A friend who works in a government health agency sent me the following thoughts about the Texas abortion ban. The bill does not permit abortions after six weeks of pregnancy, which amounts to a ban since very few women know they are pregnant at that time. Citizens are offered a bounty of $10,000 for identifying any woman who obtained an abortion or who helped her get an abortion. The author requested anonymity.

She writes:

You have probably already read a great deal about the SCOTUS decision upholding (for now) the Texas ban on abortions after six weeks of pregnancy. Below are a few notable excerpts (articles by Lithwick, Tribe, and some others are worth reading in their entirety) and, as usual, some comments.

Note that “Jane Roe,” the plaintiff in the 1973 Roe v Wade SCOTUS decision, was a Texas resident who protested the unconstitutional abortion laws in her state.

Note also Michelle Goldberg’s useful framing of the crowdsourcing of anti-abortion enforcement as yet another illustration of the Republican embrace of vigilantism. (e.g.: Jan 6 insurrection, the call for military insubordination in defiance of civilian control, celebration of Kyle Rittenhouse in WI, praise for the Texas mob that attempted to force Biden’s campaign bus off the road, violence at anti-vaccine protests, Trump’s frequent promotion of assault.)

One of my questions today has still not been answered:

Are suits possible against individuals in other states who in any way help Texas women obtain an abortion out of state, i.e., if someone outside of Texas contributes money to an organization that helps Texas women leave the state to have an abortion, can the donor be sued? By anyone?

Dahlia LIthwick asserted on Rachel Maddow’s show tonight that the answer is not clear, and that that lack of clarity and the consequent chilling, self-censoring effect it has are deliberate. I’m sure clarity will be quickly forthcoming.

Another huge question is whether there will be sufficient political agitation (mostly among women) to make reproductive rights an issue with impact in the 2022 and 2024 elections. In theory, every legislator will now have to publicly take a position, and some are already lining up on either side. Dems see it as a winning issue – finally some serious motivation for our base and greater peril for Repubs.

A few points of clarification re misleading media reports:

– The Texas law is called a “heartbeat” bill. But there is no real “heartbeat” at 6 weeks because there is no real heart. At that point, the embryo is less than ½” long and has a slight pulse of electrical activity and a tiny tube that will eventually become a heart. After all, every living cell uses electric energy, including plants. So do cell phones. The term “heartbeat” bill is another form of emotionally manipulative, right wing branding which all journalists seem to be buying into.

– SCOTUS did not “give” women the right to abortion. The Roe v Wade decision agreed, as Jane Roe’s lawyers argued, that women have a Constitutional right to abortion based on the Due Process Clause of the Fourteenth Amendment, which provides a “right to privacy.”

Here is what the Roe v Wade decision actually held. Note the differing terms and stipulations for each trimester:

State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother’s behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman’s health and the potentiality of human life, each of which interests grows and reaches a ‘compelling’ point at various stages of the woman’s approach to term. Pp. 147-164.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician. Pp. 163-164.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. Pp. 163-164.

(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Pp. 163-164; 164—165.

– An embryo is not an “unborn child.” An embryo is not even a fetus until week nine, and not viable outside the womb until 24-28 weeks. The Texas, Mississippi, and other laws outlawing abortion before “viability” are clearly unconstitutional.

Sen. Lindsey Graham’s “Pain Capable Unborn Child Protection Act,” introduced in 2017, 2019, and again in Jan 2021 with the co-sponsorship of 42 Republican Senators, duplicitously claims viability (and capacity for pain) at 20 weeks, counting from the date of conception/fertilization, rather than the standard obstetric calculation, which is from the first day of the woman’s last period – that is, two weeks prior to conception and easier to determine. (Muddying the water about the time of “viability” is another deceitful tactic designed to push a ban back at least to 20 weeks.) In either case, according to the Executive VP of the American Congress of Obstetricians and Gynecologists:

“…in no way, shape or form is a 20-week fetus viable. There is no evidence anywhere of a 20-week fetus surviving, even with intensive medical care.”

Further, according to the American College of Obstetricians and Gynecologists:

“the neural circuitry necessary to distinguish touch from painful touch does not, in fact, develop until late in the third trimester.”

– Why are we only discussing the responsibility of women and penalizing those who help them? If a fetus is a child, isn’t the father a parent, guilty of child neglect if he walks away from a pregnant partner and guilty of aiding an abortion if he knows she will seek one? And why are women expected to fight for their human rights on their own? Where is the outrage of regular men, other than the liberal TV pundits and civil rights lawyers?

