THE U.S. SUPREME COURT HAS NO REGARD FOR THE LIFE OF A WOMAN
TIME TO ABORT THE TEXAS HEARTBEAT ACT
Ladies and Gentlemen of the Jury; you are tasked with the responsibility to determine whether the Texas Heartbeat Act SB 8 is unconstitutional and therefore must be struck down.
The Texas Heartbeat Act SB 8 was argued before the United States Supreme Court on November 1, 2021. The Supreme Court Justices focused solely on the legal procedural issues of this case and did not address the factual issues that address the long standing Constitutional Right to Abortion as set forth in the landmark decision Roe v. Wade.
Thus, the scope of your deliberation is limited to determine whether Texas deprived citizens their Constitutional Right to an Abortion by drafting a law that precludes Federal and State judicial review of the constitutionality of the statute.
The effect is stunning: Texas SB 8 silences a woman’s Constitutional Right to Abortion and prevents her from having her rightful ‘day in court’.
In addition, as you will learn, this so-called ‘law’ deputizes people to become Abortion Bounty Hunters to literally accuse anyone of assisting a woman carry-out her Constitutional Right to Abortion. Which ironically, the Court did not address.
FYI, ignoring issues does not make them go away. But the Justices know that.
Realistically ladies and gentlemen, the Supreme Court appears to be on its way to extinguishing the Constitutional Right to Abortion and Reproductive Health Care for Women that was established in Roe v Wade. Thus, the monumental task of upholding Supreme Court precedent case law rests on your shoulders.
As you hear the facts of this case, I am certain you will conclude that Texas SB 8 in its entirety is unconstitutional and must be struck down. The Supreme Court is having a difficult time garnering a majority vote on this matter, so maybe you can ‘help’ them see the proverbial light and uphold their own precedent. Accomplish what the Supreme Court ought to do NOW.
What is next for women? What other rights can and will be silenced?
The Facts of the Case
Elected officials of the great state of Texas enacted the law SB 8 to prevent women from obtaining an abortion after the sixth week of pregnancy.
There are no ‘exceptions’ to this law. It does not matter if the pregnancy resulted from:
- Sexual Assault.
- Sexual Abuse.
SB 8 is a ban on abortion after the sixth week of pregnancy.
However, the ban on abortion was not the question before the United States Supreme Court. Surprising…right?
No, not really.
Wait a minute. You ask yourself… “Why didn’t the Supreme Court determine whether SB 8 violates the constitutionally protected right to abortion?” The answer is simple. Well, not so simple.
The Court knew they would hear oral arguments on December 1, 2021, notably the Mississippi case Dobbs v. Jackson Women’s Health Organization. The Dobbs case will determine whether the Court will uphold Roe v. Wade.
Until the Court renders that decision, the 50 year-old constitutionally protected right to abortion will continue to precariously dangle by a thread.
The Issue of the Case
The Supreme Court deemed the only justiciable issue before them was whether anyone can sue to stop the enforcement of Texas SB 8. Indeed, a curious question to a non-attorney. Nevertheless, a deeply concerning legal procedural question.
SB 8 Evades Judicial Review
Ladies and gentlemen, I am confident you are confused. Yes, you are correct in thinking that the purpose of this law is to ban abortion. However, that is not why the law was written and enacted. The purpose of Texas SB 8 was insidious at the outset: it was written to specifically evade any judicial review.
What does judicial review mean? Exactly what it says. Courts are empowered to review the lawfulness of a Federal or State statute. In this case, the drafters of SB 8 intentionally wrote this legislation to be beyond reproach; essentially bulletproof to any judicial review.
SB 8, not only enforced a ban on abortion, but legislated that no person, no entity, can sue the State of Texas to argue the lawfulness of this law.
This is the perplexing part of SB 8. Generally, when a person alleges they suffer an injury from a Federal or State statute, that person will sue the entity (the Federal, State or Local Government) that enacted said legislation. The relief sought would be to invalidate the law considered to be unconstitutional or invalid; to stop enforcement of the law.
