1). “Texas Republicans drove Kate Cox out of her own state. What her abortion story means for America: The conflict between a mother of two and Texas embodies the larger battle for the soul of America”, Dec. 13, 2023, Dennis Aftergut, Salon, at < https://www.salon.com/2023/12/
2). “Kate Cox’s case reveals how far Texas intends to go to enforce abortion laws: The Dallas mom’s case drew national attention and forced the abortion issue before the state Supreme Court. She ended up traveling out of state to terminate her non-viable pregnancy”, Dec. 13, 2023, Eleanor Klibanoff, The Texas Tribune, at < https://www.texastribune.org/
3). “Calculated Cruelty, Texas Edition: Anti-abortion activists are attacking a woman with a fatal fetal anomaly”, Dec 6, 2023, Jessica Valenti, Abortion Every Day, at < https://jessica.substack.com/
4). “Texas’s radical anti-abortion law, explained: The loss of abortion rights may not even be the most troubling aspect of the Supreme Court’s inaction over the law”. Updated Sep. 2, 2021, Ian Millhiser, Vox, at < https://www.vox.com/2021/8/31/
~~ recommended by dmorista ~~
Introduction by dmorista: Kate Cox took a courageous stand, to be the test case for the first legal challenge to the outrageous and cruel Texas Laws that mandate near total criminalization of abortion in Texas. She contacted the Center for Reproductive Rights and volunteered to be their Test Case in challenging those draconian state laws. Her actions in this regard greatly increased the profile of the horrific Texas abortion laws and put them forward across the entire world.
Item 1). “Texas Republicans drove Kate Cox ….” looks at the larger context noting that:
“The conflict between Cox and Texas embodies the larger battle for the soul of America.
“On one side of the battle lines is the state, which claims the right to subject its pregnant women to agony of the kind that Ms. Cox just experienced. Ultimately, she had the means to escape to another state, but millions of poor Texas women do not. (Emphasis added)
“On the other side stands Cox, representing those willing to face personal peril to insist, to the point of intolerable pain, on the rights to health and bodily safety that the state should safeguard. Texas has now said it will not. ….
“Donald Trump and his MAGA enablers are making plans if he is elected to benefit only themselves by installing the Ken Paxton’s of the country as our governing class and to destroy the constitution’s checks and balances on their power. If Trump returns to the White House, we are all Kate Cox. (Emphasis added)
“In the meantime, however, she has illuminated the choice before us. Her torment by the state may sear into the public consciousness the understanding that freedom from oppressive government control is truly on the ballot in 2024.”
In Item 2)., “Kate Cox’s case reveals how far Texas intends to go ….”, the author analyzes these legal struggles writing that:
“The state says the problem is with the way doctors are interpreting the law, not the law itself. When several women testified in July that they had been denied medically necessary abortions, an assistant attorney general asked why they were suing the state instead of their doctors. Again and again, the state’s lawyer asked the women: Did Attorney General Ken Paxton tell you you couldn’t get an abortion? Did anyone, working in any capacity for the state, tell you you couldn’t get an abortion? (Emphasis added)
“But when Cox got a court order allowing her doctor to terminate her non-viable pregnancy, Paxton channeled the full power of the state to stop her, threatening hospitals, appealing to the state’s highest court and ultimately getting the order blocked.
“ 'Kate Cox called their bluff,' said Elizabeth Sepper, a law professor at the University of Texas at Austin. 'Ken Paxton came in, in a very personal way, and put the state of Texas in embodied form between her and an abortion.' ” (Emphasis added)
In Item 3). “Calculated Cruelty, Texas Edition: ….” Ms Valenti writes that:
“You’ve probably already read about Kate Cox, the Texas woman seeking an emergency court order to obtain an abortion after her pregnancy was diagnosed with a fatal anomaly. The Guardian has some background if you need a refresher, but what’s important to note is that Texas law doesn’t allow abortions in cases of fetal anomalies—even fatal ones. In other words, this isn’t a matter of Texas’ ban being unclear. It’s not: Women must carry doomed pregnancies to term. (Emphasis added)
In Item 4)., “Texas’s radical anti-abortion law, explained ….”, the author (who holds a J.D. from Duke and has written two books on the Supreme Court) points out that:
“.... SB 8 is unlike most other laws in that it was written to prevent courts from blocking it before it takes effect.
