The Daily - How Texas Banned Almost All Abortions

Episode Date: September 3, 2021

In a way, the new Texas law that has effectively banned abortions after six weeks is typical — many other Republican-led states have sought to ban abortions after six, 10 or 15 weeks. But where federal courts have routinely struck down other anti-abortion laws, the Texas legislation has gone into effect with the Supreme Court’s blessing. How has this law survived so far, and where does it leave abortion providers in the state?Guest: Adam Liptak, a reporter covering the United States Supreme Court for The New York Times. Sign up here to get The Daily in your inbox each morning. And for an exclusive look at how the biggest stories on our show come together, subscribe to our newsletter. Background reading: A Texas law that prohibits most abortions after six weeks was drafted with the goal of frustrating efforts to challenge it in federal court.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, a Texas law banning most abortions has gone into effect with the blessing of the Supreme Court. I spoke with my colleague, Adam Liptak, about why this law survived a legal process that so many previous anti-abortion laws have not. It's Friday, September 3rd. Adam, pretty much since the start of this show, at the beginning of the Trump administration, we have been talking with you about this moment when the increasingly conservative Supreme Court might take direct aim at abortion rights and Roe v. Wade. And you had warned us that the court would be slow to do that, to avoid the perception of being too political. And now we have this ruling. So is this that big moment? Yes and no. I mean, what the court has accomplished is in Texas, women now, as a

practical matter, can't get abortions after six weeks. That's blatantly at odds with Roe, which says that before viability, which is to say about 22 to 24 weeks, states can't ban abortion. So in that sense, this is completely at odds with Roe. At the same time, it was, the majority would say, a modest procedural ruling, not definitive. They didn't decide to overrule Roe. They didn't decide a constitutional question at all, they say. But this decision just before midnight on Wednesday, as a practical matter, overturned the ability of women in Texas to get the abortions that Roe guarantees them. Well, like you said, it is that moment and it's not that moment.

I don't want to get to all that. Well, like you said, it is that moment and it's not that moment. I don't want to get to all that, but let's talk about how this case ended up at the Supreme Court in the first place. What should we know about this law and how it came to be? So this Texas law is in a way typical. Lots of red states have been passing laws that purport to ban abortions after six weeks or 10 weeks or 15 weeks. And those are routinely struck down immediately in federal court because they're at odds with Roe v. Wade. Right. But this law has an innovation. It has a special feature that was designed by the legislature to

avoid judicial review, to make sure that federal judges can't strike it down. And what is that feature? That feature, there's two basic pieces to it. One is ordinarily when you want to challenge one of these abortion laws, you sue the government officials in charge of enforcing the law. The governor, the attorney general, people like that. This law says those people have no power to enforce the law.

We specifically exclude them from the enforcement process. No government official may enforce this law. And instead, we deputize every person in the world to file civil lawsuits if they think someone is involved in aiding or abetting or providing an abortion after six weeks. So that's a very novel construct that we're going to deputize, critics would say, vigilantes. And then we're going to incentivize them. They're offered bounties of $10,000 if they sue and win. They're offered their attorney's fees if they sue and win. They're allowed to sue in their home county. Texas has 254 counties. And the abortion provider

sued or anyone else who, quote, aids and abets in providing the abortion, a counselor, a clergy person, a spouse, an Uber driver, someone who offers to pay for the abortion, all of those people can be sued for at least $10,000 all over Texas. And not only once, you can have hundreds of people suing over the same act of aiding an abortion in every single county. So anyone who finds out about an abortion being carried out can file a lawsuit on this law against anyone involved in any way in that abortion? Exactly right. Wow.

So you kind of terrorize the clinics into stopping providing abortion services, which is happening, because these citizens have all kinds of advantages. It's a quite unlevel litigation playing field. So the legal analysis of the clinics in Texas is they can't afford to take this risk. Hmm. So if this law had been written the way most laws seeking to ban abortion are written, it would have specified that government officials enforce it. But because the law is written in such a way that those officials are cut out,

it therefore kind of circumvents the normal way of objecting to an abortion ban. Exactly right. So abortion providers had a very hard time figuring out who to sue to try to stop the law. Call it creative, call it devious. This law is specifically designed to make sure there are no such lawsuits and to make sure that its regime comes into effect, even though it's plainly unconstitutional under prevailing Supreme Court precedents. Mm-hmm. Got it. So this law is designed to, if it succeeds,

just kind of sail through the legal system by bobbing and weaving around all the normal ways that people would legally object to it. Nicely put, yeah. Okay. So once this law was signed by the governor of Texas and was set to go into effect, what ends up happening?