However, Texas claims SB 8 is not enforced by any State official. Thus, opponents of this law who seek to stop enforcement of it have a real problem determining the correct named party/defendant to sue.
For the pregnant woman from Texas who is prevented from getting an abortion due to SB 8, who does she sue? What party does she name, to argue that the law is denying her constitutional right to an abortion? The answer is… I do not know. And neither did the Supreme Court Justices when they heard oral arguments in this matter.
The unmitigated gall of these so-called Texas ‘legislators,’ who allegedly represent the interests of their constituents. They drafted and enacted a law that prevents the very people who elected them from legally challenging this abortion ban.
Texas Asserts They Do Not Enforce SB 8
Wait a minute…just what did the drafters of SB 8 do? According to SB 8, Texas Governmental Officials do not enforce SB 8. Funny, that is what the State of Texas asserts.
Ask yourself: Well, if the State does not enforce this law, then who enforces SB 8 in Texas?
Pursuant to the law, this legislation deputizes anyone who is not a State Official to enforce SB 8.
Ladies and gentlemen, kindly pause for a moment. Ask yourself: Do you really think the State of Texas is not enforcing SB 8?
Please, follow along with me. Banning all abortions after the sixth week of pregnancy is cruel and unusual punishment to women. And as bad as that is, the insidious component of this law is the deputizing of private citizens to be knighted ‘Abortion Bounty Hunters,’ to hunt down and accuse any person who participated in the procurement of an abortion.
The Abortion Bounty Hunters
Incredulous as this sounds, it is worse than you can imagine. To reiterate, the State of Texas has turned plain ‘ole folk into Abortion Bounty Hunters, to prey on anyone who seeks to get an abortion. Oh, and the bounty is up to $10,000. A rather profitable endeavor to be an Abortion Bounty Hunter.
Keep in mind y’all, Texas says they do not enforce this law.
It does not matter that the deputized citizen/bounty hunter, who becomes a plaintiff in a future civil suit to claim the reward, was not directly injured by the person they are suing. Which is odd, because in the real world of civil litigation, a plaintiff must allege he/she sustained some injury caused by the defendant.
Then again, this is Texas. Clearly, they just make up their own rules.
Seriously ladies and gentlemen. SB 8 appoints private citizens to become bounty hunters to sniff out abortion in Texas. It is clear these bounty hunters are acting as an arm of the State of Texas, and this ‘bounty hunter’ will become eventual plaintiffs against their prey to recover the cash reward, the bounty, for enforcing the law.
According to Justice Clarence Thomas, ‘SB 8 plaintiffs are acting in concert with Texas to enforce this law.’ To clarify ladies and gentlemen, this means that the great state of Texas is enforcing this law.
Sorry Texas, your government is enforcing this law. But y’all already know that. Shame on Texas. They can’t hide behind their bounty hunters and proclaim they do not enforce the law.
Aiders and Abettors of Abortion
The following are just a few of the people who can be sued for ‘aiding and abetting’ the procurement of an abortion and be liable for payment of the cash reward:
- The husband/partner who drove a woman to an abortion clinic/private physician.
- The cab/uber driver who drove a woman to an abortion clinic/private physician
- The nurse who assisted in the abortion.
- The Doctor who performed the abortion.
- The woman who received the abortion.
A shocking list of ‘so-called’ aiders and abettors. These people are your sister, mother, brother, father, uncle, grandma, grandpa, doctor; get the picture?
Right Leaning Justices
Apparently, some Supreme Court Justices were more concerned about a State appointing Bounty Hunters to enforce their laws, as opposed to banning abortion after six weeks of pregnancy.
The Supreme Court is supposed to be ‘apolitical.’ However, this Court is clearly aligned along partisan lines, which is a no-no. The Justices who were appointed by Republican Presidents, do publicly espouse conservative political views. Yes, these ‘right leaning Justices,’ who now comprise the Majority rule of this Court, are not ‘fans’ of Roe, and have expressed a willingness to dilute that Landmark Decision.
