Jonathan P. Baird

Probably no institution has been held in higher regard than the U.S. Supreme Court. In spite of a checkered history, the Court has been almost venerated which makes it particularly painful to note its Texas abortion decision. Or I should say anti-abortion decision.

In a shadow docket decision, the Court acquiesced in Texas’s enactment of a law that flouts almost fifty years of federal precedent.

The Texas law represents the most significant challenge to abortion rights since the Supreme Court struck down another Texas law that criminalized abortion in Roe v Wade. The new law bans abortion after six weeks of pregnancy. Many women will be unaware that they are even pregnant at that point. The law also makes no exceptions for rape, incest or nonviable pregnancies in which the fetus has detectable cardiac activity or cases in which the fetus has a fatal and untreatable condition.

The law has other odious features. It has a novel enforcement mechanism. Private citizens can bring a civil lawsuit against any person “who performs or induces an abortion” or who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion”. If the private citizen prevails, they can win $10,000 and payment of their attorney’s fees. As has been pointed out, this is a bounty hunter’s delight.

When the Court overturns constitutional rights that have been guaranteed for almost fifty years, it is not simply embarrassing. It is so out-of-touch that it promotes disrespect for the rule of law.There are so many things wrong with the Court’s cursory decision that I simply wanted to list what floored me.

• There are six million women of reproductive age in Texas. In taking away constitutional rights guaranteed by Roe, it denies women control of their own bodies. The Court treats women like they are broodmares, not autonomous citizens with rights.
• Almost all abortions are barred by the Texas law. Abortion providers in Texas say that 85 to 90 percent of the abortion procedures they previously performed were after the six week period.
• The Court used the sleazy maneuver of the shadow docket to eviscerate constitutional rights in Texas. It is not just that the Court did something rotten – it is how they did it that stinks. Without a record, briefing, and argument and with no split in the circuits which is typically required, the Court, in an unsigned opinion, took a drastic step when there was no need to do it. They have already accepted a Mississippi case, Dobbs v Jackson Women’s Health Organization, that will be heard in the next term that raises the question of a 15 week abortion ban.
• The Court tossed aside the requirement of standing. Any bounty hunter can sue someone who “aids or abets” an abortion. This could mean a friend, a counselor, a doctor, or a taxi driver. Contrary to law around standing, bounty hunters need have no involvement in the particular case.
• Many have accurately compared the bounty hunter provision of the Texas law to the nineteenth century Fugitive Slave Act. The Fugitive Slave Act deputized citizens to surveil, stalk, and apprehend people trying to escape slavery. The bounty hunter provision of the Texas law could not be more parallel to the Fugitive Slave law.
• Allowing no exception for rape, incest and nonviable pregnancies is medieval. It evidences that the law’’s authors have an absolute disregard for women’s lives. Responses like that of Texas Governor Greg Abbott that he is going to end rape are laughable. The law makes an exception for “medical emergencies” but that law is undefined. It will be up to doctors to decide whether their patient qualifies and they could be sued by those who disagree.
• The Texas law will disproportionately adversely affect low-income people, minorities and people who live far away from abortion clinics. It is a safe bet well-off people will have the means and connections to get reproductive care outside the state. The poor will suffer more. It is also reasonable to speculate that the law will intimidate some people out of getting abortion care they need and others will seek unsafe underground abortions out of desperation..
• The United Nations Working Group on Discrimination Against Women and Girls has condemned the Texas abortion law as sex discrimination and a violation of international law.
• In contrast to the United States, Mexico’s Supreme Court just de-criminalized abortion. The United States will likely be joining countries like Egypt, El Salvador, Iraq and Mauritania in having the most reactionary laws in the world around abortion rights.

Not surprisingly, the Biden Administration, through the Department of Justice, stepped in and filed a civil lawsuit to stop Texas’s abortion law. Attorney General Merrick Garland correctly called the Texas law “a scheme to nullify the Constitution of the United States”. He also pointed to the likelihood other states will follow the Texas roadmap. It remains unclear how this will play out.

The Texas case shows that dressing up in Handsmaid’s Tale outfits is not enough. The Democrats’ neglect of the Supreme Court and its politics is coming home to roost. You have to ask: how many significant policy initiatives would survive Supreme Court review? The Republican shenanigans with blocking Merrick Garland and the tragic death of Justice Ginsberg have paid off for them. The Republicans are purveyors of the ultimate realpolitick.

While the term “court-packing” has an unfortunate negative connotation, Democrats need to add possibly four seats to the Court. There is no constitutional limitation on increasing the number of justices on the Supreme Court. The Court originally had six justices. It can be done. Republicans are the last ones who have the right to cry foul. Their gaming made horrible decisions like the Texas abortion case possible.

The new ultra-conservative Supreme Court is at the beginning of what could be a long run. The vision of the current Supreme Court majority appears to be nineteenth century Christian nationalism featuring unregulated crony capitalism and subordinate women and minorities. The future as the past is less than inspiring.