“The anti-abortion law, …. presents a maze of procedural complexities that are rarely seen in even the most complicated litigation. The law appears to have been drafted to intentionally frustrate lawsuits challenging its constitutionality. And Texas, with an assist from a right-wing appellate court, has thus far manipulated the litigation process to prevent any judge from considering whether SB 8 is lawful.” (Emphasis added)
The Kate Cox Abortion access case in Texas, shows that the Forces of Intolerance and the Theocratic Faction of the U.S. ruling class are currently in a very powerful position on abortion policy. In the map below we can see that no less than 15 U.S. states are defined (by the Guttmacher Institute) as having the Most Restrictive Level of Abortion Regulation, while only 1 state (Oregon) has the Most Protective Level of Abortion Regulation. It is important that the publicity and media coverage of her case and the vicious draconian actions of the Texas Courts and Attorney General's office has exposed to the entire world just how cruel and dangerous the Texas abortion laws really are.
The Implications and Ramifications of the Kate Cox Abortion Legal Struggle
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Texas Republicans drove Kate Cox out of her own state. What her abortion story means for America
It's impossible for any man, without the experience of pregnancy, to fully comprehend the unbearable trauma that Kate Cox just endured. At the same time, every one of us can appreciate the service she performed for America. Her suffering has viscerally exposed the harm to women and their families that has come from the Supreme Court’s decision in U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Org’n, the June 2022 decision overturning Roe v. Wade.
May we remember it next fall when we elect a president who will appoint the next Supreme Court justices. They will be people who either understand that harm or who sacrifice it on the altar of their religious beliefs and ideology.
The conflict between Cox and Texas embodies the larger battle for the soul of America.
Cox is the Texas woman who last week asked a trial court for permission to terminate her unviable pregnancy. She initially won, only to have the permission rescinded Friday by the state Supreme Court’s stay of the lower court ruling. Texas’s MAGA Attorney General Ken Paxton couldn’t wait to bring the court an emergency petition to force Cox to continue her doomed pregnancy.
Testing showed a fatal genetic abnormality in her fetus, a mutation that would kill it in utero or shortly after birth. Ms. Cox, a 31-year-old mother of two, sought simply to accelerate the inevitable, avoid any threat to her health from continuing a pointless pregnancy and potentially dangerous labor, grieve and try again in the future.
Under Texas law enacted after Dobbs, however, that was not to be. Once the Texas Supreme Court issued its stay last Friday, Ms. Cox saw the handwriting on the wall. On Monday, hours before the Texas court announced its final decision permanently stopped her right to have an abortion, Ms. Cox left the state to seek medical care before her condition worsened.
Texas bans abortions after six weeks. There’s an exception for threats to the mother’s life, but not to non-terminal risks to physical or mental health from carrying a fetus that has no serious prospect for surviving.
The state tied a mother’s hopes for compassionate relief to a stake and burned them in the public square. The cruelty is shocking. Yet Cox, knowing what could be coming, stood until she saw that she might be forced – literally – to deliver.
It took undaunted courage for a woman in her straits to stick around at all, file a lawsuit and risk the emotional torture she faced last week from Texas officials and the laws enacted by them.
The conflict between Cox and Texas embodies the larger battle for the soul of America.
On one side of the battle lines is the state, which claims the right to subject its pregnant women to agony of the kind that Ms. Cox just experienced. Ultimately, she had the means to escape to another state, but millions of poor Texas women do not.
On the other side stands Cox, representing those willing to face personal peril to insist, to the point of intolerable pain, on the rights to health and bodily safety that the state should safeguard. Texas has now said it will not.
Citizens can change this in the answer we give in our votes 10 months from now. Our answer will decide not only who represents us, but also the larger question posed by Cox’s case and by political philosophers over the centuries: Can humans sustain societies in ways that benefit all, not just those with money and power who believe that the government can take away fundamental rights that existed for 50 years.
