Many Americans were caught off guard by the Supreme Court’s decision late Wednesday night to let stand a blatantly unconstitutional Texas law that bans nearly all abortions in the state.
They shouldn’t have been. Anti-choice activists, lawmakers and judges have been laying the groundwork for this moment since the court decided Roe v. Wade in 1973.
For nearly half a century, the anti-abortion movement had to settle for partial victories, constantly chipping away at women’s right to an abortion, but never achieving the ultimate goal of overturning Roe itself. Now, with a hard-right supermajority on the bench for this purpose, that goal is within reach — even as a solid and consistent majority of the American public continues to believe abortion should be legal in all or most cases.
The Texas law, known as SB 8, is the most brazenly anti-abortion law in the country. It bans abortions after six weeks of pregnancy, before many women even know they are pregnant. By itself, this violates a woman’s constitutional right to get an abortion, which the court has protected at least until the fetus is viable outside the womb, at around 22 to 24 weeks of pregnancy. That is why courts have struck down similar six-week bans in other states.
Texas lawmakers knew this, and they crafted their law specifically to avoid that fate. Instead of making it enforceable the usual way, through government officials, they authorized private citizens — in Texas or anywhere else — to sue anyone who is involved in performing an abortion or who “aids or abets” one: not only a woman’s doctor, but her family, her friends, potentially even the taxi driver who takes her to the clinic. There is no exception for cases of rape or incest, and the plaintiff doesn’t need to have any connection to the woman in order to bring the suit. If it succeeds, he or she is entitled to $10,000 plus legal fees. It’s a dream for bounty hunters and a nightmare for everyone else.
More to the point, it is a straightforward ploy by Texas lawmakers to escape judicial review, because courts are empowered to block officials from enforcing an unconstitutional law, but not the law itself. If there is no official to block, the logic goes, then judges’ hands are tied.
Even Chief Justice John Roberts, who was until recently among the most conservative justices on the court, wasn’t buying it. “The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime,” the chief justice wrote in dissent.
Justice Sonia Sotomayor elaborated. “The court has rewarded the state’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the court’s precedents, through procedural entanglements of the state’s own creation,” she wrote. Justices Stephen Breyer and Elena Kagan joined both dissents and also wrote their own. They all made essentially the same point: No state should be able to evade the Constitution by enacting a cleverly designed law.
It didn’t matter. There are now five justices — a majority of the court — to the right of Chief Justice Roberts, and they were content to let Texas get away with it. In two brief paragraphs of bloodless legal technicalities, the majority claimed that, because the case presents “complex and novel antecedent procedural questions,” the court had no choice but to allow the law to remain in place while legal challenges to it play out. In other words, the conservatives are winking at lawmakers in Texas and across the country. Play all the games you want, they are saying, and we’ll look the other way.
This is not only an abdication of the court’s responsibility to adhere to its own precedents, but a clear sign of the conservative justices’ disregard for a woman’s constitutional right to control what happens inside her own body. It isn’t hard to imagine the conservatives’ response if, say, lawmakers in New York banned people from keeping guns inside their home and deputized regular citizens to sue anyone who violated the law.
For now, Texas women seeking an abortion are faced with an untenable situation: The vast majority of them cannot get a legal abortion in their home state today or for the foreseeable future. What little access remains will continue to shrink as abortion clinics are forced to close in the coming weeks and months.
As has been true throughout history, however, making abortion illegal won’t stop abortions. It just stops legal abortions. If a woman is pregnant and does not wish to be, she will find a way to end her pregnancy. Before Roe v. Wade, desperate women relied on back-alley providers and dangerous home remedies. Today there are safer options, including abortion pills that can be purchased off the internet — though buying or distributing pills in such a way carries legal risks. Still, many more Texas women will rely on such services going forward, while those who can afford to will travel for care out of state or even out of the country.
There is a limit, though, to how much clinics in other places will be able to absorb the reproductive health needs of one of the most populous states in the country. Republican-led legislatures in other states, encouraged by the Supreme Court’s decision, will inevitably follow Texas’ lead. On Thursday, the leader of the Florida Senate said there is “no question” he and his colleagues will consider a similar law.
That may not be their only option: The court is already scheduled to hear a case this fall out of Mississippi that gives it an opportunity to overrule Roe v. Wade entirely. If that happens, so-called trigger laws — designed to go into effect as soon as Roe is overturned — would automatically ban abortions in a number of states.
Some anti-abortion activists, emboldened by their new allies at the high court, are planning to go even further: Their goal is the full legal recognition of fetal personhood, which could ban abortions and threaten access to contraception everywhere in the United States — not just in Republican-led states. With a solid majority of justices now on their side, there’s no reason not to try.
For the majority of Americans who support a woman’s right to comprehensive reproductive health, the Supreme Court is now an adversary. Any long-term success will mean fighting the same way anti-abortion campaigners have for decades — in the political realm, by winning elections at the state and federal levels and changing laws as a result. Unlike the justices, elected leaders can be voted out if they don’t listen to their constituents. It’s a long and difficult road, but it’s the one all lasting reforms in a democracy must take.
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