Hi everyone! This week’s newsletter focuses on the Supreme Court arguments around the Texas abortion law known as SB 8 that happened on Monday. It was really interesting to hear the justices in action, and if you haven’t done so before, I recommend listening to the audio. Don’t worry, it’s linked in the story! Hearing the interruptions, the disdain, and the nervousness really brings it alive for me, anyway! But before we get into the weeds of Ex parte Young, let’s take a look at some news updates.
National news updates
The Girl Puzzle Monument is revealed on Roosevelt Island
I will be making a plan to head to Roosevelt Island in NYC to see this fabulous Girl Puzzle Monument soon! Back in 1887, investigative journalist Nelly Bly acted her way into being committed to the Blackwell Asylum to report on the deplorable conditions in the hospital. The monument is not only a memorial to Bly but to women of all races and backgrounds.
Michelle Wu is elected mayor of Boston
With her historic election, Michelle Wu becomes the first person who is not a white man to become the mayor of Boston. Wu’s parents immigrated from Taiwan and she attended Harvard University and Law School. Her two main policy priorities are to create a fare-free public transportation system and to create a rent control system. She will be stymied by a 1994 referendum that banned rent control statewide, but feels that she can create a workaround.
Study shows that vaginal laser therapy is ineffective for menopause
Vaginal laser therapy has been touted for a number of years as a way for menopausal women to maintain lubrication in spite of their plummeting estrogen levels. But until now, there have been no quality studies showing that it actually works. Costing two to three thousand dollars out of pocket, it is a big money-maker for doctors. But now there is a new study that shows that it is a sham procedure. As Dr. Jen Gunter puts it, “People with vaginas deserve quality care, not inadequately studied, expensive interventions.”
Will the Supreme Court Overturn Texas Abortion Law?
Now we wait
On Monday, the Supreme Court heard two cases regarding the unprecedented Texas law outlawing abortions after a “heartbeat” can be heard at or about six weeks gestation. What makes the law unprecedented is the enforcement mechanism that leaves the state out of the equation and deputizes individuals to enforce the law and provides them a ten thousand dollar bounty.
The Court agreed to hear the cases on an accelerated schedule - one not seen since Bush v. Gore, indicating the importance of the cases. The court will hear Dobbs v. Jackson Women’s Health on December 1 where they will hear arguments questioning the core tenet of Roe v. Wade using fetal viability as a measure for determining when abortions are legally allowed.
On its face, the law, known as SB 8, is unconstitutional because it runs afoul of a woman’s constitutionally protected right to an abortion up until fetal viability. The first case, Whole Woman’s Health v. Jackson, hinged on whether the way that the law was structured to avoid any challenges is constitutional.
The arguments were very technical and centered around a 1908 case called Ex parte Young that allows lawsuits in federal courts against state officials to bar them from enforcing unconstitutional laws, but prohibits injunctions against state courts. Because SB 8 found a loophole in that law by only allowing individuals to bring cases, federal courts cannot hear the cases.
Mr. Mark Hearron, who argued on behalf of the Center for Reproductive Rights argued that the filing of the lawsuits is the crucial part of the law to strike down because of the way that SB 8 is structured to bankrupt anyone sued. He recommended relief by allowing the court clerks to be sued as agents of the state. Because there is no end to the number of plaintiffs that could sue, the law turns doctors who perform abortions and the clinics where they work into permanent plaintiffs. He described the chilling effect of the law in that it makes the judicial system an enforcer rather than a neutral arbitrator just by simply accepting a case.
What was particularly interesting to me as a listener was the fact that no one brought up the fact that pregnancy is a time-dependent condition. That people, right now, are being denied their constitutional right to an abortion in Texas. There was mention that abortions in Texas have decreased by fifty percent, but that was about it. There seemed to be no sense of urgency around the issues at hand. But I digress…
It was also interesting to hear both Justices Amy Coney Barrett and Brett Kavanaugh express their skepticism as to whether Texas can create an enforcement mechanism that protects itself from judicial review. It is possible that they will allow the lawsuit to stand, although no one should be under any false hope that means they are open to keeping Roe v. Wade as law.
In opposing arguments we heard from Mr. Judd E. Stone and Mr. Jonathan Mitchell of Texas. Mr. Stone had the audacity to refer to an abortion after six weeks as “late term.” Mr. Mitchell told the Court that if you do not like the Texas law, then go petition Congress to pass the Women’s Health Protection Act that codifies abortion rights as law. He seemed to forget that abortion is already a Constitutionally protected right.
In the second case, United Stated v. Texas, Solicitor General Elizabeth Prelogar, who had just been sworn in on Friday, argued that SB 8 ultimately undermines the Supreme Court’s authority to enforce the constitution. She said, “No constitutional decision from this Court is safe. That would be an intolerable state of affairs and it cannot be the law. Our constitutional guarantees cannot be that fragile, and the supremacy of federal law cannot be that easily subject to manipulation.” General Prelogar was subjected to a large amount of interruptions from male justices, especially Justice Gorsuch, but she continued to press her arguments with poise.
So what are the ramifications of these arguments? If the Supreme Court allows Whole Women’s Health to continue with their suit, then SB 8 will most likely be struck down as unconstitutional in district court, and abortion laws in Texas should revert to where they were before SB 8 was passed. If the Court does not allow the suit to go forth, then SB 8 will still be the law and abortions after six weeks gestation will be illegal in Texas.
Since the Court is hearing the Dobbs v. Jackson Women’s Health case in exactly one month, we may find that SB 8 is moot. If the Court finds that pre-viability is no longer legal protection for having an abortion, then six week heartbeat bills or outright bans are likely to become the law of the land in almost half of the country. I get chills just typing it.
What effect has the Texas law had so far?
As mentioned above, abortions in Texas have decreased by fifty percent since the inception of the law on September 1. Hospitals are erring on the side of legal caution.
In an interview with NPR’s Michel Martin, Dr. Ghazaleh Moayedi, an OB-GYN in Texas said, “I, just this week, received two separate referrals, one for a patient with very severe diabetes, causing very severe pregnancy complications that will make life for her pregnancy impossible, but also will endanger her life as well. She has no options for abortion care in the state...And I received another consultation for someone with a pregnancy that has a very severe genetic diagnosis, again, not compatible with life. Continuing the pregnancy could endanger her health, but she's not able to get care in the state. Physicians and health care providers are prevented from offering lifesaving care.” Rewire News also published a piece quoting more Texas doctors.
Dr. Moayedi also noted that she is taking care of many more patients from Texas at her Oklahoma office. And because so many people are coming from Texas to Oklahoma, the Oklahoma folks needing an abortion are going to Kansas. It’s a serious domino effect, and that only takes into account those who can afford the time and money to travel for an abortion.
And so now, we wait. Attorneys on both sides of the argument expect a quick decision given that the Court accelerated the argument portion of the case. Deep breaths everybody….
Just for fun
Will the Supreme Court Overturn Texas Abortion Law?