pending in the Senate
[[link removed]] and
the House
[[link removed]]. On
June 8, the WHPA was introduced
[[link removed]]
with 176 original co-sponsors in the House and 48 supporters in the
Senate, a record-high amount of support for a bill at introduction.
Speaker of the House Nancy Pelosi has pledged to bring the bill to the
House floor when Congress returns from summer recess.
The WHPA protects the right to access abortion without medically
unnecessary restrictions and bans on abortion. It creates a statutory
right for health care providers to provide abortion care, and a
corollary right for patients to receive care, without medically
unnecessary restrictions that single out abortion and impede access to
it.
A Hart Research poll found 61 percent of voters nationally supported
the WHPA
[[link removed]]
when it was introduced. “This poll sends a clear message to
Congress: the majority of voters want abortion protected under federal
law,” Nancy Northup, President and CEO of the Center for
Reproductive Rights, said
[[link removed]].
“We cannot wait any longer. If _Roe_ falls, many states will
immediately take action to make abortion a crime.”
_Old-school muckraking and authentic journalism are disappearing every
day — and Truthout simply can’t survive without your support.
[[link removed]] Will you help us keep this platform for
independent news alive by making a tax-deductible donation?
[[link removed]] _
_Donate Now [[link removed]]_
Copyright © Truthout. May not be reprinted without permission.
Reprinted with permission.
_Marjorie Cohn [[link removed]] is professor emerita at
Thomas Jefferson School of Law, former president of the National
Lawyers Guild, and a member of the bureau of the International
Association of Democratic Lawyers and the advisory board of Veterans
for Peace. Her books include Drones and Targeted Killing: Legal,
Moral, and Geopolitical Issues
[[link removed]]. _
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