Once again, that is no excuse to not address this Texas ban on abortion.
Women Have Constitutional Rights
Clearly, the majority of the Justices are aligned with Texas in this matter. Did these Justices forget that the very Court they sit on has ruled that a Pregnant Woman has Constitutional Rights, but the unborn fetus does not?
A fetus at 6 weeks, 12 weeks, 15 weeks, and 23 weeks is not recognized by this Court to have any Constitutional Rights. Roe v Wade determined the viability of a fetus at 24 weeks; the RIGHTS OF THE PREGNANT WOMAN MUST BE BALANCED WITH STATE RIGHTS.
Oh, don’t you love selective memory.
However, are you really surprised? I am not. Let’s be serious. Texas clearly does not care about the health, safety and welfare of a woman. Because if they actually did care about a woman, they would not have enacted SB 8.
And why should the Justices address the abortion component of SB 8 now? No matter that all abortions in Texas have come to a screeching halt due to this law. No matter that women are suffering. No balancing of a pregnant woman’s rights with that of the State. This is just another news cycle, hoped to be forgotten.
The pain and suffering experienced by thousands of Pregnant Texas Women who are unlawfully denied their right to an abortion will not be forgotten. As of this writing, 62% of Americans polled support Roe. The Court cannot turn a deaf ear on the ‘pulse’ of the Majority of Americans.
The Justices are working on their own timetable: they heard the Mississippi case on December 1 and will continue to erode at the Court’s rule of law by not upholding precedent.
Great message from the Court: Screw you Texas Women.
Legalization of Bounty Hunters
Justice Kavanaugh, in his infinite wisdom, pondered what would happen if the court upheld SB 8 and thus permitted the State to use bounty hunters to limit other Constitutional Rights.
I ask you: At this moment in time and history, what is more important than a woman’s Constitutional Right to Abortion and to Reproductive Care?
Well, Justice Kavanaugh was more concerned about the potential restriction of the Second Amendment. Really? Bless his heart.
Guns? What do they have to do with Abortion Rights?
Oh, and yet, this case gets better. The Firearms Policy Coalition, submitted an amicus brief and was very concerned that ‘Blue States’ (i.e. California, New York) will act just like Texas and create unlawful procedures and penalties to enforce a law that is blatantly unconstitutional. Mind you, they were not talking about the Texas ban on abortion being unconstitutional.
My word! Heavens to Betsy! This coalition was sickened at the mere thought of liberal states banning the sale and ownership of handguns and appoint bounty hunters to hunt down gun-totin’ people. Can you imagine?
Of course, Kavanaugh agreed with this amicus brief and envisioned the ownership or sale of a handgun would be illegal in States like New York and California, if the court upheld SB 8. Oh, my word! Don’t you love the ‘tit-for-tat’ game?
Children of the Court, oh, I mean Justices, stay focused on the Abortion component of SB 8, not the procedural smoke screen.
Reap What You Sow
You betcha Kavanaugh! Your worst nightmare came true! Bravo to Governor Gavin Newsome of California. Newsome just proposed a gun law that would be modeled on the Texas one. Sucks when you have to take your own medicine.
In simple English, SB 8 is a nasty law. It completely ignores established Constitutional Law, exempts itself from any Judicial Review, and deputizes citizens to become Abortion Bounty Hunters to enforce a law that in fact violates Constitutional Rights. Not to mention it silences women’s rights.
Ladies and Gentlemen of the jury, consider this thought: If women are stripped of their Constitutional Right to Abortion and Reproductive Rights, what is the next right women will lose? The right to vote? What about rights that are not protected by the Constitution? What if a State wants to enact a law that prevents women from attending college or driving an automobile?
I betcha did not think women could be stripped of those rights. If it happens in other countries where women’s rights are restricted, why not here?
