Posts tagged with "Roe. v. Wade"

DOJ sues Texas over abortion law

September 13, 2021

On Thursday, September 9, the Biden Administration sued the State of Texas over its highly restrictive abortion law, which the Supreme Court allowed to take effect earlier this month, reports Politico.

“The act is clearly unconstitutional under longstanding Supreme Court precedent,” Attorney General Merrick Garland said in a news conference. “This kind of scheme to nullify the Constitution of the United States is one that all Americans, whatever their politics or party, should fear.”

The Texas law, SB8, effectively bans most abortions by prohibiting the procedure after six weeks from conception—a period that is before when many people become aware they are pregnant. Additionally, it sets up a novel enforcement mechanism that authorizes private citizens to file lawsuits against those who are believed to perform or aid in an abortion outside of that window.

Garland took direct aim at that aspect of the law, saying it empowered “bounty hunters” to enforce it for the guarantee of a minimum of $10,000 payment if the suit succeeds. He also warned that the Texas law could become a model not only for other states but also for people looking to undermine other constitutional rights, which he did not specify.

“If it prevails, it may become a model for action in other areas in other states,” the attorney general told reporters at Justice Department headquarters.

Politico and other outlets reported on Wednesday, September 8, that the Department of Justice was preparing to sue Texas over the new law, which has outraged Democrats and abortion rights supporters in the aftermath of the 5-4 Supreme Court ruling refusing an emergency stay against the statute.. The new lawsuit was filed Thursday afternoon in federal court in the state capital, Austin, and was assigned to Judge Lee Yeakel, an appointee of former President George W. Bush. The Justice Department is seeking an injunction to halt enforcement of Texas’ law and is claiming that the law “irreparably injures” the federal government.

According to Politico, President Joe Biden has faced intense pressure to respond to Texas’ abortion restrictions—nd to early moves in other conservative-led states to craft similar laws. Biden has decried the law, calling it “un-American” and saying it “blatantly violates” the landmark Roe v. Wade precedent. The complaint makes a similar argument and claims Texas lawmakers enacted the statute “in open defiance of the Constitution.”

“It takes little imagination to discern Texas’s goal — to make it too risky for an abortion clinic to operate in the State, thereby preventing women throughout Texas from exercising their constitutional rights, while simultaneously thwarting judicial review,” it states.

Thursday’s announcement makes good on Biden’s promise to take on Texas and attempt to block enforcement of the abortion law—setting up a high-stakes fight with Gov. Greg Abbott and Attorney General Ken Paxton, who are both Republicans up for reelection next year and have vowed to defend the law.

Garland said that, in addition to violating the rights of women, Texas’ law interfered with the work of several federal agencies—including the Departments of Labor, Heath and Human Services, and Defense—in violation of the U.S. Constitution.

Despite the White House’s evident desire to combat the Texas law, Garland insisted that the Justice Department had not responded to pressure to file the suit.

“The Department of Justice does not file lawsuits based on pressure,” the attorney general declared, without elaborating on what role the White House played in preparations for the suit. “We carefully evaluated the law and the facts.”

While federal government lawsuits seeking to invalidate state laws are unusual, they are far from unprecedented. Under former President George W. Bush, the Justice Department sued Arizona over a state law seeking to crack down on undocumented immigrants. And under former President Donald Trump, the Justice Department sued California over state laws impacting immigration enforcement, the use of private prisons and efforts to develop federal land.

The Justice Department designated its new suit as related to a previous one filed by abortion providers and abortion-rights advocates in July over the Texas law. The designation puts the case before Judge Robert Pitman, an appointee of President Barack Obama, but lawyers for Texas could try to challenge the designation.

Research contact: @politico

How SCOTUS quietly undercut Roe v. Wade

September 6, 2021

In an extraordinary use of the so-called shadow docket, the U.S. Supreme Court has refused to block a law effectively banning abortion, The New York Times reports.

