Abortion

Subterms

    More stories

    • 163 Shares169 Views

      in US Politics

      How America’s broken democracy led to our abortion crisis | Meaghan Winter

      by

      OpinionUS politicsHow America’s broken democracy led to our abortion crisis Meaghan WinterThe majority of Americans support legal abortion. Redistricting has allowed extremism to flourish without fear of repercussion Mon 25 Oct 2021 06.29 EDTLast modified on Mon 25 Oct 2021 14.28 EDTAmerica is at a crossroads when it comes to abortion. In 2021, state legislatures have passed an unprecedented 106 anti-abortion bills. State lawmakers in five states are preparing legislation similar to Texas’s SB 8, an effective total abortion ban that enshrines a new kind of vigilantism directed at medical providers and private citizens.In this dangerous moment, supporters of legal abortion must understand that raising our voices is not going to change anything unless we also push for major, immediate democratic reforms including ending the filibuster, enshrining federal voting rights, expanding the supreme court and establishing fair redistricting.I understand why those goals may simultaneously seem too wonky to follow and too ambitious to achieve. But we cannot fight for abortion rights without first repairing our democracy, because we will continue to lose.The conservative movement and its ideological and corporate patrons have locked in structural power at nearly every level of government, and our lawmakers don’t need to be responsive to public opinion or even long-enshrined civil and human rights. If we’re going to have any chance of protecting ourselves and each other, on numerous urgent fronts, we need to agitate for immediate, ambitious democratic reforms that will ensure that our courts uphold our rights, and our elected officials are responsive to the will of the people. Otherwise, our rallies are collective screams into the void.Many abortion rights supporters have moved away from calling themselves “pro-choice” and instead have embraced the reproductive justice model, which defines itself as a movement to ensure the human right to bodily autonomy and to parent or not parent in a safe and sustainable community. Current threats to our democracy make crystal clear that the struggles for reproductive freedom, voting rights and economic, racial and climate justice are inextricably linked.When I first began reporting on abortion, in 2013, when I’d ask abortion rights advocates why extreme anti-abortion state lawmakers seemed unafraid of running afoul of the majority of the American public, which supports legal abortion, they would answer, “gerrymandering”.As I soon learned, because Republicans have gerrymandered districts in states across the nation, it no longer matters whether their policies defy most voters’ beliefs and needs, because incumbents’ seats are safe almost no matter what.What we’re seeing now accelerated after the 2010 election, which had existential ramifications for our democracy only now becoming visible. Ahead of that election, during an all-important redistricting year, the Republican party and conservative and corporate donors heavily invested in state-level elections so that they could gerrymander and give themselves a competitive advantage for a decade. It worked. They flipped legislative chambers across the country, and states started ramping up their envelope-pushing anti-abortion bills, as well as voting restrictions designed to make it more difficult for voters to throw them out of office.In 2020, Democrats failed to flip a single state-level chamber. Republicans now control 30 legislatures during yet another redistricting year, jeopardizing any chance of a progressive agenda in many states as well as Democratic control of Congress next year.As states begin passing ever more extreme abortion restrictions and even bans, there’s little reason to believe that the courts will stop them unless Congress gets serious about reforming the court system.During the Trump administration, Republicans installed an unprecedented number of federal judges, many of them open ideologues with little experience on the bench, reshaping the judiciary for a generation. And, in case you’ve forgotten, McConnell blocked Obama’s nominee Merrick Garland, changed the Senate rules for confirming justices to push through Neil Gorsuch, ushered through the confirmation of Brett Kavanaugh despite credible accusations of sexual assault against him, and rushed through the confirmation of Amy Coney Barrett while voting in the 2020 election had already begun.The radical takeover of the courts was not a random fluke but the result of careful plotting and hundreds of millions of dollars investment by rightwing ideologues and billionaires – the same kind of long-term strategizing to change the rules of the game their allies used to gerrymander states and congressional districts.In other words, the same movement of extreme, partisan donors and strategists behind the ever-more radical state laws has also installed federal judges and supreme court justices who are poised to uphold those laws. The issue isn’t whether expanding the supreme court will throw into doubt the court’s legitimacy. The supreme court is already partisan and ideological and therefore illegitimate. What’s needed now is a major and swift corrective.That brings us to Congress. What about a federal law enshrining abortion rights? To achieve that – and so much more, including expanding the supreme court – Congress needs to end the filibuster, the rule that requires 60 members of the Senate to pass legislation instead of 50. Our current Senate delivers nothing close to fair representation, which, as I write this, is on painful display as Republicans have filibustered yet another urgently needed voting rights bill, while two Democratic senators representing small states have killed provisions in the Build Back Better package that are “pro-life” in the most literal sense – in support of healthcare and a viable planet. To have any chance of achieving reproductive justice in this country, we need to agitate for our members of Congress to end the filibuster now.It’s time to re-examine what we consider pragmatic. Sticking with the status quo means surrendering to the profound irony that a movement that branded itself as “pro-life” has helped usher in a ruling class committed not only to stripping away the social safety net but also doubling down on fossil fuels and imperiling the very existence of life on Earth.Trying to advocate for reproductive justice without also demanding that our lawmakers immediately reform our voting laws, Congress and the courts that have been rigged by corporate and authoritarian interest groups isn’t practical or hopeful – it’s misguided if not delusional. Instead, supporters of abortion rights must join the chorus calling to end the filibuster and expand the supreme court.
      Meaghan Winter is a freelance magazine writer and author of the book All Politics is Local: Why Progressives Must Fight for the States
      TopicsUS politicsOpinionAbortionRoe v WadecommentReuse this content More