If SB 8 is constitutional, a State is empowered to enact any law that is not subject to judicial review. Frightening to say the least. What is to become of the good ‘ole U.S. of A.?
The Supreme Court, as a result of its inaction to declare SB 8 unconstitutional, has caused this matter to spiral out-of-control. The Conservative Justices, by their own doing, are making this Court impotent.
The Constitution is a living document. The ‘Founding Fathers,’ the Men (no women) who wore the wigs, were actually forward thinking human beings. They purposefully drafted the Constitution to grow with our nation, not against it. They founded this country to not be ruled by the absolute power of one ruler; they wanted to spread power among different ‘branches’ of government for ‘checks and balances;’ and they wanted to separate Church and State.
The Supreme Court is a separate and distinct arm of government. It should unequivocally not be political. In modern times, it should rise above all the bullshit that occurs in Washington and this Country.
Thank you. I rest my case.
A Woman’s Constitutional Right to Choose: Roe v Wade
In truth, I realized that most people do not know and/or understand the legal meaning of Roe v. Wade. Oh yes, we all know that on a macro-level, it affords a woman the Constitutional Right to choose to have an abortion. However, that is a very broad understanding of Roe.
An attorney would define Roe as The landmark 1973 U.S. Supreme Court Case that afforded constitutional protections for women to choose to have an abortion prior to the viability of a fetus.
Why did I decide to write about Roe v Wade? To define legal terms as ‘viability of a fetus,’ explain how the Constitutional Right to Privacy affords a pregnant woman the right to choose, and the timetable the Supreme Court set forth to delineate when a woman can lawfully obtain an abortion, if she chooses, in this country.
Fragility of Roe v Wade
On September 1, 2021, the State of Texas enacted SB 8, The Texas Heartbeat Act, which bans abortion after the sixth week of pregnancy, with no exceptions.
The State of Texas unequivocally limited women’s rights upon the enactment of SB 8, which is in direct contravention of established Constitutional law, Roe v Wade.
To all the non-lawyers out there: The Constitution and Supreme Court Decisions take precedent over conflicting federal and state laws.
Stop the Presses! I thought the United States Supreme Court in Roe v. Wade ruled that a woman has a right to choose to obtain an abortion prior to the viability of a fetus.
I am confident that you all, just like me, do not understand how Texas can blatantly disregard the landmark decision of Roe v. Wade and ban abortion in their state.
However, before we talk in depth about the ‘Constitutionality’ of SB 8 (which will be addressed in another article), we all need to understand Roe v. Wade and how that case legalized abortion in the United States.
Facts of Roe v Wade
Does anyone know the underlying facts of Roe v Wade? I am confident that most Americans do not. Roe was first litigated in 1971… 50 years ago. Jane Roe lived in Texas, was a single, pregnant woman who brought a class action lawsuit to challenge the Texas criminal abortion laws. Texas in 1971 made it a crime to obtain an abortion, with the sole exception that an abortion could save the mother’s life.
Jane Roe wanted to terminate her pregnancy for the following personal reasons:
- ‘She was unmarried and pregnant.
- She wanted to terminate her pregnancy via abortion by a licensed, experienced physician in Texas.
- She was precluded from obtaining a legal abortion in Texas, because her life ‘did not appear to be threatened by the continuation of her pregnancy.’
- She could not afford to travel to another state to obtain a legal abortion.
- She asserted in her lawsuit the Texas abortion statutes were vague and violated her Constitutional Right to Privacy.’
The Right to Abortion is NOT Absolute
Jane Roe argued before the US Supreme Court, “a woman’s right to an abortion is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.”
What most Americans do not realize, is that the Supreme Court did not agree with Jane Roe’s argument that a woman’s right to abortion is absolute; and disagreed with the notion that a woman is entitled to terminate her pregnancy at any time.
