TX anti-abortion law architect tells Supreme Court: Women should just stop having sex

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FACE Act

Attorney General Merrick Garland followed through on his pledge to more vigorously protect abortion access last week by bringing charges under the FACE Act. Columbus man Carlos Manuel Rodriguez Brime, 25, was arrested and charged with violating the Freedom of Access to Clinic Entrances (FACE) Act for making two telephone threats to a local reproductive health care clinic.

“The department will provide support from federal law enforcement when an abortion clinic or reproductive health center is under attack. We have reached out to U.S. Attorneys’ Offices and FBI field offices in Texas and across the country to discuss our enforcement authorities,” Garland said in a statement earlier this month. “We will not tolerate violence against those seeking to obtain or provide reproductive health services, physical obstruction or property damage in violation of the FACE Act.”

While the AG has promised to explore using the FACE Act to prosecute those who seek to enforce Texas’ latest anti-abortion law (SB 8), in reality, the simple threat of expensive litigation – not physical violence – against abortion providers is enough to bring a virtual halt to the procedure.

“While it’s encouraging that they’re focused on this issue and the problems of the law, I don’t know that that statement or enforcement of the Face Act will make a material difference in Texas right now,” said Jenny Ecklund, a lawyer representing several people and advocacy organizations that help women access abortions and have won restraining orders in local courts in advance of the ban taking effect. “Now the issue is providers have stopped providing.”

DOJ’s TX lawsuit

The Department of Justice filed a 47-page emergency motion last week asking the Western District Court of Texas to issue a temporary restraining order against Texas’s anti-abortion law. “It is settled constitutional law that ‘a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability. But Texas has done just that,” the DOJ lawsuit says (pdf). Judge Earl Leroy Yeakel (George W. Bush appointee) will hear the case. Yeakel has already ruled against numerous abortion restrictions in Texas, though the conservative 5th Circuit Court of Appeals has overturned his opinions in each instance.

  • For example, Yeakel ruled in favor of abortion providers in Whole Women’s Health v. Hellerstedt. The 5th Circuit overturned most of his order. In June 2016, the Supreme Court upheld Yeakel’s original ruling.

24 state attorneys general filed an amicus brief supporting the DOJ’s lawsuit, writing that SB 8 is “unequivocally unconstitutional.” The Attorneys general include those from California, Colorado, Connecticut, Delaware, the District of Columbia, Hawai’i, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, Wisconsin, and North Carolina (pdf).

In addition to the serious threat that S.B. 8 poses to our constitutional order and the rule of law, S.B. 8 will also cause—indeed, has already caused—countless people in Texas to suffer irreparable harm as a result of the deprivation of their constitutional right to terminate a pregnancy before viability. Today, virtually no one can obtain an abortion in Texas. In order to obtain abortion care, patients now have to travel out-of-state, which makes abortion for many people too difficult, too time-intensive, and too costly. As a consequence, many will now be forced to carry unwanted pregnancies to term. And forcing people into unwanted pregnancies will result in negative health and socioeconomic consequences for both them and their children. In the face of this extraordinary attempt by Texas to eliminate abortion services long protected by the Fourteenth Amendment and the serious harms that people in Texas and elsewhere will suffer as a result, this Court should grant immediate relief

Related: “Opinion: Why I violated Texas’s extreme abortion ban,” WaPo.

“On the morning of Sept. 6, I provided an abortion to a woman who, though still in her first trimester, was beyond the state’s new limit. I acted because I had a duty of care to this patient, as I do for all patients, and because she has a fundamental right to receive this care. I fully understood that there could be legal consequences — but I wanted to make sure that Texas didn’t get away with its bid to prevent this blatantly unconstitutional law from being tested.”

Supreme Court

Reminder: The Supreme Court is going to hear arguments in another abortion case, Dobbs v. Jackson Women’s Health Organization, during the 2021-2022 term. The suit, brought by reproductive health clinic Jackson Women’s Health, challenges Mississippi’s law prohibiting abortions after the 15th week of pregnancy. Both the district and appeals courts ruled the law unconstitutional and its blocked enforcement.

