Roe Roe Roe Your Rights
In college, I took a class that focused on seminal U.S. Supreme Court cases; I loved the class. We read and discussed several cases, and for the first time in my young adult life, I realized the outsize influence of the Supreme Court on our lives here in the United States.
Other people understand that influence all too well. In an interview with Michael Barbaro on The Daily, Marjorie Dannenfelser, the president of the Susan B. Anthony list, perhaps the most powerful pro-life group in the country and one that works tirelessly to elect anti-abortion politicians, explained her thoughts about Trump:
Michael, I was deeply opposed to the candidacy of this president. … So I did get dragged kicking and screaming to the candidacy….I would have been shocked to hear that this president would operate as the most pro-life president in history, and that he would be the one to be naming a self-described pro-life Supreme Court justice — three — that could turn the tide of events on abortion law after four decades since Roe v. Wade…
The Supreme Court piece is the most important piece, she added later in the interview.
In 1973, the U.S. Supreme Court ruled on Roe v. Wade, a case that originated in Texas, and made abortion legal without restriction until viability (around 23-26 weeks) in all 50 states. On September 1, 2021, the Texas Heartbeat Law, Senate Bill 8, or S.B. 8, went into effect in Texas, banning abortion beyond six weeks. That evening, just before midnight, in a 5-4 vote (with Chief Justice Roberts aligning with the more liberal justices), the Supreme Court decided to allow the law to remain in effect. Thus, on September 1, clinics in Texas began turning away those seeking an abortion who were beyond the six-week cut-off. Desperate women and girls—those with the means to do so—flocked to and overran clinics in nearby states.
This Monday, November 1, 2021, the U.S. Supreme Court heard three hours of arguments about S.B. 8—one from Solicitor General of the United States Elizabeth Prelogar, and the other from Marc Hearron, the lawyer representing Whole Woman’s Health, et al. What did the U.S. Supreme Court Justices think of their arguments? How did they respond, and what will it mean? Will abortion after six weeks remain illegal in Texas?
The Texas law was unique in that instead of having the law enforced by a state official—one that could be sued by an individual or organization or clinic to challenge the law—S.B. 8 deputized ordinary citizens to bring lawsuits against anyone “aiding and abetting” an abortion—the doctor, the nurse, the intake receptionist at the clinic, the Uber driver who transported the woman to that clinic. The law was intentionally authored this way to “avoid judicial review.”
Charlie Savage from The New York Times summarized the November 1st arguments succinctly: “The United States solicitor general and a lawyer for Texas abortion providers urged the Supreme Court on Monday to block enforcement of the state’s anti-abortion law, while a top lawyer for Texas told the justices they had no power to do so.” Was that true—could the Court do nothing about it? Or would they simply choose to do nothing about it?
Solicitor Prelogar, arguing on behalf of the Justice Department, stated her argument:
Mr. Chief Justice, and may it please the Court: Texas designed S.B. 8 to thwart the supremacy of federal law in open defiance of our constitutional structure. States are free to ask this Court to reconsider its constitutional precedents, but they are not free to place themselves above this Court, nullify the Court's decisions in their borders, and block the judicial review necessary to vindicate federal rights.
As this case comes to the Court, there are three principal questions: First, is Texas responsible for this law? Second, can the United States sue to hold Texas to account? And, third, is the injunctive relief available?
And the answer is yes down the line.
The Court essentially answered, Um, no, it’s not.
Both the more liberal and conservative justices alike weren’t too keen on the federal government intervening; although the Solicitor General made some compelling arguments, the justices remained nonplussed. One problem with the Socicitor General’s argument, laid bare by Justice Gorsuch, was the lack of precedence:
JUSTICE GORSUCH: counsel, are you aware of any other example of such a -- such an injunction? [“Injunctive relief”, just to clarify, would mean halting the law in its tracks, especially when “irreparable harm will result if the relief is not granted.”]
GENERAL PRELOGAR: With that specific term, I -- I can't cite one to you. Again --
JUSTICE GORSUCH: Not in the --
GENERAL PRELOGAR: -- that's because this –
JUSTICE GORSUCH: -- history of the United States, you can't -- you can't identify one for us, right?
GENERAL PRELOGAR: In the history of the United States, no state has done what Texas has done here.
Stephen Miller, a former senior advisor to Trump and a member of the board of directors at America First Legal, sees the law as an opportunity for Texas to assert itself democratically. In a Fox News article, he defended the law by claiming that it was written to be fully congruent with federal law, state law, and Roe v. Wade.” People, he explained, are able to pass laws “against sex trafficking, sexual abuse, elder abuse, against every other social ill imaginable….And yet for about half a century now, there’s been no ability by citizens in any state to work through legislatures to ensure some measure of protection for our youngest and most vulnerable citizens."
So young, in fact, that they are still in utero. But that language—referring to an embryo or fetus as a “vulnerable citizen,” is quite intentional; because if you can grant a fetus personhood, you can argue for its protection under the 14th Amendment—the same amendment that legalized abortion in 1973.
In the end, it’s not clear what the Court will decide. Sounds like the justices could just send the case to lower courts. As Adam Liptak explained in the New York Times: “Such a decision would not conclude the case or address whether the law itself is constitutional. Instead, it would return the case to lower courts for further proceedings. It was, moreover, not clear whether the court would temporarily block the law while the case moved forward if it allowed either the providers or the administration to sue.”
For now, as far as I can tell, S.B. 8 is still in full effect in Texas and could remain in effect for a long time, something a person in need of an abortion has very little of.