The "soft" overturn of Roe v. Wade exposes how far-right John Roberts has let the Supreme Court go
SCOTUS has figured out how to evade GOP-harming headlines by using the shadow docket and other shady strategies
By AMANDA MARCOTTE
PUBLISHED SEPTEMBER 1, 2021 12:37PM (EDT)
At the stroke of midnight on Wednesday, the Supreme Court suddenly overturned Roe v. Wade.
The move was quiet and it very well may be temporary (they could still issue a short decision any minute now, or not) but make no mistake, a Roe overturn is exactly what it is. But headlines across the country aren't coming right out and saying so, because the Supreme Court used a dastardly legal manipulation to let states ban abortion without actually issuing a straightforward decision to end abortion protections.
Earlier this summer, Texas passed a law banning abortion at 6 weeks. Six weeks may sound like a luxurious amount of time to make a decision, but in fact, it amounts to a near-ban on all abortion. That's because in reality, "six weeks" is only two weeks after the missed period, and that's only in women who have highly regular periods. Critically, it is also before many doctors will even do the procedure, for safety reasons. So it's estimated that 85-90% of abortions in Texas are performed after the 6-week mark.
To make it worse, the law is written in such a way as to make wife beaters, Aunt Lydias, and embittered incels the primary enforcers of the ban, establishing what amounts to a public bounty hunter system. As legal analyst Imani Gandy explained at Rewire News Group, the law "allows anyone—literally anyone, including strangers!—to file a lawsuit against a person they suspect is going to either provide an abortion or help a person obtain an abortion." This means that not only can the abusive ex-boyfriend sue the doctor who helped his victim escape his clutches, but he can now also go after the friend who put her up and paid for her abortion.
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As The 19th reports, Planned Parenthood and other clinics across the state have already mass-canceled abortion appointments.
This Texas law clearly violates Roe v. Wade, the landmark Supreme Court decision that bars states from banning pre-viability abortion, a category which very much includes pregnancies two weeks after a missed period. And yet, somehow the Fifth Circuit Court, which is notoriously authoritarian, found a way to uphold the law. The law went into effect at the stroke of midnight on September 1, as the Supreme Court passively allowed that lower court decision to stand. The move, or lack thereof, is unprofessional and cowardly, but it did allow the far-right court to have it both ways by banning abortion in Republican-controlled states without drawing "Roe overturned" headlines that would anger the large majority of Americans who want to keep Roe in place.
Unfortunately, such a shadowy maneuver is hardly a unique move for this court. These kinds of passive, backdoor decisions are increasingly how the Supreme Court is now doing business. Despite the self-flattery from the legal world about the apolitical nature of the courts, the reality is today's Supreme Court is both very political and very right-wing.
It is not hyperbole to say that the GOP has spent years shaping not just the Supreme Court but the entire federal judiciary to force a far-right ideology on a public that keeps rejecting it at the ballot box. The problem for Republicans, however, is that dramatic Supreme Court decisions overturning Roe or otherwise gutting hard-earned human rights would anger voters. That could drive up turnout for Democrats in elections and hurt elected Republicans. The court's behavior suggests a clash between a yearning to push the country as far to the right as possible and a political need to avoid backlash.
One way they've squared that circle is by gradually chipping away at laws like the Voting Rights Act, so they can destroy human rights quietly without drawing the attention outright annihilation would bring. But the newest innovation is abusing the so-called shadow docket.
As Igor Derysh reported for Salon, the shadow docket is "where the justices hand down largely unsigned short opinions without going through standard hearings, deliberations, and transparency." Traditionally, it's mostly upholding lower court orders or emergency petitions that aren't especially controversial. But this court, controlled by Chief Justice John Roberts, has started to use the shadow docket to issue far-right rulings under the radar, avoiding the press coverage that more traditional rulings get. That's how, for instance, the Supreme Court dispensed with the eviction ban that President Joe Biden was implementing to prevent a surge of pandemic-caused homelessness. It's also how the Supreme Court forced the Biden White House to enforce the racist "remain in Mexico" policy regarding political asylum seekers. As Moira Donegan at The Guardian explains, this sleazy strategy for cheating the legal system was developed under Donald Trump.
Previously, shadow docket emergency requests had been rarely used, to advance the interests of the governing administration. From 2001 through 2016, the Department of Justice applied for these emergency relief interventions from the court only eight times. During the four years of Trump's presidency, however, the justice department applied 41 times.....
Bypassing lower courts, the Trump administration was able to solicit the supreme court for a green light for border wall funding and construction, for a ban of transgender troops in the military, for a ban of immigrants from Muslim majority countries, and for many, many executions during the administration's 11th-hour killing spree in the latter half of 2020.
Unfortunately, this strategy has been devastatingly effective at lulling the press into not covering how far-right the Supreme Court is, and therefore tricking the public into believing the courts are more reasonable than they actually are:
That's why, even if the Supreme Court accedes to public outrage over this cowardly Roe overturn, and issues a too-late injunction against the Texas law, a lot of damage has been done by not swiftly enjoining a law so clearly in violation of Roe. Legal analysts Jessica Mason Pieklo at Rewire and Steven Mazie at The Economist explained on Twitter:
Why this doctor provides abortions out of Christian "compassion" 02:17 Go To Video Page
AMANDA MARCOTTE is a senior politics writer at Salon and the author of "Troll Nation: How The Right Became Trump-Worshipping Monsters Set On Rat-F*cking Liberals, America, and Truth Itself." Follow her on Twitter @AmandaMarcotte and sign up for her biweekly politics newsletter, Standing Room Only.
SCOTUS has figured out how to evade GOP-harming headlines by using the shadow docket and other shady strategies
By AMANDA MARCOTTE
PUBLISHED SEPTEMBER 1, 2021 12:37PM (EDT)
Justices John Roberts, Brett Kavanaugh and Amy Coney Barrett (Photo illustration by Salon/Getty Images/Erin Schaff)
At the stroke of midnight on Wednesday, the Supreme Court suddenly overturned Roe v. Wade.
The move was quiet and it very well may be temporary (they could still issue a short decision any minute now, or not) but make no mistake, a Roe overturn is exactly what it is. But headlines across the country aren't coming right out and saying so, because the Supreme Court used a dastardly legal manipulation to let states ban abortion without actually issuing a straightforward decision to end abortion protections.
Earlier this summer, Texas passed a law banning abortion at 6 weeks. Six weeks may sound like a luxurious amount of time to make a decision, but in fact, it amounts to a near-ban on all abortion. That's because in reality, "six weeks" is only two weeks after the missed period, and that's only in women who have highly regular periods. Critically, it is also before many doctors will even do the procedure, for safety reasons. So it's estimated that 85-90% of abortions in Texas are performed after the 6-week mark.
To make it worse, the law is written in such a way as to make wife beaters, Aunt Lydias, and embittered incels the primary enforcers of the ban, establishing what amounts to a public bounty hunter system. As legal analyst Imani Gandy explained at Rewire News Group, the law "allows anyone—literally anyone, including strangers!—to file a lawsuit against a person they suspect is going to either provide an abortion or help a person obtain an abortion." This means that not only can the abusive ex-boyfriend sue the doctor who helped his victim escape his clutches, but he can now also go after the friend who put her up and paid for her abortion.