Donald Trump and his MAGA enablers are making plans if he is elected to benefit only themselves by installing the Ken Paxton’s of the country as our governing class and to destroy the constitution’s checks and balances on their power. If Trump returns to the White House, we are all Kate Cox.
In the meantime, however, she has illuminated the choice before us. Her torment by the state may sear into the public consciousness the understanding that freedom from oppressive government control is truly on the ballot in 2024.
We have already seen the redoubtable power of abortion rights in virtually every election since the Supreme Court overturned Roe v. Wade. Voters have affirmed the right in seven initiative measures on the ballots of states red and blue over two election cycles. The issue has carried decisive weight in competitive candidate elections like Justice Janet Protasciewcz’s 11-point victory in Wisconsin, a state known for tight elections.
As for the coming presidential contest, the many of us who care about freedom can work to ensure the future of a republic in which the law protects individual rights. The need for a government and law of compassion can be understood by anyone, including those not built to carry a baby.
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Kate Cox’s case reveals how far Texas intends to go to enforce abortion laws
The Dallas mom’s case drew national attention and forced the abortion issue before the state Supreme Court. She ended up traveling out of state to terminate her non-viable pregnancy.
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A year and a half after enacting one of the strictest abortion laws in the country, Texas finally saw a test case.
In a historic lawsuit, Kate Cox, a 31-year-old Dallas mother of two, put herself and her heartbreaking pregnancy story into the public eye to force an answer to an urgent question: Just how serious is the state of Texas about enforcing its new abortion laws?
Pretty damn serious, it turns out.
Cox’s story followed a now-familiar storyline: She and her husband were thrilled to find out they were pregnant, and devastated to receive a lethal fetal diagnosis. Her doctor said she needed an abortion to preserve her health and future fertility, but because of state law, their “hands are tied,” according to the lawsuit.
Cox’s lawyers say the problem is the laws — they’re too vague, and the stakes too high, for doctors to implement them with confidence.
The state says the problem is with the way doctors are interpreting the law, not the law itself. When several women testified in July that they had been denied medically necessary abortions, an assistant attorney general asked why they were suing the state instead of their doctors. Again and again, the state’s lawyer asked the women: Did Attorney General Ken Paxton tell you you couldn’t get an abortion? Did anyone, working in any capacity for the state, tell you you couldn’t get an abortion?
But when Cox got a court order allowing her doctor to terminate her non-viable pregnancy, Paxton channeled the full power of the state to stop her, threatening hospitals, appealing to the state’s highest court and ultimately getting the order blocked.
“Kate Cox called their bluff,” said Elizabeth Sepper, a law professor at the University of Texas at Austin. “Ken Paxton came in, in a very personal way, and put the state of Texas in embodied form between her and an abortion.”
Cox’s case captured national attention, generated a response from the state and forced the Supreme Court of Texas to show its hand on how it plans to handle abortion challenges. It did not, however, get Cox the relief she sought — an abortion in the state of Texas.
On Monday, her lawyers announced she had left the state to terminate her pregnancy.
A historic court ruling
Two weeks ago, Kate Cox sat at her OB/GYN’s office, anxiously awaiting the results of her amniocentesis test.
She knew her fetus was developing with a twisted spine, clubbed feet, irregular skull and heart development, and she’d gone to the emergency room three times in the last month for cramping, diarrhea and unexplained fluid leakage.
The amniocentesis confirmed her fetus was developing with full trisomy 18, an extreme chromosomal abnormality. If her child was born alive at all, they would survive only minutes, hours or days outside of the womb.
Cox’s pregnancy was going to end in heartbreak. The only question was when. Cox and her husband wanted to end “the pain and suffering that has plagued this pregnancy,” she said in a statement.
“I do not want to put my body through the risks of continuing this pregnancy,” she said. “I do not want to continue until my baby dies in my belly or I have to deliver a stillborn baby or one where life will be measured in hours or days.”
Before the overturn of Roe v. Wade in June 2022, Texas law would have allowed Cox to have an abortion at her doctor’s office or hospital. But now, her doctors told her they could not perform the procedure, and there was likely no one in Texas who would.
