It was 48 years ago when the Supreme Court of the United States (SCOTUS) issued a 7-2 decision in the case of Roe v. Wade. This single case granted women in the United States the fundamental right to choose whether or not to have abortions without excessive government restriction. And it was four months ago when Texas state Governor Greg Abbott signed a bill into law that makes abortion procedures illegal six weeks into a pregnancy. Thus, making it one of the nation's strictest abortion measures.
How? Most women don't even know they are pregnant at six weeks.
At the bill signing ceremony, Governor Abbott stated:
"Our creator endowed us with the right to life and yet millions of children lose their right to life every year because of abortion."
And recently, SCOTUS ruled in support of the Texas abortion ban.
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The Supreme Court justices once ruled Texas abortion bans as unconstitutional and now, they have ruled Texas's newest abortion ban as constitutional. If this doesn't scream contradictory, I don't know what does. I want to clarify that abortion is not illegal in the state of Texas nor is it illegal nationwide. But abortion is becoming less accessible.
Other states can regulate and limit the use of abortion. States with "trigger laws" or unenforced pre-Roe abortion bans written into their laws include Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, South Dakota, Tennessee, and Utah. If Roe v. Wade was overturned, these laws can take immediate effect, making abortion illegal within the first and second trimesters.
What is even scarier is the Supreme Court is scheduled to consider the constitutionality of abortion in the case of Dobbs v. Jackson Women's Health Organization. This case concerns a Mississippi law that bans nearly all abortions after 15 weeks of pregnancy. This same case can ultimately upend Roe v. Wade, leaving abortion rights unprotected in 34 states and five U.S. territories.
What The Texas Abortion Ban Means
The Texas abortion ban, also known as Senate Bill 8, almost prohibits abortion completely, as 85 to 90 percent of abortions happen at the sixth week of pregnancy in Texas. The law states if a doctor can detect a heartbeat, then they cannot perform an abortion. The only exception is for women with medical emergencies. However, Whole Woman's Health, a clinic in Texas reports 90 percent of women who come into their clinic are more than six weeks into their pregnancy. This also means that a woman has six weeks from the first day of their last period to end their pregnancy. This leaves women with at least one to two weeks to make a difficult and emotional life decision. But we all know biology doesn't work that way.
What is different about this specific law is the way it is structured. It was designed to make it difficult to fight abortion cases in court. It also incentivizes abortion providers to comply with the law. According to the Texas Tribune, Senate Bill 8 relieves the government from enforcing the law and allows private citizens to sue abortion providers or anyone who helps someone get an abortion after a fetal "heartbeat" has been detected.
And here is the plot twist: the law doesn't require the person suing to be someone who is connected to the person who had the abortion or connected to the provider. So, basically, anyone who is anti-abortion can sue anyone who is in support of abortion.
Yes. You read that correctly.
Because of the broad language of the bill, family members, abortion funds, rape crisis counselors and medical professionals could be open to a lawsuit. What this also means if an abortion case is brought to court, and a judge sided with the plaintiff (the person suing), he or she would be awarded at least $10,000 and costs for attorney's fees. While Senate Bill 8 doesn't allow rapists to sue, it shows no mercy to victims of rape or incest.
Women who are victims of rape, sexual assault, and/or incest are equally subjected to this law too. But the problem is most women do not report rape or any type of sexual violence when it happens.
In an interview with CNN's Anderson Cooper, Senator Alexandria Ocasio-Cortez responded to Abbot's comments about eliminating rapists and allowing women reasonable time to get an abortion.
"I'm sorry we have to break down Biology 101 on national television, but in case no one has informed him before in his life, six weeks pregnant means two weeks late for your period. And two weeks late on your period ... can happen if you're stressed, if your diet changes, or for really no reason at all. So, you don't have six weeks."
The Texas abortion ban would also require doctors that are sued to report the lawsuit upon renewal of their medical licenses. And 24 hours before the law went into effect in Texas, patients were waiting five to six hours to have their procedures done at one of the Whole Woman's Health Texas locations.
The Supreme Court’s Decision
We should all be able to make our own decisions about our health & future. We have to fight for everyone’s reproductive freedom. Join me in standing with the women of Texas, sign the petition https://t.co/7A7e6TokUw #BanOffOurBodies pic.twitter.com/kNLkXksdW5— kerry washington (@kerrywashington) September 1, 2021
"The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issues. But their application also presents complex and novel questions antecedent procedural questions on which they have not carried their burden."
The written opinion goes onto explain:
"And it is unclear whether the named defendants in this lawsuit can or will seek to enforce Texas law against the applicants in a manner that might permit our intervention. The state has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly. Nor is it clear whether, under existing precedent, this Court can issue an injunction against state judge asked to decide a lawsuit under Texas's law."
Translation? It means that the case brought before the Supreme Court did not strongly meet the burden requirement so that SCOTUS can intervene.
The dissenting justices also filed opinions. Justice Sonia Sotomayor wrote, "The court's order is stunning. 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." Justice Sotomayor further stated, "The court should not be so content to ignore its constitutional obligations to protect not only the rights of women but also the sanctity of its precedents and of the rule of law."
Chief Justice Roberts wrote, "The statutory scheme before the court is not only unusual but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime."
Chief Justice Roberts did not deny the constitutionality of the Texas law either. He explains, "Although the court denies the applicants' request for emergency relief today, the court's order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue."
Justice Elena Kagan points out that the court's practice of deciding important issues in rushed decisions is problematic. She states that the court's shadow docket decision-making is "unreasoned, inconsistent, and impossible to defend." For context, shadow docket decision-making is when the court believes an applicant will suffer "irreparable harm" if the request is not immediately granted. This means decisions are at least a paragraph long, unsigned, and without a full briefing or oral arguments.
Can you imagine a court deciding an issue without hearing oral arguments? Because I cannot, but it does happen.
On a positive note, the Supreme Court's ruling is provisional.
According to the New York Times, challenges to the new Texas law is pending in the lower federal courts and they are able to work through complex issues of the case. I find it interesting that a 1973 abortion case that protected our abortion rights originated from Texas. Now a 2021 Texas abortion case limits access to abortion. And soon a Mississippi abortion case may overturn the same landmark case.
I asked a friend of mine, a local prosecutor, who wants to remain anonymous, their thoughts on the Texas abortion ban. This is what they had to say, "It's mean-spirited nonsense that should be found unconstitutional." My friend wasn't too sure on the procedural questions that the Supreme Court decided on, but agrees that their recent decision "definitely violates their precedent."
I have so many words, yet no words at all. Throughout our country's history, women have fought for their rights in multiple systems, industries, and spaces. We have fought for equality and our voices to be heard. And now in 2021, we are still being told what we can and cannot do with our bodies not only by men but by a system that does not understand the biology of a woman's body or respect a woman's bodily autonomy.
In the words of Tupac Shakur, "Since a man can't make one, he has no right to tell a woman when and where to create one."
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