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As SCOTUS Reviews Texas Abortion Ban, Activists Look to New Strategies to Save Reproductive Freedom

StoryNovember 02, 2021
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Image Credit: Amy Hagstrom Miller

We look at Monday’s Supreme Court oral arguments on the constitutionality of Texas’s near-total ban on abortions with legendary lawyer Kathryn “Kitty” Kolbert, who argued the 1992 landmark Supreme Court case credited with saving Roe v. Wade. “'Save Roe' has been our mantra for so many years, and it no longer works because of the ultraconservatie nature of this Supreme Court,” Kolbert says. Instead, people must protect abortion rights by “electing people who will preserve women’s rights, and begin to think of that as our most important task.”

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!, democracynow.org. I’m Amy Goodman, with Juan González.

The Supreme Court heard oral arguments on Monday on whether to uphold the most restrictive abortion law since it decided Roe v. Wade in 1973. Justices heard arguments on a pair of lawsuits that challenge the Texas law known as S.B. 8, which bans abortion after six weeks — before most people know they’re pregnant — and allows private citizens anywhere in the United States to sue healthcare workers and others for facilitating an abortion in Texas. The lawsuits challenging the ban were brought by President Biden’s Department of Justice and a coalition of abortion providers.

During nearly three hours of oral arguments, Texas argued before the court that neither case can proceed because the state is not the proper defendant, since S.B. 8 bars state officials from enforcing the law. But a majority of justices raised concerns about how Texas designed the abortion ban to protect it from judicial review. This included two of President Trump’s appointees expressing concern — Justices Brett Kavanaugh and Amy Coney Barrett — who voted in September to allow the law to take effect. The court’s three liberal justices asked if allowing the Texas law to stand would invite other state legislatures to pass laws invalidating other constitutional rights. This is Justice Elena Kagan.

JUSTICE ELENA KAGAN: That’s right, you know, and we say that. We would live in a very different world from the world we live in today. Essentially, we would be inviting states, all 50 of them, with respect to their unpreferred constitutional rights, to try to nullify the law of — that this court has laid down as to the content of those rights. I mean, that was something that, until this law came along, no state dreamed of doing. And essentially, we would be like — you know we’re open for — you’re open for business; there is nothing the Supreme Court can do about it. Guns, same-sex marriage, religious rights — whatever you don’t like, go ahead.

AMY GOODMAN: That’s Justice Elena Kagan. Supporters and opponents of abortion rights protested outside the Supreme Court during Monday’s hearing.

For more, we go to Kathryn “Kitty” Kolbert, longtime public interest attorney, who argued the landmark case before the U.S. Supreme Court in 1992 which is credited with saving Roe v. Wade. She’s co-founder of the Center for Reproductive Rights and co-author of Controlling Women: What We Must Do Now to Save Reproductive Freedom. Her column in Monday’s New York Times is headlined “Roe Is as Good as Gone. It’s Time for a New Strategy.”

Thanks so much for joining us, Kitty Kolbert. You listened to the oral arguments yesterday. What’s your takeaway?

KATHRYN KOLBERT: Well, Amy, thanks so much. It’s great to be here.

My takeaway is that this particular case, the two cases that the court heard yesterday, are not really about abortion at all. They’re about the rule of law and the ability of plaintiffs or people suing to get into federal court to redress their grievances. And as the clip you played from Justice Kagan showed, the court was concerned about the fact that that avenue had been blocked by the Texas Legislature, and other legislatures could do so on a whole host of issues. And I think they were concerned about that. Let’s be clear, however, that these cases are not about abortion. They’re not about whether or not the Texas law is unconstitutional because it violates the right to choose abortion. Instead, it’s about who can you sue, can you get into federal court, and the very, very complicated question of sovereign immunity, which I won’t even begin to go into, but really was what kept the court engaged for about three hours of oral argument yesterday.

JUAN GONZÁLEZ: And, Kitty Kolbert, you’ve made the point that the more significant abortion rights case is still coming up before the court. That’s going to be Dobbs v. Jackson Women’s Health Organization, a Mississippi case. That’s coming up on December 1 for oral arguments. Could you talk about the difference in that case versus this one?

