Janine Jackson interviewed Marjorie Cohn about the Texas abortion ban for the September 10, 2021, episode of CounterSpin. This is a lightly edited transcript.
Janine Jackson: Listeners know about Texas’ new law that provides up to $10,000 to anyone who successfully sues someone they think helped a woman obtain an abortion after six weeks of pregnancy. That’s two weeks past a missed period, before many women even know they’re pregnant. And it accounts for at least 85% of abortions in Texas.
Senate Bill 8 is the subject of punchlines and memes casting it as “dystopian,” “draconian,” “backward” and “bizarre.” It’s also, you know, still happening. Clearly those invested in women’s human rights need something more than outrage to fuel the necessary pushback to this development, which, while it is new kinds of creepy and cruel, is entirely of a piece with conservatives’ decades-long effort to turn back not the clock but the calendar on reproductive rights.
So what now? Is the law enough? Has it ever been? We’re joined now by Marjorie Cohn, professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and author of, I think most recently, Drones and Targeted Killing: Legal, Moral and Geopolitical Issues, from Olive Branch Press. She joins us now by phone from San Diego. Welcome back to CounterSpin, Marjorie Cohn.
Marjorie Cohn: Thanks so much for having me, Janine.
JJ: I’d like to ask you, first, about Senate Bill 8, or the Texas Heartbeat Act, itself. How does deputizing and incentivizing people to sue anyone they believe aided and abetted an abortion—how is that different than a ban on those abortions? What’s the legal maneuvering going on here? It’s clearly strategic.
MC: It is strategic, Janine, because generally, statutes provide for causes of action in court to be brought by the government. But then people can sue the government. And so in order to get around that, what this Texas SB 8 is doing is to deputize private people to act as vigilantes, and sue abortion providers and those who aid and abet them.
Now, that could include doctors, nurses, friends, spouses, parents, domestic violence counselors, clergy members, Uber drivers, Lyft drivers. They don’t even have to know that they are helping a woman to get an abortion, as long as an Uber driver knows that he is driving a car and dropping off a woman somewhere.
So it’s really broad, and what it does is to put a $10,000 bounty, plus attorney’s fees, on any of these so-called aiders and abettors. What Texas is doing, in effect, is bribing its residents to sue people who help women get abortions.
JJ: And I was several articles deep before I learned that the woman seeking an abortion can’t be sued. So it really is about the support networks, the very people who have been addressing the fact that women have had a right to abortion without access to abortion. There’s something especially devious and scary about it.
MC: It’s insidious, because now women in Texas who can afford to travel, say, to California to get a safe abortion will be able to do that. But poor women, undocumented women, women in rural Texas, people of color in Texas, will have to resort to life-threatening, back-alley, coat-hanger abortions once again, as before Roe v. Wade.
And there’s another law that people are not talking about, that is called SB 4, Senate Bill 4 in Texas, which specifically targets medication abortions. Because 60% of early-term abortion, people who want abortions choose to take a pill rather than have surgery. And what SB 4 does—this is actually a criminal statute—creates a felony for providers who prescribe medication abortions after seven weeks of pregnancy, basically double-banning abortions in the state. And it also bans abortion-inducing pills from being mailed into Texas.
The FDA has approved two drugs for non-surgical abortions. And their guidelines, the 2016 guidelines of the FDA, allow practitioners to provide mifepristone and misoprostol up to 10 weeks gestation. And SB 4 would actually punish someone with a criminal law, state criminal law, for prescribing any of these medications.
JJ: Besides the obvious spur and incentive to vigilantism, the lawmakers have somehow absented themselves from being responsible for the laws they make. There’s a thing where somehow the folks who made these laws, or might enforce them, somehow they’ve taken themselves out of the equation. What’s going on there with lawmakers kind of saying, “You can’t come back to us when this is problematic”?
MC: Right. Well, they’ve had some clever lawyers trying to craft this law in a way that is not going to be successfully challenged in the courts. Now, interestingly, as we’re speaking, the Department of Justice, Merrick Garland, the attorney general—who should’ve been on the Supreme Court, actually, and I think this case—we wouldn’t even be talking about this case right now, in all likelihood.
But the Justice Department sued the state of Texas to block this Senate Bill 8. And they are arguing that the law is invalid under the supremacy clause, the 14th Amendment. It is preempted by federal law. It violates the doctrine of intergovernmental immunity. And the US government has an obligation to ensure that no state can deprive individuals of their constitutional rights. Now, this lawsuit has just been filed as we speak, and so we’ll see what the courts do with it.
Also, on the 3rd of September, two days after the five-person, right-wing majority of the Supreme Court allowed Texas’ SB 8 to go into effect with no lower courts weighing in, without briefing, without oral argument—two days later, a judge in Austin, Texas, issued a temporary restraining order in favor of Planned Parenthood, and against the so-called Texas Right to Life organization, and it just affects Planned Parenthood and Texas Right to Life. On September 13, there will be a hearing on a preliminary injunction.
