I have so many thoughts and emotions about the Texas law that essentially invalidates Roe v. Wade, that it’s been hard to write this post. But, there are three things I aim to do here. Let’s talk about what happened, what it means in the context of upcoming elections, and what we can do about it.
For an in depth look at the law and how it works, check out Vox’s article HERE. But in a nutshell, here’s what happened.
Texas’ new law makes it illegal for a women to get an abortion after a fetal heartbeat is detected, which is generally around 6 weeks, so long before most women know they’re pregnant. In order to get around the constitutionality of Roe v. Wade, the bill does not allow any officials of the state to enforce the law. Instead, it leaves enforcement up to Texas citizens.
This way, no organization can sue the state of Texas over the bill (like we’ve seen be done in the case of restrictive voting rights bills) because the state of Texas is not the enforcer of the law. And until such time as a Texan enforces the law, say by ratting out a neighbor who they suspect got an abortion, there isn’t anyone to sue.
And that’s why the majority on the Supreme Court decided not to act in this emergency case (i.e. a case that skips over the lower courts for an immediate action from the Court) — because of the enforcement loophole that Texas devised.
The 12 page order doesn’t tell us much more about why the majority “stuck their head in the sand” as Justice Sonia Sotomayor put it in her dissent. In fact, you should read the order. After the first page, the rest of the order are the dissents by Justices Roberts, Kagan, Breyer and Sotomayor. You can read that HERE.
Here’s a taste of her dissent:
“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. … Because the court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent.”
Until such time as the law is enforced by, well let’s call them what they are, bounty hunters in Texas, and they get sued, this law is active and essentially makes it impossible for women in Texas to choose to have an abortion. It even dissuades anyone — doctors, family member, healthcare workers — from helping the woman seeking information about abortions as this law allows them to be sued, too.
Once someone is sued, this case will work its law through the lower courts, then the Appellate Court, and finally the Supreme Court where the constitutionality of the law can be properly decided on. But that will take time. Months, at the very least.
Personally, I’m just aghast that this has happened. At the same time, we’ve seen the Republican party get more and more extreme in their policies. Abortion has always been a polarizing issue, but year after year shows that a clear majority of Americans believe that access to abortions should be legal.
Republicans, safe in their gerrymandered states, fearing no challenges from the left only fight to make themselves palatable to an increasingly extreme right-wing constituency. And for them, fighting to overturn Roe v. Wade has been their clarion call to their voters to turn out to vote. And they have. This is one of those defining issues that turns out Republicans — the ability to get conservative judges on the bench so they can make abortion illegal. And now they have.
So what happens electorally? I have long felt (and I see that I’m joined by political analysts and observers far more knowledgeable than me) that if Republicans ever did manage to overturn Roe v. Wade, there would be a massive backlash at the polls. There are pro-choice Republican women — they’ve been slowly peeling away from the GOP, and I can’t see this issue changing that. I’m looking at Gen Z who is immediately impacted — this law could create a swell of activism and turnout at the polls that would even dwarf what they accomplished in the 2018 midterms. Democrats and left-leaning independents will only be more fired up going into the midterms as we can all see clearly exactly what Republican rule will lead to.
What can we do?
There is no quick and easy fix. But there are actions we can take. I think we’re going to have to fight this on every front. So here are some initial ways to help.
The one surefire way to make sure abortion remains legal is to pass a law. (Remember checks and balances?) Speaker Nancy Pelosi announced yesterday that she will bring the Women’s Health Protection Act for a vote in the House as soon as the chamber is back in session. So, call your Rep and demand that they protect reproductive rights by passing this bill. Then call your two Senators to demand the same thing.
Since abortion clinics in Texas will essentially be barred from helping women in Texas, share this resource far and wide: AidAccess.Org Aid Access is an international organization, so cannot be sued by a Texas bounty hunter. They help women who don’t have access to local abortion services.
