The scramble to defend against Texas’ 6-week abortion ban


But so far, proponents of abortion rights see no immediate silver bullet.

Instead, they proceed with a three-pronged approach, starting first and foremost with an attempt to get women on the ground with the medical care they need or the financial resources to cross the borders of the country. State. Additionally, clinics are looking to state courts to block as many civil suits as possible – in a strategy similar to the arcade game Whac-A-Mole – which they hope could ultimately end up in the Supreme Court of Canada. Texas. Finally, they asked the Biden administration to think broadly about how to use the power of the federal government to protect a woman’s constitutional right to abortion.

This is all playing out as the Supreme Court prepares to hear a related Mississippi case asking judges to overturn Roe v. Wade.

In years past, clinics in Texas have warned they were fighting tough abortion regulations to prevent a return to the days before Roe. Now, in a change brought about by the Supreme Court’s order blocking most abortions in the state, clinics are faced with this real possibility. They fear that some patients who can no longer have abortions under the law will turn to dangerous alternatives.

“So many people are going to be forced into having a pregnancy against their will, some people can take matters into their own hands and try to manage their abortion on their own,” Amy Hagstrom Miller, founder of Whole Woman’s Health, told CNN. maintenance. “We are just trying to help people find the best choices for them and support them with compassion.”

In the field, women are scared and confused, clinics say, trying to get a procedure that has been on the books for some 50 years. Clinics claim that 85% to 90% of Texans who have abortions in the state are at least six weeks pregnant.

According to an official, a provider in Houston would normally see around 30 patients seeking abortions each day, but on the first day the law came into effect, he was expected to see only six. And half of those patients were not eligible for abortion because they had already passed the six-week limit.

The Lawyering Project is a nonprofit legal organization that provides hands-on support networks that help people get abortions by providing either financial assistance, emotional support, accommodation, or childcare.

“Since the law came into effect, the Texas abortion funds have worked tirelessly to ensure that pregnant Texans can get abortion services, many times out of state, despite this racist, classist law. and sexist, ”said Jennifer Miller, spokesperson for the group.

In class

Clinics fight back in court where they can.

By law, abortion is prohibited when a fetal heartbeat is detected, which is often before a woman knows she is pregnant. There is no exception for rape or incest, although there is an exemption for “medical emergencies”.

Before it came into effect, proponents of the right to abortion knew they might find it difficult to fight against the law because of the way it was drafted.

In a new legal strategy, the state legislature designed the law to prevent government officials from directly enforcing it.

Instead, the law allows private citizens – anywhere in the country – to bring civil suits against anyone who helps a pregnant person seek an abortion in violation of the ban.

Abortion right supporters – unsure of who to sue – thought their best bet was to take legal action against government officials like Texas Republican Attorney General Ken Paxton, as well as judges and Texas state clerks with jurisdiction to enforce the law. . They also targeted an individual, Mark Lee Dickson, who is the director of Right to Life East Texas.

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But this challenge failed before the Supreme Court.

Now clinics say they stopped performing the abortion after six weeks, making it difficult to return to the judiciary for a court to block the law. In essence, it’s hard to see how a so-called “test case” could arise unless a doctor or provider is willing to absorb a lot of risk.

“Texas law requires anyone who wants to help a woman with an abortion, a doctor or a friend, break the law by exposing themselves to at least $ 10,000 before they can assert Roe’s protections,” said Priscilla J. Smith of Yale Law. School.

Providers are working as fast as possible on an alternative plan that will have a more piecemeal effect: asking state courts to block lawsuits brought by specific individuals opposed to abortion. In court documents, lawyers for Planned Parenthood told a Travis County judge why it was so difficult to challenge the law. They noted that when a supplier is sued, they would have to spend a considerable amount of money defending themselves and unlimited lawsuits could be brought against the same supplier by multiple people.

“Lawsuits can also bankrupt those who are sued in the process, since SB8 says they cannot recover their legal fees against the vigilante,” argued lawyers for Planned Parenthood.

Judge Maya Guerra Gamble has issued a temporary restraining order and scheduled a September 13 hearing for Planned Parenthood and other groups to seek more permanent relief.

Supreme Court ruling on Texas law is the result of decades of pressure from anti-abortion groups to shape the court

“Our North Star must get a final ruling that the law is unconstitutional, whether under the state constitution or the federal constitution,” Julie Murray said in an interview. But Murray notes that they lost their federal case when the majority of the court allowed the law to go into effect. She said they will continue to advocate at the state level, but it will take time.

“We are certainly aware of the need to continue to advocate and to put pressure on these challenges as hard as possible, but also knowing that there is irreparable harm on the ground, not only for the patients but for the clinics”, she said and added that “what is happening on the ground will have a long term effect.”

Biden administration

On Monday, U.S. Attorney General Merrick Garland pledged to protect abortion clinics in Texas by enforcing a federal law that prohibits making threats against patients seeking reproductive health services and obstructing clinic entrances. In a statement, he said he had contacted the US attorney’s offices and the FBI’s Texas field offices across the country.

“The department has always obtained criminal and civil remedies for violations of the FACE law since its enactment in 1994, and will continue to do so now,” he said.

In addition, last week Kristen Clarke, who is the United States’ Assistant Attorney General for Civil Rights, held a “listen call” to hear concerns about the law. One participant said Clarke “has expressed his fury that this has come into effect.”

Other options – some vague details – were offered. Some wonder if there is a way to open federal facilities such as a VA hospital through an executive order or regulation to perform the procedure if it was paid for by private funds. Others have suggested the federal government could help transport patients out of state or use its statutory authority to punish civil rights violations to block prosecution.

Write for the Washington PostHarvard law professor Larry Tribe said the best approach would be for Congress to codify the right to abortion into federal law, even though Democrats likely don’t have the voice to make it happen. He also suggested considering a federal law that criminalizes “under cover of the law” depriving individuals of “any rights, privileges or immunities guaranteed or protected by the Constitution” to target those who might. take from individuals whom they believe to be assisting a woman to have an abortion. The law was designed to attack the Ku Klux Klan.

“Bounty claimants, empowered under Texas law to collect fines of at least $ 10,000, have in effect become private attorneys general of Texas,” Tribe wrote. “They are acting” under the guise of state law, “and unless and until Roe v. Wade is quashed, they unquestionably intend to impede the exercise of a constitutional right. “

Go forward

The entire Texas law dispute comes as the Supreme Court prepares for its new term. One of the most important cases judges will hear concerns a Mississippi law that bans abortion after 15 weeks.

Unlike the Texas dispute, this case is a direct challenge to Roe v. Wade and will be accompanied by a full set of briefs, oral arguments and a reasoned opinion by June.

The next set of briefs in this case will land before judges next week, as women in Texas are still grappling with the fallout of its law.


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