As Dahlia Lithwick, points out,

“…It’s almost impossible ..not (to)..declare that the court opted to end virtually all abortion rights in Texas, in the full knowledge that they were blessing an unconstitutional and brutal piece of lawless vigilantism, because it’s only about women…..

…..a court that comes to you in the dark of night, without logic or reason, whispering soothing words about how “this order is not based on any conclusion about the constitutionality of Texas’s law” as it upends the constitutionality of Texas law? That is the stuff of ancient gaslighting, reserved for those moments in which Power is explaining to Women that they are just being hysterical, and to kindly lie back and enjoy it…..” 

Re suggested next steps and remedies:

– Presidential “whole government” study commissions are clearly not going to meet the urgent, desperate need for action.

– Likewise, voting rights reinstatement (in order to elect new judges and leaders who will appoint different judges) and court reform (expanding the Supreme Court and other changes) are supremely (pun intended) worthy goals, but will take years or decades to achieve. Further, Biden’s Presidential Commission on the Supreme Court is not chargedwith actually making recommendations, and Biden has not expressed support for court expansion.

– Codifying national abortion rights through Congresswoman Judy Chu’s “Women’s Health Protection Act” would face highly likely defeat in the Senate (Dem Senators Manchin and Casey are anti-choice) and, if it survived that, a challenge and likely defeat by SCOTUS, which, after all, couldn’t even wait to hear normal public arguments in the Mississippi anti-abortion case (Dobbs v. Jackson Women’s Health Organization), which comes before the court this fall and specifically requests the overturn of Roe.

I know there are many pro choice orgs desperate for funds at this moment, but the Center for Reproductive Rights (4-star rating) will argue the Dobbs case at SCOTUS and is a very focused and potentially impactful place to put some money:

https://reproductiverights.org/

https://reproductiverights.org/texas-abortion-ban-supreme-court-ruling-sb8/  (background and highlights from dissents.)

– 19 states have already banned abortion via telehealth using pills (despite Covid), and many are rushing to ban sending abortion pills by mail. Keep in mind that anti-abortion people, including Justice Brett Kavanaugh, consider some types of birth control to be “abortion-inducing.” As Laurence Tribe, discussing this “grotesque” Texas law, statedtoday in The Guardian, there will be many other downstream consequences:

The prospect of hefty bounties will breed a system of profit-seeking, Soviet-style informing on friends and neighbors. These vigilantes will sue medical distributors of IUDs and morning-after pills, as well as insurance companies. These companies, in turn, will stop offering reproductive healthcare in Texas…….. if a young woman asks for money for a bus ticket, or a ride to the airport, friends and parents fearful of liability might vigorously interrogate her about her intentions. This nightmarish state of affairs burdens yet another fundamental constitutional privilege: the right to interstate travel….

– Neighboring states are not going to offer safe haven. As of June 2021, 12 states already have anti-abortion bans ready to be “triggered” with the fall of Roe, and 15 have early gestational age abortion bans ready to go. Per the Guttmacher Institute, abortion would almost immediately be illegal or severely restricted in 22 states. At least half a dozen states (e.g., FL, AR, MS) are now considering draconian laws modeled on that of Texas. (The idea is not new: In 2014, a Pennsylvania woman was imprisoned for buying her daughter abortion drugs.)

https://www.washingtonpost.com/politics/2021/09/01/texas-abortion-law-faq/  (Note the few purple states.)

In any case, as Michelle Goldberg and others have pointed out, the goal was never just overturning Roe. Despite the professed commitment to state determination of abortion laws, the right will never be satisfied with a patchwork of state laws. Their goal has always been a total, national abortion ban.

“Chief Justice John Roberts, Justice Stephen Breyer, Justice Sonia Sotomayor, and Justice Elena Kagan. Each wrote their own dissents calling for the law to be blocked.”  

Four Justices dissented from the SCOTUS ruling re the Texas law:

In case you missed the strong dissent by Justice Sonia Sotomayor to the SCOTUS ruling:

“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.”

More from Sotomayor:

  • “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.”
  • “Taken together, the Act is a breathtaking act of defiance—of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas.”
  • “Today, the Court finally tells the Nation that it declined to act because, in short, the State’s gambit worked. … It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.”