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“Blanket Unconstitutional” Texas Abortion Ban Takes Effect in Major Setback for Reproductive Rights

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In a major setback for reproductive rights, the U.S. Supreme Court has allowed a Texas law to go into effect that bans abortions after six weeks — before most people even know they are pregnant. Until now, no other six-week ban has ever gone into effect in the United States. The law is seen as a direct challenge to Roe v. Wade and allows private citizens to file civil suits against abortion providers or anyone who “aids or abets” an abortion after six weeks. “What Texas has done is blanket unconstitutional,” says Nancy Northup, president and CEO of the Center for Reproductive Rights.

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StorySep 02, 2021RIP Roe v. Wade? SCOTUS Won’t Block Texas Abortion Ban That Is “Clearly an Unconstitutional Law”​​
This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now! I’m Amy Goodman, with Juan González, as we turn to a major setback for reproductive rights. As of midnight last night, the U.S. Supreme Court allowed a Texas law to go into effect that bans abortion after six weeks. No other six-week ban has ever gone into effect in the United States. At six weeks, many people don’t even know they’re pregnant.

Conservative Justice Samuel Alito refused to rule on an emergency petition filed by abortion providers seeking to block the so-called Heartbeat Act, which was signed into law by Texas Governor Greg Abbott in May. The law is seen as a direct challenge to Roe v. Wade, the landmark 1973 Supreme Court ruling that enshrined the right of women to choose to have an abortion, by striking down Texas laws that criminalized the procedure.

The new Texas law is unique. It empowers private citizens — not government officials — to file a civil lawsuit against patients, medical workers, or even a patient’s family or friends who, quote, “aid and abet” an abortion — or a taxi driver who drives a woman to a clinic. If a case is successful, the person who filed it is awarded at least $10,000, plus attorneys’ fees.

For more, we’re joined by Nancy Northup, president and CEO of the Center for Reproductive Rights. Can you talk about the gravity of the threat to Roe v. Wade? Is this the most extreme law that’s ever been enacted in the United States, Nancy?

NANCY NORTHUP: Well, it’s the most extreme that’s ever gone into effect. And as you pointed out, this morning, unfortunately, in Texas, the clinics can’t be open to provide abortions any later than six weeks. And 85% of people seeking abortions in Texas do so after six weeks, since many people don’t even know they’re pregnant yet at six weeks. So, this is the most extreme law to go into effect.

We have gone to the Supreme Court. We filed papers right up to 8:00 last night. We are waiting for the court to act. And it really should step in. I mean, what Texas has done his just blanket unconstitutional. It is not for the state of Texas to overturn Roe v. Wade. Unfortunately, that power does land with the Supreme Court, and we’re fighting another case in the Supreme Court from Mississippi on that very question, where Mississippi has asked the Supreme Court to overturn Roe v. Wade. But Roe v. Wade is the law of the land. It has been for 50 years.

And right now clinic doors can’t be open. You know, our client, Whole Woman’s Health, was open until 11:59 p.m. last night seeing patients, because people wanted to get in and exercise their right and make the decisions for their life, health and future, right up to the midnight hour.

JUAN GONZÁLEZ: Well, some people say that this case, obviously, could determine the fate of Roe v. Wade via the courts’s shadow docket. Could you describe — explain what the shadow docket is?

NANCY NORTHUP: Absolutely. Obviously, in ordinary cases, like the case in Mississippi, that the Supreme Court will hear about Mississippi’s abortion ban, a party applies to your case to hear a case. The court decides whether they will or not. They announce that. Months later, we file briefs. Then there’s an oral argument. Then the court renders a decision, and we all read that decision.