Justice Blackmun’s Supreme Court Majority Opinion
The Honorable Justice Blackmun wrote the Majority Opinion for Roe. The majority opinion is the legal decision rendered by a majority (more than half) of the Supreme Court Justices and explains the reasoning behind the court’s decision on a legal and factual basis.
In the Majority Opinion, Justice Blackmun was cognizant of the differing opinions towards abortion in 1973 and in my opinion, addressed the issue of abortion with great sensitivity and compassion towards all Americans.
The issue of abortion was a ‘hot button topic’ in 1973 and seems even more divisive in 2021. Justice Blackmun’s Majority Opinion articulated a comprehensive review of the history of abortion from ancient Greece and Roman times to present day in the United States.
I believe, the most important part of Justice Blackmun’s majority opinion, was how the Court determined the 14th Amendment of the Constitution, the ‘Right to Privacy’, afforded a pregnant woman the right to choose to have an abortion. However, the court determined this is not an absolute right to abortion. Here is the BUT: The State can regulate abortion vis-à-vis showing a Compelling Interest to protect the health of the mother and fetus; then there is the AND: the abortion must occur prior to the viability of the fetus.
Easy to understand that Roe gives a woman the ‘right to choose to have an abortion,’ but yet it comes with caveats, that we will discuss.
The Issue Decided by the Supreme Court
For all you non-lawyers: Every legal matter that is litigated in court, always has a question, an issue to be decided by the Court.
The issue before the Court in Roe: Whether the U.S. Constitution protects a pregnant woman’s personal liberty to choose to have an abortion without excessive State regulation.
The Supreme Court Decision
The Supreme Court in Roe v. Wade did not confer upon women an absolute right to choose to have an abortion. The Supreme Court REGULATED a woman’s right to abortion to effectively balance a woman’s privacy rights with that of the State’s interests.
In Roe, the Supreme Court ruled that a woman has the qualified right to terminate her own pregnancy. Please note the italicized words qualified and absolute. These words are critical to understanding the ruling in this case.
The Court determined the Due Process Clause of the Fourteenth Amendment, which affords the Right to Privacy against State action, also grants a woman’s qualified right to terminate her pregnancy.
In plain English, the Constitution gave Jane Roe personal liberty protections to fight the Texas ban on abortion; and the Supreme Court granted her a qualified right to get an abortion.
However, in constitutional matters such as the Right to Privacy, the Court will look to balance the State’s interests against that of a Woman’s control over her pregnancy. Yes, balance means reviewing the facts; assessing factors that would determine ‘fairness’ to all parties.
A Woman’s Qualified Right to Get an Abortion
The Court considered whether the following factors would unduly harm a woman who is prohibited by State law from ending her pregnancy:
- ‘Medical Harm to the woman.
- Psychological Harm.
- The social stigma of being an unwed mother.
- The eventual birth of an unwanted child may bring psychological harm on the family.
- The financial, economic stress.’
In this regard, the Court would ask a woman who sought to obtain an abortion, whether the State’s ban on abortion is detrimental and causes irreparable, undue harm to the health and well-being of a woman who is forced to continue an unwanted pregnancy?
The State’s Compelling State Interests to Regulate Abortion
Did you wonder why a State aggressively opposes abortion? In Roe, the State of Texas alleged they have an interest to protect the health of the mother and the fetus.
The Court in Roe determined that a woman has certain fundamental constitutionally protect rights, and when she seeks to obtain an abortion, the State may limit these rights by asserting a compelling state interest.
Remember: The Supreme Court REGULATED a woman’s right to abortion to effectively balance a woman’s privacy rights with that of the State’s interests.
Compelling State Interest Factors
According to Roe, at some point during the term of a pregnancy, the State interests become dominant for the following reasons:
- To protect the Health of both the woman and the fetus.
- To uphold Medical Standards.
- To Safeguard Prenatal Life.
In addition, the State argued in Roe that the woman’s Right to Privacy is NOT ABSOLUTE throughout the entire pregnancy.