According to the American Bar Association, the “shadow docket” is a mechanism that defies the court’s “normal procedural regularity.” Instead, it is a method by which the court can hand down decisions quickly—without hearing oral arguments, receiving amici curiae filings, or having to write out lengthy philosophical tracts explaining the jurisprudence underpinning their decision.

At 1 a.m. Eastern time on Wednesday, September 1,without a single word, the Supreme Court let the State of Texas effectively ban abortion—for the first time in nearly 50 years, the Times notes.

But it was not the first time the court had used the shadow docket so aggressively. It was not even the first time in the past week: Indeed, on Thursday, August 27, the court blocked an extension of the federal emergency ban on evictions—gutting a 1944 law that gave the CDC the authority to implement such measures to curb disease, and endangering the eight million American households that are behind on rent – and which may now, without federal eviction protection, face homelessness.

As the night of September 1 became day, and became night again, abortion providers across Texas turned away patients seeking what was, according to the court’s own precedent, a constitutional right, still the justices said nothing. When they broke their silence 23 hours later, refusing to block a law that unambiguously violates Roe v. Wade, the five-justice majority took only 400 words to describe its reasoning.

Because the shadow docket involves so little deliberation and transparency, the court historically hasn’t used it to enable major policy changes or to reverse precedents, and the rulings themselves haven’t been treated as precedents. But that restraint is a norm, not a requirement, and the court has increasingly been breaking it: using the shadow docket more often, on more consequential matters, and with more precedential weight. Last year, it issued several orders on the shadow docket concerning coronavirus restrictions and went on to cite some of them in rulings on the regular docket.

“That’s really not typical, nor is it supposed to be typical,” said Melissa Murray, a professor of law at New York University and an expert on reproductive rights.

I think it’s a reasonable question, whatever one thinks of the answers the court is reaching in these cases, whether we actually think it’s healthy for so many major questions affecting so many people to be resolved in this highly compressed, circumscribed, truncated review process,” said Stephen I. Vladeck, a professor at the University of Texas School of Law and an expert on federal courts.

The court’s increasingly assertive use of the shadow docket has angered some of its members, like Justice Elena Kagan, who wrote in her dissent from the order on Texas’ law, “The majority’s decision is emblematic of too much of this court’s shadow-docket decision making—which every day becomes more unreasoned, inconsistent and impossible to defend.”

Chief Justice John G. Roberts Jr., the only conservative who dissented, criticized the process less forcefully, writing that the structure of the new abortion law was “not only unusual, but unprecedented,” and that while Texas’ legal arguments “may be correct,” the questions involved were too weighty to resolve in such a rushed way.

 Texas’ law, called S.B. 8, prohibits abortion once cardiac activity is detectable in the embryo — around six weeks’ gestation, before many people know they are pregnant. (Pregnancies are dated from the last menstrual period, so “six weeks” generally means four or less after fertilization, and two or less after a missed period.) Planned Parenthood v. Casey, the 1992 case that affirmed Roe, protects a right to abortion until the fetus can survive outside the uterus, around 23 weeks’ gestation.

What distinguishes the Texas law from bans that courts have blocked everywhere else is that, instead of making abortion a crime prosecutable by the government, it lets any citizen sue anyone whom he or she accuses of “aiding or abetting” an abortion after the cutoff point—phrasing that includes not only abortion providers but also anyone who, for instance, pays for a procedure or drives a patient to a clinic. Successful plaintiffs will get $10,000 and reimbursement of their legal fees. Defendants who prevail will not be reimbursed.

“It is quite striking and quite galling that the Supreme Court would allow a state to essentially destroy Roe under cover of night with no decision,” Leah Litman, a professor of law at the University of Michigan, said Wednesday afternoon, before the court had spoken. “I think it’s pretty cowardly, I think it’s an affront to the rule of law, and it is quite troubling about what it suggests about the enforcement of our constitutional rights going forward.”