Advertisement:
As The 19th reports, Planned Parenthood and other clinics across the state have already mass-canceled abortion appointments.
This Texas law clearly violates Roe v. Wade, the landmark Supreme Court decision that bars states from banning pre-viability abortion, a category which very much includes pregnancies two weeks after a missed period. And yet, somehow the Fifth Circuit Court, which is notoriously authoritarian, found a way to uphold the law. The law went into effect at the stroke of midnight on September 1, as the Supreme Court passively allowed that lower court decision to stand. The move, or lack thereof, is unprofessional and cowardly, but it did allow the far-right court to have it both ways by banning abortion in Republican-controlled states without drawing "Roe overturned" headlines that would anger the large majority of Americans who want to keep Roe in place.
Unfortunately, such a shadowy maneuver is hardly a unique move for this court. These kinds of passive, backdoor decisions are increasingly how the Supreme Court is now doing business. Despite the self-flattery from the legal world about the apolitical nature of the courts, the reality is today's Supreme Court is both very political and very right-wing.
It is not hyperbole to say that the GOP has spent years shaping not just the Supreme Court but the entire federal judiciary to force a far-right ideology on a public that keeps rejecting it at the ballot box. The problem for Republicans, however, is that dramatic Supreme Court decisions overturning Roe or otherwise gutting hard-earned human rights would anger voters. That could drive up turnout for Democrats in elections and hurt elected Republicans. The court's behavior suggests a clash between a yearning to push the country as far to the right as possible and a political need to avoid backlash.
One way they've squared that circle is by gradually chipping away at laws like the Voting Rights Act, so they can destroy human rights quietly without drawing the attention outright annihilation would bring. But the newest innovation is abusing the so-called shadow docket.
As Igor Derysh reported for Salon, the shadow docket is "where the justices hand down largely unsigned short opinions without going through standard hearings, deliberations, and transparency." Traditionally, it's mostly upholding lower court orders or emergency petitions that aren't especially controversial. But this court, controlled by Chief Justice John Roberts, has started to use the shadow docket to issue far-right rulings under the radar, avoiding the press coverage that more traditional rulings get. That's how, for instance, the Supreme Court dispensed with the eviction ban that President Joe Biden was implementing to prevent a surge of pandemic-caused homelessness. It's also how the Supreme Court forced the Biden White House to enforce the racist "remain in Mexico" policy regarding political asylum seekers. As Moira Donegan at The Guardian explains, this sleazy strategy for cheating the legal system was developed under Donald Trump.
Previously, shadow docket emergency requests had been rarely used, to advance the interests of the governing administration. From 2001 through 2016, the Department of Justice applied for these emergency relief interventions from the court only eight times. During the four years of Trump's presidency, however, the justice department applied 41 times.....
Bypassing lower courts, the Trump administration was able to solicit the supreme court for a green light for border wall funding and construction, for a ban of transgender troops in the military, for a ban of immigrants from Muslim majority countries, and for many, many executions during the administration's 11th-hour killing spree in the latter half of 2020.
Unfortunately, this strategy has been devastatingly effective at lulling the press into not covering how far-right the Supreme Court is, and therefore tricking the public into believing the courts are more reasonable than they actually are:
This Roe non-decision advances the court's cowardly strategy a step further. By not saying anything at all, they allow the Texas law to go in effect without drawing headlines that indicate that Supreme Court decision was made one way or another.
From a journalist's perspective, I can say that this method, while sordid, is effective for media manipulation. Outlets cannot publish straightforward headlines that say "Roe overturned" or "Supreme Court upholds Texas abortion ban," because it hasn't actually happened, one way or another. It's possible that a decision is issued later today or this week, or never. There's no way to know and so no way to write clear, compelling headlines, much less stories that state clearly, one way or another, if Roe is overturned. It's Schrödinger's abortion ban.
Except, of course, for the women who actually need abortions. For them, these legal ambiguities are irrelevant, because the situation is black-and-white: They need abortions, but are barred legally from getting them. If they can't figure out ways to get abortions on the black market or out of state, they may end up being forced into childbirth. While headline writers are stuck trying to explain this to the public, pregnant people themselves are very much non-ambiguously in crisis.
What makes the non-decision even more repugnant is that the Supreme Court is due to hear arguments next month in Dobbs v. Jackson Women's Health Organization, which involves a 15-week abortion ban in Mississippi. That ban may sound less serious than the Texas ban, but it is also an invitation to the Supreme Court to overturn Roe, since it's an attack on the pre-viability standard. Mississippi's lawyers have even made it clear that overturning Roe is the point of the law.
From a journalist's perspective, I can say that this method, while sordid, is effective for media manipulation. Outlets cannot publish straightforward headlines that say "Roe overturned" or "Supreme Court upholds Texas abortion ban," because it hasn't actually happened, one way or another. It's possible that a decision is issued later today or this week, or never. There's no way to know and so no way to write clear, compelling headlines, much less stories that state clearly, one way or another, if Roe is overturned. It's Schrödinger's abortion ban.
Except, of course, for the women who actually need abortions. For them, these legal ambiguities are irrelevant, because the situation is black-and-white: They need abortions, but are barred legally from getting them. If they can't figure out ways to get abortions on the black market or out of state, they may end up being forced into childbirth. While headline writers are stuck trying to explain this to the public, pregnant people themselves are very much non-ambiguously in crisis.
What makes the non-decision even more repugnant is that the Supreme Court is due to hear arguments next month in Dobbs v. Jackson Women's Health Organization, which involves a 15-week abortion ban in Mississippi. That ban may sound less serious than the Texas ban, but it is also an invitation to the Supreme Court to overturn Roe, since it's an attack on the pre-viability standard. Mississippi's lawyers have even made it clear that overturning Roe is the point of the law.
That's why, even if the Supreme Court accedes to public outrage over this cowardly Roe overturn, and issues a too-late injunction against the Texas law, a lot of damage has been done by not swiftly enjoining a law so clearly in violation of Roe. Legal analysts Jessica Mason Pieklo at Rewire and Steven Mazie at The Economist explained on Twitter:
It's a truism in Beltway media that Roberts is an "institutionalist" who values preserving the Supreme Court's integrity over his far-right views. This is, as many pieces of received wisdom in D.C., utter nonsense. To be clear, Roberts values his reputation as an institutionalist. That's why he has increasingly embraced strategies based on subterfuge and obfuscation, so he can preserve that reputation while actually doing what he was appointed by George W. Bush to do, which is impose a far-right ideology on a public that rejects it. Roberts is the one who is shepherding this abuse of the shadow docket. Roberts is the one who is letting Texas ban abortion, in direct violation of Roe, by simply washing his hands of the issue. He's a radical wolf in institutionalist sheep clothing. The only hope is that this abortion ban is finally what attracts enough national attention to these abuses, and blows up an authoritarian strategy that only works in the shadows.
