Outside the Supreme Court on September 9th.
Photo: KENNY HOLSTON / KENNY HOLSTON / The New York Times
It is the image of abortion bounty hunters ordering terror in Texas’ abortion law, which has now been in place for two weeks thanks to the Supreme Court. The Red States have so many anti-abortion laws that it is hard to believe. But, the shocking possibility exists that totalitarian tattletales may spy on the uterus of anyone who suspects they are having an abortion and pay them back for their money after six weeks.
The law says all of this, but bounty hunters are not available right now as there is no one to terrorize. Texas’ abortion providers reluctantly follow the SB8 law. They do not use the interminable window of days that it allows to conduct proceedings. Michele Goodwin is a University of California Irvine law professor. It should be so frightening that it paralyzes the entire constitutional right.
University of Texas law professor Steve Vladeck says, “This is a contradiction in terms of public display and the intent of the law. The story isn’t about the bounty hunters. ”Instead, he argues, Texas has not only successfully banned almost all abortions, but has also set a tangled trap that makes it almost impossible to overturn the law in court.
Texas bans abortion for those with irregular periods, who don’t know if they’re pregnant, or minors who must navigate the Texas judicial systems to obtain an abortion without permission from their guardians. Joanna Grossman, a SMU law professor, said that they had stopped providing abortion services to minors in Texas. This is a state with one of the highest teenage birthrates in the country. You can’t get birth control without parental permission.
How is it possible to stop such a law, if any, with the approval from the Supreme Court?
There are many more challenges. The Department of Justice has been most well-known. They argued that Texas overstepped its rights in passing SB8. Federal interests will be hurt when states block citizens from exercising their constitutional rights and fighting for them in court. The same procedural issues were used to block the clinics’ attempts to stop the law from September 1st. Mary Ziegler, an abortion historian, teaches at Florida State Law. She claims Texas will respond by saying that none of the bounty hunter suits are pending and “this is a speculation violation.” With weak praise, Vladeck describes the DOJ’s lawsuit as “a noble attempt”. He adds that he believes the odds are high that it will at most partially work. It must be successful for providers to reopen. That is the problem. He claims that Texas law allows anyone to sue, but that if the federal government is only granted a declaratory judgment that is unconstitutional and an order against a few court employees, it will not suffice.
As with the Texas clinics and lawyers’ earlier lawsuit, the DOJ Challenge faces an increasingly hostile judiciary due to Trump officials as well as their ideological ancestors currently on the bench. Leah Litman, a law professor at the University of Michigan, stated that the law as it is properly understood by judges and judges who aren’t out to overturn Roe, “I think the DOJ has good arguments in its arsenal.” “Do I think this Supreme Court will rule for the DOJ? That would be less than 50%. This does not mean that the lawsuit is worthless. It is part of the plan to make judges show their hand. Let them do their job, even if they are partisan hackers.
Ziegler claims that the very existence of the lawsuit is remarkable because it is the first time anyone has ever heard of federal agencies sueing a state to restrict abortion. It is a statement about values. Goodwin says, “It reminds me of federal efforts to repeal Jim Crow-era laws, which were separate but equal. I believe the fight has begun now.
Texas abortion law advocates may also be able to attempt to break SB8. Houston Chronicle historian David Garrow suggested that abortion providers could deliberately violate the law and perform abortions after six weeks. This would allow the Supreme Court to place the ban on abortion on a solid footing. This civil disobedience approach is reminiscent of the 1960s reproductive rights activists who flouted Connecticut’s ban on contraceptives distribution in New Haven. As intended, the defendants’ appeal landed in the Supreme Court, where a landmark ruling on the right to privacy laid the foundation for Roe v. Calf put.
Garrow believes that the same strategy would be effective today. In his dissent, he referred to the formulation of Chief Justice John Roberts that “while the Court of Justice does not address the constitutionality of this law, it can of course do so immediately if this question is asked correctly.” Garrow wrote: “The prescription of the Chief Justice One thing is clear: If a Texas abortion provider intentionally violates SB8 and welcomes a civil civil lawsuit from a motivated Texan, that defendant could immediately file a federal lawsuit against the state judge assigned to handle the case against them “without the Supreme Court.” One possibility is that the law was procedurally too confusing when it was first challenged.
Grossman thinks this is possible: Grossman says that there could be a test case in which a provider consents to an abortion after the six-week period. Then, he or she will be sued. It’s dangerous. Ziegler states that “the potential damage under this law could be such that many abortion practitioners fail to meet the challenge.” Even if they did, it is unlikely that the courts will agree to allow the repeal of the law in this particular case. (This disagreement was not shared by Roberts’ Republican counterparts. Litman states that the risk is that the plaintiff could lose one of these cases and get an injunction to end it.
Grossman is optimistic about the future, given the current legal battles. Many of these are aimed at stopping anti-abortion activists from taking full advantage of the law. Grossman believes that the Texas Supreme Court could object SB8 for several reasons. This includes concerns that constitutional rights such as gun ownership could be nullified if the law is not written well. Grossman states that it is possible to argue that the Texas legislature exceeded its power by giving positions and rights to people who have not been hurt. “The strange thing about this law is that anyone can sue. This is contrary to the Texas constitution’s basic principles.
Grossman states that this won’t provide much comfort for Texas abortion patients. The US Supreme Court could soon replace SB8’s innovative abortion ban with a more simple one if it violates Mississippi’s 15-week ban on abortion. For half a century, the Supreme Court has banned states from banning abortions before they are viable, and if that goes out the window, the six-week Texas ban is fair game. “I don’t think there is a scenario where a majority of judges uphold the core right to abortion, given the composition of the court and what they do, ”says Grossman. “At this stage, we have an abortion map which looks similar to the political map.”
Ziegler contradicts: “This doesn’t feel like a dish that Roe wants to overrule immediately or is ready for the kind of setback that would bring. It reads more like a court that wants to avoid backlash and disguise the political reaction. ”Either way, the country will find out in the spring when the court announces its decision.
This could be a sign of hope, given the grim circumstances. After initially promising Texas obedience, the Florida governor has decided to withdraw a similar bounty hunter bill.
Vladeck believes only federal laws can restore Texas’ abortion law. He says that a properly calibrated law, even for this dish, would be difficult to remove. “That doesn’t mean they won’t try. As with many items on the progressive wishlist, the law doesn’t have a Filibus safe majority in the Senate. As stubborn as this policy may be, the lives of lifelong judges are more flexible.
The Supreme Court has been relied upon by politicians who support abortion rights to do what they have always been reluctant to do: spend political capital to ensure that abortions are possible. This could be changing. Litman says that it could depend on the length of the backlash. Litman says it could be fading.
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