While Cox was inside a doctor’s office in Dallas, receiving this devastating diagnosis, the Texas Supreme Court was considering this exact question, of when and whether doctors can terminate a pregnancy, in another case, Zurawski v. Texas.
Twenty women had signed onto this suit, saying they had been unable to access medically necessary abortions because of the state’s abortion laws.
Texas laws ban all abortions unless, “in the exercise of a reasonable medical judgment,” a doctor determines that the patient is experiencing “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function.”
The Center for Reproductive Rights, which filed the Zurawski suit, argued doctors are unclear on what qualifies as “reasonable medical judgment,” and should be allowed to act based on their “good faith belief” that an abortion is necessary.
Initially, a judge in Austin agreed and enjoined the law as it applied to complicated pregnancies. The state appealed that ruling to the Texas Supreme Court, arguing in part that the plaintiffs didn’t have standing to sue because they were not actively seeking abortions in Texas.
At the November hearing in that case, assistant attorney general Beth Klusmann said to challenge the law, an actively pregnant woman seeking an abortion would have to bring the suit. While it was likely “impractical” to ask a woman facing a medical crisis to come to court, she said, “we don’t bend the rules of standing for practicality,” she said.
Cox saw the news stories about this hearing and reached out to the Center for Reproductive Rights. She volunteered to be the plaintiff they needed, in the state’s own words, to challenge these laws.
A week later, the Center filed its lawsuit on her behalf in Travis County district court asking for a temporary restraining order to allow her to have an abortion, asserting that continuing the pregnancy threatened her health and future fertility.
At the Zoom hearing, Jonathan Stone, a lawyer for the Texas attorney general’s office argued that Cox “does not meet all of the elements” to qualify for a medical exemption, and granting the order would require “changing the medical exemption in Texas and then saying that the plaintiffs meet this changed newly rewritten standard.”
Travis County District Judge Maya Guerra Gamble disagreed and granted the motion.
“The idea that Ms. Cox wants desperately to be a parent, and this law might actually cause her to lose that ability is shocking and would be a genuine miscarriage of justice,” she said.
Paxton wields his power
This ruling marked the first time since before Roe v. Wade that an adult woman sought a court’s permission to have an abortion. The order applied to Cox, her husband, and Dr. Damla Karsan, a Houston OB/GYN who agreed to perform the abortion.
But it was not to last.
Within hours, Paxton sent a threatening letter to Methodist Hospital, The Women’s Hospital of Texas and Texas Children’s Hospital, where Karsan has admitting privileges, reminding them of the “potential long-term implications if you permit such an abortion to occur at your facility.”
Paxton said the hospitals were not protected from felony prosecution nor private lawsuit if they allowed the abortion to occur on their property, and said they should not rely on Guerra Gamble’s ruling as she “is not medically qualified to make this determination.”
“We remind you that the TRO will expire long before the statute of limitations for violating Texas’ abortion laws expires,” Paxton wrote
The Center for Reproductive Rights condemned the letter, asking Guerra Gamble to hold a hearing to consider sanctioning Paxton for his comments.
“The repeated misrepresentations of the Court’s TRO, coupled with explicit threats of criminal and civil enforcement and penalties, serve only to cow the hospitals from providing Ms. Cox with the healthcare that she desperately needs,” wrote Molly Duane, senior counsel with the Center for Reproductive Rights.
When a majority of Texans want the Legislature to expand access to abortion, it’s a bold political move to throw the weight of the state against an “extremely sympathetic plaintiff,” Sepper said.
“It shows that Texas politicians feel so shielded from any sort of electoral consequences related to attacks on women’s equality that they’re just going to keep on keeping on,” she said.
For Paxton, that meant filing a petition asking the Texas Supreme Court to intervene and overturn Guerra Gamble’s ruling. The day after the hearing, the high court stepped in, putting Guerra Gamble’s ruling on hold while it considered the case.
Cox remained pregnant, unable to get the abortion a court had told her she had a right to. Over the weekend, awaiting a ruling from the Texas Supreme Court, Cox’s situation deteriorated.
On Monday, her lawyers announced she couldn’t wait any longer and was leaving Texas to get an abortion.
