SB 8, Its Impact, and the Future of Roe v. Wade

Episode Notes

Transcript

Dean Kimberly Mutcherson: What this statute does, is it really about does it violate Roe or does it not violate Roe? Because we know that it violates Roe and it was created specifically to violate Roe. What is different about the statute is that the moving target of who could be a proper defendant in a lawsuit challenging the statues, that’s the thing that’s really tricky.

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Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with Craig Williams bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I write a blog named May It Please The Court and have two books out entitled, ‘How to Get Sued’ and ‘The Sled.’ 

Well, back in May of this year, Texas Governor Greg Abbott signed into Law of Texas Senate Bill 8 better known as SB8. One of the more or most restrictive abortion bills in the nation. In an effort to circumvent precedent, Texas instead created a mechanism that permits private citizens specifically any person other than an officer or employee of a state or local governmental entity in this state to file civil suits against the wide range of people who participate in war aid and abet in the action of the performance of an abortion of a fetus after cardiac activity is detected. Well, SB8 went into effect September 1, 2021 after the United States Supreme Court refused to strike down on a procedural ground. But since then, the constitutionality of SB8 has come into question and the potential threat to the constitutional rights of women and other persons has taken center stage. This month, Attorney General Merrick Garland announced that the The Department of Justice will file a lawsuit against the State of Texas. In his remarks, Garland said the United States has the authority and responsibility to ensure that no state can deprive individuals of their constitutional rights through a legislative scheme, specifically designed to prevent the vindication of those rights.

Well today, on Lawyer 2 Lawyer, we are going to take a look at Texas’ Abortion Law SB8 and we’ll discuss the impact of the law, the legal ethical, and bioethical concerns stemming from SB8. The constitutionality of the law, the Department of Justice lawsuit, and since the arguments that the DOJ will be using in Texas against Texas and what this means for the future of Roe versus Wade. And to do that today, we have Dean Kimberly Mutcherson. She is co-dean and Professor of Law at Rutgers Law School in Camden, New Jersey. Her scholarly work is at the intersection of family law, health law and bioethics. She writes on issues related to reproductive justice with a focus on assisted reproduction, abortion and maternal-fetal decision making. Welcome to the show Dean Mutcherson.

Dean Kimberly Mutcherson: Thank you so much for having me. It’s a pleasure to be here.

Craig Williams: Well, it’s a pleasure to have you and just as a side light for our listeners, I would encourage them to go take a look at your resume on the website at Rutgers. It’s a very detailed and thorough and pretty spectacular resume. So I’m really glad to have you on the show today.

Dean Kimberly Mutcherson: Thank you.

Craig Williams: We’re talking about this new law regarding the abortions in Texas SB8. Can you give us some context about what the law says and then how it fits into what we all understand as Roe v. Wade.

Dean Kimberly Mutcherson: Absolutely. So, the Texas law is really another iteration of lots of legislation that we’ve seen in the states over the last few decades frankly that are aimed at either reducing access to, or completely eliminating access to abortion. What Texas has done is particularly powerful in some ways because of the way that they crafted their legislation. So, the first piece of the legislation is that it forbids anyone from providing abortions after a heartbeat is detected in a fetus, which is around six weeks. Now, if I were an OB, I’d probably be talking to you about whether that really is a heartbeat or not, but I’m not, so I won’t even fight about that. So, it is considered a heartbeat bill that essentially says you cannot have an abortion after a fetal heartbeat can be detected. That standing alone under existing precedence under Roe v. Wade and Planned Parenthood v. Casey is blatantly unconstitutional. Under Casey which is a 1992 case, The Supreme Court decided that viability is the dividing line between when a state can ban abortion and when a state can regulate but not ban. So, in that sense, the law is sort of unconstitutional on its face. What’s tricky about what Texas did is that the law says that no one in a government position in Texas can enforce the law.

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So normally when you see laws that are intended to impact abortion access, they’re being enforced by the state, whether you can sue the governor or you can sue the Commissioner of Health or somebody else who’s a state actor. Texas said, “we’re going to take the state completely out of enforcement and we’re going to give enforcement to private citizens.” So, any private citizen in the State of Texas who becomes aware that someone has performed an abortion after that six-week mark, after about when a heartbeat is detected, they can go to court and they can say, “I know that this person performed an abortion that was an illegal abortion under the Texas Statute.” And if that person is found liable for it, they will have to pay a civil fine of at least $10,000. That’s the that’s of the law says. Not only does It capture people who perform abortions, it also captures people who aid or abet in the performance of an abortion. So, that could mean your sister who drives you to the clinic, it could mean the receptionist at the clinic, it could mean your friend who counseled you about where you could access an abortion. So it casts an incredibly wide net and much wider than we have seen in other abortion laws in this country.