Why this doctor provides abortions out of Christian "compassion" 02:17 Go To Video Page
AMANDA MARCOTTE is a senior politics writer at Salon and the author of "Troll Nation: How The Right Became Trump-Worshipping Monsters Set On Rat-F*cking Liberals, America, and Truth Itself." Follow her on Twitter @AmandaMarcotte and sign up for her biweekly politics newsletter, Standing Room Only.
'Stunning': Justice Sotomayor writes a furious dissent
Cody Fenwick, AlterNet
September 02, 2021
Justice Sotomayor -- YouTube screenshot
Supreme Court Justice Sonia Sotomayor issued a clearly furious dissent late Wednesday night to the majority's order allowing a Texas law banning abortions after six weeks of pregnancy to stay in force.
"The Court's order is stunning," Sotomayor wrote. "Because the Court's failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent."
She left out the traditional word "respectfully" before "dissent" — a telltale sign that a justice is livid.
The order came in response to a challenge, brought by abortion providers among others, against a Texas law that had been making its way through the lower courts. It had been set to go into effect on Sept. 1, prompting urgent demands that the Supreme Court intervene to stall its implementation until the court process reaches its natural conclusion. Usually, restrictive abortion laws are paused, in part because the existing judicial precedent is so clear that they are unconstitutional.
But the Texas law is unique, since instead of issuing to the state the power to block abortions, it lets regular citizens bring lawsuits against anyone who provides an abortion or "aids and abets" an abortion in the state. The citizen can be awarded $10,000 through such a suit. In an unsigned order, five of the court's conservatives said that this unprecedented feature of the law introduces enough uncertainty about its legal status to undermine the case for issuing an injunction at this time.
But Chief Justice John Roberts, along with the court's three liberal justices, dissented. Sotomayor's dissent was the most impassioned.
"Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State's enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State's own invention," she wrote.
She noted that the law "prohibits care for at least 85% of Texas abortion patients and will force many abortion clinics to close," according to the plaintiffs. Allowing it to stand clearly violates Supreme Court precedent as established in Roe v. Wade and Planned Parenthood v. Casey, which upheld the right to access abortions. And she noted that no one even tries to argue that the Texas law is constitutional. Instead, Texas lawmakers tried to "circumvent" the Constitution by outsourcing enforcement of the law.
"In effect, the Texas Legislature has deputized the State's citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors' medical procedures," Sotomayor explained. "Taken together, the Act is a breathtaking act of defiance—of the Constitution, of this Court's precedents, and of the rights of women seeking abortions throughout Texas."
The court's majority, she said, is rewarding Texas for its "gambit."
"This is untenable," she wrote. "It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry. ... [The] Court has rewarded the State's effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the Court's precedents, through procedural entanglements of the State's own creation. The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law."
Justice Elena Kagan also wrote a dissent, though "respectfully," criticizing the majority for abusing the "shadow docket" — the orders it issues outside of the usual lengthy procedures of briefings, oral arguments, and detailed opinions.
"[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," she wrote.
Cody Fenwick, AlterNet
September 02, 2021
Justice Sotomayor -- YouTube screenshot
Supreme Court Justice Sonia Sotomayor issued a clearly furious dissent late Wednesday night to the majority's order allowing a Texas law banning abortions after six weeks of pregnancy to stay in force.
"The Court's order is stunning," Sotomayor wrote. "Because the Court's failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent."
She left out the traditional word "respectfully" before "dissent" — a telltale sign that a justice is livid.
The order came in response to a challenge, brought by abortion providers among others, against a Texas law that had been making its way through the lower courts. It had been set to go into effect on Sept. 1, prompting urgent demands that the Supreme Court intervene to stall its implementation until the court process reaches its natural conclusion. Usually, restrictive abortion laws are paused, in part because the existing judicial precedent is so clear that they are unconstitutional.
But the Texas law is unique, since instead of issuing to the state the power to block abortions, it lets regular citizens bring lawsuits against anyone who provides an abortion or "aids and abets" an abortion in the state. The citizen can be awarded $10,000 through such a suit. In an unsigned order, five of the court's conservatives said that this unprecedented feature of the law introduces enough uncertainty about its legal status to undermine the case for issuing an injunction at this time.
But Chief Justice John Roberts, along with the court's three liberal justices, dissented. Sotomayor's dissent was the most impassioned.
"Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State's enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State's own invention," she wrote.
She noted that the law "prohibits care for at least 85% of Texas abortion patients and will force many abortion clinics to close," according to the plaintiffs. Allowing it to stand clearly violates Supreme Court precedent as established in Roe v. Wade and Planned Parenthood v. Casey, which upheld the right to access abortions. And she noted that no one even tries to argue that the Texas law is constitutional. Instead, Texas lawmakers tried to "circumvent" the Constitution by outsourcing enforcement of the law.
"In effect, the Texas Legislature has deputized the State's citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors' medical procedures," Sotomayor explained. "Taken together, the Act is a breathtaking act of defiance—of the Constitution, of this Court's precedents, and of the rights of women seeking abortions throughout Texas."
The court's majority, she said, is rewarding Texas for its "gambit."
"This is untenable," she wrote. "It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry. ... [The] Court has rewarded the State's effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the Court's precedents, through procedural entanglements of the State's own creation. The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law."
Justice Elena Kagan also wrote a dissent, though "respectfully," criticizing the majority for abusing the "shadow docket" — the orders it issues outside of the usual lengthy procedures of briefings, oral arguments, and detailed opinions.
"[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," she wrote.
TOO LITTLE, TOO LATE
New Texas abortion law spurs churches to espouse 'reproductive freedom'
New Texas abortion law spurs churches to espouse 'reproductive freedom'
THIS LAW IS AN ABOMINATION
Anti-abortion activists gather behind the Supreme Court in Washington, D.C. on January 29. Photo by Ken Cedeno/UPI | License Photo
Sept. 1 (UPI) -- A new law goes into effect Wednesday in Texas that bans abortion as early as six weeks of pregnancy and allows members of the public to sue anyone who provides or "aids or abets" the procedure in violation of the statute.
Opponents -- including Whole Woman's Health and other abortion providers, advocacy groups and clergy members -- filed a suit in July seeking to have the law declared unconstitutional. On Monday, they made an emergency filing asking the Supreme Court to overturn the statute.
Some churches, alarmed that the law goes too far, are taking on the issue from the pulpit.
Under the law, "any person" except a government official can file a civil suit against alleged violators, and those who prevail are entitled to an award of at least $10,000 per abortion and court costs. The person who sues does not need to have any connection to the abortion.
RELATED Texas' 6-week abortion ban takes effect amid pleas for Supreme Court to step in
The Whole Woman's Health lawsuit alleges that the "Heartbeat Act," which was passed by the Texas Legislature in May, was designed to stop abortion providers from getting a court order stopping the law from going into effect. Because private citizens are the ones enforcing the law, government officials can't be sued for an injunction that would block its enforcement.
Even if the "vigilantes" lose, they still will have achieved the law's goal of harassment and possibly bankrupt some abortion providers, the suit claims.
Texas Right to Life, which participated in the drafting of the law, says it recognized that other heartbeat bills met "expeditious deaths in federal courtrooms across the country" so it pushed for legislation that relied only on civil enforcement.