“This past week of legal limbo has been hellish for Kate,” said Nancy Northup, president and CEO for the Center for Reproductive Rights. “Her health is on the line ... This is why judges and politicians should not be making healthcare decisions for pregnant people—they are not doctors.”
Supreme Court weighs in
Hours after Cox announced she had left the state, the Texas Supreme Court ruled on her case, validating her decision to go ahead and seek care elsewhere.
The high court rejected the lower court’s temporary restraining order, saying Cox did not qualify for an abortion under the medical exception to the law. The justices said Karsan, Cox’s OB/GYN, did not assert that, in her reasonable medical judgment, Cox is facing a life-threatening physical condition, as the law requires.
“No one disputes that Ms. Cox’s pregnancy has been extremely complicated. Any parents would be devastated to learn of their unborn child’s trisomy 18 diagnosis,” the justices wrote. “Some difficulties in pregnancy, however, even serious ones, do not pose the heightened risks to the mother the exception encompasses.”
The ruling purported to offer some insight into how the court would interpret the law going forward, saying doctors do not need to wait until a patient is “within an inch of death or her bodily impairment is fully manifest or practically irreversible” to perform an abortion.
But, the justices acknowledged that more guidance is needed for doctors to be able to interpret these laws with confidence. The justices encouraged the Texas Medical Board to “assess various hypothetical circumstances, provide best practices, identify red lines, and the like,” much as it did with COVID-19 protocols.
Until the Texas Medical Board offers that guidance, or the Supreme Court rules in Zurawski v. Texas, doctors who have said for 18 months they do not understand how to interpret these laws have little new to go on.
When the U.S. Supreme Court threw the abortion issue back to the individual states, it handed a great deal of authority to state supreme courts, which have typically drawn less attention than their federal counterparts. Texas’ Supreme Court is unique in that it handles only civil cases, and is one of just a handful of states that selects justices through a partisan election system.
All nine justices are Republicans, a mix of longtime jurists, acolytes of Gov. Greg Abbott, and at least one anti-abortion activist.
Justice John Phillip Devine was first elected in 2013, when he unseated a Republican incumbent and ran unopposed in the general election. Before joining the high court, he was best known for fighting to keep a copy of the Ten Commandments displayed in his courtroom, and during his campaign, proudly claimed he was arrested 37 times protesting outside abortion clinics.
He also made a campaign video about his wife’s seventh pregnancy, which she carried to term despite a lethal fetal abnormality. The baby died an hour after birth. According to the Texas Observer, the since-removed video asks, “What if your beliefs were so powerful, they allowed you to fearlessly risk your life for the life of your unborn child?”
Devine is up for reelection in 2024, alongside Justice Jimmy Blacklock, Abbott’s longtime general counsel. During his campaign, Blacklock attended an anti-abortion rally alongside Abbott, where the governor said he doesn’t “have to guess or wonder how Justice Blacklock is going to decide cases because of his proven record of fighting for pro-life causes.”
Blacklock told The Texas Tribune at the time that Abbott just meant he is confident in Blacklock’s judicial philosophy.
“I will be the kind of judge who looks only to the text of the Constitution and the text of the laws, and does not go beyond that to impose my own personal views on these cases,” Blacklock said.
After Monday’s ruling, the Texas Democratic Party said all three justices up for reelection will have challengers in the general election.
State Rep. Donna Howard, a Democrat, said this case, as much as any since the overturn of Dobbs, will hopefully shine a spotlight on the Texas Supreme Court
“The way the winter storm put ERCOT on everyone’s radar, abortion is going to put the Texas Supreme Court on people’s radar,” she said. “Voters may not have known who was on the Supreme Court or what the Supreme Court did before. But they will now.”
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Calculated Cruelty, Texas Edition
This is a special edition/addition to the 12.6.23 issue of Abortion, Every Day. The regular daily report will be in your inbox later tonight.
Back in October, I published an investigation into the anti-abortion movement’s latest campaign: a massive but little talked about initiative to pressure and force American women to carry doomed pregnancies to term. If you missed the piece, make sure to check it out—because we’re starting to see the impact of that project right now.