Craig Williams: That sounds like a bounty hunter statue.

Dean Kimberly Mutcherson: I think that’s right and when the case went up to the Supreme Court because the plaintiffs were asking for a stay so that the law wouldn’t actually go into effect, four justices dissented from the court’s decision not to stay the law and we only know that of course because they wrote the defense. Normally, we wouldn’t even know how many people had voted or how they had voted and Justice Sotomayor in her defense specifically used the phrase “bounty hunters” that essentially what Texas had done was deputized anybody in the State of Texas to be a bounty hunter for folks who are providing abortions or who are assisting others in getting access to abortion services. So, it really is putting aside whatever your feelings may be about abortion and the legality of abortion, the idea of deputizing private citizens to interfere in medical decision making in this way is pretty frightening.

Craig Williams: I can imagine the consequences in a right to carry state.

Dean Kimberly Mutcherson: Well, that’s a really interesting question. I mean, I think that one of the things that’s really sort of challenging here is we don’t actually know what it will look like in practice on the ground in part because the chilling effect of the law is so profound. So, if you are a person in Texas who is providing abortions and what clinics will tell you now is either that they’ve shut down completely because the law is in effect or they are only providing abortions for that very small slice of women who one recognized a pregnancy early enough and then you are able to come in and access abortion services early enough in their pregnancy. So, there is something really frightening particularly because we know already that there have been abortion doctors who have been killed, abortion doctors who are consistently and people who work in clinics who are consistently harassed by folks who are anti-choice. So, the idea of sort of putting that kind of target on doctor’s backs and on the backs of folks who work at clinics is really problematic and scary, right?

Craig Williams: I’m going to ask a question that I had always wanted to ask a law professor let alone a Dean. If you’re going to argue the other side of this, how would you say that SB8 skirts around Roe v. Wade?

Dean Kimberly Mutcherson: The only way that SB8 skirts around Roe v. Wade is that it makes it really difficult to figure out who a proper defendant is if you want to sue before the law goes into effect. The core substance of the law is on its face a violation of Roe and it is meant to be, right? That’s not an accident. It’s not a question of do we think that the court will interpret Roe differently or that the court will interpret Casey differently. We know what those cases say, we know that a ban at six weeks or around six weeks is a violation of that. So, what this statute does isn’t really about does it violate Roe or does it not violate Roe because we know that it violates Roe and it was created specifically to violate Roe. What is different about this statute is that the moving target of who could be a proper defendant in a lawsuit challenging the statute, that’s the thing that’s really tricky.

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Craig Williams: Wouldn’t it be the state legislature since they were the ones that are enacted it?

Dean Kimberly Mutcherson: It wouldn’t because they make it very clear that they’re not the ones who are going to enforce it.

Craig Williams: Was enforcement the requirement?

Dean Kimberly Mutcherson: Enforcement is the requirement in order to be able to successfully sue someone, right? It has to be somebody who is responsible for enforcing the statute and here the people who are responsible for enforcing the statute are random people in the State of Texas. So, the plaintiff did try part of what they did in order to try to get some defendants in order to be able to stop the law from going into effect is they thought in order that with keep State Court Judges from hearing these cases or that would keep the clerks of the court from accepting complaints about these cases. And so again, the sort of tricky thing here isn’t does a six-week ban violate Roe v. Wade or does a six-week ban violate Planned Parenthood v. Casey, that’s 100% clear. Nobody can argue that. The only way you get around that is by saying that Roe and Casey are no longer good law.

Craig Williams: And what’s the likelihood of that? I mean, we have a supreme court that shifted from Roe v. Wade. There’s a different constituency there.

Dean Kimberly Mutcherson: Yeah, absolutely. So, it’s interesting that there’s a second case that was already accepted for cert at the court for this term. It will probably be argued in December and then we’ll get a decision in June 22. And that case is a case that comes out of Mississippi. It’s the Dobbs case and that is a 15-week ban, which again is a violation of Roe and is a violation of Casey. So, a lot of us had our eyes on that case because it had already been accepted for cert and we know that it’s going to be argued in front of the court this term and what I have been saying before SB8 and what we’ve seen play out With SB8 was that I thought we would see this court continue to really chip away around the edges of Roe and Casey. So, not overrule them all together but create more and more ways in which states could regulate abortion in such a way that lots of people wouldn’t be able to have access even if technically it continued to be a constitutional right. And now I think I was wrong to think that the court wouldn’t actually overrule Roe v. Wade because it’s looking like what might happen in Dobbs is that they actually go whole hog and reverse Roe and overrule Roe. And then that puts us in a totally different space than the one that we’ve been in since 1973.

