TX Abortion Ruling: “Insulting and Abuse of the Judiciary”

CHRISTIANE AMANPOUR: And we look to women’s rights in the United States next where the Justice Department vows to protect Texas clinics from prosecution for providing abortions, upping the ante after the state brought in a new law attempting to gut Roe versus Wade. Slate’s senior editor and legal correspondent, Dahlia Lithwick, has been following the Texas case closely and she tells Michel Martin what the latest developments mean for women in Texas and beyond.

(BEGIN VIDEO CLIP)

MICHEL MARTIN, CONTRIBUTOR: Thanks, Christiane. Dahlia Lithwick, thank you so much for joining us.

DAHLIA LITHWICK, SENIOR EDITOR AND LEGAL CORRESPONDENT, SLATE: Thank you for having me.

MARTIN: As we are speaking now, a lot’s been written and said about this Texas bill, but I did want to ask for the sake of those who have not followed it closely, just walk us through. I think many people will have heard about the so-called fetal heart beat provision which makes abortion illegal when cardiac activity is detected. That is usually around six weeks. You wrote a scathing piece about this law, you called it unconstitutional and brutal piece of lawless vigilantism.

LITHWICK: I did. I wrote that. I think it is really important to understand that even Texas knows that the current abortion doctrine says that you cannot put an undue burden on a woman’s right to terminate a pregnancy until viability. That marker is somewhere between 22 and 24 weeks at present. So, when you pass a six-week ban and the State of Texas knew this was unconstitutional. By the way, this is going to be litigated at the Supreme Court properly, presumably this term, a 15-week Mississippi ban. This the is the State of Texas knowingly saying, we’re going to do something unconstitutional. Six weeks is two weeks after the last missed menstrual period, most women do not know their pregnant that early. And what this means, Texas providers tell us is that about 85 to 90 percent of the abortions they usually provide have to be stopped. So, to knowingly pass an unconstitutional law and to have a kind of bounty system whereby people are rewarded pursuing providers, knowing it is unconstitutional feels lawless.

MARTIN: So, tell me a little about the Supreme Court’s ruling. You were equally scathing about the Supreme Court’s behavior in this case. Tell me about that.

LITHWICK: Probably the single most important thing that seems really hyper technical but it is urgently important, Michel, is that this happened on so-called shadow docket at the Supreme Court. So, there is a regular docket, it’s the thing that I usually cover as a Supreme Court reporter. The court starting the first Monday in October, hears cases that come up through — they percolate through the lower courts. An Appeals Court will rule. There is a trial record. There is an oral argument. There is briefing. All of those things happen in regular order. The court also has an emergency docket, right? And this is where a lot of death penalty cases come up, this is when there isn’t time to let it percolate through the courts. The urgently important thing is that in the last few years the court has started using the so-called shadow docket not just for emergencies but for voting rights cases, for death penalty cases. We saw a whole bunch of it around COVID orders, shut down orders where people said, we don’t have time to argue this case and let it work through the system, because we’re being forced to stop praying now. And the court has overwhelmingly used the shadow docket in recent years to reward, for instance, Donald Trump, some of Donald Trump’s laws and said, oh, this is exigent, we have to do something right now. Just a few weeks ago, the court did away with the eviction moratorium on the shadow detective. So, they did this on the shadow docket at midnight, in the dark of night, without briefing, without lower court argument, without an Appeals Court record. And that is the really pernicious thing here. There is a regular procedure at the court that is open and transparent. Here, we had less than two pages, a page and a half, one paragraph of analysis from the Supreme Court essentially saying, we don’t think anybody has standing the sue, we don’t think anybody can win. So, good luck, Texas. And to do that late at night in one paragraph, even Chief Justice John Roberts who voted with the three liberals dissenting in this case, was horrified at the ways in which something so radical, so unconstitutional could be passed in the dark of night without reasoning, without rationale.

MARTIN: Given that the providers are the ones who went to the Supreme Court asking for this emergency injunction, in this case, to stop the Texas law, what is your chief objection to their using the so-called shadow docket for this purpose?

