[Senate Hearing 117-851]
[From the U.S. Government Publishing Office]
S. Hrg. 117-851
TEXAS'S UNCONSTITUTIONAL ABORTION BAN
AND THE ROLE OF THE SHADOW DOCKET
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HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 29, 2021
__________
Serial No. J-117-38
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Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
54-947 WASHINGTON : 2024
COMMITTEE ON THE JUDICIARY
RICHARD J. DURBIN, Illinois, Chair
PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa, Ranking
DIANNE FEINSTEIN, California Member
SHELDON WHITEHOUSE, Rhode Island LINDSEY O. GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut TED CRUZ, Texas
MAZIE K. HIRONO, Hawaii BEN SASSE, Nebraska
CORY A. BOOKER, New Jersey JOSH HAWLEY, Missouri
ALEX PADILLA, California TOM COTTON, Arkansas
JON OSSOFF, Georgia JOHN KENNEDY, Louisiana
THOM TILLIS, North Carolina
MARSHA BLACKBURN, Tennessee
Joseph Zogby, Chief Counsel and Staff Director
Kolan L. Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
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OPENING STATEMENTS
Page
Durbin, Hon. Richard J........................................... 1
Grassley, Hon. Charles E......................................... 3
WITNESSES
Howard, Hon. Donna, U.S. Representative from Texas............... 6
Prepared statement........................................... 49
Responses were not submitted to written questions............ 105
Graves, Fatima Goss.............................................. 10
Prepared statement........................................... 43
Responses to written questions............................... 106
LaCour, Edmund Gerard, Jr........................................ 8
Prepared statement........................................... 59
Mascott, Jennifer................................................ 11
Prepared statement........................................... 64
Vladeck, Professor Stephen I..................................... 13
Prepared statement........................................... 70
Responses to written questions............................... 116
MISCELLANEOUS SUBMISSIONS
Above the Fray Report............................................ 250
Alliance for Justice, September 28, 2021......................... 137
American College of Obstetricians and Gynecologiest, September
29, 2021....................................................... 126
Americans United for Life, September 29, 2021.................... 172
Amicus Brief, Dobbs v. JWHO ACOG................................. 194
Captured Courts.................................................. 240
Constitutional Accountability Center, September 29, 2021......... 140
Deeds Not Words, Braelynn Barborka, Student...................... 188
Deeds Not Words, Genevieve Villa, Student........................ 147
Deeds Not Words, Natalie Leyva, Student.......................... 159
Freedom from Religion Foundation, September 29, 2021............. 169
LGBTQ Organizations, September 29, 2021.......................... 153
NARAL Pro-Choice American........................................ 190
Physicians for Reproductive Health, September 29, 2021........... 165
Planned Parenthood Federation of America and Planned Parenthood
Action Fund, September 29, 2021................................ 161
Project on Government Oversite (POGO), September 29, 2021........ 150
Statement of NARAL Pro-Choice, September 29, 2021................ 122
Students for Life................................................ 168
Texas House of Representatives, October 6, 2021.................. 180
Unrig the Courts, September 28, 2021............................. 186
TEXAS'S UNCONSTITUTIONAL ABORTION BAN
AND THE ROLE OF THE SHADOW DOCKET
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WEDNESDAY, SEPTEMBER 29, 2021
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., in Room
216, Hart Senate Office Building, Hon. Richard J. Durbin, Chair
of the Committee, presiding.
Present: Senators Durbin [presiding], Leahy, Whitehouse,
Klobuchar, Coons, Blumenthal, Hirono, Booker, Padilla, Ossoff,
Grassley, Cornyn, Lee, Cruz, Sasse, Hawley, Cotton, and
Blackburn.
OPENING STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Chair Durbin. This hearing will come to order.
I welcome the witnesses and say to my colleagues that we
have a roll call vote scheduled to start at 10:30 with a
liberal voting period to follow, so there may be a brief
interruption while Members go off to vote and return. I want to
apologize to the witnesses for any inconvenience it might cause
them.
Today the Committee will examine Texas's S.B. 8, which
Justice Sonia Sotomayor described as ``a flagrantly
unconstitutional law engineered to prohibit women from
exercising their constitutional rights and evading judicial
scrutiny.'' S.B. 8 attacks the Supreme Court's long-established
precedent in Roe v. Wade. It effectively bans nearly all
abortions in Texas, even in cases of rape and incest. It uses a
civil lawsuit, a bounty hunter style enforcement scheme that
was designed to insulate the law from judicial review. Chief
Justice John Roberts would have blocked the law from taking
effect, calling the bounty hunter system, quote,
``unprecedented.'' But at midnight on September 1st, after
skating through on the Supreme Court shadow docket, Texas's
S.B. 8 became the law in the Nation's second-largest State,
stripping away constitutional rights for millions of Texans who
live there.
I'd like to show a brief video about this Texas law and
what is at stake.
[Video played.]
For nearly half a century, there's been a concerted
campaign to undermine the Supreme Court's ruling in Roe v. Wade
that women have a constitutional right to an abortion.
Opponents of Roe have tried a range of legal tactics over the
years to undermine this right, but past attempts by States to
pass pre-viability abortion bans have been stopped by Federal
courts, which have blocked the States from enforcing these
unconstitutional laws.
The architects of S.B. 8 took a new approach. Instead of
having the State enforce an extreme abortion ban, they put the
enforcement in the hands of private citizens who can be
rewarded with a bounty of not less than $10,000. $10,000 is
often publicized as what's at stake here. The statute expressly
says not less than $10,000, court costs, and attorneys' fees.