RELATED Abortion providers ask U.S. Supreme Court to block Texas 'Heartbeat Act'
"The abortion industry is clearly attempting to float multiple far-reaching legal arguments in hopes that an activist federal judge will find one they like to thwart this pro-life law from going into effect," the organization says in a statement on its website. "Texas Right to Life is confident that eventually an objective and discerning legal analysis will prevail, causing the lawsuit to be ultimately dismissed."
The Rev. Erika Forbes, an interfaith minister who is a plaintiff in the suit, told UPI on Monday that "there's never been a law like this that has gone this far."
"If I was to go and sit as a clergy person in the abortion clinic with a woman who has already made her choice, and she just wants to have someone comfort her and support her as she comes out, then they're able to sue me," Forbes said.
RELATED Appeals court upholds Texas ban on common form of second-trimester abortion
Others who could be targeted by the law include parents who drive their child to a clinic for an abortion and friends who lend money for the procedure, she said.
Talking about choices
Leaders of Just Texas: Faith Voices for Reproductive Justice announced at an Aug. 25 news conference at First Unitarian Church of Dallas that 25 churches have earned the designation of Reproductive Freedom Congregations since 2016 and about 70 more are in the process of getting it.
The program teaches clergy about reproductive healthcare and encourages them to talk about the subject, including abortion, from the pulpit and individually with members of their congregations.
The congregations discuss their values, determine the level of engagement that best matches those values and pledges "to make the sacred space safe and accepting for everyone." They also affirm that they will trust and respect women; that people who attend the church will be free from stigma, shame or judgment for their reproductive decisions, including abortion; and that they believe access to comprehensive and affordable reproductive health services is a moral and social good.
Forbes, who serves as outreach and faith manager of Just Texas, which is a project of the Texas Freedom Network, said she's gotten a lot of emails and pushback from Christians who believe scripturally that Just Texas' work is not sanctioned by God.
But, she said, "I absolutely have faith and belief that it is."
The Rev. Angela Williams, a Presbyterian pastor and Just Texas senior outreach and faith coordinator, told UPI that it's up to each congregation how it lives out the designation.
The denominations of the churches and faith groups with the designations are Universalist, Baptist and Presbyterian. Episcopal, Methodist, Reform Judaism are among the congregations listed as undergoing the process.
Williams said the news conference was held to get the word out that people of faith support access to abortion. The religious right has dominated the narrative about abortion and Just Texas wants to change the culture by having women tell their stories in their faith communities, she said.
"We know that God is in all of these reproductive decisions and that God is in our reproductive lives with us, whether that's choosing to terminate a pregnancy with an abortion or having a miscarriage or navigating infertility," Williams said. "God is in all of those conversations and in those moments of pain and sadness around reproductive decisions."
She added that "once we change that culture, then you'll stop getting those awful bills put forward in the name of religion. That's our big overarching goal."
Anti-abortion activists gather behind the Supreme Court in Washington, D.C. on January 29. Photo by Ken Cedeno/UPI | License Photo
Sept. 1 (UPI) -- A new law goes into effect Wednesday in Texas that bans abortion as early as six weeks of pregnancy and allows members of the public to sue anyone who provides or "aids or abets" the procedure in violation of the statute.
Opponents -- including Whole Woman's Health and other abortion providers, advocacy groups and clergy members -- filed a suit in July seeking to have the law declared unconstitutional. On Monday, they made an emergency filing asking the Supreme Court to overturn the statute.
Some churches, alarmed that the law goes too far, are taking on the issue from the pulpit.
Under the law, "any person" except a government official can file a civil suit against alleged violators, and those who prevail are entitled to an award of at least $10,000 per abortion and court costs. The person who sues does not need to have any connection to the abortion.
RELATED Texas' 6-week abortion ban takes effect amid pleas for Supreme Court to step in
The Whole Woman's Health lawsuit alleges that the "Heartbeat Act," which was passed by the Texas Legislature in May, was designed to stop abortion providers from getting a court order stopping the law from going into effect. Because private citizens are the ones enforcing the law, government officials can't be sued for an injunction that would block its enforcement.
Even if the "vigilantes" lose, they still will have achieved the law's goal of harassment and possibly bankrupt some abortion providers, the suit claims.
Texas Right to Life, which participated in the drafting of the law, says it recognized that other heartbeat bills met "expeditious deaths in federal courtrooms across the country" so it pushed for legislation that relied only on civil enforcement.
RELATED Abortion providers ask U.S. Supreme Court to block Texas 'Heartbeat Act'
"The abortion industry is clearly attempting to float multiple far-reaching legal arguments in hopes that an activist federal judge will find one they like to thwart this pro-life law from going into effect," the organization says in a statement on its website. "Texas Right to Life is confident that eventually an objective and discerning legal analysis will prevail, causing the lawsuit to be ultimately dismissed."
The Rev. Erika Forbes, an interfaith minister who is a plaintiff in the suit, told UPI on Monday that "there's never been a law like this that has gone this far."
"If I was to go and sit as a clergy person in the abortion clinic with a woman who has already made her choice, and she just wants to have someone comfort her and support her as she comes out, then they're able to sue me," Forbes said.
RELATED Appeals court upholds Texas ban on common form of second-trimester abortion
Others who could be targeted by the law include parents who drive their child to a clinic for an abortion and friends who lend money for the procedure, she said.
Talking about choices
Leaders of Just Texas: Faith Voices for Reproductive Justice announced at an Aug. 25 news conference at First Unitarian Church of Dallas that 25 churches have earned the designation of Reproductive Freedom Congregations since 2016 and about 70 more are in the process of getting it.
The program teaches clergy about reproductive healthcare and encourages them to talk about the subject, including abortion, from the pulpit and individually with members of their congregations.
The congregations discuss their values, determine the level of engagement that best matches those values and pledges "to make the sacred space safe and accepting for everyone." They also affirm that they will trust and respect women; that people who attend the church will be free from stigma, shame or judgment for their reproductive decisions, including abortion; and that they believe access to comprehensive and affordable reproductive health services is a moral and social good.
Forbes, who serves as outreach and faith manager of Just Texas, which is a project of the Texas Freedom Network, said she's gotten a lot of emails and pushback from Christians who believe scripturally that Just Texas' work is not sanctioned by God.
But, she said, "I absolutely have faith and belief that it is."
The Rev. Angela Williams, a Presbyterian pastor and Just Texas senior outreach and faith coordinator, told UPI that it's up to each congregation how it lives out the designation.
The denominations of the churches and faith groups with the designations are Universalist, Baptist and Presbyterian. Episcopal, Methodist, Reform Judaism are among the congregations listed as undergoing the process.
Williams said the news conference was held to get the word out that people of faith support access to abortion. The religious right has dominated the narrative about abortion and Just Texas wants to change the culture by having women tell their stories in their faith communities, she said.
"We know that God is in all of these reproductive decisions and that God is in our reproductive lives with us, whether that's choosing to terminate a pregnancy with an abortion or having a miscarriage or navigating infertility," Williams said. "God is in all of those conversations and in those moments of pain and sadness around reproductive decisions."
She added that "once we change that culture, then you'll stop getting those awful bills put forward in the name of religion. That's our big overarching goal."