LITHWICK: I think that the problem is that it gives the Supreme Court perfect discretion to determine what an emergency is. And really, the problem is, if you are going to decide all of these things on the basis of people running to the court in the middle of the night and saying, this is an emergency, then to say it is an emergency that landlords are facing the continuation of the eviction moratorium, that landlords are in peril of exigent harm, but that women in Texas who will not be able to have a legal abortion effective midnight tonight or in this case, midnight last night, that is not an emergency or that people in California who want to pray in COVID and they don’t like the ceiling that has been placed on houses of worship, the Supreme Court determined that they had emergency religious freedom rights that were being violated. So, I think the principal objection of the shadow docket, for me, is not just that these cases are not fully ventilated. There is no record. We don’t know what actually is happening or what the harms are. But the Supreme Court is taking it upon itself to decide who is a sympathetic emergency plaintiff. And in this case, they said, oh, yes, those folks who wanted to pray in California and their church was being given less deference than bike shop or Costco, they had an exigent personal dignitary emergency that we have to act on now. The women Texas, who by every single metric, have a right to end a pregnancy until viability at 22 weeks, they are being — having the line moved to six weeks. And they face no exigent emergency? That is the Supreme Court arrogating to itself the power to decide what an emergency is and who a sympathetic plaintiff is, and that has to be wrong.

MARTIN: Well, you have said repeatedly in your writings and you said here that this law is unconstitutional. What makes it unconstitutional? I mean, I think the defenders of it say it is constitutional if the court says that it is. So, what makes it constitutional in your —

LITHWICK: Right. In fairness, the court here, in its one-and-a-half-page order, doesn’t weigh in on the merits of the constitutionality. And in fact, they unsigned order goes to pains to say, we’re not making a decision or a declaration about the constitutionality of this. We’re just making a decision about whether this is an emergency and whether the court has jurisdiction to grant relief. So, you are quite right. It is up to the court, at some point, to be the arbiter of what is constitutional. But if the court cares about precedent and stare decisis and (INAUDIBLE), that when they say a law is the law, then Roe v. Wade is still a good law and Casey is still a good law and any pre-viability abortion ban, any ban pre 22 to 24 weeks is per se unconstitutional. As I said, the court has a chance to look at that again in this Mississippi case. Dobbs that’s on the docket for this term. If they want to end Roe v. Wade by, you know, actually assessing the law and making a constitutional determination, they can and will likely do that. The question is whether this with the vehicle to start to ship away at Roe.

MARTIN: Conservatives have made three arguments basically. I’m going to put them in basically three buckets. The first is that people who are criticizing this bill are pro-abortion zealots. So, therefore, it is really a matter of whether you agree with access to abortion or not. The second argument is that abortion is bad. So, it doesn’t matter. In essence, the means are irrelevant to defend the goal, right? If the goal of eliminating abortion or discouraging it severely is so important, that it doesn’t really matter. But I want to focus on what I’ve observed as sort of a legal argument made by conservative legal writers. Their argument is that Roe v. Wade as garbage decision. It created a right that does not exist. So, this might be an equally tortuous garbage decision. But so what? That the two cancel each other out. You have seen that, right? So, what is your response to that?

LITHWICK: I mean, I think my response to all three buckets of arguments is that you could say all of these same things about guns, right? You could certainly say that the kinds of gun cases that are being pressed, again, that will be heard this term at the Supreme Court are being made by pro-gun zealots. You can say that it doesn’t matter what the law is, guns are bad. That, you know, having semi-automatic weapons in the hands of everybody who wants one in a Walmart is bad. And that the Heller, the decision that said that there is a personal individual Second Amendment right to bear arms to defend yourself is a garbage decision. You can say all those things about anything you don’t like. The problem is, it a little bit depends on whose ox is being gourd. You can certainly do what the opponents have done and say, it is just bad law and the Supreme Court has the ability to just reverse it. But I think the answer to that is, one, stare decisis, right or wrong. And furthermore, I think I would say that the idea that Roe is a garbage decision when it is in fact the cornerstone of so many privacy dignity protections that came after is a really worrisome road go down. If you are going to do away with Roe, you are also doing away with, what, Griswold, the right to have — to use birth control within marriage? So, I think it is very, very dangerous to say that precedent doesn’t matter because what that argument leads to, and this for me the chilling thing, is pure power. What you are saying is the law is what five people say the law is regardless of centuries of precedent. And that really isn’t a legal argument. That is a pure power argument.

MARTIN: I’m wondering if there is a way which this could have been anticipated. Do you think the administration and the Pro-Choice advocacy community were caught flatfooted here? And if so, why?