This is the first time the Court will rule on the constitutionality of a pre-viability abortion ban since Roe. The Court’s ruling in Roe recognized that the decision whether to continue a pregnancy or have an abortion, which impacts a person’s body, health, family and future, belongs to the individual, not the government. Nancy Northup, president and CEO of the Center, said in a statement: “Alarm bells are ringing loudly about the threat to reproductive rights. The Supreme Court just agreed to review an abortion ban that unquestionably violates nearly 50 years of Supreme Court precedent and is a test case to overturn Roe v. Wade.”

Numerous amici curiae briefs have been filed on behalf of both sides, but one in particular sticks out in its ignorance and callousness: Former Texas solicitor general Jonathan Mitchell – who helped write Texas’s SB 8 – and co-counsel Adam Mortara, a former clerk of Justice Clarence Thomas, filed a brief arguing that women must stop having sexual intercourse (pdf).

Women can ‘control their reproductive lives’ without access to abortion; they can do so by refraining from sexual intercourse… One can imagine a scenario in which a woman has chosen to engage in unprotected (or insufficiently protected) sexual intercourse on the assumption that an abortion will be available to her later. But when this court announces the overruling of Roe, that individual can simply change their behavior in response to the court’s decision if she no longer wants to take the risk of an unwanted pregnancy.

Mitchell and Mortara invite the Supreme Court to overrule not just Roe v. Wade and Planned Parenthood v. Casey, but also LGBTQ+ landmark decisions Lawrence v. Texas and Obergefell v. Hodges.

The news is not as good for those who hope to preserve the court-invented rights to homosexual behavior and same-sex marriage. See Lawrence, 539 U.S. 558; Obergefell, 576 U.S. 644. These “rights,” like the right to abortion from Roe, are judicial concoctions, and there is no other source of law that can be invoked to salvage their existence…The right to marry an opposite-sex spouse is “deeply rooted in this Nation’s history and tradition”; the right to marry a same-sex spouse obviously is not.

This is not to say that the Court should announce the overruling of Lawrence and Obergefell if it decides to overrule Roe and Casey in this case. But neither should the Court hesitate to write an opinion that leaves those decisions hanging by a thread. Lawrence and Obergefell, while far less hazardous to human life, are as lawless as Roe.

Tennessee abortion ban

A three-judge panel of the Sixth Circuit Court of Appeals blocked a Tennessee ban on abortion at the sixth week of pregnancy and another ban on obtaining an abortion based on certain reasons, such as fetal Down syndrome. Two Bill Clinton appointees, Martha Daughtrey and Karen Moore, ruled that the law’s “provisions are constitutionally unsound” (pdf).

We take note that state legislatures recently have passed more anti-abortion regulations than perhaps at any other time in this country’s history. However, this development is not a signal to the courts to change course. It is, in fact, just the opposite. The judiciary exists as a check on majoritarian rule. It has a duty to protect the Constitutional rights, including privacy and bodily autonomy, of those within its borders, even—or especially—if the relevant class of people “has [ ] been subjected to a ‘tradition of disfavor’ by our laws.”

Trump appointee Amul Thapar dissented, writing that the foundational Supreme Court abortion cases Roe and Casey “are wrong as a matter of constitutional text, structure, and history.”

The Roe/Casey framework doesn’t just conflict with the original understanding of the Constitution—it cannot be justified under any modern approach to constitutional interpretation. Even living constitutionalism, taken seriously, permits Tennessee’s (and many other states’) efforts to combat fetal pain. After all, the living constitution theory considers evolving standards of decency.

Further reading:

“ACLU Sues Over Arizona Law That Bans Abortions in Cases of ‘Genetic Abnormality,’ Grants ‘Personhood’ to Fertilized Eggs,” Law&Crime

“Planned Parenthood sues Montana over new abortion laws,” AP

“House Committees Advance Budget Reconciliation Legislation With Critical Investments in Sexual & Reproductive Health Care,” Planned Parenthood