    • 313 Shares169 Views

      in US Politics

      The courts have a new chance to block Texas’s abortion law. They must take it | Laurence Tribe, Erwin Chemerinsky, Jeffrey Abramson and Dennis Aftergut

      by

      OpinionUS supreme courtThe courts have a new chance to block Texas’s abortion law. They must take itLaurence H Tribe, Erwin Chemerinsky, Jeffrey Abramson and Dennis AftergutSB 8 not only stripped Texan women of their rights under Roe v Wade, it made a mockery of the US constitution and the supremacy of the federal courts Sun 17 Oct 2021 06.24 EDTLast modified on Sun 17 Oct 2021 06.25 EDTSadly, predictably and appallingly, on October 14, a three judge panel of the US court of appeals for the fifth circuit has allowed Texas’s “Bounty-Hunter” anti-abortion law to go back into effect while the court considers the case on the merits. Every day that the fifth circuit panel’s unlawful order keeps the statute in operation brings irreversible injury to women in Texas. US Attorney General Merrick Garland has properly decided to seek emergency relief from the US supreme court.The justice department is right to accuse the State of Texas of seeking to destroy not only abortion rights but also the foundation of our constitutional Republic. In a nation whose history is fraught with battles between states’ rights and national sovereignty, the case of United States v Texas raises issues basic to our national compact.Texas set the current controversy in motion by passing SB8, an anti-abortion law that legislators knew was unconstitutional. In doing so, they violated what Chief Justice Marshall explained two centuries ago was the bedrock of our young nation’s rule of law – that our constitution reigns supreme.“Senate bill 8 (SB8) flouts that principle,” Monday’s DoJ brief in the fifth circuit reads. The law does that “by blatantly violating constitutional rights and severely constraining judicial review of its unconstitutional restrictions.” That “sets this case apart.”Put bluntly, Texas has sought not only to virtually eliminate women’s rights under Roe v Wade, but also to reduce our Constitution’s supremacy to a relic. Those twin dangers are why the stakes are high in the suit by the United States to enjoin the Texas anti-abortion statute. And that’s why the October 14 Fifth Circuit order keeping the law in effect is so troubling.This case stands on a very different footing from the one that a conservative 5-4 supreme court rejected on September 1 on procedural grounds. With the United States now suing, there is plenty of precedent for the federal government to come into court challenging a state law before it is enforced, and a state cannot hide behind sovereign immunity as a defense. The cases that the fifth circuit cited on Friday as reasons for refusing to block SB8 were entirely inapplicable because they have no relevance to a suit brought by the United States to force a recalcitrant state to obey the constitution. Texas’s reason for not arguing SB8’s constitutionality is obvious. The supreme court has affirmed many times since Roe v Wade in 1973 that states cannot prohibit abortions before the fetus is viable and capable of surviving outside the womb. Viability occurs at about the 24th week of pregnancy.Nonetheless, Texas’s law makes all abortions illegal, without exceptions for rape or incest, once fetal cardiac activity can be detected – usually around six weeks after a woman’s last menstrual period.The fact that the law is enforced by vigilantes’ private civil suits rather than by government prosecutions only aggravates its unconstitutionality. It is a Texas law that opens Texas courts to these bounty-hunting lawsuits. Since 1948, it has been settled law that individuals may not use state courts to deprive others of constitutional rights.On Wednesday, 6 October, in a 113-page opinion, with some of the strongest language ever heard from a federal judge, US district court Judge Robert Pitman blocked Texas from enforcing this near-total ban on abortions. Judge Pitman’s opinion explained that Texas concocted a transparent “scheme” to “end run” the constitution. The court laid out the elaborate “machinations” Texas devised to avoid a court doing anything about a clearly unconstitutional law.Judge Pitman also documented cases of women – sometimes minors – suffering “grievous wrong”, as they are forced to carry unwanted pregnancies or travel, if they can afford it, to another state to access their constitutional rights: “The court can only speculate as to the hardships” these women have “had to endure”.Having temporarily reinstated SB 8, the Fifth Circuit noted that it will expedite review of the merits of Judge Pitman’s decision. That could affect the supreme court’s consideration of emergency relief to the United States. Whether now or later, this case will land on the court’s docket. Even justices who disagree with Roe v Wade should recognize the dire implications of letting any state deliberately design a blatantly unconstitutional statute in such a way that no court can block its enforcement until it’s too late to prevent the statute from doing irreparable harm by deterring people from exercising their rights.In the 1950s, states tried to disregard supreme court decisions interpreting the constitution when they engaged in a concerted effort to thwart desegregation orders. Then, too, the United States government interceded against the states. When the Arkansas governor Orval Faubus attempted to block desegregation, the supreme court, in Cooper v Aaron, unanimously and emphatically reaffirmed the supremacy of the constitution and federal law.The court declared: “No state legislator or executive or judicial officer can war against the constitution without violating his undertaking to support it.” All nine justices joined in declaring: “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.”That would be the result if Texas could destroy the constitutional rights of women before any court could enjoin its devious scheme. To ensure the constitution remains the supreme law of the land, and to protect all rights it guarantees, the fifth circuit and the supreme court must uphold Judge Pitman’s injunction.
      Laurence H Tribe is the Carl M Loeb University Professor emeritus and a professor of constitutional law emeritus at Harvard Law School. Erwin Chemerinsky is the dean of the School of Law at the University of California, Berkeley. Jeffrey Abramson is Professor of Law and Government at the University of Texas, Austin. Dennis Aftergut is a former federal prosecutor
      TopicsUS supreme courtOpinionUS politicsLaw (US)AbortioncommentReuse this content More