LITHWICK: I think one piece of it that is really startling that we haven’t reckoned with yet is the ways which this is of a piece with a whole bunch of laws that are conscripting citizen vigilantes into taking the law into their own hand. We’re seeing it in a voting context, right, that you can take it upon yourselves to enforce voting rights. We’re seeing in the COVID context. And I think that the sense that citizens should give up on law enforcement and take the law into their own hands and do what they will is really new and really frightening. To the second part, I think the reason if folks were caught flatfooted, if they were surprised by what happened in Texas, I think it is because they weren’t paying attention to what’s happening in Texas. If you were a provider on the ground in Texas, you already witnessed HB2, that was the attempt to close clinics in 2013 that the Supreme Court reversed in Whole Woman’s Health. You saw Greg Abbot, Governor Abbot try to shut down abortion clinics during COVID, saying it was unessential health services. So, I think part of the play here, and it’s very worrisome, is that it is easy to say Roe is still a good law, Casey is a good law. It was reaffirmed again two years ago in the Supreme Court. So, we’re all safe. But if you are in a state like Louisiana, Mississippi, Texas, where there is one clinic left, where there are waiting periods, where there are endless hoops to go through, this isn’t surprise at all.

MARTIN: You know, I’m curious about is why the court was not more interested in the abuse of the judicial system for this, because the court does — it as in the past been concerned about the abuse of the legal system. I was just wondering what is your thought about that.

LITHWICK: I mean, I think the short answer is we don’t know. Because the decision was so abrupt that we have no idea what was going through the minds. As I said, the page and a half of reasoning was unsigned. We don’t even know who wrote, much less what they were thinking. And I think the cynic in me says that’s because it has the effect that they wanted, which is abortions have stopped. And it doesn’t matter kind of the principles. The deeper principle here and it’s the one that John Roberts flicks at in his dissent is not just abuse of the judicial system but abuse of the Supreme Court itself. A deliberate defiance of Supreme Court precedent and the kind of underappreciated, completely overruling of Roe by state. And that offends John Roberts who thinks deeply about the role of the Judicial Branch and the need for the, sort of, dignity and esteem the public regard of the Judicial Branch. I don’t think John Roberts has any problem with ending Roe v. Wade who is clearly on record wanting to do away with abortion rights. I think the reason he votes with dissenters is exactly what you are pointing to, which is this is an abuse of the judiciary. And by the way, it’s an insult to the judiciary. And that is the thing I think that forces Roberts to peel off and vote with the liberals in dissent.

MARTIN: I just don’t think it is a secret that this has been a 30-year project of the conservative movement. I mean, it’s been a generation-long project of the conservative movement to dominate the judiciary, that is a fact. And it is also a structural issue now because it is also been a 30- year project of conservative movements to dominate state legislatures, which has been achieved. So, given that there is a structural imbalance here, what do people who disagree with this do now?

LITHWICK: Well, I think in the very near term, they do everything they can to help women, particularly poor women and women of color in Texas. And that may include helping construct funds to help them get out of state. We’ve seen a huge uptick in women already traveling to New Mexico and to Oklahoma. But you are quite right, that doesn’t solve the larger structural problem. And those are the places where, I think, you are also right. A lot of people have just taken their eye off the ball. If you look at polling around reproductive rights, the country is absolutely emphatically clear that none of what we’re seeing in Texas aligns with what the majority say in polls. The vast majority of Americans support abortion. And so, I think what has happened —

MARTIN: They (INAUDIBLE) abortion in some context, just to be clear about that. I think it is accurate to say. They don’t support all access to all abortion at all times. But I think it is accurate to say that the majority of the country does support access to abortion under most circumstances at most times. The legal consensus that currently exists is generally supported by the public.

LITHWICK: There is a really good clarification. That is exactly right. I think the term of art is abortion on demand. And you are quite right, that we don’t have vast majorities supporting all abortion all the time. But I will say that a law like the Texas law that has no exceptions for rape and incest is really, really reflective of a very, very minority opinion. And I think that the reason that we’re seeing these “heart beat bills,” right, we’ve seen in 2021 alone, record numbers of anti-abortion laws passing in state houses and red states is exactly because of what you have said, because of the capture of state legislatures and also, because of the capture of the courts. And I think that that requires systems thinking. Not sort of individual liberty (INAUDIBLE), you know, frustration but thinking about systems, thinking about how it is that, by the way, Texas the same day that SB8 went into effect passed this massive restrictive voting law. So, how is it possible that we are looking at minority positions been written into law? And so, I think that if this is the kind of thing that worries people, it really is time to started thinking about structural court reform of the federal courts, something that nobody wants to say out loud. It is time to start thinking about winning state houses. It is time to think very, very seriously about whether, you know, free and fair elections can happen, if massive numbers of voters are suppressed. And I think those the kinds of things that are really boring and they’re really technical and they don’t make for good television and so, nobody really wants to think in terms of those systems. But you are quite right, those systems are exactly what is kind of coming home to roost now.

MARTIN: Dahlia Lithwick, thank you so much for talking with us today.

LITHWICK: It’s always a pleasure. Thank you for having me.