KATHRYN KOLBERT: So, in the Mississippi case, the court is confronted with the direct question about whether Roe v. Wade and Planned Parenthood v. Casey remain the law of the land. It is a challenge to a ban on abortion at 15 weeks of pregnancy. And under the current law, abortions are available up until viability, or much beyond that, up until 23 to 28 weeks. And therefore, it’s really important for us to keep our eye on the ball. That is, the court — we could get a win in the Texas case and lose the whole ball of wax in Mississippi, because once the Supreme Court, as we expect, opens the door to a whole range of bans on abortion before viability, they can do so — a whole lot of states, I think as many as 20, will begin to ban abortion. And, you know, then the women in those states will suffer irreparable harm.

JUAN GONZÁLEZ: And if that were to happen, what do you see then as the strategy for those who support a woman’s right to choose?

KATHRYN KOLBERT: So, thanks for asking that, because I think the most important thing is we have to keep — we have to make sure that we don’t keep hitting our heads against the marble staircase. “Save Roe,” “Save Roe,” “Save Roe” has been our mantra for so many years, and it no longer works because of the ultraconservative nature of this Supreme Court.

We must instead look at three things. Helping the women in the states that are going to ban abortion — and that could be as many as 20 or more states. It’ll range in area from Georgia to Texas, from North Dakota all the way south to Arizona. Huge land areas in this country, abortion may be banned, and therefore we’ve got to help those women get safe and legal procedures.

But most importantly, in my view, we’ve got to turn to the politics of this issue. We’ve got to turn to the political process and begin to take back those state legislatures by electing people who are champions of the cause, electing people who will preserve women’s rights, and begin to think about that as our most important task, because until we control the legislatures of all of those states that will ban abortion, we will not be safe.

AMY GOODMAN: You have this interesting headline today where Beth Robinson has been named as the first out lesbian LGBTQ+ activist to the federal bench. And I was wondering if you can talk about the significance of that? I mean, her groundbreaking work is really as an activist, as well as a lawyer.

KATHRYN KOLBERT: And that’s great. I have to commend President Biden for a host of appointments to the federal courts that are terrific and which will begin to chip away at the damage that President Trump did to the courts. But let’s be clear here: The Supreme Court is what matters when it comes to the federal court system, and that court is stacked with six conservative justices who will either whittle away or totally eradicate the rights we have all been relying upon for the last — at least in the case of Roe, for the last almost five decades.

AMY GOODMAN: So let me ask you got Justices Kavanaugh and Amy Coney Barrett, what their arguments were. In fact, Kavanaugh and Elena Kagan were really echoing each other. They were saying this isn’t about abortion anymore; this could be about gun rights and state legislatures going after gun rights in this different kind of legal strategy.

KATHRYN KOLBERT: Yeah, I think both Justice Kavanaugh and Justice Barrett were concerned with the breadth of the Texas law, the fact that it really prevented people from going into federal court to sue. It delegated the state’s authority to any individual to enforce the law. That just is a radical notion, and they were very disturbed by that. But again, I’m going to say this over and over again: This is not about abortion. And if we care about abortion, we have to keep our eyes on the prize, which is the case in Mississippi that will be argued in December. And I don’t see these two justices coming out the same way in that direct challenge to Roe and Casey.

AMY GOODMAN: Did anything shock you in what you heard yesterday?

KATHRYN KOLBERT: Well, I was pleased, because, of course, five justices had already permitted the Texas law to go into effect on two occasions. So I was pleased that they actually understood the draconian nature of the Texas law. I don’t think that came from a concern about the women who were affected by the law, or a concern about the unavailability of abortion. I think, more importantly, it was their concern about access to the courts for this issue and every other issue — in fact, more importantly, the other issues they care about, like religious freedom and gun rights.

AMY GOODMAN: Well, I want to thank you for being with us, Kathryn “Kitty” Kolbert, the lawyer who argued the landmark case in 1992 credited with saving Roe v. Wade, co-founder of the Center for Reproductive Rights, co-author of Controlling Women: What We Must Do Now to Save Reproductive Freedom. We’ll link to her op-ed piece in The New York Times, “Roe Is as Good as Gone. It’s Time for a New Strategy.”

That does it for our show. Democracy Now! is currently accepting applications for two positions: director of finance and administration and a human resources manager. Learn more at democracynow.org.

Democracy Now! produced with Renée Feltz, Mike Burke, Deena Guzder, Messiah Rhodes, Nermeen Shaikh, María Taracena. Special thanks to Julie Crosby. I’m Amy Goodman, with Juan González.

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