People who aid or abet, under the statute, an individual in
obtaining an abortion in Texas, can now be sued by anybody and
everybody under this bounty hunter system. A disbarred attorney
in Illinois has been one of the early plaintiffs who brought a
lawsuit. One San Antonio doctor has been sued multiple times
for providing an abortion to a woman who was in her first
trimester.
This type of private vigilante enforcement scheme is
unprecedented. Texas lawmakers paired it with a clearly
unconstitutional abortion ban, in the hopes that it would
shield the law from judicial review on the basis of
jurisdictional questions about who could be sued to block the
law. A group of healthcare providers did sue State officials in
Texas to try to block the law from taking effect, and a Federal
district court scheduled a preliminary injunction hearing for
August 30th. On August 27th, the Fifth Circuit Court of Appeals
stepped in and, without explanation, stopped all district court
proceedings. The providers had no choice but to seek emergency
relief from the Supreme Court with the clock ticking. This
brings us to the role of the Supreme Court shadow docket.
The shadow docket is a set of decisions and orders that the
Supreme Court issues outside of its merits docket. These
decisions are often rendered on short timetables with full
briefing, public deliberation, and detailed--without full
briefing, public deliberation, detailed explanation, or even
signed opinions. In recent years, the Supreme Court has started
to use the shadow docket for more political and controversial
decisions, with results that appear on their face to be
ideologically driven. A premise of the shadow docket is that
emergency injunctions should be granted only when the party
seeking relief is likely to prevail and irreparable harm is
likely to result if the temporary relief is not granted.
Recently, Justice Breyer in the Supreme Court, published a
book in which he argued that it's wrong to characterize this
Court as political. Justice Amy Coney Barrett appeared at the
McConnell Center at the University of Louisville to make the
same argument and to, quote, ``convince us that this Court is
not comprised of a bunch of partisan hacks.'' Listen to the
numbers on the shadow docket and draw your own conclusion.
Between 2001 and 2017, under the presidencies of President
George W. Bush and Barack Obama, there were eight shadow docket
opinions in that 16-year period of time. Eight. When President
Trump's Justice Department requested emergency relief on the
shadow docket--36 requests by the Trump Justice Department--the
Supreme Court granted it in 28 instances: 28 out of 36. In the
case of S.B. 8, you had a law that is clearly unconstitutional
under Supreme Court precedent. There was no question that if
the law were allowed to stand, irreparable harm would be done
to countless Texans who would be denied reproductive
healthcare. Granting an emergency injunction to stay the law
while lower court proceedings proceeded would've been an
appropriate use of the shadow docket. Yet, on August 30th, the
Court did nothing as the clock struck midnight, and Texas's law
went into effect. Only later, the next night, did the Court
issue a one-paragraph opinion saying they had declined to stay
the law because of its complex and novel procedural questions.
In her dissent, Justice Sotomayor made clear what happened.
She said, quote, ``The Supreme Court has rewarded the State's
effort to delay Federal review of a plainly unconstitutional
statute enacted in disregard of the Court's precedents through
procedural entanglements of the State's own creation.'' In
other words, the S.B. 8 scheme worked.
This may sound like some abstract legal debate. It's not.
The Court's handling of S.B. 8 had a dramatic real-world
impact. There are millions of people who, last month, could not
exercise their fundamental reproductive rights in Texas. Could
before, and now they can't. We now have two dangerous new
precedents to contend with. First, with S.B. 8, Texas has
created a model to undermine constitutional rights by using
bounty hunter enforcement schemes. We are already seeing
lawmakers in other States racing to copy that model. That
should trouble anyone who cares about constitutional rights and
orderly enforcement.
Second, the Supreme Court has now shown that it's willing
to allow even facially unconstitutional laws to take effect
when the law is aligned with certain ideological preferences.
Constitutional rights for millions of Americans should not be
stripped away in the dark of night, even at the Supreme Court.
That is exactly what happened when the architects of S.B. 8 did
their bidding--pardon me, when the Supreme Court did their
bidding at midnight on September 1st and the Supreme Court
allowed it.
It's already too late for many Texans, whose rights have
been suspended and who have been forced to leave the State to
seek reproductive healthcare the Constitution has already
guaranteed them, but it is not too late for the rest of the
country and the Court to change course.
I want to thank our distinguished panel of witnesses for
joining us today, and I now turn to Ranking Member Grassley for
opening remarks.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. Thank you, Chairman. We're having a
hearing today because the Supreme Court did something very
ordinary. I'd like to say that again so it sinks in. We're
having a hearing because the Supreme Court did not do something
extraordinary. It declined to intervene on exceedingly
expedited basis while reserving judgment on complex legal
issues.
Much of the talk about the case has referred to the Court's
so-called shadow docket. For a long time, the Court and its
practitioners have called this the emergency docket because it
is designed so the Court can provide relief in emergencies. A
good amount of these orders have historically dealt with last-
minute death penalty appeals, but we didn't hear complaints
from the liberals in the Senate about the docket for those
cases. Rather than rely on a catchy name invented by a law
professor, let's look at what the Supreme Court actually said
in its decision September 1.
In that case, the plaintiffs waited several months to sue
after the law was passed, so the Court did not have much time
to work through the legal issues in the case. Having not
succeeded in the lower courts, the plaintiffs asked the Supreme
Court to grant them emergency relief. A majority of the
justices on the Supreme Court said that the abortion providers
had raised serious constitutional questions. They did not
prejudge the issue, but they acknowledged that the plaintiffs
had a serious case. The Court also said that the case raised
novel procedural issues. It noted that under current precedent,
it was not clear that the plaintiffs could sue the defendants.