Craig Williams: Right, and at that point if assuming that Roe is overruled, can Congress play anymore role in this or is the decision done at that point?

Dean Kimberly Mutcherson: Congress could play a role in it. So there is a bill that’s been floating around called The Women’s Health Protection Act that’s been floating around in Congress for some time now and it is a bill where the intention would be to codify Roe v. Wade so that we wouldn’t have to rely on Supreme Court precedent in order to establish that there is a constitutional right to terminate a pregnancy. The Women’s Health Protection Act frankly no matter what happens in this court with Roe v. Wade, The Women’s Health Protection Act is not going to make it through Congress. Even if it’s somehow could make it through the house, it would not get voted out of the senate. So, theoretically, it was a possibility for Congress to have some sort of impact here, but in the real world, that’s just not going to happen because they don’t have the votes.

Craig Williams: So, what do you advise women in Texas to do?

Dean Kimberly Mutcherson: Well, right now what I advise women to Texas in Texas to do is if they have the means and they are pregnant and don’t want to be pregnant, they need to leave the state. And for lots of women that is not going to be a possibility for a whole range of different reasons, whether it is that they can’t afford to because they don’t have the money, they can’t get where they need to go because they don’t have transportation. They have young children to take care of and we know that the vast majority of women who have abortions already have children at home, they have children to take care of and so therefore can’t take the time to leave the state. I mean, there are lots of reasons why that would be difficult. So, your sort of best bet at this point is either to be lucky enough to have the resources to leave the state, be lucky enough to recognize your pregnancy early enough so that you can get an abortion in the state of Texas, or try to self-manage your own termination, your own abortion. That’s one of the things that’s really different from where we were pre-Roe in the 70s.

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The things that were available for people to self-manage abortions. Frankly, were not as safe as what we have now, right? I mean, you can have a medication abortion in your first ten weeks or so on pregnancy and it pills, it’s not surgery, it can be done very safely, all you need is a prescription for that. So, that’s a possibility for women too but we already see Texas and other states working to make it more difficult to get access to medication abortions as well. So, the circle in which women are going to be able to terminate pregnancies is just going to get smaller and smaller and smaller.

Craig Williams: I’m going to stop for a moment here into some abstract constitutional theory and step back in time to when Kamala Harris asked Brett Kavanaugh in his confirmation hearing whether he knew of any laws that regulated women’s bodies. What kind of equal protection issues exist in that question?

Dean Kimberly Mutcherson: Yeah. So, it’s really interesting, right? I mean, on one hand because I’m a law professor, I do have lots of sort of theoretical conversations about the law, but I’m also a law professor who feels very steeped in the real world. So I worry a lot about what do things mean in practice. And one of the decisions that Was sort of a litigation decision that was made at various points and part of it is just a reflection of how the Supreme Court initially decided this issue was that this was going to be a privacy issue and not an equal protection issue. And that in some depending upon who you’re talking to has made it easier to think about overruling Roe because as we know the right of privacy does not exist in our constitution, you’re not going to find the word privacy there and it’s something that has been read into the constitution over a period of years and centuries.

On one hand, I don’t totally buy this argument that there are other ways in which the state regulates people’s bodies, right? So, even thinking about something like the draft where we can conscript people, men mostly and force them to join the military. That’s a pretty significant way to force somebody to do a particular thing with their body. But the examples of that are very, very small and abortion is a very clear space. Pregnancy in general frankly is a place where the state has taken liberties that does not take with other people and that it doesn’t necessarily take with anybody who isn’t pregnant. And as you said the sort of top of our conversation, I also teach and study Bioethics and I think the questions here are really difficult questions about when does life begin? What does it mean to be a person? What does it mean to have autonomy? What does it mean to have bodily integrity? And some of those questions are frankly easier to answer within the scope of morality and ethics than they are in in law, and yet we have to come up with an answer for them in the context of law because decisions have to be made. So it’s rough.

Craig Williams: Let’s go from the abstract as you mentioned you’re ruder than impracticality. Are we going to have to see the quintessential Mrs. Kravitz from Bewitched the old TV series snooping on their neighbors and reporting them and citizen’s arrest? Where does this devolve?