You’ve probably already read about Kate Cox, the Texas woman seeking an emergency court order to obtain an abortion after her pregnancy was diagnosed with a fatal anomaly. The Guardian has some background if you need a refresher, but what’s important to note is that Texas law doesn’t allow abortions in cases of fetal anomalies—even fatal ones. In other words, this isn’t a matter of Texas’ ban being unclear. It’s not: Women must carry doomed pregnancies to term.
That’s part of the reason that the Center for Reproductive Rights (CRR), the group representing Cox, is arguing that she needs the abortion because her health and future fertility is endangered by the pregnancy.
Still, the media coverage of the case has largely been about the fact that Texas wants to force someone to give birth to a baby that will die. And understandably so! The cruelty is too astounding to ignore. Obviously, that horror is also very much top of mind for Cox herself. From her statement:
“I do not want my baby to arrive in this world only to watch her suffer a heart attack or suffocation. I desperately want the chance to try for another baby and want to access the medical care now that gives me the best chance at another baby.”
Here’s where this new campaign comes in. When I wrote “Calculated Cruelty,” one of the anti-abortion strategies I focused on was disinformation about prenatal testing. Essentially, activists have begun claiming that prenatal tests aren’t accurate and that the prenatal testing “industry” itself is suspect.
They’re also pushing dubious “science” that says women are so traumatized by devastating fetal diagnoses, that their brains are incapable of making a rational decision about the pregnancy for at least 72 hours. And when all else fails, shame: telling women that they might be ending a healthy pregnancy, or that they’re “discriminating” against disabled children.
You can see where this is going: Forced waiting periods for abortions, even in cases of doomed pregnancies; mandates that doctors lie to women about the efficacy and safety of prenatal testing; attacks on prenatal testing companies akin to the kind of attacks we’ve seen on the so-called ‘abortion industry’.
Now that Cox’s story is getting national attention, anti-abortion activists are pushing back using these exact messages I warned about. Steven Ertelt, the CEO of LifeNews, for example, wrote a piece today on the case:
“The lawsuit claims the baby has Trisomy 18…However, there’s significant question about whether the baby has the condition in the first place…Early prenatal tests for rare disorders often lead to thoughts about abortion for expecting parents. Sometimes, doctors and genetic counselors pressure parents to abort their unborn babies after a positive test, and both healthy and unhealthy unborn babies are killed in abortions as a result.”
We’re going to see more arguments like this one—not just in conservative media, but in legal arguments. In fact, I wouldn’t be surprised if they come up in Cox’s case. After all, we know that Texas Republicans are heavily influenced by the anti-choice movement, and that their policy often reflects the latest in anti-abortion strategies. (Remember my piece about how the state’s abortion ‘complication’ reporting law was being used to drum up fake statistics about abortion being dangerous?)
But as I wrote in October, this isn’t just about forcing individual women to carry doomed pregnancies to term—but changing law and culture to create the broadest impact possible. In the same way that Republicans targeted mifepristone by going after its FDA approval, for example, GOP lawmakers are doing the same with the labeling requirements and regulatory measures around prenatal tests. The endgame is to make it difficult, if not impossible, to test for abnormalities at all.
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Texas’s radical anti-abortion law, explained
The loss of abortion rights may not even be the most troubling aspect of the Supreme Court’s inaction over the law.
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In May, Texas Gov. Greg Abbott (R) signed a state law that effectively bans abortions after the sixth week of pregnancy — sooner than many people learn they are pregnant. This law violates the ruling in Planned Parenthood v. Casey (1992), which protects “the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state.”
Nevertheless, the law took effect on Wednesday after a Supreme Court dominated by Republican appointees refused to grant a group of litigants’ emergency request and block it. Twenty-four hours later, the Court handed down a very brief order formally holding that the law may take effect.
The Court’s non-action on the Texas law almost certainly foreshadows a more explicit attack on abortion rights in a future case, and the Court is already scheduled to decide another abortion case next year.
In one sense, the fight over Texas’s anti-abortion law, known as SB 8, is familiar. A Republican-led state enacted a restriction on abortion that violates existing Supreme Court precedents. Pregnant people in the state lost access to reproductive health care — in this case, many clinics had already reduced abortions even before SB 8 took effect. Meanwhile they, and the rest of us, had to wait to see if an increasingly right-wing judiciary will enforce its past decisions or continue to chip away at that precedent.
