Women may be about to lose a constitutional right they’ve had for 50 years. They’ve already effectively lost the right to abortion in the state of Texas, which has limited the procedure to before six weeks. (Around 36 percent of abortions take place at or before six weeks, according to the 2018 CDC numbers.) Ironically, just two weeks after enacting the new abortion law, Texas Governor Greg Abbott tweeted about how much he loved the Constitution: “Our constitution is the greatest charter of liberty the world has ever known, securing our fundamental, God-given rights to free speech, to freedom of religion, to bear arms, & so much more.” Pretty rich, given that he had basically taken a Sharpie to the document and functionally overturned Roe v. Wade with S.B. 8.
Tomorrow, our very conservative Supreme Court will look at Roe via Dobbs v. Jackson Women’s Health Organization. The same Supreme Court that refused to intervene in the insane Texas law, which includes bounties for anyone aiding or abetting an abortion, including your Uber driver or doctor. Whom do we have to thank for that law? Far-right activist and lawyer Jonathan F. Mitchell, a former clerk for Justice Antonin Scalia. According to The New York Times, “Mr. Mitchell has spent the last seven years honing a largely below-the-radar strategy of writing laws deliberately devised to make it much more difficult for the judicial system—particularly the Supreme Court—to thwart them, according to interviews.”
Like a lot of the new abortion restrictions, the Texas law is very broad, and does not allow for abortion in the case of rape or incest—leading Dr. Ingrid Skop of the American Association of Pro-Life Obstetricians and Gynecologists to defend forcing a (hypothetical) 9-year-old child to carry and deliver her rapist’s child. If you’re in favor of forcing a 9-year-old rape victim to have a child, I’m going to say that you’re on the wrong side of things. In September, Dr. Skop told the House Oversight Committee, “If she is developed enough to be menstruating and become pregnant, and reached sexual maturity, she can safely give birth to a baby.” How’s that for dystopian?
The Supreme Court allowed the Texas law to go into effect in darkness, through the shadow docket, which allows for unsigned decisions and emergency orders—and does not hear oral arguments, so there is zero transparency. Conservative Justice Samuel Alito recently defended the shadow docket during a speech at a Catholic university, complaining that the media were framing the Court as “having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways.” How dare the media call the shadow docket shadowy?
If the Supreme Court refused to step in when a governor essentially rewrote the Constitution, it seems unlikely that they’d now decide to protect a woman’s constitutional right to an abortion. I reached out to a few relevant political leaders and advocates for their take on this perilous moment for abortion rights. Here’s what they told me.
Representative Joaquin Castro (D-TX, Twentieth District): “Texans are already suffering the consequences of the effective ban on abortions imposed by the far-right-wing governor and Republican-controlled legislature. For example, doctors are at risk of frivolous lawsuits from private bounty hunters and severely limited from helping their patients experiencing medically risky pregnancies—without even an exception for nonviability, rape, or incest. The Supreme Court should have provided emergency relief, and I’m deeply concerned that this conservative Court will ignore the facts and the law to undermine constitutionally protected reproductive rights.”
Representative Sylvia Garcia (D-TX, Twenty-Ninth District): “Put simply, Mississippi’s case is the greatest threat to abortion rights and puts women’s health and lives on the line, with women of color and Latinas suffering the most. The need to protect women’s right to abortion has never been clearer. Mississippi’s request to overturn Roe can have devastating consequences across the country, including in my home state of Texas. Politicians should not attempt to put women’s health and lives at risk for political gain. The House has already acted by passing the Women’s Health Protection Act, and now it is up to the Senate to finish the job.” (Of course, for the Senate to do that, they’d almost certainly have to abolish the filibuster.)
Marc Hearron, senior counsel for the Center for Reproductive Rights: “The situation in Texas continues to be devastating and only gets worse with each passing day. Patients seeking abortion care are desperate. They are being forced to either continue to carry pregnancies or find clinics with appointments, some of which may be hundreds of miles away and have weeks-long waits, severely impacting people who cannot take time off work, secure child care, or raise the financial means to travel.”
Renee Bracey Sherman, founder and executive director of We Testify: “This moment is incredibly painful for people who have had and will need abortions. As soon as abortion was legalized nationwide, anti-abortion advocates have been working overtime to make it difficult to access, particularly for all of us who are Black, brown, and Indigenous. As an abortion activist, I am furious at this moment because we have been warning this clearly and constantly for over a decade, and our warnings were met with ignorance, paternalistic pats on the head, and refusals to act. Now we are at a crisis, and our leaders are talking about the challenge of this moment but refusing to take critical action like removing the filibuster, ensuring Medicaid coverage of abortion, ending the prosecution and criminalization of people who self-manage their abortions, or making medication abortion widely available to all. No one should be barred from getting the abortion care they want. This painful moment can transform our health-care system into one where everyone is able to access health care—including abortion—at any time and for any reason.”
When abortion becomes illegal, women don’t stop getting abortions. They just stop getting safe and legal abortions.
It’s possible that the Supreme Court could still overturn the Texas law, but every day that they don’t, it becomes less likely that they will. It’s also possible that the conservative Court won’t use Dobbs v. Jackson Women’s Health as a way to overturn Roe and kick the right to choose back to the states, but I think they will. And if they do, women will lose a constitutional right they’ve had for 50 years at a time when many on the right defend their refusal to be vaccinated for COVID-19 with the slogan “My body, my choice.” Because, apparently, irony is dead.