The Texas Heartbeat Act specifically prohibits several of the
defendants from enforcing the law. Instead, private parties can
do so in court.
The majority noted that this system raised novel legal
issues, and everyone seems to agree on that point. The Supreme
Court said that it wanted the lower courts to address these
novel issues before the Supreme Court addressed them. There are
also at least 14 suits in State court and the Federal
Government suit against Texas. The courts are addressing the
legal issues on an expedited timetable. Those cases will work
through the lower courts.
I'm looking forward to hearing more from our witnesses
today about how the Supreme Court's decision fits with this
normal practice. Before I listen to that, I also want to talk
about why we're having this hearing right now. The Texas
Heartbeat Act was signed into law, May. There are hearings in
State and Federal courts this week and next about whether
courts should grant relief. The abortion providers just asked
the Supreme Court to provide the case or to take the case on
the merits, without wanting--or waiting for a court of appeals.
Why are we having this hearing at the last week of
September? It's because the Supreme Court starts hearing cases
next week. This term, the Supreme Court has agreed to hear a
case about a Mississippi law on abortion. The law protects the
lives of unborn children by prohibiting abortions after 15
weeks except for medical emergencies. Mississippi said it
enacted the law to protect the health of mothers, the dignity
of the unborn, and the integrity of the medical profession. Of
the 59 countries that permit elective abortions, more than 75
percent do not allow elective abortions past 12 weeks of
gestation, but abortion activists are worried that the Supreme
Court might agree that States can regulate abortion at 15
weeks. Liberal dark money groups are also worried about that
result, and they believe that a public campaign can influence
the Supreme Court's decisions. These groups have been publicly
celebrating polls that show that the public's trust in the
Supreme Court has dropped.
Why do polls show that public confidence may be decreasing?
It's because of dark money groups like Demand Justice are
running multi-million-dollar partisan smear campaigns against
our Supreme Court. It also is because Senators on the other
side have threatened the Supreme Court. They've called out
justices--they've done it by name--and said that those justices
will pay the price if they ruled the wrong way. If the justices
reached the wrong result, they were told, quote, ``You won't
know what hit you if you go forward with these awful
decisions,'' end quote. Other dark money groups, partisans, and
activists undermine the Court by claiming that Justice
Barrett's confirmation was an illegitimate process, because one
of the Democrat witness--including one of the Democrat
witnesses we have today.
Democrats and partisan dark money groups love to predict
the future. They certainly don't lack confidence in their
predictions, but those predictions are not very good. Democrats
claimed that voting for Justice Barrett was voting, quote, ``to
strike down the Affordable Care Act and eliminate protections
for millions of Americans with pre-existing conditions,'' end
of quote. Judge Barrett, according to them, was a judicial
torpedo aimed at those protections from Obamacare. That scared
a lot of Americans, but it sure wasn't true, because Barrett
joined the Court's 7-to-2 majority that upheld that law.
Some Democrats have said the courts need to, quote,
unquote, ``heal itself'' before the public demands that the
Court be restructured in order to reduce the influence of
politics. That's a fancy way of saying that if the rulings
don't change, they'll try to pack the Court. This campaign
against the Court and against individual justices has hurt the
public. The dishonest rhetoric doesn't help the American people
understand the issues. I'll continue fighting against the
partisan efforts by dark money groups to attack our judicial--
judiciary.
There is one final point I want to raise today before we
hear from the witnesses. The House of Representatives just
passed a bill that could allow abortion on demand. It would
preempt numerous pro-life State laws, and it would throw out
the protections of the Religious Freedom Restoration Act. If
Democrats truly believe that the Court will overrule Roe, they
should have a hearing on that bill in the--this Committee. The
American people would see how radical that bill is. Contrary to
the outlandish claims by abortion activists, the Supreme Court
did not overrule Roe. I think our witnesses today will explain
this and offer some much-needed information about the role of
the emergency docket of the Supreme Court. Thank you.
Chair Durbin. Thank you, Senator Grassley. I don't know
that there was anything sinister or conspiratorial about
scheduling this hearing. I don't know how anyone could ignore
the fact that this has been the subject of a national debate
about Roe and the issue of abortion. This Committee is charged
with the responsibility of oversight of agencies, and the
consideration of any measures relative to the Roe v. Wade, I
think, is our responsibility, and there was nothing sinister in
selecting this date for the hearing.
Today, we welcome five witnesses. I want to thank them for
joining us. Let me briefly introduce each. Our first witness is
State Representative Donna Howard of Texas. She's been in the
Texas House of Representatives for 15 years, representing
Travis County, chairs the Texas Women's Healthcare Caucus,
serves on the State Affairs and House Appropriations Committee.
Representative Howard holds a bachelor's degree in nursing, a
master's degree in health education from the University of
Texas at Austin, and previously served on the boards of the
Texas Nurses Association and the Texas Public Health
Association.
Edmund LaCour currently serves as solicitor general of the
State of Alabama. He has served in the Alabama attorney
general's office since 2018. Prior to that, worked for the
Washington firm of Kirkland, Ellis & Bancroft, and the Houston,
Texas office of Baker Botts. He received his BA from Birmingham
Southern College, his JD from Yale Law School, and clerked for
Judge William Pryor in the Eleventh Circuit.
Fatima Goss Graves is the president and CEO of National
Women's Law Center. She's worked at NWLC for over 10 years on a
broad set of issues central to women's lives, including income
security, health and reproductive rights, education access, and
workplace fairness. Received her BA from UCLA, her JD from
Yale, clerked for Judge Diane Wood on the Seventh Circuit.
