Sarah Weddington is the youngest woman to win a case at the United States Supreme Court. In December 1971, the then-26-year-old UT Austin law graduate, together with fellow alumna Linda Coffee, represented plaintiff “Jane Roe” against Henry Wade, the District Attorney of Dallas County. The issue in dispute was whether federal or state governments could prohibit a pregnant woman’s right to an abortion.
Guided by precedent established by the Court in its 1965 ruling on Griswold v Connecticut, which found that married couples had a constitutionally guaranteed right to access contraception without government restriction, Weddington argued that the same protection should apply to women’s right to choose. After a further hearing in October 1972, the justices concurred on January 22, 1973.
By a 7-2 vote, they held that women had an absolute right to abortion during the first trimester of pregnancy. Beyond that governments could apply reasonable health standards in the second trimester, with more stringent regulations allowed during the third trimester.
At the time, conservatives and evangelicals were divided on the ruling. Many believed that life begins at birth and agreed that abortion should remain a private matter. In 1967, then-governor Ronald Reagan had signed California’s Therapeutic Abortion Act into law. As he later conceded, abortion was “a subject I’d never given much thought to”.
What changed?
By the late 1970s, the United States had endured massive upheaval. Its economy was strained by both high unemployment and high inflation — stagflation — exacerbated by twin oil shocks. The Watergate scandal and Nixon’s resignation had rocked the country. The lost Vietnam War was a psychic blow. President Carter seemingly had no solution to the Iran hostage crisis. The women’s liberation and gay rights movements were demanding equality. Through it all, the battle over enforcement of new civil rights laws and desegregation raged on.
Amidst all this, a small cadre of conservative activists spied an opportunity. They knew that overt racist appeals were no longer politically viable. So they chose to make opposition to abortion their rallying cry. Paul Weyrich, co-founder of the Heritage Foundation and American Legislative Exchange Council — both reactionary political juggernauts today — joined with Jerry Falwell, a prominent televangelist, to found the Moral Majority in 1979. This outfit became the anchor of the Christian conservative movement, and propelled the rise of political action committees dedicated to imposing far-right legislation across the land. Opposition to abortion became their clarion call.
Their growing influence in Republican circles notwithstanding, they made little headway on abortion. In 12 years under presidents Reagan and George HW Bush, neither administration pursued any legislation to repeal abortion rights.
Their opposition was never really about abortion. It was all about winning and maintaining power.
But somewhere along the way, what started as a cynical ruse became an article of faith. The fanatics who weren’t in on the con bought into the mission. They made it their crusade.
In 1992, the Supreme Court handed them an opening when it revisited abortion rights in Planned Parenthood v Casey. While the Court upheld the right to choose, it moved the goalposts in two fateful ways. First it eliminated the trimester framework in favour of the subjective concept of foetal viability. Second it replaced strict scrutiny of government regulations with an undue burden standard. Together these changes paved the way for a tug-of-war over the subsequent decades, as many states slowly constricted legal access to abortion without eliminating it outright.
That charade ended Wednesday. Texas Republicans, ever cunning in their zeal to outlaw all abortions, devised a novel tactic to achieve their aim. Instead of declaring abortion a criminal act, they made it a civil breach to aid or abet a woman to procure an abortion after foetal cardiac activity is detected, typically around six weeks of pregnancy. Most women are unaware they are pregnant at six weeks.
There is no exception for rape or incest.
Texas will not rely on state officials to enforce the law. Instead it will empower private citizens to sue in civil court. This is how they dodge Roe and Casey.
While the law does not make the pregnant woman personally liable, anyone who helps her can be sued in civil court. That means any medical personnel, counsellor or clergy, friend or relative who provides cash or other support, even an Uber driver, can be held liable. If a defendant loses in court, they must pay US$10,000 in damages plus attorney’s fees. If they win, they cannot claim their attorney’s fees from the other party. They must pay their own.
There is no limitation on the number of plaintiffs per case, so a defendant could be sued multiple times for the same action. They could be forced to pay damages to every plaintiff.
Even more outrageous, Texas has granted standing to anyone in America to bring an action. ANYONE! That person need not have any connection to the woman or her helpers. All they have to do is file suit, prove their claim, and collect their reward. The litigation will be heard in state courts, so the Texas Supreme Court, all Republican judges, will have the final word.
In a decision late Wednesday night the US Supreme Court ruled 5-4 to let the Texas law stand. Their ruling has no impact on Roe or Casey. It simply bypasses both.
Now Texas women must brace for bounty hunters on the lookout for a payday. America has seen this system before. In 1850, Congress enacted the Fugitive Slave Act. It granted authority to private individuals to hunt escaped slaves, including in free states, and imposed penalties on anyone who aided an escapee. Nicknamed the “Bloodhound Bill”, it was a provocation that helped spark the Civil War.
Other states are expected to follow Texas’ blueprint posthaste. The effect will be to intimidate women out of exercising their constitutional rights. Rights that cannot be used are no rights at all.
Soon women in large tracts of America will be living their own Handmaid’s Tale nightmare. Women as incubators, forced to give birth, will be a dark reality. The men involved face no sanction.
If this constitutional end run stands, it won’t stop at abortion. Next up will be “voter fraud” lawsuits aimed to suppress minority voters. Union organisers will be targeted. So too protesters. The First Amendment might protect free speech, but we can expect laws permitting bounty hunters to sue for property damage or traffic interference.
All this flies in the face of what American voters actually want. A clear majority supports abortion rights, including Democrats, moderate Republicans, and independents. It’s only far-right extremists who oppose them.
The American Taliban is on the march. They have shown they will stop at nothing to impose their minority, fundamentalist worldview. The Biden administration and congressional Democrats are exploring options to push back. But with only slim majorities in Congress, and a hostile Supreme Court, they need help.
It’s now up to Americans — moderate Republicans and independents in particular — to decide what comes next. Either they break with the fanatics and vote them out at the ballot box, or they let them wind back the clock.
Like millions of Texan women, Sarah Weddington will be watching.
anti-choice nutters only care about you up until the moment you’re born – then it’s time to look after yourself and stop being a burden on the system
Cue Palin & Jones singing the theme song from Meaning of Life – though surely that goes against the most profitable remaining biz in the Benighted States, porn?
In a country which values the lives of foetuses there is still the death penalty in approximately half of the 50 states.
It’s odd how often (Septic) anti-abortion types are pro death penalty.
Must be something in the water or air.
They like to give every foetus an opportunity, so there’s more to cull when it comes to executions.
With Trump’s stacking of the High Court, this is just the sort of outcome to be expected. It seems that the Filibuster rule will have to be abandoned and a swathe of more progressive judges appointed to the court ASAP. The politicisation of supposedly independent bodies is rife in America as it is here. We increasingly find outcomes that are clearly in conflict with the vast majority of the citizenry, making a mockery of democracy. .
America is collapsing, the far-right have control of it and they are the Taliban of the West
So you could be sued for doing a job that is legal, by any person (in the state, country, world?), whether they have any connection to the women getting the abortion or not.
In light of climate inaction and cognitive dissonance from our collective governments, many young women are opting for sterilization. Which is what I would definitely do in their shoes. And I don’t expect to become a grandma, according to my 2 daughters. I’m pretty oj with that.
Ok 🙂