Consider supporting one of many great organizations helping women get the information and access to services they may need: Fund Texas Choice, Planned Parenthood, or NARAL.
If you have other ideas for how we can help women during this difficult time, please leave a comment. Thank you for taking action!
California voters: Be sure to vote NO on your recall ballot and return it ASAP!
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This is all defense. We need to start playing offense. It is well past the time to expand and restructure SCOTUS and federal courts in general.
What good is an expanded Court when Republicans are far more likely (looking at recent history) to be able to put judges on it?
Won’t happen because of the filibuster
All the more reason for us all to lobby against the filibuster.
Using the template of Texas law and the SCOTUS “decision”: Pass laws, along the very same lines that 1) permit/require people to report others with weapons in house. 2) Same with those who are unvaccinated.
That is a possible outcome of this disastrous decision SCOTUS made, yes.
It’s not a fetal heartbeat. It is not a fetus at six weeks – it is an embryo. Also, there is no heart at six weeks so there is no heartbeat. What is heard is electrical pulses that sound like heartbeats but are not actual heartbeats. This has been used by the religious right to pull on metaphorical “heartstrings” to change law … using pseudo science, not real science. Once again, fakery wins in America.
And right now, they’re winning.
I heard a opinion person interviewed that suggested federal employees be hired and employed to Texas to help women with their abortion decision because federal employees are immune from lawsuits.
Love that folks are getting creative!
Creative suggestions from Elie Mystal of the The Nation: https://www.thenation.com/article/politics/texas-abortion-fight/
The Texas law is not based on science, as already noted. Here is more specificity: At the sixth week, there is no fetus. There is an embryo. The embryo has no formed heart. The pulsations heard at six weeks are not heartbeats but electrical impulses. The embryo will develop a heart over the next month and become a fetus. Only by the tenth week, will the fetal heart have developed fully.
The state of Texas absolutely can be sued both Greg Abbott and Ken Paxton. Texas violates USC 242 and USC v Allwright and other precedents, which state that the state cannot, under “color of law” covertly violate the constitutional rights of other by directing private citizens to do so, which the state of Texas does. In the 1920’s, Texas tried this to deprive Blacks of voting rights by allowing private citizens instead of the state to keep Blacks from voting. A Black man sued the state and won. The court agreed that no matter how uninvolved the state was, they were using trickery to violate Black’s constitutional rights. Both criminal and civil law cannot violate people’s constitutional rights and since the state passed BOTH those provisions, they can be sued.
Also, Roe v Wade states that abortion cannot be banned in the first trimester as such sb8 is null and void so if a doctor performs an abortion after 6 weeks he is not breaking the law so can’t be sued.
Also, sb8 violates a woman’s right to privacy in Roe by allowing a third party to come between her and her doctor when she is recieving legal and constitutional medical care that she has a right to. It also involves a gross violation of her medical rights to privacy under federal law.
What is need is for a pregnant woman to sue the state to block this, I don’t know why this has not happened.
6 weeks here and I can not have another baby right now. Single mom of 2 children for almost 6 years now. I took plan b and it failed me. Holidays caused delays in me getting into a doctor last week. How is this okay?! I am currently planning a flight, hotel, and appt out of state. I should not have to do this!!
I’m so sorry you’re in this position. I agree you shouldn’t have to go to these lengths.
It’s never been about pro life or even pro fetus. It’s always been about controlling women and hating them really….it takes men and women to make babies and it’s always the women who are penalized!!! If men had babies, abortions would be free and available at every gas station!
It may be a stretch but wouldn’t it be a violation of HIPAA to see what procedures were done and how far along in the pregnancy a woman is?
It depends on who shares that info.
How can abortion rights get on TX ballot for voters to decide?
Unfortunately, Texas can’t do what Kansas did. From Ballotpedia: “Texas does not feature a process for initiated constitutional amendments. Thus, amendments in Texas can be put on the ballot through referral by the legislature.”