Texas's anti-abortion snitch hotline is already being shut down by 'Shrek' memes
Kylie Cheung, Salon
September 01, 2021
The anti-abortion movement's routine barrages of nightmarish state-level abortion bills have rangee from sneaky, devil's-in-the-details regulations to shut down clinics, to attempts to sentence abortion providers to the death penalty. But Texas' latest law, which took effect Wednesday, is admittedly – and alarmingly – creative. It christens all citizens, not just in Texas, as a citizen police force who can sue anyone who has or helps someone have an abortion for upwards of $10,000, all on top of banning abortion at about six weeks.
And while abortion bans aren't new (1973 really wasn't that long ago, people!), the internet is (relatively speaking), and with it come some major caveats to how abortion access and activism work today. Around the end of July, Texas Right to Life started an online anonymous tip line for bored, evil people to snitch on anyone they suspect may be trying to have or help someone have an abortion, in what felt like a crossover episode between "The Handmaid's Tale" and "Black Mirror."
The tip line, of course, could be exploited as an everyday, indescriminate weapon. It could effectively be used by vengeful co-workers, nosy and sanctimonious neighbors, abusive exes, and otherwise vindictive individuals, who might feel like ruining someone's life, subjecting them to stalking, doxing or even an exorbitantly costly lawsuit.
Their snitch site, ProLifeWhistleBlower.com, was shared widely . . . by abortion rights supporters and clever teens on Twitter, Reddit, and of course, TikTok, calling on the internet to rise up and render the tip line nonfunctional with spam. The calls to action caused a sensation; they quickly made it to Reddit's front page, drew thousands of retweets on Twitter, and arguably most effectively mobilized the teens on TikTok. Almost immediately, ProLifeWhistleBlower.com was inundated with nearly countless false reports, hate mail, and — because Gen-Z is wonderful — "Shrek" memes.
Lots and lots of "Shrek" memes, some safe for work and others not so much.
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Kylie Cheung, Salon
September 01, 2021
The anti-abortion movement's routine barrages of nightmarish state-level abortion bills have rangee from sneaky, devil's-in-the-details regulations to shut down clinics, to attempts to sentence abortion providers to the death penalty. But Texas' latest law, which took effect Wednesday, is admittedly – and alarmingly – creative. It christens all citizens, not just in Texas, as a citizen police force who can sue anyone who has or helps someone have an abortion for upwards of $10,000, all on top of banning abortion at about six weeks.
And while abortion bans aren't new (1973 really wasn't that long ago, people!), the internet is (relatively speaking), and with it come some major caveats to how abortion access and activism work today. Around the end of July, Texas Right to Life started an online anonymous tip line for bored, evil people to snitch on anyone they suspect may be trying to have or help someone have an abortion, in what felt like a crossover episode between "The Handmaid's Tale" and "Black Mirror."
The tip line, of course, could be exploited as an everyday, indescriminate weapon. It could effectively be used by vengeful co-workers, nosy and sanctimonious neighbors, abusive exes, and otherwise vindictive individuals, who might feel like ruining someone's life, subjecting them to stalking, doxing or even an exorbitantly costly lawsuit.
Their snitch site, ProLifeWhistleBlower.com, was shared widely . . . by abortion rights supporters and clever teens on Twitter, Reddit, and of course, TikTok, calling on the internet to rise up and render the tip line nonfunctional with spam. The calls to action caused a sensation; they quickly made it to Reddit's front page, drew thousands of retweets on Twitter, and arguably most effectively mobilized the teens on TikTok. Almost immediately, ProLifeWhistleBlower.com was inundated with nearly countless false reports, hate mail, and — because Gen-Z is wonderful — "Shrek" memes.
Lots and lots of "Shrek" memes, some safe for work and others not so much.
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One Tik Toker shared a video of their "report" to the tip line, in which they uploaded 11 "Shrek" images with a message that explains, "My wife aborted our baby 4 weeks into her pregnancy without my consulting me."
As a result of this scheming, and tasteful "Shrek" memes and furry porn, the Texas site has gone from dystopic, crowd-sourced, right-wing doxing machine, to a useless social media spectacle. Its demise feels like a callback to the epic trolling spearheaded by TikTok teens and K-Pop fans that contributed to an empty Trump rally stadium in Tulsa last summer, after users reserved thousands of tickets to the event, only to not show and humiliate the former president's bamboozled campaign team with rows upon rows of empty seats.
Later on, shortly after the presidential election that saw Trump evicted from the White House, social media users capitalized on his campaign's utterly nonsensical election fraud hotlines and online forms as a perfect opportunity for trolling. People submitted memes, and even shared titillating tales of being seduced away from the voting booth by masked Antifa super-soldiers, until the hotlines had to be shut down.
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In other words, today's young people and the surprisingly significant number of decent people on the internet are exceedingly crafty and astute. They know how to use the tools at their disposal to hold their own against their often less tech-savvy and — let's face it — mostly old, white, male political foes.
Memes are great . . . until you comprehend the need for them
While this may be a triumph on some level, it's more than a little sad that today's young people have had to grow up in a world that requires them to know how to employ TikTok to take down fascist political rallies, or overwhelm an internet tip line designed to stalk, criminalize and put a bounty on pregnant people.
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It's a classic, pitiable case of adults praising kids for "saving the world," without considering that kids shouldn't have to. In an ideal world, zoomers would have the peace to be able to use TikTok solely to learn dumb dances, or use Twitter just to subtweet irritating classmates. But instead, they're stuck living in a world where they have to orchestrate mass, online efforts to foil the anti-abortion movement's frequent diabolical, dehumanizing plans.
"Shrek" memes and empty Trump rally stadiums may provide for some necessary, comforting comedic relief, but the threat we face from Texas' abortion ban is anything but a joke. Not only is it the most extreme in the nation, and a signal of mounting extremism in a court system that's often prevented the most overtly dangerous anti-abortion legislation from taking effect — it's also an incentive for the most hateful and extreme people you can imagine to stalk and endanger women and pregnant people around them.
Race and abortion access have always been inextricably linked, as barriers to nearly all forms of health care often fall hardest on people of color, who are more likely to seek abortion care. All aspects of Texas' new abortion ban, but mainly its citizen policing component, will disproportionately put pregnant people of color in harm's way. Policing has a long, violent history of racial profiling, and "policing" by racist, neighborhood vigilantes certainly does, too.
Of course, spying on pregnant and pregnant-capable people isn't a new tactic of the anti-abortion movement, which is behind a number of sneaky apps people can use to track menstrual cycles or pregnancies. Dozens of states require abortion providers to report abortions to the government, and just two years ago, Missouri's top state health official admitted to tracking and recording Missourian's menstrual cycles.
You might wonder whether any of this is an especially big deal considering we already live in the surveillance state hellscape that is the era of Facebook, but in the post-Roe v. Wade world that Texas is rapidly propelling us toward, surveillance will be crucial to enforce abortion criminalization, or even punish people who miscarry if a neighbor accuses them of self-inducing an abortion.