If by outsourcing enforcement to citizens, a state can enact a law that would otherwise be blocked as unconstitutional, “there’s nothing that stops other states from enacting similar laws to undermine other constitutional rights,” Professor Litman said. “Religious liberty, Second Amendment protections, property rights, right to bodily autonomy — there’s just no limitation.”

Research contact: @nytimes

Warren: Congress must enact federal laws protecting abortion rights

May 20, 2019

Responding to a flurry of state-level anti-abortion laws, 2020 presidential candidate Senator Elizabeth Warren (D-Massachusetts) said on March 17 that Congress must pass federal laws to protect access to birth control and reproductive care, The Huffington Post reported. .

She posted on Medium, outlining the type of federal actions needed, should challenges from jurisdictions with anti-abortion laws lead the Supreme Court to overturn Roe v. Wade, the landmark 1973 decision that ensures a woman’s right to an abortion.

“Court challenges will continue. And the next President can begin to undo some of the damage by appointing neutral and fair judges who actually respect the law and cases like Roe instead of right-wing ideologues bent on rolling back constitutional rights,” Warren wrote. “But separate from these judicial fights, Congress has a role to play as well.”

The senator said Congress must create federal, statutory rights that parallel Roe v. Wade’s constitutional rights, according to the Huffington Post. These rights would include barring states from interfering in a provider’s ability to offer medical care or blocking patients’ access to such care, including abortions. This would invalidate state laws like those in Alabama, Georgia, and Ohio.

Warren also proposed that Congress enact laws to preempt states’ efforts to limit the chipping away of  reproductive healthcare in ways that don’t necessarily violate Roe v. Wade. Such efforts include restrictions on medication abortion; and geographical and procedural requirements that make it nearly impossible for a woman to get an abortion.

Congress also must repeal the Hyde Amendment,  a 40-year-old policy that blocks abortion coverage for women under federally funded health care programs like Medicaid, Veterans Affairs, and the Indian Health Service, according to Warren. She added that conversations about reproductive health access and coverage should include immigrant women.

To ensure equal access to reproductive health care, Warren wrote, Congress must terminate President Donald Trump’s gag rule on abortion clinics and support Title X funding for family planning. She added that lawmakers must also prevent violence at clinics and discrimination based on women’s choices about their own bodies—adding that Congress must “ensure access to contraception, STI prevention and care, comprehensive sex education, care for pregnant moms, safe home and work environments, adequate wages, and so much more.

“This is a dark moment. People are scared and angry. And they are right to be,” Warren wrote. “But this isn’t a moment to back down ― it’s time to fight back.”

Research contact: @HuffPost

Skid Roe? Leaked documents show Kavanaugh may backslide on Roe v. Wade

September 7, 2018

As White House Staff Secretary during the administration of President George W. Bush, Brett Kavanaugh reviewed “literally every [policy] document that went to the Oval Office,” according to then-Deputy Chief of Staff Karl Rove, who described the current SCOTUS nominee’s role at the time as “central” to Newsweek in July.

Bush also nominated Kavanaugh for the position of judge on the D.C. Circuit Court of Appeals—a role he has played since 2006.

Now, it has come out that, during Bush’s term in office, Kavanaugh questioned the accuracy of deeming the Supreme Court’s landmark Roe v. Wade abortion rights decision to be “settled law of the land,” according to a secret email obtained by The New York Times and posted on its site on September 6.

The email, written in March 2003, is one of thousands of documents that a lawyer for President George W. Bush turned over to the Senate Judiciary Committee about the Supreme Court nominee, but deemed “committee confidential”—meaning that it could not be made public or discussed by Democrats in questioning him in hearings this week.

However, it was among several communications leaked to the Times late on September 5.

According to that news outlet, Judge Kavanaugh was considering a draft opinion piece that supporters of one of Bush’s conservative appeals court nominees hoped they could persuade anti-abortion women to submit under their names. It stated that “it is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.”