But SB 8 is unlike most other laws in that it was written to prevent courts from blocking it before it takes effect.
The anti-abortion law, which is before the Supreme Court in a case called Whole Woman’s Health v. Jackson, presents a maze of procedural complexities that are rarely seen in even the most complicated litigation. The law appears to have been drafted to intentionally frustrate lawsuits challenging its constitutionality. And Texas, with an assist from a right-wing appellate court, has thus far manipulated the litigation process to prevent any judge from considering whether SB 8 is lawful.
The stakes in this case are astronomical. Six weeks into a pregnancy is often very soon after a pregnant person misses their first menstrual period. So they may not even be aware that they are pregnant until it is too late. According to the abortion providers who are suing to block SB 8, at least 85 percent of abortions in Texas take place after the sixth week of pregnancy. Those abortions are now illegal under SB 8.
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And the stakes in Whole Woman’s Health stretch far beyond abortion. SB 8 was drafted to frustrate judicial review before the law took effect. Now that the Supreme Court appears to have embraced this tactic, other states could copy it, potentially allowing states to enact all kinds of unconstitutional practices that can’t be challenged until after an unconstitutional law takes effect.
This case arose on the Supreme Court’s “shadow docket,” a mix of emergency motions and other expedited cases that do not receive full briefing or oral argument. Historically, the Court was reluctant to hand down major, precedent-setting decisions on its shadow docket because of the risk that the justices will hand down an erroneous decision without fully anticipating its consequences.
But by refusing to stop a law that violated decades-old precedent protecting the constitutional right to an abortion, the Court effectively changed that precedent.
Whole Woman’s Health, in other words, doesn’t simply ask whether abortions will remain available in Texas. It asks whether the ordinary procedural rules that are supposed to govern all litigation will still be honored by the nation’s highest court. And the justices said no.
SB 8 was drafted to prevent courts from reviewing it
SB 8 is a truly bizarre law.
The way it’s written, a Texan who objects to SB 8 may have no one they can sue to stop it from taking effect.
For one, abortion rights plaintiffs can’t sue their state directly. The ordinary rule is that when someone sues a state in order to block a state law, they cannot sue the state directly. States benefit from a doctrine known as “sovereign immunity,” which typically prevents lawsuits against the state itself.
But they also can’t really follow the same path that most citizens who want to stop laws do. That path relies on Ex parte Young (1908), a decision in which the Supreme Court established that someone raising a constitutional challenge to a state law may sue the state officer charged with enforcing that law — and obtain a court order preventing that officer from enforcing it. So, for example, if Texas passed a law requiring the state medical board to strip all abortion providers of their medical licenses, a plaintiff could sue the medical board. If a state passed a law requiring state police to blockade abortion clinics, a plaintiff might sue the chief of the state’s police force.
Part of what makes SB 8 such a bizarre law is that it does not permit any state official to enforce it. Rather, the statute provides that it “shall be enforced exclusively through . . . private civil actions.”
Under the law, “any person, other than an officer or employee of a state or local governmental entity in this state,” may bring a private lawsuit against anyone who performs an abortion after the sixth week of pregnancy, or against anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion.” Plaintiffs who prevail in such suits shall receive at least $10,000 from the defendant.
SB 8, in other words, attempts to make an end run around Young by preventing state officials from directly enforcing the law. Again, Young established that a plaintiff may sue a state official charged with enforcing a state law in order to block enforcement of that law. But if no state official is charged with enforcing the law, there’s no one to sue in order to block the law. Checkmate, libs.
It’s worth noting that this tactic cannot prevent anyone from ever challenging SB 8. Now that the law has taken effect, abortion providers (plus anyone who “aids or abets” an abortion, a vague term that is not defined in the statute) will undoubtedly be bombarded with lawsuits seeking the $10,000 bounty authorized by the new state law. These defendants will then be able to argue in court that they should not be required to pay this bounty because it is unconstitutional.