And unfortunately, there are limits to what even the best "Shrek" memes can do to protect women and pregnant people. While many social media users are a benign force of do-gooders who would engage in any spamming or trolling necessary for justice, social media platforms are notorious for protecting abusers, and enabling accounts that promote right-wing or anti-abortion extremism. Doxing and cyber harassment of women and LGBTQ people on social media has been on the rise, but Facebook remains busy at work banning female users who call men "scum."
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And most specific to Texas' abortion ban, which will force many Texans to travel out-of-state for care if they can afford to, self-induce abortions, or simply carry an unwanted pregnancy to term, Instagram banned an account sharing World Health Organization-verified information and resources about accessing medication abortion, and safely self-managing an abortion, mere days before Texas' law took effect. The move is particularly galling because Instagram has been a popular platform for cyber sexual exploitation or "revenge porn," but its moderators have deemed the real problem to be medically accurate facts about self-managed abortion from an account run by health providers.
At the end of the day, tragically enough, not all problems can be solved by gathering the masses and spamming abortion doxing hotlines. Calling Texas Gov. Greg Abbott's office to ask if his refrigerator is running may be momentarily satisfying, but won't change the state of abortion access in Texas.
But what can meaningfully change things is donating to the Texas abortion funds that have been doing the work against all kinds of logistical and legislative barriers for years, supporting the organizers on the ground that are helping people get care, or putting in the work to flip the state's legislature of radicalized white men. After all, social media activism has its tricks and powers, but nothing can replace mutual aid and solidarity with those on the ground.
'Post-democracy America': Columnist sees GOP-led Texas as a chilling portrait of the future
Brad Reed
September 01, 2021
Activists in Argentina wear the "Handmaid's Tale" costume in August 2018
The Republican-led state of Texas has recently enacted sweeping voter suppression laws and anti-abortion bills, and Washington Post columnist Dana Milbank believes that this offers a chilling portrait of what could be America's future.
In a column published Wednesday, Milbank outlined why the Texas GOP's actions are so extreme and at odds with a democratic society.
"Thanks to a series of actions by the Texas legislature and governor, we now see exactly what the Trumpified Republican Party wants: to take us to an America where women cannot get abortions, even in cases of rape and incest; an America where almost everybody can openly carry a gun in public, without license, without permit, without safety training and without fingerprinting; and an America where law-abiding Black and Latino citizens are disproportionately denied the right to vote," he writes.
Milbank notes that all of the policies passed by the Texas GOP are actually unpopular in their state, but Republicans have so tightly gerrymandered districts that they think they can evade democratic accountability.
"Texas legislators aren't answering to the people but rather to the White, male voters that put the Republicans in power," he writes. "The new voting law, by suppressing non-White votes, aims to keep White voters dominant. As demographics turn more and more against Republicans in Texas, their antidemocratic actions will only get worse."
Milbank concluded by saying that Texas looks like the future that Republicans will implement on a national scale "unless we mobilize to arrest the Republicans' destruction of democracy."
Read the whole column here.
Brad Reed
September 01, 2021
Activists in Argentina wear the "Handmaid's Tale" costume in August 2018
The Republican-led state of Texas has recently enacted sweeping voter suppression laws and anti-abortion bills, and Washington Post columnist Dana Milbank believes that this offers a chilling portrait of what could be America's future.
In a column published Wednesday, Milbank outlined why the Texas GOP's actions are so extreme and at odds with a democratic society.
"Thanks to a series of actions by the Texas legislature and governor, we now see exactly what the Trumpified Republican Party wants: to take us to an America where women cannot get abortions, even in cases of rape and incest; an America where almost everybody can openly carry a gun in public, without license, without permit, without safety training and without fingerprinting; and an America where law-abiding Black and Latino citizens are disproportionately denied the right to vote," he writes.
Milbank notes that all of the policies passed by the Texas GOP are actually unpopular in their state, but Republicans have so tightly gerrymandered districts that they think they can evade democratic accountability.
"Texas legislators aren't answering to the people but rather to the White, male voters that put the Republicans in power," he writes. "The new voting law, by suppressing non-White votes, aims to keep White voters dominant. As demographics turn more and more against Republicans in Texas, their antidemocratic actions will only get worse."
Milbank concluded by saying that Texas looks like the future that Republicans will implement on a national scale "unless we mobilize to arrest the Republicans' destruction of democracy."
Read the whole column here.
BEHIND WAPO BEZOS PAYWALL
In the shadows: Why the Supreme Court's lack of transparency may cost it in the long run
By Joan Biskupic, CNN legal analyst & Supreme Court biographer -
Supreme Court justices tout judicial integrity and the importance of public confidence in their decisions, but the court's midnight silence Tuesday while letting a Texas law that curtails abortion rights take effect -- followed by a midnight order Wednesday -- offers the latest and most compelling example of its lack of transparency and the cost.
The justices' secretive patterns have gained new attention as confidence in all government institutions has waned. Witnesses before a bipartisan commission set up by President Joe Biden to consider court revisions -- most visibly, the options of term limits and the addition of more seats -- have targeted the justices' secrecy and how it contributes to public distrust of the high court, along with the lopsided advantage the court gives to some litigants.
Such lack of transparency is only part of the context behind the Supreme Court's silence in the closely watched Texas case. The emboldened conservative majority already is poised to reverse or at least undercut Roe v. Wade, the 1973 landmark ruling that declared women's constitutional right to end a pregnancy. The court announced last spring that it would take up in the 2021-22 session a dispute over Mississippi's ban on abortions after 15 weeks. The Texas law goes much further, making it illegal to terminate a pregnancy when a fetal heartbeat is detected, which may be typically around six weeks.
Both laws sharply conflict with Roe v. Wade, which forbade states from interfering with a woman's abortion decision before the fetus would be viable, that is, able to live outside the womb, at about 22-24 weeks.
The justices have made plain their concerns regarding public mistrust and misunderstanding of the Supreme Court. Chief Justice John Roberts regularly declares that judges differ from elected lawmakers, and Justice Stephen Breyer protested in a speech at Harvard last spring that they should not be regarded as "junior-varsity politicians." Breyer cited the court's long-standing preservation of abortion rights as evidence of its nonpartisan, nonideological character.
Separately last spring, Justices Sonia Sotomayor and Neil Gorsuch emphasized in a joint appearance, advocating civics education, the deep reasoning that underlies their opinions. They criticized those who would look only for a bottom-line judgment.
Yet no judgment -- or word of any sort -- came late Tuesday night, with the clock ticking, anxiety rising among both sides in Texas and a national audience watching.
There was no avoiding the sense that the justices had abdicated some responsibility. The Supreme Court has the last word on the law under the US Constitution. If Roe v. Wade were suddenly invalid in Texas or elsewhere, it would be for the court to declare, traditionally in a signed opinion.
Amid the confusion, some advocates on both sides took Tuesday night's silence as implicit endorsement of the law.
At midnight Wednesday, a 5-4 court said it would not block the Texas law, nearly 24 hours after it already had taken effect and has already severely curtailed abortion access in the country's second-largest state.
The shadow docket
The entire ordeal has highlighted the Supreme Court's secretive operations, particularly for scores of important cases handled outside of the usual pattern of scheduled oral arguments.