Did the authors of this law succeed in making it impossible to figure out who to sue? Well, that depends on which side you believe. Abortion providers did go to court, and they did sue people. Among them, every judge in the state and every court clerk in the state on the theory that, well, now they're the people, in fact, who are the government officials in charge of these lawsuits that will be brought by private citizens. But the question for the courts at bottom was, had they found proper parties to sue? And that's a question that you have to get past

before you get to the question of, is it constitutional? And the weird thing is we know it's not constitutional, but we're still hung up on this first question of who do you sue? Right. So what happens when abortion providers sue all these people you just described, judges, clerks, et cetera? What do the courts say? Are those the right people? A federal trial judge says, yes, good enough. Those people can be sued. And he schedules a hearing about whether to issue a preliminary injunction, whether to halt the law. It goes up to an appeals court. The appeals court says, wait on, hold on a second. We're going to freeze that hearing. That hearing can't go forward. And so now we have this ticking time

bomb where the law is about to come into effect. And the only option is to go to the Supreme Court. And that's what happens. We'll be right back. So Adam, in what form does this case challenging this creative Texas abortion ban reach the Supreme Court? So abortion providers file an emergency application asking the court to block the law. These emergency applications, which happen very fast, very thin briefing, no oral argument, are what people who follow the Supreme Court call the shadow docket. These are not the usual cases, which take months to decide and oral arguments and full deliberations and elaborate decisions. This happens in a matter of days.

And what happens in this case of the shadow docket? So the parties file their briefs and we expect a decision from the court before the Texas law goes into effect on September 1st. But we don't get that decision. We hear nothing from the court before the Texas law goes into effect on September 1st. But we don't get that decision. We hear nothing from the court and the law comes into effect. About a day after it comes into effect, the court finally issues a decision. It's five to four. The majority opinion unsigned, but you can deduce who's in the majority because of the four dissenters. The unsigned majority opinion is only a paragraph long. And it says, listen, we're not deciding the constitutionality of this law, but these are complex procedural questions.

It looks like we're not in a position to stop anybody from doing anything because we don't know who the right government official is because there are no government officials. And therefore, the abortion providers haven't made out their case. And therefore, sorry, but we're going to let this law come into effect. So the majority basically says

that the people who wrote this law kind of cracked the code and figured out how to ban abortion in a way that makes it hard for us, the Supreme Court justices, to strike down. Right. So the authors of this law set out to evade judicial review, and the Supreme Court majority essentially says, you win, that's right, you did it. And the majority was justices Samuel Alito and Clarence Thomas and the three Trump appointees, Neil Gorsuch, Brett Kavanaugh,

and Amy Coney Barrett. And I might pause there for a second and note that Barrett makes the difference. Had Ruth Bader Ginsburg been around, she died just last year, this case comes out differently because the 5-4 would have gone the other direction. But just to be clear, these five conservative justices you just identified, they are not endorsing this Texas law. They're simply saying, as written, we just don't really know what to do with it, so we're going to do nothing. Right. And they say in so many words, we're not ruling on the constitutionality of the law. And we think there may be other settings in which the constitutionality of the law can be decided, like in a state court proceeding. If somebody does sue an abortion provider in Texas under the law and the provider raises as a defense that the law is unconstitutional, they suggest that would be a perfectly proper way to decide it.

But what we're seeing is that those lawsuits may never happen because the clinics have stopped providing abortions after six weeks. So, Adam, what about the rest of the justices, the four who dissent? What do they say? Each of them files a separate dissent. The dissenters are Chief Justice John Roberts and the court's three liberal members, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan. And they basically say, wait a minute. It can't be that we're powerless to address this unconstitutional law because someone has come up with a device to block us out. That there must be a way for us to freeze matters at least long enough

to give this due consideration and not in a matter of two or three days effectively issue such a momentous ruling that changes the abortion landscape in Texas. What does that mean, freeze matters? And who articulated that concept? All of them make that point in one way or another. And they basically say,

let's slow down here. Let's keep this law on ice until we can have full reasoned deliberation about what should be done with it. One of the justices, Justice Sotomayor, really wrote quite directly about what was going on here. She said, the court's order is stunning. 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. So what these justices seem to be saying is, this court should take its time and treat this like any Supreme Court case with oral arguments, judges at the bench,

lots of deliberation. And correct me if I'm wrong, they're saying, in the meantime, until we can do that, this law should not go into effect. That's right. And that, in the meantime, is the hard part of the case. Because the dissenters are suggesting that they have the power to stop the law from coming into effect. And serious legal scholars say, even ones sympathetic to the dissenters's larger point of view,

say that these are difficult questions because the court actually doesn't block or enjoin laws. It blocks or enjoins people from enforcing laws. And as we've been talking all this time, Michael, the genius or the devil or whatever you want to call it of the Texas law is that it seems to evade that point. So there's a legitimate question legally about whether these dissenting justices are correct that they and the court have the power to pause this law, prevent it from going into action based on the quirky ways in which it was written. the quirky ways in which it was written. Yeah. So, you know, under existing court doctrine, the majority's point of view has some force. But under, you know, sort of fundamental principles of good government and justice, it just seems very, very odd that a legislature can set out to evade judicial review in order to do something unconstitutional and succeed because they've been clever.

