Saturday, November 27

Roe v Wade died with hardly a whimper. But that’s not all | Laurence H Tribe


For years, as the composition of the Supreme Court leaned to the right, reproductive rights have been squarely on the cutting board. Now they are also on the auction block.

Observers have speculated on how today’s new ultra-right court would start the cut: slowly cutting Roe vs. Wade? Or taking the political heat and nullifying it entirely? Few imagined that the court would allow a statute that everyone recognizes to be flagrantly unconstitutional under the Roe legal regime would not only go into effect without judicial review, but would become the centerpiece of a totally unique state scheme that grants a reward of at least $ 10,000 per head. of every woman who is or could be pregnant.

It wasn’t just Roe who died at midnight on September 1 with just a whine, let alone a blast. It was the principle that nobody’s constitutional rights should be put up for sale for purchase by anyone who could find an informant or helper to hand over to whoever might be trying to exercise those rights.

After all, this is how the new Texas law works. Its perverse structure, which delegates to individuals anywhere a power that the state of Texas is prohibited from exercising until Roe is revoked, punishes desperate pregnant women even the slightest form of assistance. Doctors, family members, insurance companies and even Uber drivers are at risk if they help a woman in need. And the risk is magnified by the offer of a large financial reward for anyone who successfully catches a person guilty of facilitating an abortion once a heartbeat can be detected, usually six weeks after the woman’s last period, much earlier. let most women know they are pregnant. . There is not even an exception for pregnancies resulting from rape or incest. No law has ever been allowed to go into effect remotely like this.

The prospect of big rewards will spawn a for-profit Soviet-style reporting system on friends and neighbors. These vigilantes will sue medical distributors of IUDs and morning-after pills, as well as insurance companies. These companies, in turn, will stop offering reproductive health care in Texas. One minute before midnight on August 31, clinics in Texas were already converting patients away out of fear. Even if the law is finally struck down, many probably close anyway.

Worse still, if women try to escape the state to access abortion services, their families will be compromised by offering even the slightest bit of help. If a woman’s friends or family hoping to end her pregnancy take her across state lines or help organize money for a plane or bus ticket, they could be liable for “aiding and abetting” a now-prohibited abortion, even if the actual procedure takes place outside of Texas. To add insult to injury, if a young woman asks for money for a bus ticket or a trip to the airport, friends and parents, fearful of responsibility, might vigorously question her about her intentions. This nightmare situation imposes another fundamental constitutional privilege: the right to travel between states, Recognized by the Supreme Court in 1999 as a fundamental privilege of federal citizenship. Welcome to Gilead!

Presumably many wealthy women will still find ways to access care. But her poor disproportionately minority sisters will be trapped, forced to face the barrel of unimaginably cruel choices. Desperate women will continue to seek abortions, but will be forced to do so on the black market and in back alleys. Fewer Samaritans will risk hefty fines or imprisonment to help them. Some will die trying.

What can be done? We can resign from this court and try to pressure Congress to pass the Women’s Health Protection Act, What should enshrine a federal statutory right to provide and receive abortion care free from these types of state schemes. But such a bill would die at the hands of Mitch McConnell, the minority leader, in a filibuster in the Senate. What if it somehow happened? It is likely that a judicial majority, despite having celebrated Since Congress is empowered to enact a nationwide ban on certain late-term abortions because medical procedures are part of interstate commerce, it would suddenly “uncover” new limits to the scope of the commerce clause as a source of Congress’s power and nullify the law. When the court allows a law that violates its precedents to take effect, all bets are off.

Or are? Perhaps even judges deeply hostile to abortion rights can be persuaded to specifically oppose the unprecedented financial incentives that this grotesque law creates to put a price on the head of every pregnant woman or girl. The nuances of sexual slavery and prostitution could put this privatization of law enforcement in a light that even conservative jurists find unbearable. What if women chilled by this business model or those seeking to help them avoid unwanted motherhood sued Texas authorities who are ready to shell out $ 10,000 rewards for every prohibited abortion detected or prevented?

As Judge Sotomayor said in her dissent, there were four dissidents in all, Texas law “is an impressive act of defiance, of the constitution, of the precedents of this court, and of the rights of women seeking abortions throughout Texas. “. After a disconcerting silence of a day and a night, “the court finally [told] the Nation that refused to act because, ultimately, the State’s tactic worked ”. Even if not a single judge in the 5-4 majority rejects a state’s ability to “evade federal judicial scrutiny by outsourcing the application of unconstitutional laws to its citizens,” and even if all five judges in that majority are willing to trash Roe v Wade, perhaps at least one of those justices would agree that no state can award financial rewards to those, not just its citizens, but people from anywhere in the country, perhaps the world, for destroying the constitution. from United States. At least it’s worth a try.


www.theguardian.com

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