However, Judge Kavanaugh proposed deleting that line, writing: “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so.”

He was presumably referring to then-Justices William Rehnquist and Antonin Scalia, along with Justice Clarence Thomas, conservatives who had dissented in a 1992 case that reaffirmed Roe, Planned Parenthood v. Casey.

The court now has four conservative justices who may be willing to overturn Roe—Justices Thomas and John C. Roberts Jr., Samuel Alito and Neil Gorsuch — and if he is confirmed, Judge Kavanaugh could provide the decisive fifth vote.

Still, the Times noted, his email stops short of saying whether he personally believed that the abortion rights precedent should be considered a settled legal issue.

Democrats have complained about relying on the advice of Bush’s lawyer rather than the National Archives to decide what to provide to the Senate, as one part of a larger faceoff over how many documents from Kavanaugh’s stint in the Bush administration the Senate and public should be able to vet before his confirmation vote.

Other leaked materials provided to The Times included a document showing that in September 2001, after the terrorist attacks, Judge Kavanaugh engaged with a Justice Department lawyer about questions of warrantless surveillance—even before the Bush administration began its warrantless surveillance program.

And in yet another, Kavanaugh disparage Department of Transportation affirmative action regulations, writing: “The fundamental problem in this case is that these DOT regulations use a lot of legalisms and disguises to mask what is a naked racial set-aside,” he wrote, adding that he thought the court’s four conservative justices at the time would probably “realize as much in short order and rule accordingly.”

What’s more, on  September 6, other potentially compromising emails were released by Senator Cory Booker (D-New Jersey), who posted a series of emails about racial issues that included the affirmative action-related email obtained by The Times.

Meanwhile, In an ABC News/Washington Post poll released on Tuesday morning, Americans were split on Kavanaugh’s nomination to the U.S. Supreme Court— coming in at the the lowest support levels for a high court nominee in polling back to 1987. Thirty-eight percent of Americans say Kavanaugh should be confirmed, 39% not, with the rest undecided in this poll, produced for ABC by Langer Research Associates. Only two nominees have had weaker public support: Harriet Miers, who withdrew her nomination, in 2005; and Robert Bork, rejected by the Senate in 1987.

Research contact: @charlie_savage

Views of abortion vary widely among U.S. religious groups

January 30, 2018

More than four decades after the U.S. Supreme Court’s decision on Roe v. Wade legalized abortion nationwide in 1973, most Americans (57%) still support the right of a woman to choose, according to a Pew Research Center survey released on January 22.

However, a substantial minority (40%) say abortion should be illegal in all or most cases—and within some U.S. denominations and religious groups, this figure is much higher.

Specifically, the majority of Jehovah’s Witnesses (75%) and Mormons (70%) say abortion should be illegal in all or most cases, according to findings of Pew’s 2014 Religious Landscape Study—a survey of more than 35,000 Americans in all 50 states.

The same holds true for members of some evangelical churches; including the Pentecostal denominations, Church of God (Cleveland, Tennessee) (77%) and Assemblies of God (71%), and America’s largest evangelical denomination, the Southern Baptist Convention (66%). Indeed, nearly twice as many evangelicals say they oppose legal abortion as support it (63% to 33%).

By comparison, only 35% of those who are part of the mainline Protestant tradition say abortion should be illegal in all or most cases, with 60% in support of keeping abortion legal. Members of the Episcopal Church (79%) and the United Church of Christ (72%) are especially likely to support legal abortion, while most members of the Presbyterian Church (U.S.A.) and the mainline Evangelical Lutheran Church in America (65%) also take this position.

Among those who wholeheartedly support choice? Unitarian Universalists (90%) and American Jews (83%) are much more supportive of legal abortion than the general population. And most people who have no religious affiliation – particularly atheists and agnostics (87% each) – also support abortion rights.

Research contact: info@pewresearch.org.