Abortion rights activists outside the US Supreme Court, Washington, D.C., May 21, 2019 (Kevin Lamarque/Reuters)
UPDATE, SEPT 10:
Fulfilling a pledge by Attorney General Merrick Garland, the Justice Department sues Texas officials over the state’s almost-complete ban on abortions.
In a filing on Tuesday, the Department argued that the law is unconstitutional as an effective prohibition on abortion, despite the bill circumventing the issue by deputizing private parties to enforce restrictions.
Garland said in a news conference:
This kind of scheme to nullify the Constitution of the United States is one that all Americans — whatever their politics or party — should fear. If it prevails, it may become a model for action in other areas, by other states, and with respect to other constitutional rights and judicial precedents.
The Department is seeking an injunction to prohibit enforcement of the Texas law.
It is settled constitutional law that “a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability”. But Texas has done just that.
UPDATE, SEPT 7:
US Attorney General Merrick Garland has announced that the Justice Department will ensure women’s access to abortion in Texas.
Garland said the Department will not “protect those seeking to obtain or provide reproductive health services”:
The Department will provide support from federal law enforcement when an abortion clinic or reproductive health center is under attack….
We will not tolerate violence against those seeking to obtain or provide reproductive health services, physical obstruction or property damage in violation of the FACE [Freedom of Access to Clinic Entrances] Act.”
He added that officials are exploring all options to challenge the ban.
UPDATE, SEPT 3:
Speaker Nancy Pelosi says the House will vote within weeks to pass a bill ensuring a woman’s right to an abortion and the right of medical providers to carry out the process.
“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 said.
Chu, who represents California’s 27th District, responded:
Unlike the Supreme Court, we were elected. 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! https://t.co/PQLOO0G2lJ
— Judy Chu (@RepJudyChu) September 2, 2021
Democrats, led by progressives including Rep. Alexandria Ocasio-Cortez of New York are urging President Joe Biden to revoke other restrictions on access to abortions. They include the Hyde Amendment, which prohibits federal funding for most procedures.
In recent years, Republican-led State legislations imposed more than 500 restrictions.
If passed, the House bill will face the challenge of overcoming a Republican filibuster in the 50-50 Senate.
The filibuster can only be ended with 60 votes in the upper chamber.
In a statement on Thursday morning, President Joe Biden said the Texas law is an “unprecedented assault on a woman’s constitutional rights.”
He noted the law’s empowerment of private citizens to bring civil suits against anyone who assists a woman seeking an abortion is a “bizarre scheme” with the potential to unleash “unconstitutional chaos”: “Complete strangers will now be empowered to inject themselves in the most private and personal health decisions faced by women.”
Biden said he is mandating agencies to “see what steps the Federal Government can take to ensure that women in Texas have access to safe and legal abortions”.
We will use every lever of our Administration to defend the right to safe and legal abortion—and to strengthen that right. https://t.co/5WQAM7DNag
— Vice President Kamala Harris (@VP) September 2, 2021
UPDATE, 0625 GMT:
Dr. Jessica Rubino of Austin Women’s Health Center responded to the Texas law and the Supreme Court decision:
If this was a criminal ban, we’d know what this is and what we can and cannot do. 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. They’ve been asking, “What about our families?”
Rubino said the Center was struggling with guidance to a woman who is more than six weeks pregnant: for example, should the advice be to go out of state and not spend money on an ultrasound?
Clinics urgently saw patients on Tuesday before the midnight deadline. At Whole Woman’s Health un Fort Worth, the last of 117 appointment was completed at 11:56 p.m.
UPDATE, SEPT 2:
In a 5-4 decision late Wednesday, the Supreme Court refused to block Texas’s ban on abortions after six weeks of pregnancy.
The majority — including three Trump-appointed justices, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barratt — issued a single paragraph unsigned opinion. It claimed abortion providers who challenged the legislation in an emergency application to the court did not establish their case amid“complex and novel” procedural questions.
The five justices said they were not ruling on the constitutionality of the law, which erodes the 1973 Court decision in Roe v. Wade that legalized abortion, and are not limiting “procedurally proper challenges” to it.
This autumn the justices will consider a Mississippi law which would effectively overturn Roe v. Wade.
Chief Justice John Roberts joined the Court’s three liberal members in dissent. Roberts wrote:
The statutory scheme before the court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime.
Each of the other three justices wrote dissents. Sonia Sotomayor explained:
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.
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.
Elena Kagan wrote that the majority “barely bothers to explain its conclusion — that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail”.
UPDATE, 1045 GMT:
Erica Sackin of Planned Parenthood has explained the “vigilante” threat from Texas’s legislation imposing a ban on abortions after six weeks of pregnancy.
Sackin spoke of the law’s authorization for a plaintiff, without any connection to a case, to sue doctors, clinice staff, and others and win up to $10,000 with legal costs covered.
We gave never seen a law like this one before. This “sue thy neighbor” provision means that it’s not just going to be impossible for people to get an abortion but it really creates, almost, this vigilante, where they can go after anyone they suspect of having helped someone to get an abortion.
She continued about the effects:
Right now patients are scared, parents are worried, patients can’t make the most personal decision about if and when they want to become a parent.
If they even are going to be able to get an abortion at all it’s going to mean driving hundreds of miles out of state, if they an afford it, and that includes not just the drive, that includes accommodation, funding an appointment, taking time off of work, finding childcare.
Paxton Smith, whose valedictory speech at her Dallas high school in June implicitly criticized the legislation, spoke of the “heart-wrenching” situation after the Supreme Court refused to block the abortion restrictions.
If we do face ourselves with an unplanned pregnancy then that life-changing decision…is no longer up to us.
I think a lot of times some of the most important voices in the issue are not listened to. It deeply affects every person differently and very personally…and I think that’s something that needed to be talked about.
President Joe Biden said in a statement:
This extreme Texas law blatantly violates the constitutional right established under Roe v. Wade and upheld as a precedent for nearly half a century.
Outrageously, it deputizes private citizens to bring lawsuits against anyone who they believed has helped another person get an abortion, which might even include family members, health care workers, front desk staff at a health clinic, or strangers with no connection to the individual.
ORIGINAL ENTRY, SEPT 1: Texas’s near-ban on abortions takes effect after the Supreme Court declined to take action early Wednesday.
The Texas law, Senate Bill 8, bars almost all abortions, including in cases of pregnancies from incest or rape. Doctors cannot act if a fetal heartbeat, which usually starts at about six weeks, is detected.
The Supreme Court, beginning with Roe v. Wade in 1973, has established a Constitutional right to abortion. States cannot ban the procedure before fetal viability of about 22 to 24 weeks into the pregnancy.
To get around the precedents, Texas legislators bar state officials from enforcing the ban — thus preventing them from being named as defendants in a lawsuit declaring the law unconstitutional. Instead, Texas deputizes private individuals to sue anyone who performs or “aids and abets” an abortion.
Doctors, clinic staff, counselors, people who help pay for an abortion, and a taxi driver who takes a patient to the clinic may all be sued. A plaintiff does not have to have any connection to the specific case and can win $10,000 with their legal fees recovered. Defendants are not entitled to legal fees.
An emergency application from abortion providers is still pending for a Supreme Court ruling. The providers note that the law will “immediately and catastrophically reduce abortion access in Texas, barring care for at least 85% of Texas abortion patients (those who are six weeks pregnant or greater) and likely forcing many abortion clinics ultimately to close”.
In July, Mississippi’s Attorney General called on the Supreme Court to overturn Roe v. Wade, after lower courts blocked the state’s restrictions on abortion. The case is expected to be heard this autumn.