Professor Jennifer Mascott is an assistant professor of law
and co-executive director of the C. Boyden Gray Center for the
Study of Administrative State at George Mason University's
Antonin Scalia Law School. Her scholarship focuses on
administrative law, Federal courts, and constitutional law.
Previously worked as Associate Deputy Attorney General and as
Deputy Assistant Attorney General in the Office of Legal
Counsel, received her JD from George Washington U. Law School,
clerked for Justice Clarence Thomas and for then-D.C. Circuit
Judge Brett Kavanaugh.
Professor Stephen Vladeck holds the Charles Alan Wright
Chair in Federal Courts at the University of Texas Law School.
He joined the Texas faculty in 2016, after previously teaching
at the University of Miami Law School and American University
Washington College of Law. He's argued multiple cases before
the Supreme Court and is a nationally recognized expert on
Federal courts and constitutional law. Received his BA from
Amherst, his JD from Yale Law, clerked for Ninth Circuit Judge
Marsha Berzon, and Eleventh Circuit Judge Rosemary Barkett.
The mechanics of today's hearing is the usual. After we
swear in each witnesses, we will have 5 minutes for opening
statements. Then we will turn to questions from Senators, and
each Senator will have 5 minutes. Senator Klobuchar has asked
for special permission to be recognized early so she can attend
the funeral service for our late Susan Bayh, wife of a former
colleague. We'll make that accommodation, certainly, for her.
Let me ask all the witnesses to please rise for the oath.
[Witnesses are sworn in.]
Let the record reflect that the witnesses answered in the
affirmative. Representative Howard, you're first.
STATEMENT OF DONNA HOWARD, TEXAS STATE
REPRESENTATIVE, DISTRICT 48, CHAIRWOMAN,
TEXAS WOMEN'S HEALTH CAUCUS, AUSTIN, TEXAS
Representative Howard. Thank you. Donna Howard, State
Representative from Austin, Texas and chair of the Texas
Women's Health Caucus. I'm here today to provide an overview
and discussion of Senate Bill 8 and its impacts on Texans.
It's important to understand that S.B. 8 was preceded by
policies and legislation that reduced access to care by
creating medically unnecessary obstructions to healthcare. A
quick summary of how we got here: Following the 2010 elections,
when the Tea Party was able to secure a supermajority in the
Texas House, there was an immediate effort to prevent
healthcare providers who performed abortions from participating
in the State's women's health program, by cutting the budget
for women's health by two-thirds, and by creating a tiered
system that was intended to capture such providers as Planned
Parenthood. Unfortunately, there was significant collateral
damage in that the policy also captured faith-based clinics,
academic-based clinics, community clinics, and more and
resulted in the closure across the State of at least 80
clinics. The safety net had been shattered, and it has taken
years to try to build back a system that would serve at least
as many Texans as were served prior to the 2011 cuts.
During that same session, a bill was passed requiring a
transvaginal sonogram being performed between 24 and 72 hours
before an abortion could be performed. Subsequent restrictions
were passed in following sessions that created more obstacles,
including efforts to require medically unnecessary standards
for providers and facilities, prohibiting insurance coverage of
abortion, and weakening the use of FDA-approved guidelines for
administration of safe abortion medications.
S.B. 8 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. Here's a brief timeline
of how this bill denies access to 85 to 90 percent of those who
are seeking to terminate an unwanted pregnancy. First, it's
important to understand that 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.
Developmentally, the embryo has no beating heart at six weeks'
gestation, but cardiac cells that emit electrical activity can
be amplified by a transvaginal sonogram and translated into a
whoosh, whoosh sound as early as 6 weeks' gestation, which is
actually four weeks of pregnancy, which is only two weeks past
a missed period if you happen to have regular periods and keep
up with them, which means before many even know they are
pregnant. Someone could become pregnant unknowingly and
unintentionally, as contraceptives are not 100 percent
effective. There are, of course, also unwanted pregnancies as
the result of assaults, domestic violence, and incest.
Regardless, when someone suspects they might be pregnant,
they are already past four weeks' gestation, which is measured
from the first day of the last menstrual period, likely at
least five weeks' gestation, at the earliest. They then must
get an appointment to confirm their pregnancy, make the very
personal and intimate decision about whether abortion is the
option they want to pursue, make an appointment to receive the
initial required sonogram, and then come back to the same
doctor 24 to 72 hours later to receive another transvaginal
sonogram to determine whether there is cardiac activity, before
they can actually receive their abortion. The clock runs out
for most, forcing them to carry a pregnancy that they did not
want.
Enforcing the implementation of S.B. 8 has been given to
private actors without standing who can sue for a minimum of
$10,000, opening up the possibility of the most frivolous of
frivolous lawsuits, and has had a chilling effect on doctors
being able to deliver the necessary medical care that they've
taken an oath to provide. I've heard reports of doctors leaving
our State, when we already have a shortage. 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
determine medically justifies pregnancy termination but have 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. This is
not an option for at least half of those seeking abortion, who
do not have the resources to travel for days to meet the out-
of-State requirements or to arrange childcare or take off work
and be docked. Those most vulnerable and who could potentially
incur significant economic hardships with being forced to carry
an unwanted pregnancy are most impacted by S.B. 8.
As someone who came of age pre-Roe v. Wade, it was--when it
was not only illegal to get an abortion but also to get
contraceptives, I can tell you I am very concerned about going
back and erasing all the progress we've made over the past
century. Women's ability to pursue education and employment
opportunities over that time has been greatly enhanced by the
ability to have autonomy over their own bodies, something that
men enjoy despite the fact that they share 50 percent of the
responsibility for the pregnancy but oftentimes zero percent of
the consequences.