And also, this so-called Texas Right to Life—and I say so-called, because “right to life” is really a misnomer, and many of these people, I’m afraid, are very concerned with the life of the fetus, not so much with the life of the mother, although there is an exception in SB 8 if a woman’s health or life is at stake. If the mother needs prenatal care; if the baby’s born and needs medical care, health insurance, education; that’s socialism. Forget about the right to life.
So back to this other development, which is the Texas Right to Life. They had to close their website after their host, GoDaddy, said that it violated the terms of service. In other words, they were collecting information on someone without their consent.
So there is pushback. Now, there are lawsuits, and I think we’re going to see a proliferation of lawsuits, Janine, as well there should be.
And keep in mind that the five-person, right-wing majority on the Supreme Court—and this excludes Chief Justice John Roberts, who voted with the liberals. He was upset that they didn’t even rule on the constitutionality of it. They just let the law go into effect, the five-person, right-wing majority, with no briefing, with no oral argument, without seeing what the district court and the court of appeals would do with it.
But they did let it go into effect, which is wreaking havoc. Women are freaking out, and so are abortion providers, and families, and everyone else in Texas.
But what this does is to give us a pretty strong indication that when the Supreme Court reconvenes for their new term in October, and they take up the case of Dobbs v. Jackson Women’s Health Organization, which is a Mississippi law banning abortion after 15 weeks, that this right-wing majority of the Supreme Court may well overturn Roe v. Wade.
And if that happens, you’re going to see these state laws, particularly in red states, proliferate. You’re going to see women being charged with crimes for having an abortion, and this is very disturbing.
But Donald Trump’s installation of three radical right-wing justices, and I use justices advisedly, is paying off. He said he was going to appoint justices who would overturn Roe v. Wade, and it looks, unfortunately and tragically, like that’s the direction they’re headed.
JJ: I just want to tease you out on some points that you’ve just made. My eighth grade government teacher told us, “If you remember nothing else, remember the Constitution is the law of the land.” You know?
So we have Roe v. Wade, we have Planned Parenthood v. Casey. And we’ve talked a lot on this show about how a law can provide a right, and that that’s different from access. And how, for example, the Hyde Amendment has always taken abortion out of reach for women who rely on federal funding. So we know there’s a difference between having a law on the books somewhere, and women actually having access to abortion rights.
But still, we’ve understood the Constitution is the law of the land. So I know that you have talked about it, but if you could just go a little bit more—what the hell happened at the Supreme Court?
MC: Well, Roe v. Wade, which has been reinforced by several cases since, provides a right to abortion until viability. That means when the fetus is viable outside the mother, generally 22 to 24 weeks. And so the Supreme Court has said there is a constitutional right to abortion.
And there are two federal criminal statutes on the books. One is Section 242, which makes it a crime for people, under color of law—that means somebody in the government — willfully depriving individuals of constitutional rights. Then there’s Section 241, which makes it an even more serious crime for two or more persons to agree to oppress, threaten or intimidate anyone in securing their constitutional rights.
So beyond this lawsuit that the Justice Department just brought, there can be prosecutions—federal criminal prosecutions—of plaintiffs, and these are anybody, basically. They don’t even have to live in Texas under SB 8: anyone who wants to sue an abortion provider, or someone who aids and abets them.
So there are many legal challenges. There are prospective legal challenges. It’s not over ’til it’s over. But again, as I said, all bets are off, and I’m not so sure they are off. I think it may be, unfortunately, a pretty good bet that the radical right-wing majority of the Supreme Court may well overturn Roe v. Wade next term in that Mississippi case.
JJ: Let me just ask you, finally, I know that you are obviously concerned with the law. But I know that you also recognize the limits of law. What are the other things that we can do? We’ve already recognized the way that Roe doesn’t reach everyone, and hasn’t reached everyone. We want the material reality of abortion access. So what do we do, besides stand around and wait for the Supreme Court to decide about Roe?
MC: People are already getting into the streets to protest this Texas law. A majority of people in this country support the right to choose, the right of a woman to control her own body. And when people vote in elections, local elections, and also federal elections, state elections, in spite of the right-wing voter suppression laws proliferating all over this country, there is still tremendous turnout of people who are very aware of the consequences of their actions. (And gerrymandering is another hurdle that they have to overcome as well.)
But it may be that this abortion ruling redounds to the benefit of the Democrats in the midterm elections. I don’t know. People can demonstrate, exercise their First Amendment rights, vote, make sure that their friends and colleagues vote, as well as bringing lawsuits, which are happening now.
JJ: We’ve been speaking with Marjorie Cohn. She’s professor emerita at Thomas Jefferson School of Law, a former president of the National Lawyers Guild, and author of Drones and Targeted Killing: Legal, Moral and Geopolitical Issues, among other titles. And you can keep up with her work at MarjorieCohn.com. Marjorie Cohn, thank you so much for joining us this week on CounterSpin.
MC: Thanks for inviting me, Janine.
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This content originally appeared on FAIR and was authored by Janine Jackson.