The Supreme Court: The Qualified Right to Terminate a Pregnancy
What does a qualified right to terminate a pregnancy mean? Exactly what it says. No American citizen can just ‘go and get an abortion.’ The Supreme in this case, set up ‘guard rails’ to define:
- The Viability of a Fetus. and
- Provide a Timeline for the Regulation of Abortion via ‘Trimesters.’
The Viability of a Fetus
The viability of a fetus is a long debated topic. The court concluded, based on historical, religious, and medical facts, that viability occurs when the fetus can survive outside of the mother’s womb at 24 weeks of gestation.
The Court: The Rights of a Pregnant Woman Must Be Balanced with State Rights
As previously discussed, the Court sought to balance the Fourteenth Amendment’s Right to Privacy and State Interests. This was accomplished by the Court identifying three trimesters of pregnancy; each comprised of twelve weeks.
- First Trimester: ‘Approximately’ prior to the end of the first trimester, A state cannot regulate abortion. Exception: A state can require the medical procedure be performed by a licensed physician in a medical clinic, office, hospital.
- Second Trimester: A state may regulate abortion to promote its interest in the maternal health.
- Third Trimester: A state may ban abortion. ‘Considered to be the stage before fetal viability, the State has a compelling interest in protecting the potential human life; however, may proscribe abortion for the preservation of the life or health of the mother.’
The Majority Opinion of Roe v. Wade
As I previously mentioned, Justice Blackmun, who wrote the Majority Opinion, cited the common law. The common law is based on the history of social customs, traditions, and judicial review, and not on statutory law.
To quote Justice Blackmun:
“It is thus apparent that the common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this county well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.”
The above quote is in my opinion, profound. Why did American women have a ‘broader right to abortion’ in the 19th century, than today? It is even more incredulous to comprehend, how in 2021, some States are relentless in their efforts to ban abortion.
Consequence of Overturning Roe v Wade
The effect of overturning the decision in Roe, means that Texas SB 8 would ‘stand’. The Abortion prohibition in Texas would create a domino effect for every State that wants to ban Abortion.
True. Overturning Roe would greenlight a State’s prerogative to enact legislation that would Ban abortion.
Once again, I ask you all to consider the undue hardship and detrimental effect this would have on all women who reside in neighboring states that prohibit abortion. Women would have to travel hundreds of miles (perhaps thousands of miles) to obtain a legal abortion. Women would have to leave their families to travel via plane, bus, car, or train; women would be required to take days off from work and find childcare for other children in the family in their effort to obtain an out-of-state abortion. The financial costs incurred would be an insurmountable obstacle for many women.
Oh, and by the way… a woman’s choice to have an abortion is not a decision that is made with the ‘flick of a switch.’ There is an emotional component that cannot be quantified. A decision to have an abortion is an individualized process, a thought process subjective to each pregnant woman. Obstacles literally thrown in the way of this process not only unduly harm a woman but can result in permanent emotional and physical harm to a woman for the rest of her life.
Keep in mind that Texas is not the only State in the good ‘ole U.S of A. that wants to deny women their Constitutional Right to choose to have an abortion. Alabama, Georgia, Kentucky, Louisiana, Missouri, Mississippi and Ohio all want to enact similar heartbeat legislation.
It is clear these States march in solidarity with Texas to disregard established Constitutional protections of the Fourteenth Amendment Right of Privacy granted to all women.
Now. I ask you all to think for just one moment…Roe was first litigated in a Texas courtroom in 1971. It was ultimately argued before the US Supreme Court in 1973. Today is 2021.
Why do we continue to move backward as a nation, and not forward? Why do some folks want to impose more restrictions on choices that affect our own bodies? Keep in mind, that a pregnant woman who chooses to get an abortion does not impact society as a whole. The impact is on her body, her life and her family. Her choice does not affect my life or your life.
Stay tuned… the next article will address the Constitutionality of Texas SB 8.