I mean, you would think the Supreme Court of all institutions would have the power to address that. So, Adam, since the majority explicitly said we're not ruling on the constitutionality of this Texas abortion ban, what would trigger such a review? of this Texas abortion ban, what would trigger such a review? Or to put it differently, what recourse is left for abortion rights advocates in Texas who want to challenge this law? So there are two basic routes. One is that the lawsuit in which the Supreme Court ruled is still alive. It's at a federal appeals court. That court will eventually rule, and that ruling can be appealed again to the Supreme Court. So that's one route. Or an abortion provider could decide to offer an abortion to a woman at eight weeks or 10 weeks and take his or her chances, get sued, raise as a defense that the Texas law is unconstitutional,

probably win, have that case appealed up through the Texas state court system, could reach the Supreme Court directly, and then you wouldn't have this problem about knowing who to sue and the court could resolve the question on the merits. And do we expect that to happen? It seems that clinics are abiding by the law, that clinics don't want to take the risk that they and their staffs could be sued maybe many times for the same act, that it's just too risky to take that chance. Act, that it's just too risky to take that chance. Does that mean that they are, since September 1st, no longer providing abortions after six weeks in Texas? Yes. There are about 24 clinics in Texas,

and our reporting is suggesting that they have shut down their operations for post-six-week abortions. And six weeks is very early. It's before many women even know they're pregnant. I mean, if you are opposed to abortion, this has to look like a very successful legal experiment and one that I imagine many conservative state lawmakers around the country would be eager to replicate. conservative state lawmakers around the country would be eager to replicate. Opponents of abortion are delighted with this law, and it will be copied in short order all over the parts of the country controlled by Republicans. Which increases the chance that the Supreme Court will have to contend with the question

of whether or not this law is legal, whether it violates Roe v. Wade. or not this law is legal, whether it violates Roe v. Wade? Maybe, or maybe the majority is right, that this is an effective way to avoid judicial review. And let me broaden out your question in just one way, Michael. This is not the only area in which you could set up such a bounty system. A blue state could say, we understand the Second Amendment protects the right to own a gun in a home for self-defense, but we're going to have a bounty system that allows any citizen of Massachusetts to sue people who have a gun in their home. And we'll give them $10,000 if they win. Now, maybe they won't win, but we're going to have such a bounty system. Would the Supreme Court go along with that? I, you know, I wonder. Hmm. If we assume that at some point, a case arises for the court that tests the core question

of whether you can ban abortion under Roe v. Wade, not who you can sue or who you can't sue, how should we think about who was in this majority in this case and whether those same five justices are likely to try to roll back Roe v. Wade? Is that the right way to think and the novelty of the decision going along with this effort to evade constitutional review, that the five justices in the majority are going to be also quite receptive to arguments that Roe itself should be overruled. But Adam, on a practical level, haven't these five conservative justices in way, just overturned Roe v. Wade in Texas? On a practical level, I don't know that they've overturned it, but they have effectively eliminated the right to abortion announced in Roe v. Wade. They'll have a chance soon enough to address whether they want to overrule Roe v. Wade, in so many words, in a case that's on the court's docket this term. And based on what we learned about the conservative majority in this case, there's good reason to think that Roe is in grave danger.

Adam, thank you very much. Thank you, Michael. The next major abortion case that the Supreme Court is expected to rule on involves a Mississippi law banning the procedure after 15 weeks of pregnancy. The justices will hear arguments in that case this fall. We'll be right back. Here's what else you need to nerdy. Three days after Hurricane Ida made landfall in Louisiana,

it tore through the Northeast, killing at least 43 people. Much of the storm's destruction came from intense rain, which fell at a rate of three inches per hour, flooding roadways, subways, and entire neighborhoods. Many of those who died drowned in low-lying homes, basement apartments, and cars. Today's episode was produced by Jessica Chung, Sydney Harper, Robert Jimison, and Lindsay Garrison. It was edited by Lisa Chow,

contains original music by Dan Powell and Marian Lozano, and engineered by Dan Powell. That's it for The Daily. I'm Michael Bilbaro. See you on Tuesday after the holiday.