What states can do to protect abortion rights from a conservative Supreme Court

Admirably, on Sept. 9, just nine days after the Supreme Court’s conservative majority’s summary decision in Whole Woman’s Health allowed Texas’s new anti-choice statute to go into effect, Merrick Garland’s Justice Department filed suit against Texas.

The United States is not the only government with power to counteract Texas. Pro-choice states also have legislative tools on their belts to protect women’s right to control their own bodies.

First, the background: The draconian Texas statute bars all abortions six weeks after a woman’s last period. That near-categorial ban includes abortions that would have been performed in the case of rape or incest. Amazingly, the Court’s dark-of-night ruling via its “shadow docket” also awards $10,000 to vigilantes who bring lawsuits against those they say helped a woman — including friends and family — try to get an abortion after the six week limit.

The Justice Department’s new complaint against Texas fairly sings with settled Supreme Court precedent. The filing cites such venerable cases as the 1948 decision in Shelley v. Kraemer to counteract Texas’s attempt to shield its law from judicial review by delegating the law’s enforcement solely to private citizens filing civil suits.

It appears the Texas theory is that courts do not directly stop state laws, even impermissible ones, that deputize individuals exclusively to enforce those laws. The theory appears to have worked for the time being with the Supreme Court’s most conservative five justices.

Federal courts do, however, stop the actual enforcement of unconstitutional state laws when that happens. In Shelley, the Court accepted young lawyer (and future Supreme Court Justice) Thurgood Marshall’s argument that judicial enforcement of a white neighborhood’s racially exclusive residential deeds constituted unconstitutional action by a Missouri court applying the discriminatory deeds to exclude a black family seeking to move into a white community.

Similarly, the new Texas law empowers its courts to enforce the state’s unconstitutional anti-choice regime.

And yet, with this Supreme Court, it seems that no precedent blocking the five-justice majority’s agenda is safe from overturn or from clever distinction as “inapplicable.” And even if the DOJ prevails in its new suit, no one can say how long it will take.

Time is of the essence for women in Texas and the other states that have already begun to clone the Texas law, a process already underway in states with the political party “trifecta” — both legislative houses and the governor’s mansion in Republican control.

There is a laundry list of things legislatures in pro-choice states can do right now.

First, even if Roe v. Wade falls under the current Supreme Court, almost all blue states have laws enshrining a woman’s right to choose. But Colorado and New Mexico do not. Those two states have a Democratic Party “trifecta,” so they could adopt statutes modeled on California’s. (Note that California’s Democratic “trifecta” is at risk because, if pro-choice Governor Gavin Newsom were recalled in next week’s election, he will likely be replaced by the leading anti-choice Republican.) 

Second, while many states have laws allowing civil suits against those who interfere with civil rights, including a woman’s right to choose, New York may be the only one that makes it a felony to obstruct access to reproductive health care facilities, at least for second offenders or those who cause physical injury. That kind of strong, clear penalty is needed to deter anti-choice activists energized by the Texas law and the Supreme Court’s approval of it from ramping up their actions.

Third, many blue states such as Colorado, Maine, Nevada, New Mexico and Oregon lack laws that prohibit threats against providers or patients of abortion facilities.

Fourth, pro-choice states can follow Illinois, California, New York, Maine, Oregon and Washington, which have laws requiring that private health plans cover abortions, at least where the plan includes pregnancy-related benefits.

Fifth, states such as Colorado, Delaware, Nevada and Rhode Island, do not direct Medicaid to pay for all or most medically necessary abortions. Citizens can push them to do so.

Sixth, legislatures in Connecticut and Rhode Island could eliminate so-called TRAP laws – “targeted regulations on abortion providers.” These laws impose on women’s health care facilities costly and medically unnecessary requirements that other health facilities need not satisfy. Rhode Island’s law, for example, eliminates most doctors’ offices as places where abortions between 15 and 18 weeks can be performed, as they are performed safely in other states.

Last, there are three ways that pro-choice state legislatures can provide financial backing to protect women’s reproductive rights. States can authorize funds to assist any woman who comes within their boundaries to escape state laws aiming to control their bodies. Funds can also be appropriated to reimburse organizations providing counseling and assistance for such women. And states can create a reimbursement pool for local DAs who prosecute those who obstruct access to abortion clinics.

These are just “states’ rights” in action.

What is sauce for the Jim Crow goose is sauce for pro-choice gander.

Cecile Richards, former Planned Parenthood president and co-founder of Supermajority, which helps develop female political activists, has said: “The thing I fear most is that my daughters will have fewer rights than I did. And in Texas, they already do.”

That doesn’t have to be the case in other states.

Dennis Aftergut is a former federal prosecutor and former Chief Assistant City Attorney in San Francisco, currently Of Counsel at the Renne Public Law Group.