Carole Levine September 5, 2021
I have spent the last few days sorting through a deluge of emails, Facebook posts and texts related to the Texas abortion law (SB 8) that took effect on September 1st. As a leader on the workings of federal judiciary (I chair the Courts Matter Illinois coalition), I am supposed to understand this and be able to explain just what our courts are doing and why. But in this particular case, I, like many other experts, am stymied.
The Texas legislature has crafted a law that bypasses the usual court processes for reviewing the legality of legislation. How? It is quite clever in that it outlaws abortion after six weeks but it does not empower any state officials to enforce these restrictions. Instead, it allows ordinary citizens to become “enforcers” and bounty hunters who can earn cash (a minimum of $10,000 plus attorney fees) which would be collected from those they successfully sue for “aiding and abetting” an abortion. And those who can be sued are literally anyone from the receptionist at a clinic, to the cab driver who takes a woman there, to the friend who discusses her options with her. Another aspect to this law is that when an individual “enforcer” successfully sues an abortion provider, the court must permanently shut their clinic down. And if the person being sued by the citizen vigilante should prevail in court, they get nothing. They cannot collect their attorney fees or even counter sue the person who brought charges against them. This one truly feels like a no-win situation for Texas women, Texas abortion providers and those who support women’s ability to make their own health care decisions.
What has made this reality even worse is the action, or perhaps, inaction of the U.S. Supreme Court. In an effort to stop this Texas ban from going into effect an emergency appeal was made to the Supreme Court. The Court has the option of deciding such cases, without a public hearing, based on the materials and information submitted by both sides. In a process that has become known as the Shadow Docket, they do not have to reveal anything other than their decision, and they do not have to even make a decision if they so choose. They received this case two days before the September 1 implementation date. When there was no action from the Court by midnight on August 31st, it was assumed that the Supreme Court was not going to act and allow the Texas laws to effectively kill Roe v Wade without having to publicly take a position. And that they would wait until fall when they would hear the Mississippi abortion case, Dobbs v. Jackson Women’s Health Organization and they could then, most likely, ignore precedent and formally overturn Roe v. Wade.
But surprise! A full day after the Texas law took effect, the Supreme Court issued its Shadow Docket order, ending abortion rights for women in Texas by upholding the Texas law in a 5 to 4 finding with Chief Justice Roberts joining the three liberal justices in opposition. The law in Texas, as unconstitutional as many feel it is, was already being implemented when the Supreme Court weighed in. Was this even necessary? Was this pouring salt in an open wound? If you are a woman in Texas (or a woman anywhere), you may want to answer with a resounding yes.
And if we take this a step further, it is about keeping women in their place, away from the polls and leadership in the legislature and other decision-making bodies. The recent rise in the numbers of women moving into political leadership, particularly women of color, much have sent chills through the white supremacists that dominate the Texas state legislature. But will these kinds of actions control this or will these legislators, perhaps, have made a grave mistake.
There is an eerie silence rather than celebration of this law from the right-wing media. As one reflects on this lack of celebratory exuberance over having achieved what has been a long-sought goal – the end of abortion – it seems that the reality of the consequences of this achievement are just beginning to emerge. David Frum, writing in The Atlantic notes the growing concern among Republicans about what may be a strong backlash to this law. Frum writes: “But it’s also possible that Texas Republicans have miscalculated. Instead of narrowly failing again and again, feeding the rage of their supporters against shadowy and far-away cultural enemies, abortion restricters have finally, actually, and radically got their way. They have all but outlawed abortion in the nation’s second-largest state, and voted to subject women to an intrusive and intimate regime of supervision and control not imposed on men. At last, a Republican legislative majority has enacted its declared beliefs in almost their fullest form—and won permission from the courts to impose its will on the women of its state. […] History never repeats itself. But there’s already compelling evidence that Texas Republicans understand how detested their new abortion law will soon be—not only in New York City and Los Angeles, but also in Houston, Dallas, San Antonio, Austin, and Fort Worth. They took the precaution of preceding the nation’s most restrictive abortion law with one of the nation’s most suppressive voting laws. It’s as if they could foresee what Texas would do to them if all qualified Texans could vote. But the Texas voting law only impedes voting; it does not prevent it. The 2020 election showed that voter suppression can only do so much to protect a sufficiently unpopular incumbent.” No wonder the media are keeping these issues low-key.
This may be the hope for those who have spent more than the last 50 years advocating to ensure that women are able to make their own health care choices, including abortion. And that women should only have to consult with their doctors, and possibly their families, but not their legislators on their personal health care decisions. When women and the men who support them get really angry, they mobilize and organize. And as David Frum noted, the GOP may now be concerned with what they have wrought. He said: “The moral of the story would seem to be that Republicans do best when the electorate is satisfied and quiet; they face disaster when the electorate is mobilized and angry. Texas Republicans have just bet their political future in a rapidly diversifying and urbanizing state on a gambit: cultural reaction plus voter suppression.”
But what remains of our Supreme Court process in all of this? They seemed to have done what many of us expected when, almost exactly a year ago, the seat of Ruth Bader Ginzburg was quickly filled with her ideological opposite – Amy Coney Barrett. But they chose to do it in a way that left them, and the public, in the dark. They were handed the opportunity to allow Texas and Texas lawmakers to “take the hit” for trying to overturn Roe v. Wade (at least in Texas) by a most convoluted and seemingly unconstitutional means according to constitutional law experts. Their reasoning for this was thin and as convoluted as the Texas law itself, stating that they based their decision on “complex and novel antecedent procedural questions” which to many of us, including those constitutional experts, means nothing and flies in the face of 50 years of precedent. Writing for the dissent, Justice Sonya Sotomayor stated, “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 the rule of law.” This could not, would not, have happened without the addition of Amy Coney Barrett as the people were voting for the next President of this nation. The women of this country, particularly women of color and those of least means who will be most impacted by this law should take note.
With the Supreme Court, allowing the Texas law to move forward, other states are stepping up to “learn” just what is involved in this type of anti-abortion legislation. A few have pledged to follow suit. Most of these are predominantly state legislatures led by older, white males who fear that as their states become more diverse their days in power are numbered. And they, like their colleagues in Texas (and perhaps some of our Supreme Court and federal justices) carry a strong anti-feminist bias along with their not so subtle racist attitudes. Laws like this one from Texas have the potential of threatening our democracy. As Dahlia Lithwick rightfully concluded, writing for Slate, “This isn’t about guns or speech or money or war. It’s about women, their lives and their bodies and their autonomy. That’s what allows you to do shoddy work, with careless disregard, because who’s going to stop you? You only do the thing in the dead of night, without care or effort, because you believe women are so used to being gaslit that you expect them to just tolerate it. You only do the thing in the dead of night without care or effort because you genuinely believe that they’re only women, and they deserve what they get.”
Well, perhaps this time, the Court may have gotten it wrong, and women are not going to tolerate this. Just watch us…