The justices decline to make their votes public or offer reasoning on many cases that arise on what's become known as "the shadow docket."
Even on cases that result in public orders, such as those last week rejecting the Biden administration's policy on US asylum-seekers and a Covid-19 eviction moratorium, the justices do not make their votes explicit.
It appeared in both cases that all six conservatives had joined the majority, but that was not clear. Only the three liberals -- Breyer, Sotomayor and Elena Kagan -- publicly dissented. In an earlier stage of the moratorium dispute this summer, Roberts had fully voted with the liberals to allow a temporary freeze on evictions to continue.
The justices' opinion invalidating the Biden administration freeze on evictions, based on the reasoning that only Congress could impose such a moratorium, was unsigned.
Patterns of ambiguity and secrecy extend to the justices' personal behavior, too. If any of them sit out a dispute because of a conflict of interest, they decline to explain it. When they are injured and land in the hospital, they often keep that quiet, too. Last year, Roberts fell while at a country club near his suburban Maryland home, hit his head and was rushed to a hospital by ambulance. He declined to make the June incident public for more than two weeks, and then only after The Washington Post followed up on a tip.
A related topic that has been the subject of the Biden overhaul commission: The nine refuse to be bound by federal judicial ethics rules that cover lower court judges. They also decline to provide advance notice of their expense-paid travels to academic and special interest organizations for speeches. And they give scant information about book or other extracurricular deals they have signed.
The most recent case in point: Justice Amy Coney Barrett's reported $2 million book deal negotiated soon after she took her seat in 2020. Her publisher has confirmed that an agreement exists but declined to provide any details about the book subject or what it is paying Barrett. She did not respond to news media questions about the deal.
Such tendencies are hardly new. Nor is the justices' desire to further their own stature through mystique and mystery. But today's trend may be having the opposite effect when it comes to public regard. Gallup reported in July that Americans' approval of the Supreme Court had fallen to 49%, the first such below-50% rating since 2017 and a contrast to its 2020 poll that found 58% of Americans approved of the court.
Equally important, the drama over the Texas case demonstrates the confusion for Americans when the justices fail to act with clarity.
Why the format matters
Abortion access has been at the heart of politics surrounding the Supreme Court for decades. The issue has driven debate in presidential elections, control of Congress and, especially, Senate confirmation hearings over Supreme Court candidates. That makes the manner in which the court has acted -- or failed to act -- all the more startling. As the justices themselves often state, the public looks to fair processes and procedures, as well as the substance of decisions, for confidence.
For decades, the Supreme Court solidly upheld the right to abortion, including in a milestone 1992 case from Pennsylvania. After that, for nearly 30 years, the justices sidestepped appeals that would have threatened the basic principles of Roe v. Wade. They heard disputes testing regulations on clinics but never reexamined the core abortion right before viability.
Some justices denounced that pattern. Justice Neil Gorsuch, former President Donald Trump's first appointee, wrote last year that in a "highly politicized and contentious arena ... we have lost our way." Justice Clarence Thomas, who has served since 1991, longer than any current justice, has been the most consistent critic of Roe and written, "Our abortion jurisprudence has spiraled out of control."
When the justices announced last spring that they would hear in the 2021-22 session the Mississippi controversy over a law banning abortion at 15 weeks, it appeared that the viability line might dissolve. That case will be subject to full briefing and oral arguments before a ruling likely by the end of June.
The current Texas ordeal is a wholly different matter, coming to the justices without full briefing and subject to vague rules and procedures.
Complicating matters, Texas lawmakers wrote the prohibition to evade traditional legal challenge. The measure specifically prevents the state attorney general and health officials from enforcing the law. Rather, it creates a right for private citizens to sue anyone who assists a pregnant woman who seeks an abortion after six weeks. If successful, the private citizen could obtain $10,000 in damages.
This novel legal mechanism has roiled the lower court action in the challenge brought by Whole Woman's Health and other abortion clinics in Texas. A US district judge had scheduled a hearing in the dispute, but the 5th US Circuit Court of Appeals prevented the lower court's action and paved the way for the law to take effect on its September 1 schedule -- barring Supreme Court intervention.
Whole Woman's Health submitted an emergency petition to the justices on Monday. Capturing the chaos in Texas, the lawyers described in another filing on Tuesday women waiting in clinics, concerned that their ability to obtain scheduled abortions would evaporate. Among them, according to the filing, was a minor who had obtained permission from a judge for an abortion but could not be seen at a clinic on Tuesday. "(B)ecause she is close to the legal limit for accessing abortion in Texas," the challengers told Supreme Court justices, "if she does not obtain care in the next day or two, she will be barred from accessing her right to abortion in Texas."
Over objections from Texas officials that the clinics lacked any grounds to sue state officials, the clinics implored the justices to block "Texas's flagrant defiance" of the justices' own precedents: "At bottom, the question in this case is whether -- by outsourcing to private individuals the authority to enforce an unconstitutional prohibition -- Texas can adopt a law that allows it to do precisely that which the Constitution forbids."
Wednesday night, the court let the law stand, but also let the overall confusion fester, a result of the shadow docket process, Justice Elena Kagan wrote in a dissent.
"Today's ruling illustrates just how far the Court's 'shadow-docket' decisions may depart from the usual principles of appellate process," Kagan wrote. "That ruling, as everyone must agree, is of great consequence. Yet the majority has acted without any guidance from the Court of Appeals -- which is right now considering the same issues. It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion -- that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail.
"In all these ways, the majority's decision is emblematic of too much of this Court's shadow docket decision-making -- which every day becomes more un-reasoned, inconsistent, and impossible to defend."
This story has been updated after the court's action Wednesday night.
© Photo by Mark Wilson/Getty Images In the shadows: Why the Supreme Court's lack of transparency may cost it in the long run
By Joan Biskupic, CNN legal analyst & Supreme Court biographer -
Supreme Court justices tout judicial integrity and the importance of public confidence in their decisions, but the court's midnight silence Tuesday while letting a Texas law that curtails abortion rights take effect -- followed by a midnight order Wednesday -- offers the latest and most compelling example of its lack of transparency and the cost.
The justices' secretive patterns have gained new attention as confidence in all government institutions has waned. Witnesses before a bipartisan commission set up by President Joe Biden to consider court revisions -- most visibly, the options of term limits and the addition of more seats -- have targeted the justices' secrecy and how it contributes to public distrust of the high court, along with the lopsided advantage the court gives to some litigants.
Such lack of transparency is only part of the context behind the Supreme Court's silence in the closely watched Texas case. The emboldened conservative majority already is poised to reverse or at least undercut Roe v. Wade, the 1973 landmark ruling that declared women's constitutional right to end a pregnancy. The court announced last spring that it would take up in the 2021-22 session a dispute over Mississippi's ban on abortions after 15 weeks. The Texas law goes much further, making it illegal to terminate a pregnancy when a fetal heartbeat is detected, which may be typically around six weeks.
Both laws sharply conflict with Roe v. Wade, which forbade states from interfering with a woman's abortion decision before the fetus would be viable, that is, able to live outside the womb, at about 22-24 weeks.