This is about personal freedom and respecting that women
know what is best for them, their family, and their destinies.
This is about healthcare and trust in the doctor-patient
relationship. This is about giving women control over their
very lives without Government interference. Thank you.
[The prepared statement of Representative Howard appears as
a submission for the record.]
Chair Durbin. Thank you, Representative Howard. Now, Mr.
LaCour.
STATEMENT OF EDMUND GERARD LACOUR, JR.,
SOLICITOR GENERAL, ATTORNEY GENERAL'S
OFFICE, ALABAMA, MONTGOMERY, ALABAMA
Mr. LaCour. Mr. Chairman, Ranking Member Grassley, and
distinguished Members of this Committee, thank you for inviting
me to testify about the U.S. Supreme Court's emergency
proceedings. I'm honored to be here.
My name is Edmund LaCour, and I'm the solicitor general of
Alabama. In that role, I litigate before Federal and State
courts on behalf of my home State. Many of our cases involve
time-sensitive matters and requests for emergency relief made
either by the State or by our opponents, and many of these
cases have gone before the Supreme Court. I thus have firsthand
experience with the high Court's non-merits docket and, in
particular, its emergency proceedings.
In my time before you this morning, I would like to make
three points. First, the term ``shadow docket,'' though
evocative, is ultimately inapt. As the Committee is aware, this
phrase was coined by law professor Will Baude, who used the
term to refer to the thousands of non-merits decisions the
Supreme Court makes each year. But current conversation about
the so-called shadow docket has largely narrowed in scope to
refer almost exclusively to the Court's emergency proceedings.
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. While these emergency proceedings are
often fast paced, the reality is that litigation sometimes
presents emergencies that require emergency action from
whatever court is called upon to judge the matter.
Second, the Court's decisions in emergency proceedings,
though often offering less guidance for non-parties than most
merits opinions, typically serve the parties well. Two of
Alabama's recent cases illustrate the point. The first case,
People First of Alabama v. Merrill, required the State to seek
emergency relief from the Supreme Court. Though the Supreme
Court has long warned lower courts against changing voting laws
on the eve of an election, because such last-minute changes
create risks of voter confusion, a Federal district court
nevertheless changed important Alabama voting laws weeks after
absentee voting had already begun. The Supreme Court rightly
stayed the lower court's injunction and allowed Alabama to
again enforce its laws.
The other case, Dunn v. Smith, did not go Alabama's way,
but also illustrates the importance of the emergency docket.
Willie Smith is a death row inmate who was scheduled for
execution earlier this year. He asserted that the State's
execution safety protocol violated his religious liberty rights
because the protocol did not allow for his pastor to accompany
him into the execution chamber.
Alabama and the district court disagreed with Smith, but 24
hours before his scheduled execution, a divided Eleventh
Circuit panel granted Smith an injunction. The State thus filed
an emergency application with the Supreme Court, seeking a
stay. Both sides were able to brief our arguments and submit to
the Court the crucial information it needed to issue a
thoughtful ruling, given the emergency posture of the case.
While I think Alabama presented a strong case, a majority of
the justices ultimately rejected it.
Though the order was not accompanied by a lengthy majority
opinion, the stay made clear that the State would either need
to alter its execution protocol or delay Smith's execution
while pressing on through the normal appellate process, and a
thoughtful concurrence from Justice Kagan improved the State's
understanding of the burdens it would likely need to satisfy
going forward. Many of the Court's emergency docket decisions
fit this mold.
Finally, the recent emergency docket decisions that have
garnered attention from the Committee are less remarkable than
some have suggested. Most notably, the Court's recent decision
in the Texas S.B. 8 litigation, to deny the plaintiff's request
for an injunction, was an entirely ordinary ruling. After all,
one thing most everyone agrees on about S.B. 8 is that it
raises unprecedented and difficult jurisdictional questions. It
thus would have been extraordinary had the Court granted an
injunction against the defendants when it was highly doubtful
the Court even had authority to act.
I'd like to thank you again for the opportunity to offer
testimony today. I hope that what I offer is useful, and I'm
happy to answer any questions Members of the Committee may have
for me. Thank you.
[The prepared statement of Mr. LaCour appears as a
submission for the record.]
Chair Durbin. Thank you, Mr. LaCour. Ms. Graves.
STATEMENT OF FATIMA GOSS GRAVES,
PRESIDENT AND CEO, NATIONAL WOMEN'S
LAW CENTER, WASHINGTON, DC
Ms. Graves. Chairman Durbin, Ranking Member Grassley, and
Members of the Committee, thank you for the invitation to
testify today. My name is Fatima Goss Graves, and I'm president
and CEO at the National Women's Law Center. I'm here today
because both our right and access to abortion are at a perilous
crossroads. With that, our liberty and our equality are in
crisis, as well, because with every attack on our fundamental
human right to reproductive healthcare, including abortion
care, each of those values erode. A right without access is a
right denied. Abortion opponents know this and have mounted
their offense since Roe was decided and have dramatically
increased those efforts over the last three years.
In 2021, they introduced more than 560 restrictions and
passed more than 90. Those laws forced clinics to close, they
caused delays in receiving care, and effectively denied access
to constitutionally protected healthcare. These laws are also
dangerous, threatening patients' health and well-being and
financial security. This is all by design. As the Court has
tipped more and more into an anti-abortion majority that it is
today, the attacks escalated, and the State laws became more
brazen and the methods more insidious. Make no mistake,
abortion opponents want the Court to overturn Roe, and that
goal may be in reach.