    • 113 Shares179 Views

      in Elections

      Supreme Court Focuses on Procedure in Kentucky Abortion Case

      by

      After the state’s political landscape shifted in 2019, the Democratic governor and the Republican attorney general disagreed on defending the law.WASHINGTON — The Supreme Court heard arguments in an abortion case on Tuesday, but the issue for the justices was a procedural one: Could Kentucky’s attorney general, a Republican, defend a state abortion law when the governor, a Democrat, refused to pursue further appeals after a federal appeals court struck down the law?As the argument progressed through a thicket of technical issues, a majority of the justices seemed inclined to say yes.“Kentucky maybe ought to be there in some form, and the attorney general is the one that wants to intervene,” Chief Justice John G. Roberts Jr. said.More important abortion cases are on the horizon. In December, the court will hear arguments on whether to overrule Roe v. Wade in a case concerning a Mississippi law banning most abortions after 15 weeks. And the justices have been asked to take another look at a Texas law that prohibits most abortions after six weeks, which the court allowed to go into effect last month by a 5-to-4 vote.Tuesday’s case, Cameron v. EMW Women’s Surgical Center, No. 20-601, concerned a Kentucky law that challengers said effectively banned the most common method of abortion in the second trimester of pregnancy, dilation and evacuation. The justices barely discussed the law during Tuesday’s argument.Rather, they focused on the tangled history of the case and the complicated jurisdictional and procedural questions that arose from it.The case started in 2018, when the state’s only abortion clinic and two doctors sued various state officials to challenge the law. The state’s attorney general at the time, Andy Beshear, a Democrat, said his office was not responsible for enforcing the law and entered into a stipulation dismissing the case against him, agreeing to abide by the final judgment and reserving the right to appeal.The state’s health secretary, who had been appointed by a Republican governor, defended the law in court. A federal trial court struck the law down, saying it was at odds with Supreme Court precedent. The health secretary appealed, but the attorney general did not.While the case was moving forward, Kentucky’s political landscape shifted. Mr. Beshear, who had been attorney general, was elected governor. Daniel Cameron, a Republican, was elected attorney general.Mr. Beshear appointed a new health secretary, Eric Friedlander, who continued to defend the law on appeal. But after a divided three-judge panel of the United States Court of Appeals for the Sixth Circuit, in Cincinnati, affirmed the trial judge’s ruling, Mr. Friedlander declined to seek review from the full appeals court or the Supreme Court.Mr. Cameron, the new attorney general, sought to intervene in the appeals court, saying he was entitled to defend the law. The appeals court denied his request, ruling that it had come too late.On Tuesday, the justices probed the significance of the stipulation and the standards for when appeals courts should allow parties to intervene in the late stages of a case.Justice Clarence Thomas, who has taken to asking the first questions during arguments, said “there isn’t much law” on the appropriate standards.Justice Sonia Sotomayor said the Sixth Circuit was entitled to take account of the fact that the attorney general had failed to file an appeal after losing in the trial court, notwithstanding the later election of a new attorney general.“Why would we call it an abuse of discretion for a court of appeals, after it’s rendered its judgment, to say we don’t really care what has happened in the political arena?” she asked.Matthew F. Kuhn, a lawyer for Mr. Cameron, said his client was acting in a different capacity when he sought to intervene. He was now, Mr. Kuhn said, representing the interests of the state.About 45 minutes into the argument, Justice Stephen G. Breyer described what he said was really going on the case. “First the Republicans are in, then the Democrats are in,” he said, “and they have different views on an abortion statute.”What to Know About the Supreme Court TermCard 1 of 5A blockbuster term begins. More

    • 225 Shares109 Views

      in US Politics

      Two disbarred lawyers sued a Texas doctor who performed an abortion. Flustered ‘pro-lifers’ are backpedaling | Moira Donegan

      by

      OpinionUS politicsTwo disbarred lawyers sued a Texas doctor who performed an abortion. Flustered ‘pro-lifers’ are backpedalingMoira DoneganAnti-choice groups are embarrassed that their draconian law is being enforced the way it was designed