But they will do so under the threat of having to pay such a bounty to anyone who brings a lawsuit against them. Even if abortion providers prevail in all of these suits, moreover, they will still have to pay for lawyers to defend themselves in court. And the suits seeking a bounty under SB 8 will likely be numerous and endless, because literally “any person” who is not a Texas state officer can file such a suit.
If SB 8 remains in effect, any abortion providers who do remain operational are likely to be crushed by a wave of lawsuits that they cannot afford to litigate.
So what did the courts do about SB 8?
A coalition of abortion providers, advocacy groups, and private individuals did file a lawsuit challenging SB 8 and seeking to block it before it takes effect. The lawsuit names a hodgepodge of defendants, including Texas Attorney General Ken Paxton (R), who has some power to bring enforcement actions against abortion providers after a court determines that such a provider violated SB 8.
The lawsuit also names a Texas judge and a clerk of a Texas court, on the theory that private lawsuits filed under SB 8 will be heard by Texas courts, and thus court officials are the proper defendants under Young. Although lawsuits against judges are typically disfavored, the Supreme Court established in Supreme Court of Va. v. Consumers Union of United States (1980) that judges may sometimes be sued if there is no other way to challenge a state law.
And yet, even though a federal district court determined that the Whole Woman’s Health plaintiffs may sue Texas judges in order to block SB 8, no court has actually reached the core question at the heart of this case: whether SB 8 is unconstitutional.
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The reason is dizzyingly complex. A somewhat oversimplified explanation is that, shortly after the district court ruled that the Whole Woman’s Health litigation could proceed against state judges, but before the district court decided whether to block SB 8, Texas filed an appeal in the right-wing United States Court of Appeals for the Fifth Circuit. The Fifth Circuit then ordered the district court not to decide this case.
The plaintiffs asked the justices to allow this case to actually be decided either by the original district court or by the Supreme Court itself. But the Supreme Court rejected that request — meaning that no court has ever considered whether SB 8 is lawful.
This is not how litigation is supposed to work
If you are confused by this morass of procedural aggression, countermeasures to procedural aggression, dueling appeals, and court orders forbidding other court orders, you should be. This is not how the judiciary is supposed to function.
Litigants who face an imminent risk of harm unless a state law is blocked should be given an opportunity to challenge that law before they violate it and risk legal consequences. Appeals courts should wait for lower courts to decide a case before they reach a different conclusion than the lower court might reach. Doctors who provide medical care that, at least for the time being, is still protected by decisions like Roe and Casey should not risk an unending wave of harassing lawsuits brought by people seeking to collect a bounty.
And yet, the justices effectively rewrote the nation’s abortion jurisprudence without receiving full briefing, hearing oral argument, or taking more than a couple of days to even consider the case.
Just as significantly, blessed a tactic that could be used to undermine virtually any constitutional right. Imagine, for example, that New York passed an SB 8-style law allowing private individuals to bring lawsuits seeking a $10,000 bounty against anyone who owns a gun. Or, for that matter, imagine if Texas passed a law permitting similar suits against anyone who criticizes the governor of Texas.
Procedural rules exist for a reason. They ensure that every litigant has an opportunity to have their case heard, even if the litigant ultimately does not prevail. They also ensure that courts do not hand down haphazardly decided cases that could impact millions of people.
As Justice Sonia Sotomayor warned in 2020, after her Court handed down a series of unusual shadow docket orders benefiting the Donald Trump administration, shadow docket cases “force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument.” They also “upend the normal appellate process, putting a thumb on the scale in favor of” a particular party.
Perhaps most important, obedience to procedural norms is a sign of judicial humility. They are the way that judges show us that they are bound by rules, even if individual judges disagree with the outcome dictated by those rules.
There is a case, Dobbs v. Jackson Women’s Health Organization, currently pending before the Court, that presents the conservative justices with an opportunity to overrule Roe v. Wade. That case will receive full briefing and an oral argument, and will likely be decided next June. If the justices want to make abortion illegal in Texas, they only have to wait a few months and they will get their chance to do so through the Court’s ordinary procedures.
Instead, by doing nothing in Whole Woman’s Health, the justices sent a clear signal that they don’t think the ordinary rules should apply to litigants they dislike. It is a terrifying sign about the future of the rule of law.
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