The justices have made plain their concerns regarding public mistrust and misunderstanding of the Supreme Court. Chief Justice John Roberts regularly declares that judges differ from elected lawmakers, and Justice Stephen Breyer protested in a speech at Harvard last spring that they should not be regarded as "junior-varsity politicians." Breyer cited the court's long-standing preservation of abortion rights as evidence of its nonpartisan, nonideological character.
Separately last spring, Justices Sonia Sotomayor and Neil Gorsuch emphasized in a joint appearance, advocating civics education, the deep reasoning that underlies their opinions. They criticized those who would look only for a bottom-line judgment.
Yet no judgment -- or word of any sort -- came late Tuesday night, with the clock ticking, anxiety rising among both sides in Texas and a national audience watching.
There was no avoiding the sense that the justices had abdicated some responsibility. The Supreme Court has the last word on the law under the US Constitution. If Roe v. Wade were suddenly invalid in Texas or elsewhere, it would be for the court to declare, traditionally in a signed opinion.
Amid the confusion, some advocates on both sides took Tuesday night's silence as implicit endorsement of the law.
At midnight Wednesday, a 5-4 court said it would not block the Texas law, nearly 24 hours after it already had taken effect and has already severely curtailed abortion access in the country's second-largest state.
The shadow docket
The entire ordeal has highlighted the Supreme Court's secretive operations, particularly for scores of important cases handled outside of the usual pattern of scheduled oral arguments.
The justices decline to make their votes public or offer reasoning on many cases that arise on what's become known as "the shadow docket."
Even on cases that result in public orders, such as those last week rejecting the Biden administration's policy on US asylum-seekers and a Covid-19 eviction moratorium, the justices do not make their votes explicit.
It appeared in both cases that all six conservatives had joined the majority, but that was not clear. Only the three liberals -- Breyer, Sotomayor and Elena Kagan -- publicly dissented. In an earlier stage of the moratorium dispute this summer, Roberts had fully voted with the liberals to allow a temporary freeze on evictions to continue.
The justices' opinion invalidating the Biden administration freeze on evictions, based on the reasoning that only Congress could impose such a moratorium, was unsigned.
Patterns of ambiguity and secrecy extend to the justices' personal behavior, too. If any of them sit out a dispute because of a conflict of interest, they decline to explain it. When they are injured and land in the hospital, they often keep that quiet, too. Last year, Roberts fell while at a country club near his suburban Maryland home, hit his head and was rushed to a hospital by ambulance. He declined to make the June incident public for more than two weeks, and then only after The Washington Post followed up on a tip.
A related topic that has been the subject of the Biden overhaul commission: The nine refuse to be bound by federal judicial ethics rules that cover lower court judges. They also decline to provide advance notice of their expense-paid travels to academic and special interest organizations for speeches. And they give scant information about book or other extracurricular deals they have signed.
The most recent case in point: Justice Amy Coney Barrett's reported $2 million book deal negotiated soon after she took her seat in 2020. Her publisher has confirmed that an agreement exists but declined to provide any details about the book subject or what it is paying Barrett. She did not respond to news media questions about the deal.
Such tendencies are hardly new. Nor is the justices' desire to further their own stature through mystique and mystery. But today's trend may be having the opposite effect when it comes to public regard. Gallup reported in July that Americans' approval of the Supreme Court had fallen to 49%, the first such below-50% rating since 2017 and a contrast to its 2020 poll that found 58% of Americans approved of the court.
Equally important, the drama over the Texas case demonstrates the confusion for Americans when the justices fail to act with clarity.
Why the format matters
Abortion access has been at the heart of politics surrounding the Supreme Court for decades. The issue has driven debate in presidential elections, control of Congress and, especially, Senate confirmation hearings over Supreme Court candidates. That makes the manner in which the court has acted -- or failed to act -- all the more startling. As the justices themselves often state, the public looks to fair processes and procedures, as well as the substance of decisions, for confidence.
For decades, the Supreme Court solidly upheld the right to abortion, including in a milestone 1992 case from Pennsylvania. After that, for nearly 30 years, the justices sidestepped appeals that would have threatened the basic principles of Roe v. Wade. They heard disputes testing regulations on clinics but never reexamined the core abortion right before viability.
Some justices denounced that pattern. Justice Neil Gorsuch, former President Donald Trump's first appointee, wrote last year that in a "highly politicized and contentious arena ... we have lost our way." Justice Clarence Thomas, who has served since 1991, longer than any current justice, has been the most consistent critic of Roe and written, "Our abortion jurisprudence has spiraled out of control."
When the justices announced last spring that they would hear in the 2021-22 session the Mississippi controversy over a law banning abortion at 15 weeks, it appeared that the viability line might dissolve. That case will be subject to full briefing and oral arguments before a ruling likely by the end of June.
The current Texas ordeal is a wholly different matter, coming to the justices without full briefing and subject to vague rules and procedures.
Complicating matters, Texas lawmakers wrote the prohibition to evade traditional legal challenge. The measure specifically prevents the state attorney general and health officials from enforcing the law. Rather, it creates a right for private citizens to sue anyone who assists a pregnant woman who seeks an abortion after six weeks. If successful, the private citizen could obtain $10,000 in damages.
This novel legal mechanism has roiled the lower court action in the challenge brought by Whole Woman's Health and other abortion clinics in Texas. A US district judge had scheduled a hearing in the dispute, but the 5th US Circuit Court of Appeals prevented the lower court's action and paved the way for the law to take effect on its September 1 schedule -- barring Supreme Court intervention.
Whole Woman's Health submitted an emergency petition to the justices on Monday. Capturing the chaos in Texas, the lawyers described in another filing on Tuesday women waiting in clinics, concerned that their ability to obtain scheduled abortions would evaporate. Among them, according to the filing, was a minor who had obtained permission from a judge for an abortion but could not be seen at a clinic on Tuesday. "(B)ecause she is close to the legal limit for accessing abortion in Texas," the challengers told Supreme Court justices, "if she does not obtain care in the next day or two, she will be barred from accessing her right to abortion in Texas."
Over objections from Texas officials that the clinics lacked any grounds to sue state officials, the clinics implored the justices to block "Texas's flagrant defiance" of the justices' own precedents: "At bottom, the question in this case is whether -- by outsourcing to private individuals the authority to enforce an unconstitutional prohibition -- Texas can adopt a law that allows it to do precisely that which the Constitution forbids."
Wednesday night, the court let the law stand, but also let the overall confusion fester, a result of the shadow docket process, Justice Elena Kagan wrote in a dissent.
"Today's ruling illustrates just how far the Court's 'shadow-docket' decisions may depart from the usual principles of appellate process," Kagan wrote. "That ruling, as everyone must agree, is of great consequence. Yet the majority has acted without any guidance from the Court of Appeals -- which is right now considering the same issues. It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion -- that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail.
"In all these ways, the majority's decision is emblematic of too much of this Court's shadow docket decision-making -- which every day becomes more un-reasoned, inconsistent, and impossible to defend."
This story has been updated after the court's action Wednesday night.
© Photo by Mark Wilson/Getty Images In the shadows: Why the Supreme Court's lack of transparency may cost it in the long run
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