      Democrats present last line of defense for abortion rights
      Sun 26 Sep 2021 06.27 EDTLast modified on Sun 26 Sep 2021 13.08 EDTDr Alan Braid, an OBGYN based in San Antonio, broke the law on purpose. In an essay published in the Washington Post last Saturday, the doctor announced that he performed an abortion on a woman who was past six weeks of gestation, the limit imposed by Texas’s new abortion ban, SB8. The doctor wrote that he felt morally obliged to perform the procedure, his worldview shaped by his years in obstetric practice having conversations with patients who revealed that they were terminating their pregnancies because they couldn’t afford more kids, because they had been raped, because they were with abusive partners, or because they wanted to pursue other dreams.He wrote, too, of beginning his practice in 1972, the year before Roe v Wade, the last time an outright ban on abortion was in effect in his state. “At the hospital that year, I saw three teenagers die from illegal abortions,” Dr Braid wrote. “One I will never forget. When she came into the ER, her vaginal cavity was packed with rags. She died a few days later from massive organ failure, caused by a septic infection.” Dr Braid reasoned that to avoid such needless deaths, he had a “duty of care” to the woman whose newly illegal abortion he performed.He was promptly sued. Two complaints – both from men living out of state – were filed against Dr Braid on Monday morning. One, a rambling, weird document, comes from a convicted felon and disbarred former attorney named Oscar Stilley, who is serving a prison term on house arrest in Arkansas. That complaint, which Stilley seems to have written himself, makes multiple references to Dr Braid’s conduct regarding “bastards” and his supposed belief in a god referred to by the Hebrew name “Elohim.” Stilley, who has said he does not personally oppose abortion, feels strongly that “if there’s money to be had, it’s going to go in Oscar’s pocket.”The second lawsuit is from a man named Felipe Gomez of Illinois, another disbarred lawyer, who labels himself “pro-choice plaintiff”, and whose complaint asks only that SB8 be overturned. These test cases, strange and off-putting as they are, now represent the best chance for SB8 to be vacated, and for abortion rights to be returned to Texans – at least for now.It didn’t have to be this way. When a conservative state passes an abortion ban – as they do with some regularity – state employees are usually tasked with enforcing the law, those employees are named as defendants in lawsuits brought by pro-choice groups, and the law is blocked from going into effect by courts that declare it unconstitutional before any real patients are denied abortion care. But Texas’s SB8 was designed to elide this normal process of judicial review, with a novel enforcement mechanism that bars state agents from acting to enforce the law. Instead, the law can only be enforced by private civil suits against people suspected of facilitating abortions – lawsuits, that is, like the ones filed by Stilley and Gomez.This private enforcement mechanism is like a legal Rube Goldberg machine built into SB8, creating a clever way to evade courts recognizing the bill’s abortion ban as unconstitutional. Created by an insidious conservative lawyer named Jonathan Mitchell, the loophole was designed to confound lawsuits against the law’s constitutionality with procedural, rather than substantive, questions, and to guarantee that SB8 would go into effect. The device is transparent bid to circumvent the authority of the federal courts. But those same federal courts, by now