WASHINGTON — The partisan divide in the Senate continued to be evident on Wednesday when Democratic and Republican members of the Senate Judiciary Committee appeared unable to agree on what the subject of a committee hearing was.
“We’re having a hearing today because the Supreme Court did something very ordinary,” Sen. Chuck Grassley (R-Iowa), the committee’s ranking member, said at the hearing, which was entitled “Texas’s Unconstitutional Abortion Ban and the Role of the ‘Shadow Docket.'” “It declined to intervene on an exceedingly expedited basis while reserving judgment on complex legal issues.”
But committee chairman Sen. Richard Durbin (D-Ill.) focused his attention on the Texas law mentioned in the name of the hearing — a law that took effect September 1 and outlaws all abortions after 6 weeks’ gestation. It also allows anyone to sue those that they think aided someone else in getting an illegal abortion. “I don’t know that there was anything sinister or conspiratorial about scheduling this hearing,” said Durbin. “I don’t know how anyone could ignore the fact that this has been a subject of a national debate about Roe and the issue of abortion, and this committee is charged with the responsibility of oversight of agencies and the consideration of any measures relative to the Roe v. Wade.” Durbin was referring to the 1973 Supreme Court decision that legalized abortion.
Senators, Witnesses Divided
Durbin mentioned that the law allows those who sue successfully under the law to receive an award of “not less than $10,000, court costs, and attorneys’ fees … This type of private vigilante enforcement scheme is unprecedented.” The law underwent multiple legal challenges, and some providers filed an emergency petition with the Supreme Court asking that the justices temporarily block the law from taking effect. The court declined to do so, in a 5-4 vote.
At the hearing, Republican senators on the committee said they supported the law. “We are talking about the taking of unborn human life, innocent life,” said Sen. Mike Lee (R-Utah). “Is Texas’s law that they came up with unique? Yes. Is it different than other laws we’ve seen? Yes it is. Is this surprising at all, that the people of a state who love life would want to protect human life? No, it isn’t. And who can blame them?”
Witnesses at the hearing also were divided. Donna Howard, a Democratic state representative in Texas, said the law “was the culmination of a decade of erosion of access to abortion healthcare, with the intent of creating a de facto ban without actually calling it a ban … This bill denies access to 85% to 90% of those who are seeking to terminate an unwanted pregnancy.” She said the bill “is based on a false premise that is meant to tug at one’s heartstrings: no abortion after a fetal heartbeat or cardiac activity can be detected.” However, “developmentally the embryo has no beating heart at 6 weeks gestation, but cardiac cells that emit electrical activity can be amplified by a transvaginal sonogram, and translate it into a ‘whoosh-whoosh’ sound as early as 6 weeks’ gestation, which is actually 4 weeks of pregnancy.”
“Chilling Effect” on Doctors
The bill has had a “chilling effect” on doctors in the state, Howard continued. “I’ve heard reports of doctors leaving our state when we already have a shortage — and we’re not just talking about abortion providers. This has had a chilling effect on emergency room physicians, rural healthcare practitioners, and any medical professional who might be confronted with a post-6-week patient who needs care that they determined medically justifies pregnancy termination, but has to balance that against losing their practice through costly litigation. Most importantly, Texas women now have very limited options. Those who can afford to may go out of state — that is, if the other states have capacity, as they have reported exponential increases in Texans seeking their services.”
But several witnesses called by Republicans focused more on the “shadow docket” issue — the idea that the court has a secret list of cases that it issues quick decisions on, with an emphasis on ideological outcomes rather than constitutional merit. Today, the “shadow docket” “refers almost exclusively to the court’s emergency proceedings,” said Edmund LaCour Jr., the solicitor general of Alabama. “These proceedings hardly warrant such a nefarious name. Requests for preliminary injunctive relief are a critical piece of any court’s business, including federal district courts, courts of appeals, and the U.S. Supreme Court, and far from lurking in the shadows, the Supreme Court’s entire docket is freely searchable online.”
Effect on Women’s Healthcare
Sen. Cory Booker (D-N.J.) turned the committee’s attention to another aspect of the law: the closing of reproductive health clinics that often provided family planning and other preventive care to women. “There are so many things that we could do that elevate human wellbeing, that preserve life,” he said. “Women who are afforded healthcare and family planning have lower rates of unwanted pregnancies … Colorado reduced their rate of young women having abortions by 40%, not by attacking women, not by taking away healthcare, but by giving them more reproductive freedoms. The stunning thing to me is that we know what would elevate human life and well-being — if we invested in empowerment, with doula care, with healthcare, with reproductive freedom, with science-based sex education.”
In response to a question from Booker, Howard said that for the past several sessions of the Texas legislature, “I’ve had legislation to ensure that those that are on CHIP [the Children’s Health Insurance Program] can have access to contraceptives in terms of reimbursement — as is done in every other state except for one — and I have not been able to get that passed through our legislature.”
Sen. Josh Hawley (R- Mo.) had a different take on what the hearing was about: the upcoming Supreme Court case of Dobbs v. Jackson Women’s Health Organization, which addresses the issue of whether Roe v. Wade is constitutional. “This is plainly, an attempt to intimidate the Supreme Court ahead of this case,” Hawley said. “And unfortunately there’s a pattern of not only this committee but of Democrats in this body doing so just last year. [Senate Majority Leader] Chuck Schumer [D-N.Y.] went to the steps of the Supreme Court and directly threatened justices [Neil] Gorsuch and [Brett] Cavanaugh by name. He called their names out and said, ‘You won’t know what’s hit you if you don’t change direction’ — basically, if you don’t rule the way that we want you to rule.”
Source: MedicalNewsToday.com