On December 1st, the Supreme Court will hear oral argument
in Dobbs v. Jackson Women's Health Organization, a case about
the Mississippi ban on abortion after 15 weeks in pregnancy,
and it presents a direct challenge to both Roe and Casey. Even
as that case has been pending, abortion opponents sought to
accelerate the elimination of abortion access. Texas S.B. 8 was
written to ensure that its 6-week ban on abortion would evade
judicial review and quickly go into effect. In a shadow docket
ruling in the middle of the night, without full briefing,
without oral argument, five Supreme Court Justices allowed
Texas to effectively shut down legal abortion in the State.
The dramatic shift in the law, limiting our very access to
the Constitution, was ushered in under the guise of procedure,
but this is not a ruling with a mere technical outcome. S.B. 8
is having its intended effect. As a result of the law, abortion
providers in the State have stopped providing nearly all
abortion after six weeks.
To be clear, laws like S.B. 8--they don't eliminate the
need for abortion. They simply remind us of the indignity of
not being afforded our full constitutional protections. Bearing
the brunt of this law will be Black and Indigenous and Latinx
individuals who are disproportionately likely to live in
poverty in Texas. Bearing the brunt will be workers who cannot
afford to get time off of work or the additional expenses now
required to access abortion if you live in Texas. It will be
mothers who need to line up extra childcare and add more
expenses to an already broken system, and it will be the person
who lives in rural areas like the Rio Grande Valley,
particularly someone who is an immigrant without documentation,
who just won't be able to make the arduous trip out of State.
What is happening in Texas is the result of the horrifying
outcome of a decades-long campaign by anti-abortion State
lawmakers. After nearly 50 years, the Supreme Court has
effectively overturned Roe for 1 in 10 women of reproductive
age in this county. If you can upend our constitutionally
protected right to abortion in a one-paragraph opinion, where
does it end? If that seems like a reach, I'd just like to
remind everyone that the moment we are in, a few years ago
seemed like a reach, and yet here we are.
We need Congress to protect the right to abortion and pass
laws like the Women's Health Protection Act that protect and
expand abortion access. I'm asking all of you here today, and
really everyone in this country as a whole, to see the reality
of this moment for what it is and the tremendous loss of
liberty, equality, and justice that we face if we do not stop
it. Thank you.
[The prepared statement of Ms. Graves appears as a
submission for the record.]
Chair Durbin. Thank you very much, Ms. Graves. Now
Professor Mascott, please.
STATEMENT OF JENNIFER MASCOTT, ASSISTANT
PROFESSOR, ANTONIN SCALIA LAW SCHOOL,
GEORGE MASON UNIVERSITY, ARLINGTON, VIRGINIA
Professor Mascott. Good morning, Chairman Durbin, Ranking
Member Grassley, Members of the Committee. Thank you for the
invitation to testify today on Supreme Court jurisdiction and
the Court's orders dockets. I'm a professor at Scalia Law
School, where I teach and write in the areas of constitutional
law and the separation of powers. My testimony will address the
recent emergency motion on the Texas Heartbeat Act and then
touch on general trends in Supreme Court resolution of non-
merits matters.
On September 1st, the Supreme Court declined to issue an
order enjoining application of the Texas Heartbeat Act, and
that decision was consistent with longstanding Federal
jurisdictional doctrines related to questions of standing,
State sovereign immunity, and the constitutional limitation of
the Federal judicial role to resolving cases and controversies.
In light of these complex issues and the lack of a present
concrete dispute involving the defendants in the litigation, it
would have been extraordinary for the Court to grant an order
on the merits of the challenged State law. The Court's decision
not to intervene maintained the pre-litigation status quo.
This hearing will examine, in part, the recent pace of the
Supreme Court's issuance of orders without merits briefing, but
such an order was not issued in the Texas case. Unlike in past
cases where the Federal Government has sought relief from
immediate injunctions against its policies, there are serious
jurisdictional questions here whether a court could provide any
effective relief in Whole Women's Health v. Jackson.
The petitioners sued several State defendants who lack any
role in enforcing the Texas statute: a private party, a county
judicial clerk, and one State court judge. None of those
defendants had taken any action to enforce the Texas law's
private remedy, and petitioners have not established any basis
on which a Federal court would have the power to issue an order
at this time enjoining action by any of them. The litigants and
commentators here have not identified a specific party yet
against which the Court could have issued an order in this
case.
Over the last part of the 20th century, as Federal courts
routinely stepped in to make it their business to review
legislative policy determinations, the American public grew
more accustomed to thinking of Federal courts as general
arbiters of fair policy, but the founders and jurists
throughout most of the Nation's history understood that courts
have such a powerful role when they issue final resolutions in
cases that judicial review should be exercised with great care.
Article III of the Constitution limits the Federal judicial
role to resolution of cases and controversies against
particular parties. The drafters and ratifiers of the
Constitution rejected proposals for a general council of
revision to review abstract legal questions, and the Court's
repeatedly reaffirmed, over hundreds of years, its lack of
power to issue advisory opinions. It should not, and really
lawfully cannot, generally review legislation or provide legal
guidance outside the context of concrete disputes.
In the U.S. representative republic structure, Federal and
State legislatures bear general responsibility for
policymaking, to help ensure that laws regulating citizens
represent the interests of the electorate. The Federal
judiciary has the more modest role of stepping in when laws are
applied in a way that creates a dispute impacting a particular
party who then initiates a case challenging the law, and at the
core of our constitutional structure are principles like the
three-branch separation of powers and federalism, which
preserves a vibrant role for elected State bodies.
