(CN) — The Senate Judiciary Committee held a hearing Wednesday over Texas’ new near-total ban on abortion and the means by which the U.S. Supreme Court decided to let it take effect. While Democrats on the committee criticized the law for being unconstitutional, Republicans defended it as a way to effectively end abortion procedures in the Lone Star state
During Texas’ regular legislative session, lawmakers passed Senate Bill 8, the Texas Heartbeat Act. The law bans abortion once a fetal heartbeat is detected, around six weeks of pregnancy, before many women are aware they are pregnant, with no exceptions in cases of rape or incest.
Additionally, the law puts enforcement in the hands of private individuals who can file civil lawsuits seeking up to $10,000 against abortion providers and anyone who “aids and abets” in an abortion procedure. People cannot sue the women who received an abortion but can sue the clinic staff, anyone who drove the woman to the clinic and anyone who pays for an abortion.
In opening statements, Senator Dick Durbin, D-Illinois, called the law dangerous and unconstitutional. “Senate Bill 8 attacks the Supreme Court's long-established precedent in Roe v. Wade... [and] uses a civil lawsuit, bounty hunter-style enforcement scheme that was designed to insulate the law from judicial review,” said Durbin.
The law took effect Sept. 1 after the U.S. Supreme Court denied an emergency motion to block it. In a 5-4 decision, Chief Justice John Roberts sided with the court's liberals, calling the law “not only unusual but unprecedented.” The court was able to decide this through the use of the shadow docket, which allows the high court to rule on issues without going through the traditional appeals channels or allowing for oral argument.
In the case concerning the Texas law, abortion providers petitioned the court for an emergency order after the Fifth Circuit put a hold on proceedings in a similar case. In recent years, the use of the shadow docket has been used more frequently to decide on tense political issues such as Covid-19 restrictions and immigration.
Reflected in the hearing's title, “Texas’s Unconstitutional Abortion Ban and the Role of the Shadow Docket,” Democrats on the committee aimed at the seemingly political nature of justices' decisions in these instances while also asserting that SB 8 profoundly impacts the health and safety of Texas women. Durbin said that because the law violates a women's constitutional right to an abortion under Roe v. Wade, the law should have been temporarily blocked while proceedings move through the judicial system.
Professor Stephen Vladeck of the University of Texas School of Law told the committee the shadow docket and SB 8 are similar. “In different but powerfully related ways they both have ominous implications for the rule of law,” said Vladeck. Those similarities and implications include a small number of people using their power to drastically reshape the rights of citizens without regard to existing precedent and rule of law.
“The not so subtle implication is that so long as the court is getting the merits ‘right’ the procedures that the justices follow or the persuasiveness of their explanations simply do not matter,” said Vladeck.
In declining to block SB 8, the Supreme Court “rewarded” Texas lawmakers for their ability to craft legislation that prevents judicial review, Vladeck testified.
Senator John Cornyn, R-Texas, defended the court's decision on SB 8 and the use of the shadow docket, asserting that Democrats' arguments against them are an attack on judicial independence.
“It is clear this is a part of a concerted effort to intimidate and bully the members of the Supreme Court,” said Cornyn.
Senator Ted Cruz, R-Texas, also defended the use of the shadow docket but said the committee hearing and criticism of Texas’ near-total abortion ban were an effort to “demonize” the state. He called Democrats radical and extreme for their proposed legislation to codify abortion rights through the Women's Health Protection Act, which the House of Representatives passed Sept. 24.
For Texans in need of an abortion, their only option to get one to cross state lines. Clinics in New Mexico, Oklahoma and Louisiana have reported providing services to primarily Texas residents. However, that is just for those with the means to go out of state and to pay for the procedure.
Texas state Representative Donna Howard, D-Austin, highlighted this in her testimony, saying that for those with the ability to take time off of work and travel, an abortion can be obtained.
“The majority of those who are not able to access an abortion out of the state are going to be those that do not have the resources, this disproportionately impacts women of color,” said Howard. She noted that with the increase of unwanted pregnancies being forced to term — financially burdening Texas families — the result will be a heightened reliance on services such as Medicaid.
The legal fight over the law has continued even after it took effect. The U.S. Department of Justice has filed a lawsuit against the state claiming the law is unconstitutional and should be struck down. A Texas state court has blocked lawsuits against Planned Parenthood clinics across the state, temporarily protecting the providers from enforcement of SB 8 in the meantime. So far, one man who claims to have provided an abortion has been sued by two people who don't live in Texas, marking the first real test of the new law in Texas courts.
While these legal challenges make their way through the system, Texans continue grappling with the new reality of restricted access to abortion and remain at the center of a deeply partisan conflict.
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