And what the shadow docket is, is things like now, where we have a motion practice going on at the Supreme Court. Here, Texas’s clearly unconstitutional law — I mean, there’s just no question about that. I want to make sure your viewers understand: There is no question that a ban on abortion at six weeks violates the Constitution, that something like this, because of the way the court of appeals did not let the district court go ahead and render its decision in the case, the law is in effect. We go up on an emergency motion to the Supreme Court. If they don’t act, which is where we are right this moment — the Supreme Court has not acted — the law goes into effect. So, what they mean by “shadow docket” is, instead of a full hearing in the public’s view — we know it’s coming — overnight, literally, overnight, since midnight last night, abortion can’t be accessed for most of the people in the state of Texas. So that’s why it’s called a shadow docket. And it’s very, very disturbing.

And we are still — the Supreme Court still can act in this case. Our papers are still pending with the court. And so, we are, you know, on pins and needles, waiting for the court to act. But, meanwhile —

AMY GOODMAN: Court could stop it at any point. But, Nancy Northup, if you could explain further how extreme this law is? People may not understand. A person on the street can say, “I see her walking into that women’s health clinic. I’m going to sue her.” They don’t know who this person is. Explain what this means. Just a cab driver driving someone — and also, we’re even wrong in saying six weeks, right? It’s called a heartbeat bill. If they hear a heartbeat at five weeks, you could be stopped from having an abortion.

NANCY NORTHUP: That’s right. So, because this is an unconstitutional law — you can’t ban abortion at six weeks; courts have struck these down easily in other states — Texas did something very underhanded, which is, they said, “We are not going to enforce this as the state of Texas. We’re going to empower — we’re going to empower individuals — really, the anti-choice activists in Texas. We’re going to empower them to enforce this. And they can do that by,” as you pointed out, “suing anyone.” They can sue the doctor. They can sue a clinic staff member who checks a patient in. They can sue your sister who drives you to your appointment. They could sue a friend who loans you some money to be able to get the procedure. And it’s absolutely crazy. They can sue you. You have an abortion in Dallas; they can sue you in Houston and drag you into court, you know, far from even where you live. And they can file lawsuits against you in over 200 jurisdictions in Texas.

So this is clearly intended to harass, obviously providers, but also the support system of a person seeking an abortion, out of being able to help them at all. And, to put even more outrage on this, there’s $10,000 that these vigilantes who are going to be enforcing this unconstitutional ban — they are entitled to $10,000 when they go to court, and you would have to pay their attorneys’ fees. So, if you’re that sister who drove your sister to the clinic, you have to pay their attorneys’ fees, $10,000. And, of course, it doesn’t work the other way around. When you win in a court because of this, your attorneys’ fees aren’t paid.

So, it is really designed to circumvent, number one, judicial review, which is why we’re stuck right now in the Supreme Court. But, second, it is designed to, again, both stop providers from being able to provide services and also friends, families and supporters to support a person who is seeking to get an abortion. And just to underscore again, this is constitutionally protected. It’s as if Texas just said, “You can’t vote.” Right? “And we’re going to enforce that by vigilantes who sue you if you vote.”

JUAN GONZÁLEZ: Nancy Northup, I wanted to ask you: What happens now in Texas, right now, if a woman needs or believes that she needs to have an abortion? Must she go out of state? And if so, can they even — can this law take — can people sue them even if they go out of state to have an abortion?

NANCY NORTHUP: OK. So, first, let me just say, for your listeners in Texas, if you are in this position, do call your local clinics. Right? They are opening — they are open, because there is this small period in which you can get an abortion, and they do want to help their patients. So, of course, before you do anything, call your local clinic.

And secondly, you can leave the state. They can’t criminalize you leaving the state to have an abortion. But, of course, for so many people, they don’t have the means to do that. Right? You have to not only have the financial means to leave the state. You have to be able to take time off from work. You have to potentially have child care. Most women in Texas who have abortions do have children. And there’s a whole set of circumstances that are going to make that very difficult.

So, you know, again, everybody needs to be up in arms about this. I think it has been a very busy news cycle, with very, very big news, legitimate big news in Afghanistan and with Hurricane Ida. But this is really important for people to understand that we need to be quite vocal, that we are not going to go backward in this country from a right that’s been protected for over 50 years.

AMY GOODMAN: Nancy Northup, we want to thank you for being with us, president and CEO of the Center for Reproductive Rights.

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