One of the constitutional principles preserving that
structure is State sovereign immunity. That immunity
encompasses both suits against States and various State
officials, and in the well-established precedent of Ex parte
Young, the Supreme Court dismissed a suit for lack of
jurisdiction where none of the State officers held any special
relation to the particular statute alleged to be
unconstitutional. The Court noted none of the officers had been
expressly directed to enforce the law, and so litigation
couldn't serve as a vehicle to bring a general challenge to the
law's constitutionality.
In light of these principles, the Supreme Court noted
complex and novel antecedent procedural questions in Whole
Women's Health. The Court acknowledged applicants had raised
serious constitutional questions but also that review of the
merits of the law wouldn't be appropriate in the current
posture. This determination was consistent with the Court's
lack of power to generally review or enjoin laws themselves, in
contrast to the judicial power to enjoin individuals tasked
with enforcing laws.
Moving for a moment to the Court's orders docket more
generally, maintenance of such a docket is typical for a
judicial body. It's a longstanding practice of the Court.
Recently, as folks here have said, the Court's orders docket's
received more attention because of a well marketed, smart law
review article coining the edgy phrase ``shadow docket.'' There
really isn't anything shadowy about it, in the sense that
briefs and decisions on the docket are publicly posted and,
like many courts, the Supreme Court uses that docket to resolve
a number of types of matters, like denials of cert petitions,
requests for stays of executions, and increasingly, review of
district court-ordered nationwide defendant-oriented
injunctions. Use of such a docket generally is fairly routine,
and if there's concern about it, the best solution would be for
more policy-based decisions across the board to be left up to
State and Federal legislatures.
Here, with the Texas law, the Supreme Court likely lacked
jurisdiction at this time, and its decision to decline to reach
out and take the case anyway preserved the pre-litigation
status quo. Thank you.
[The prepared statement of Professor Mascott appears as a
submission for the record.]
Chair Durbin. Thank you. Professor Vladeck.
STATEMENT OF PROFESSOR STEPHEN I. VLADECK,
CHARLES ALAN WRIGHT CHAIR IN FEDERAL COURTS,
UNIVERSITY OF TEXAS SCHOOL OF LAW, AUSTIN, TEXAS
Professor Vladeck. Mr. Chairman, Senator Grassley, Members
of the Committee, thank you for the invitation to testify
today. I want to use my remarks this morning to explain why
S.B. 8 and the Supreme Court shadow docket have far more in
common than simply their intersection in the Court's 5-to-4
ruling on September 1st. In different but powerfully related
ways, they both have ominous implications for the rule of law.
Taking S.B. 8 first, what cannot be stressed enough is the
extent to which the law is carefully and deliberately designed
to insulate from judicial review Texas's ban on virtually all
abortions after the sixth week of pregnancy. Through an array
of cynical procedural contrivances, a State legislature
succeeded in depriving millions of people of their Federal
constitutional rights, and with every day that passes, a
growing number of those same individuals are being permanently
deprived of their rights.
It should go without saying, Mr. Chairman that our
constitutional rights can't and shouldn't be left to the whims
of 50 different State legislatures, even if we might disagree
as to what those rights are. As this Committee knows well,
that's one of the central reasons why the Constitution creates
an independent Federal judiciary. And yet too many people who
ought to know better have no problem with what Texas has done
or throw their hands up simply because they think that Roe and
Casey were wrongly decided. The mindset appears to be that the
ends justify the means, even if the means would leave 50 State
legislatures, rather than one Supreme Court, in charge of
deciding what our constitutional rights mean.
In broader strokes, one can say much the same thing about
the Supreme Court's growing reliance on the aptly named shadow
docket to hand down cryptic decisions affecting millions of
people. As I note at length in my written testimony, far more
often than ever before, the Justices are granting emergency
relief that either freezes Government policies or allows
policies that were frozen by lower courts to go back into
effect. What's more, they're doing so through unsigned, mostly
unexplained, and often inconsistent rulings. Rulings that they
are simultaneously instructing lower courts to treat as
precedential. Anyone who suggests that there's nothing new
under the sun is missing the fact that the Supreme Court had
never previously said these orders were precedential, that it's
never previously had as many as we've seen.
To be clear, it's not the volume by itself that's the
problem. It's that more and more of these rulings are directly
and permanently shaping State and Federal policies and not just
narrowly and temporarily adjusting the status quo between two
parties to a dispute, such as the death penalty case Mr. LaCour
referred to. This practice has become so pervasive that it's no
longer possible to explain it away as a momentary aberration or
a response to any one external catalyst like nationwide
injunctions. For a Court that expressly defines its legitimacy
by its ability to offer principled justifications for its
decisions, its inability--indeed, its refusal--to do so on the
shadow docket has equally troubling implications for the rule
of law.
Here, again, as with S.B. 8, defenders of the Court's
efforts gravitate toward the bottom line, brushing away these
mounting process-oriented objections as trivial or as
terminological or as bad-faith criticisms by progressives who
are simply unhappy with the results. The not-so-subtle
implication is that so long as the Court is getting the merits
right, the procedures that the Justices follow or the
persuasiveness of their explanations simply don't matter.
That's where the Supreme Court's non-intervention in the S.B. 8
case is so revealing. It's not just that the Court declined to
stop S.B. 8 from going into effect, and it's not just that the
only justification the majority offered was a cryptic paragraph
presenting a single procedural question as if it were three
distinct procedural obstacles. It's that this was the same
five-Justice majority that ran right past even more significant
procedural roadblocks to enjoin multiple State COVID mitigation
policies on religious liberty grounds in three prior shadow
docket rulings over the last nine months, rulings that neither
Mr. LaCour nor Professor Mascott have mentioned this morning.
