Precedence
Roe v Wade has been “decided law” in the United States since it was pronounced in 1973. Justice Harry Blackmun wrote the 7 to 2 majority decision for the Court, laying out a right to privacy based in the United States Constitution. The decision weighed the right of a woman to determine what happens to her body, versus the right of the fetus inside of her.
Justice Blackmun and the Court determined that the government (the state government usually) could not regulate the woman’s right to control her body, until such time as the fetus could exist outside of the woman’s body . That was approximately twenty-eight weeks after conception. While that decision has been “trimmed”, allowing more state regulations (and restrictions), the Court has upheld the Roe decision for forty-seven years. In a major companion case in 1992, Casey v Planned Parenthood, the Court recognized that advances in science allowed for earlier survival of fetuses, and that the State could regulate abortions earlier in the process.
Casey also created a different standard for regulating legal abortions, those now before twenty-four weeks. It allowed states to create regulations for abortions prior to fetal “viability”. But it stated that those regulations couldn’t create an “undue burden” that would prevent women from having the procedure. But still, in Casey the Court upheld the “right to privacy” decision of Roe.
That’s been the “state of the law” for the past twenty-nine years. States that have anti-abortion majorities in their legislatures have pushed the “undue burden” standards, creating law after law restricting legal abortions. And the Court has consistently defended the Roe-Casey standard: until yesterday.
Texas
Regardless of your opinion about women’s rights and abortion, you have to admire the work of the Texas Legislature. They knew that direct regulation of early, legal abortions would be thrown out under the Roe-Casey standard. So they found a way “around” the law.
Instead of “regulating” directly by creating legal barriers, the State of Texas has taken a “civil” approach. If they directly stated their goal of making all abortions illegal six weeks after conception, the law would be thrown out. Instead, they gave every citizen “the right” to sue any other citizen who aids someone to get an abortion after the six week deadline. All of those sued could be liable for up to $10,000 in damages.
Sue Me, Sue You Blues
There is an old legal maxim, “You can sue for anything”. But in reality, to take someone to Court, the first hurdle is to show that you have “standing”. Standing in civil court means you can show direct damages from the person you are suing – that you have been “hurt” and need to be made “whole”. If you can’t demonstrate that damage, you don’t have standing in court to bring the case. But what the State of Texas did, was to make EVERYONE damaged by the abortion after six weeks, giving EVERYONE “standing” to sue.
The woman getting the abortion can’t be sued (that would create an undue burden). But the nurse who led her to the exam room, the doctor who performed the procedure, the secretary who set up the appointment, the driver of the car who took her to the procedure: all can be. All of them can be liable for up to $10,000. Even if a court determines they aren’t liable, they still are forced to defend themselves and pay for attorneys. If they don’t defend themselves, then the court would rule against them. And they would have to do it over and over again, for each abortion performed.
This Court
Opponents to the Texas “civil law” asked the Supreme Court to “enjoin” the state from allowing it to go into effect. The Court declined to intervene, in a 5 to 4 decision. The three Justices appointed by President Trump; Barrett, Kavanaugh and Gorsuch were joined in the majority by Justices Thomas and Alito. Chief Justice Roberts and the “three liberals” on the Court; Kagan, Breyer and Sotomayor were in favor of “staying” the law, but were out-voted.
The majority “hid” behind a legal technicality. They claimed that they weren’t “sure” they had the legal power to regulate this novel “civil” action without a full hearing and explanation. And, they “relied” on “assurances” that the Texas state courts would somehow regulate this. But the Justices in the majority are very much aware that this was a way to circumvent Casey’s undue burden standard – by placing a civil “burden” on all of the other folks.
The Result
For the short term, abortions in Texas are limited to six weeks. Since many women don’t even know they are pregnant in six weeks, their “right” to make choices for their bodies is gone. And what about those women who can’t afford to go out of state to get a later abortion? they are faced with the choices of keeping an unwanted pregnancy, or finding an illegal abortionist. The impact is most severe on the economically dis-advantaged.
My mother had an expression: “If it’s good for the goose, it’s good for the gander”. Perhaps this is the “new” way to change our society. If it worked in Texas for abortion law, perhaps it might work just as well in New York or California or Illinois for – say – gun laws. This is the “Pandora’s box” Texas, and the majority of the Court, opened.
And for the long term, it foreshadows a more direct threat to Roe; a Mississippi case going before the Supreme Court in October. The 5-4 split certainly isn’t the way the Chief Justice wants to overturn a landmark decision like Roe v Wade. But it is likely that the “five” aren’t so worried about the niceties of Court etiquette. They have the power to throw out stare decis, the precedents established by Roe and Casey. Don’t be surprised if they do it.