Dean Kimberly Mutcherson: I think it’s a really frightening scenario and one of the things that I think has been really important in the last couple of weeks since this law was allowed to go into effect is you’re really seeing people kind of on both sides of the aisle who are raising concerns about a law like this. We don’t necessarily want to live in a world where we are inviting people to as you said sort of snoop on their neighbors to take their neighbors to court and try to win $10,000 from them. That’s not necessarily the world that we want to be living in and there’s something very both cynical and dangerous about a law like this. And if you could imagine a set of circumstances where say someone from the more progressive end of the scale said, “All right, if this is what we’re doing now, then we’re going to have a law that says Private citizens can enforce gun restrictions, and if I see you with a weapon that you shouldn’t have, then I’m going to do X, Y or Z thing and I can take you to court and I can win $10,000 from you. There are certainly ways where you could imagine sort of flipping the scenario that would be really, really problematic.

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So, this is a set of circumstances that I think is really worrisome and one that I think ultimately most people who make legislation would not want to go down this road.

Craig Williams: So I don’t mean to poke fun at this thing, but we have the Satanic Temple now filing a challenge against this, have you read about it? What do you think about it?

Dean Kimberly Mutcherson: Yeah. So, they actually have done that not just in abortion cases but they’ve also done it in other sorts of free exercise cases and I always find it really interesting because I think there’s something worthwhile about really pushing those boundaries of how we allow religion and morality to seep into our laws, right? And it is not the case and putting aside the Satanic Temple, it is not the case that every religion takes the position that abortion is a moral wrong or that it is against the precepts of their religion. You think of Judaism and some other religious traditions? So, I think that it’s really important and that and that abortion is really a space where we can have some tough conversations about the separation of church and state and the ways in which we have to continually remind ourselves that what we might think for ourselves personally, what we might think based are on our own faith, that doesn’t mean that we get to enforce it on other people, at least not in the constitutional order that we live in.

Craig Williams: Right. Well, let’s dive into that. Favorite law school phrase, the slippery slope and think back to what happens if we have legitimate practitioners of the beliefs in Sparta, Ancient Sparta where they took babies that were deformed and put them on a hillside to die. Where does the line get drawn between alive but yet deformed baby in the Spartican belief compared to the Satanic Temple saying or whatever religion you want to pick saying, “We believe that abortions must be allowed.” Take the exact opposite. So, how do we play that as a society where does the ethical line lie? Where does the legal line lie? Where should that social policy be? Oh, I love asking these law school questions.

Dean Kimberly Mutcherson: That’s why some of us became academics so we could ask these kinds of questions.

Craig Williams: Right, and here we are on a podcast doing the same thing. So much for after I graduated from law school, but here we are.

Dean Kimberly Mutcherson: Yeah. These are the kinds of issues that I literally can talk about for hours and hours. And one of the ways that I often talk about these kinds of really tough moral, ethical and frankly personal questions that people have as I say to my students, “there’s one set of conversations that we might have if we’re sitting around having a drink together or sitting around the dinner table and we’re talking about a particular issue or we’re talking to a friend about the decision that she wants to make about a pregnancy, but do we want to pick up that conversation and make it law?” Once we start talking about what are the rules that we are going to make for how everybody gets to live their life, my hope is that there are lots of ways in which we would say, “All right, my personal view of the world doesn’t necessarily get to dictate how everybody else lives their life particularly when it comes to something as literally personal as what happens inside of your body and what obligations that you then have either because you are pregnant or because you have given birth to a child.”

One of most amazing things that our modern world has given us is the opportunity to know a lot more about a fetus than we used to. I mean, part of what really animates a large part of the discussion here is our ability to find out that people are pregnant earlier, to do ultrasound so that we can actually see what it looks like as a pregnancy grows inside of a person’s body. We can do prenatal testing and we can identify whether that fetus is going to grow into a child who has profound disabilities or who has disabilities or disease that’s incompatible with life, and the individual decisions that people have to make in those circumstances can often be incredibly, incredibly heart-wrenching and I can’t imagine having so much hubris as to think that I could make those decisions for someone else for a whole range of different reasons.  So, I think this is sort of a space where we really want to be conscientious about whether there’s a single position that the government can or should take on such things or is this one of those places where the only way to really move forward is to allow people to make their own individual decisions based on their own beliefs, their own circumstances and their own sense of both what they want and what they can handle.

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Craig Williams: Right, and let’s go down the other side of that slippery slope. So, all of a sudden now we are controlling when abortions can occur, with the state’s next step to say we’re going to control whether they’re blonde haired and blue-eyed to be realistically

Dean Kimberly Mutcherson: I feel like you’ve been looking at the syllabus for my bioethics class.

Craig Williams: I cheated.