warped by decades of anti-choice influence on the judicial nominations process, let it slide anyway. Judges on the fifth circuit court of appeals, and later on the supreme court, found that the procedural questions that were engineered by SB8 provided them a sufficient pretext to do what they wanted to do anyway: allow a state to outlaw abortion within its borders, and effectively end Roe.And so, when the supreme court allowed SB8 to go into effect, it left the pro-choice movement with no choice. Pre-enforcement litigation failed on flimsy and artificial procedural grounds; what was needed was an illegal abortion, performed by someone willing to take on enormous personal risk, to create a test case. Only a deliberate legal violation would allow SB8 could be reviewed on the merits. This is where Dr Braid comes in. In addition to the enormous service he gave to the patient whose abortion he performed, he also did a service to the pro-choice movement, and to women statewide. He took on enormous personal liability so that the question of their right to an abortion could get a fair hearing.Interestingly, the anti-choice movement doesn’t seem entirely happy that the lawsuits that enforce the abortion ban they championed are now actually arriving in Texas courts. John Sego, a legislative director of the anti-choice group Texas Right to Life, which supports SB8, expressed displeasure that the law is being enforced – well, exactly the way it was designed. He called the lawsuits “self-serving legal stunts”. Yet he also claimed that “Texas Right to Life is resolute in ensuring that [SB8] is fully enforced.” If Sego and other anti-choice groups want the law enforced, why do they oppose private citizens enforcing it, using the bill’s own remedy?It might be that Sego and his anti-choice colleagues are embarrassed to have their interests represented by a plaintiff like Stilley, with his flamboyant feloniousness. Maybe they have realized that the bounty-hunting provision of the law is deeply unpopular, and that the suits are terrible PR for the anti-choice movement. At any rate, it is hard to take Sego seriously when he says, “We believe Braid published his op-ed intending to attract imprudent lawsuits, but none came from the pro-life movement.” In fact Sego’s group is legally not able to file bounty-hunting lawsuits to enforce SB8: although the group established an “abortion snitch” website that seemed designed to solicit tips about possible defendants in SB8 enforcement suits against those who facilitate abortions, a judge issued a restraining order preventing Texas Right to Life from filing them.But perhaps the real reason Sego is displeased with the lawsuits against Braid is that SB8’s bounty hunting enforcement system was only one small part of the anti-choice vision for the law. The real way that abortions would become inaccessible in Texas under SB8 wasn’t that people would sue; it was that abortion providers, faced with the prospect of being bankrupted by lawsuits, would preemptively stop performing abortions. It was an attempt to do by intimidation what the anti-choice movement was not confident they could do by law: strip Texan women of their constitutional right to control their own bodies and lives. And, mostly, this gambit has worked. In the more than three weeks since SB8 went into effect, legal abortions after six weeks have come to a halt in Texas. Fearing liability, clinics are turning pregnant patients away. So far, only Dr Braid has called the anti-choice movement’s bluff.
      Moira Donegan is a Guardian US columnist
      TopicsUS politicsOpinionAbortionTexascommentReuse this content More