The Abortion She Didn't Have
Two Sundays ago, I was lying in bed with my spouse reading the New York Times I’d just retrieved from our driveway. I began getting the physical Sunday paper again after taking a hiatus (mixed feelings about it—environmental impact, etc.—but I do love reading the physical paper). I usually read a front page article or two and then leaf through the rest until I find something that catches my eye. That day, I started reading the T Magazine’s articles (beginning with Hanya Yanagihara’s editorial note that sets the stage) and finally settled into the long article about the incredible Japanese animator Hayao Miyazaki. The films of his I’ve seen have been among my all-time favorites, especially Spirited Away. It was a mesmerizing article, and I relished the details about this his incessant smoking and the fact that he doesn’t own a computer. This stood out too:
“Miyazaki lives with his wife, Akemi, a former fellow animator — they met as colleagues at Toei Animation nearly 60 years ago on the movie “Gulliver’s Travels Beyond the Moon,” and married in 1965; she stopped working to raise their two sons, at his request, and, he has said in the past, “hasn’t forgiven” him — in Tokorozawa, northwest of Tokyo…”
I finished the article and started to emerge from bed—my 15-year-old son was wondering if we were EVER going go check the surf—when Derek finished the article he’d been reading and said, You have to read this. Like now. Just read it now. So I settled back in and read the regular New York Times Magazine cover story by Merritt Tierce: “The Abortion I Didn’t Have.”
I hope you can access the article. If you can’t because you don’t have a subscription, you might consider a digital subscription to the Times—it’s $1/week and billed every four weeks, and well, well worth it. But just in case, I’ll include the essay here as a pdf. It’s a must-read, friends. It’s one of the best raw-honest essays I’ve read. The fact that my spouse read it and was so moved by it and wanted me to read it—I can’t explain what that means to me. He’s that kind of guy.
In addition to recommending Tierce’s article, I want to provide an update on the Texas law, S.B.8, that bans abortion after six weeks. This was the law that went into effect on September 1; on that same day, the Supreme Court decided not to block the law in a 5-4 vote. On November 1, the Court heard oral arguments about the law with Whole Women’s Health v. Jackson. Then, just last Friday on December 10, they released opinions for the case. Adam Liptak, who writes for the Times, does a great job of explaining the legalese (according to his bio, he graduated from Yale Law School and practiced law for 14 years before joining the New York Times in 2002). In his article from December 10, he explained that while the Court again refused to block S.B. 8, “the majority endorsed only a narrow path to challenge the law.” Providers can apparently try to sue state licensing officials, “like the executive director of the Texas Medical Board”—but not a state official, against whom challenges to seemingly unconstitutional abortion restrictions or bans are usually filed.
As Justice Gorsuch pointed out in his decision, the Texas law is enforced through private citizens filing civil suits, “culminating in injunctions and statutory damages awards against those who perform or assist prohibited abortions.” The threat has been enough to make most clinics in Texas stop providing abortions after six weeks.
So the abortion rights providers and defenders don’t really know just whom to file suit against. The case brought to the Court in November was filed against “Jackson, Judge, District Court of Texas, 114th District, et al.” That is, the defendant is a judge. Can you sue a judge? How about a state court clerk? The Texas attorney general?
Nope. Nope. Nope, suggested Gorsuch.
Justice Sotomayor and even Chief Justice Roberts pushed back, prompting Gorsuch to write:
“Our colleagues offer no persuasive reply to this problem. The Chief Justice does not address it. Meanwhile, Justice Sotomayor offers a radical answer, suggesting once more that this Court should cast aside its precedents requiring federal courts to abide by traditional equitable principles.” He doesn’t stop there though: “Justice Sotomayor charges this Court with “shrink[ing]” from the task of defending the supremacy of the Federal Constitution over state law. That rhetoric bears no relation to reality.”
Chief Justice Roberts joined Justices Kagan, Breyer, and Sotomayor in concurring on the judgment in part and dissenting in part: The dissent seemed to stem from the old battle between states’ rights versus federal law. They wrote: “The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings,” they write, warning of the very real danger that if “several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery” [United States v. Peters, 5 Cranch 115, 136 (1809).]
The men who drafted the Texas law hoped that because of its very nature, the Court’s hands would be tied, that the law would not be blocked, that it would remain in effect for months, perhaps years, as it was fought in court. They appear to be getting what they hoped for.
Justice Sotmayor is not backing down. In a separate opinion, joined by Kagan and Breyer, Sotomayor reiterated her frustration with S.B. 8 in how it directly affects women and girls—and remember, the law makes no exception for rape or incest:
“For nearly three months, the Texas Legislature has substantially suspended a constitutional guarantee: a pregnant woman’s right to control her own body.” She also vehemently expresses her concern over the undermining of the Court by Texas: “This is a brazen challenge to our federal structure. It echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to “veto” or “nullif[y]” any federal law with which they disagreed.”
“The Nation fought a Civil War over that proposition,” she tells us, “but Calhoun’s theories were not extinguished.”
So for now it’s up to lower courts. But in the meantime, the Texas six-week abortion ban stands.
Marjorie Dennanfelsor, the president of the most powerful anti-abortion group in the country, the Susan B. Anthony List, is elated: “We celebrate that the Texas Heartbeat Act will remain in effect, saving the lives of unborn children and protecting mothers while litigation continues in lower courts.”
Protecting mothers. Hmmm. I’ll point once again to the essay by Merritt Tierce above.
Thank you for your newsletters, Mel. And wow, that piece you linked to. So honest and real.