A tacit agreement

Tom Brenner/Reuters

The Roberts court will go down in history as the worst SC ever with its unstated tacit and gutless agreement of letting Roe v. Wade slowly die in bits and pieces, thus enabling religion to triumph over a woman's right to choose in America. Shameful says it all without question.

Three months later, it would be almost a relief if that case, Dobbs v. Jackson Women’s Health Organization, were the most immediate threat to American reproductive rights. On Tuesday night, the Supreme Court got away with something much more insidious: It all but ended abortion access in Texas, at least for now. It simultaneously dealt a blow to Roe v. Wade that could hasten its demise — by saying nothing and thus quietly allowing a state anti-abortion law, now the most restrictive one in the nation, to go into effect.

The law, SB8, bans abortions after six weeks of pregnancy — so early that many people don’t know they’re pregnant, and before some doctors will even provide an abortion.

The descent into a new dark age looms.

Several states have already passed six-week abortion bans, sometimes called heartbeat bills, and other abortion restrictions with very early limits. A wave of such laws swept through several states in 2019, prompting calls for boycotts against doing business in those states. None of those laws are being enforced today because they’re obviously unconstitutional: Roe v. Wade guarantees the right to abortion until the point of fetal viability, or about 22 weeks of pregnancy. So while the laws created a splash, they didn’t affect many people’s lives. Until this week.

But SB8 is much more diabolical than the average six-week abortion ban. The law would allow just about anyone — truly, almost any person, anywhere — to sue people or entities who “abet” or even allegedly intend to “abet” abortions in Texas after six weeks of pregnancy. What does it mean to “abet” an abortion? The law isn’t entirely clear on that. But it’s easy to think of ways it could be interpreted: a friend gives a woman money for a procedure, a taxi driver drops someone off at an abortion clinic, a receptionist is stationed inside the front door. Plaintiffs who win their cases would get at least $10,000 each — a provision that seems destined to create a state full of abortion bounty hunters.

A tacit agreement indeed.

Addendum: Sonia Sotomayor's scathing comment on this travesty shows, yet again, why this SC is the worst ever.

In May 2021, the Texas legislature enacted SB8 (the act). The act, which took effect statewide at midnight on 1 September, makes it unlawful for physicians to perform abortions if they either detect cardiac activity in an embryo or fail to perform a test to detect such activity. This equates to a near-categorical ban on abortions beginning six weeks after a woman’s last menstrual period, before many women realize they are pregnant, and months before fetal viability. According to the applicants, who are abortion providers and advocates in Texas, the act immediately prohibits care for at least 85% of Texas abortion patients and will force many abortion clinics to close.

The act is clearly unconstitutional under existing precedents. See, e.g., June Medical Servs LLC v Russo, 591 US ___, ___ (2020) (ROBERTS, C J, concurring in judgment) (slip op, at 5) (explaining that “the state may not impose an undue burden on the woman’s ability to obtain an abortion” of a “nonviable fetus” (citing Roe v Wade, 410 US 113 (1973), and Planned Parenthood of Southeastern Pa v Casey, 505 US 833 (1992); internal quotation marks omitted)). The respondents do not even try to argue otherwise. Nor could they: no federal appellate court has upheld such a comprehensive prohibition on abortions before viability under current law.

The Texas legislature was well aware of this binding precedent. To circumvent it, the legislature took the extraordinary step of enlisting private citizens to do what the state could not. The act authorizes any private citizen to file a lawsuit against any person who provides an abortion in violation of the act, “aids or abets” such an abortion (including by paying for it) regardless of whether they know the abortion is prohibited under the act, or even intends to engage in such conduct. Courts are required to enjoin the defendant from engaging in these actions in the future and to award the private-citizen plaintiff at least $10,000 in “statutory damages” for each forbidden abortion performed or aided by the defendant. In effect, the Texas legislature has deputized the state’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.

1984 comes to mind here without question.