Dean Kimberly Mutcherson: So obviously I do abortion work but I also do a work on assistive reproduction, and part of what we talked about in the classes that I teach and that I talk about with a lot of other scholars who do this work is not only what level of control should the government have over these kinds of decisions, but frankly, what level of control should individuals have over these decisions. And we’re not there yet, right? I mean, that the world of Gattaca is still relatively far away, but you can certainly imagine a at this point now that we’ve got gene editing techniques that can be used and that can be used in a more widespread way, what kind of manipulations are going to be available to people in the future and maybe it will be something that I think of as being sort of frivolous. Eye color and hair color, but it could be things like I want my kid to be particularly smart or I want my kid to be particularly athletic or we do prenatal testing and find out that this is a child who’s going to be deaf and I decide I don’t want to have a child who was not hearing. And the concern that gets raised a lot in the ethical literature is is there some point at which we start to think about babies as products, right? Things that we manufacture so that I can go in and say, “This is the one that I want and this is the one I want you to build for me.” That’s worrisome. I’m not sure that that’s the future any of us particularly want to live in but it might be the future that awaits us.

Craig Williams: It sounds like a dystopian novel.

Dean Kimberly Mutcherson: Yeah, absolutely. And it’s really challenging because as I was saying before, on one hand we do want people to be able to make their own decisions about having children or not having children, whether they want to terminate a pregnancy or carry a pregnancy to term, whether they want to raise a child or put that child up for adoption. And if we look at this country’s history, one of the things that we have to really pay attention to is that where the government has inserted itself into reproductive decision making, it is often done so in a way that is incredibly problematic. I was just teaching a class the other day where we were focused on the history of forced sterilizations in this country, and particularly force sterilizations of women living with disabilities. Forced sterilizations of Chicano women in Los Angeles in the 70s leading to a case called Madrigal v. Quilligan. Forced sterilizations of particularly poor black women in the South. So we actually had North Carolina not too long ago actually creating a program of reparations for women who had been sterilized without their consent in the South. So, I worry a lot about what the world looks like when the government decides who should have a baby and what Kind of babies should be brought into the world.

Craig Williams: And the forced sterilizations that you mentioned are the tip of the iceberg because it’s been such a historical problem.

Dean Kimberly Mutcherson: Oh yes, absolutely. And just last year in 2020, we had a whistleblower from an Ice Detention Center down in Georgia. A nurse who was working there who said that there were sterilizations and other kinds of gynecological procedures being done on women in ice detention. So, even in 2020, we still see these kinds of things going on and it should worry all of us and we should all care about that kind of interference with reproductive decision making.

Craig Williams: Well, it looks like we just about reached the end of our program Dean Mutcherson, so I’d like to take this opportunity to invite you to share your final thoughts as well as your contact information for our listeners.

Dean Kimberly Mutcherson: Absolutely. So, I think that we’re in this really interesting space right now. I mean, on one hand, yes, SB8 has really brought into stark relief that Roe v. Wade is potentially on its final legs which is going to leave us with a patchwork of abortion law in this country.

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I think the thing that people need to remember is that if Roe falls, that doesn’t mean that abortion suddenly becomes illegal all across United States. It means that individual states get to make decisions about abortion law. So, I live in New Jersey and New Jersey will continue to have legal abortions but folks across the river in Pennsylvania might have a very different experience. And the other thing that I think is really critical is to remember that when abortion ceases to be available, that doesn’t mean that everybody is going to carry their pregnancy to term. What it means is that women who are the most vulnerable, women who are low-income, women who are very young, women of color, women who are undocumented, those are the folks who suffer the most when they don’t have access to good reproductive healthcare and good reproductive healthcare includes being able to terminate a pregnancy if that is the choice that you want to make.

So, we’re in a really tough spot and then the only other thing that I will say because we didn’t talk about this very much is also sort of the question of the legitimacy of the Supreme Court and abortion has been a space where I think that gets raised quite a bit because if there is any place where we can look at the raw politics of the Supreme Court, it’s in abortion law. And we have seen that playing out in SB8 because we know that a court where the justices were a different configuration would have acted very differently in the face of this particular law. So, it gives me a lot of pause and concern about our institutions and particularly our judiciary and the highest court in the land. I can be reached on Twitter at @professormutch. M-U-T-C-H. The first part of my last name and I’m always happy to talk to people there.

Craig Williams: Great, and thank you so much for being on the show. Today is a very interesting discussion.

Dean Kimberly Mutcherson: Absolutely. Thank you for having me.

Craig Williams: And for our listeners, if you like what you heard today, please rate us on Apple Podcast or your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal, think Lawyer 2 Lawyer.

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Podcast transcription by Tech-Synergy.com

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