Not only was the Court's barely explained non-intervention
in Texas flatly inconsistent with its repeated interventions in
California and New York, but in the process, the Court rewarded
Texas for its cynicism, where the State's contrived procedural
complexities became the Justices' stated justification for not
blocking a patently unconstitutional statute. I don't count
myself a pessimist, Mr. Chairman, but it's hard to look at
these developments and be especially optimistic about the
future of our legal institutions.
It's the Supreme Court, not State legislatures, that gets
the final word as to what the Constitution protects, and it's
the Court's obligation to do so through principled decisions
that adequately and consistently explain themselves. It may be
tempting to some to sacrifice these longer-term principles in
the name of short-term victories, but it is, in my view,
irredeemably myopic. As Justice Jackson closed his famous
concurring opinion in the Steel Seizure case, ``Such
institutions may be destined to pass away, but it is the duty
of the Court to be last, not first, to give them up.'' Thank
you, Mr. Chairman. I look forward to your questions.
[The prepared statement of Professor Vladeck appears as a
submission for the record.]
Chair Durbin. Thank you very much, Professor. Senator
Klobuchar.
Senator Klobuchar. Thank you very much, Mr. Chairman. I
appreciate this. Representative Howard, it's good to see you
again. Justice Sotomayor described the Texas law as a
flagrantly unconstitutional law engineered to prohibit women
from exercising their rights. You're a former registered nurse.
You are chair of the Texas House Women's Health Caucus. Can you
briefly say a bit more about what you've seen on the ground in
Texas since the Texas law took effect four weeks ago?
Representative Howard. Yes. Thank you, Senator. We've seen
and heard from constituents across the State about their
inability to access care, trying to get to a clinic before a 6-
week period of time, getting there, having the transvaginal
sonogram, and actually hearing the audible sound and being
turned away. The providers are saying that they're doing crisis
counseling now for these people who are coming with their
unwanted pregnancies, unable to terminate them, and desperate
about what they're going to be able to do.
Senator Klobuchar. If the law causes health clinics to
close, what's the impact on your State?
Representative Howard. It's beyond abortions, because most
of these clinics also provide preventive healthcare for women.
We're talking about a State that already has limited access,
not enough providers, have not expanded Medicaid coverage. We
have very much difficulty now with women getting the healthcare
that they need. This is going to make it even worse.
Senator Klobuchar. Exactly. Ms. Graves, I'm concerned about
what Justice Sotomayor described as the Texas law's creation of
Texas bounty hunter--citizen bounty hunters who are offered, in
her words, ``cash prizes for civilly prosecuting their
neighbors' medical procedures,'' which is exactly what this is.
That's why I'm working with a number of Senators on this
Committee to lead a bill Representative Sheila Jackson Lee is
leading in the House, to allow judges to enhance the penalty
for people who are convicted of stalking women in an attempt to
get their private health information. Can you talk about the
threat to women's safety that is created by the incentives in
the Texas law to collect healthcare-related information?
Ms. Graves. You know, Senator, I share that concern, in
part because abortion access already happens in a backdrop
where there is a long history of vigilante violence without
that bounty, without that incentive. I'm extremely concerned
about the policing of women's bodies in this way by their
neighbors, by strangers, by anyone in the general populace.
Senator Klobuchar. Very good. Along those same lines, can
you say more about how the Texas law is a part of a larger
effort to undermine the protections of Roe v. Wade?
Ms. Graves. One of the things that Representative Howard
had named is that this isn't the first restriction. We have
seen hundreds of restrictions pass over the last decade. In
isolation, one of these types of restriction might harm
someone, might help shut a clinic down, might make it--might
force you to go deeper into your pregnancy or have to travel
hundreds of miles. These restrictions are happening on top of
each other in places like Texas. For many people, abortion is
already out of reach.
Senator Klobuchar. Okay. My last question, Professor
Vladeck, the Texas case is just the most recent example of the
Supreme Court issuing short, unsigned, 5-to-4 decisions without
full briefing or oral argument that directly impact people's
lives. We've actually seen this with voting rights, where one
day before Wisconsin's primary election, the Court issued a 5-
to-4 decision reversing a district court's order which allowed
voters an extra six days to cast absentee ballots in the middle
of a pandemic. Instead, we saw the voters standing in long
lines in garbage bags and homemade masks in a rainstorm. What
does it mean for public confidence in the Court, when it issues
decisions that are so fundamental to people's rights, including
endangering voters' health and undermining women's access to
healthcare, in the middle of the night, on a shadow docket?
Professor Vladeck. I mean, I think it can't do much,
Senator. I think the less the Court explains itself, the harder
it is for the public to have confidence in these decisions,
unless, Senator, all we're doing is tallying up the score and
all we're doing is figuring out who won and who lost. That's
why, you know, in response to the Ranking Member, I guess my
response is, you know, the Court has brought this upon itself.
That if the Court is worried about public confidence, one of
the things it can do is try to restore that confidence by at
least endeavoring to explain its decisions in these contexts
more fully.
Senator Klobuchar. Thank you very much. Thank you, Mr.
Chair.
Chair Durbin. Senator Grassley.
Senator Grassley. Thank you, Mr. Chairman. I'm going to go
with Solicitor LaCour. As you mentioned in your opening
statement, emergency provisions are an important part of the
business of courts. There is nothing unusual about the Federal
court using its equitable power to grant emergency relief to
parties that come before it through preliminary injunctions and
temporary restraining orders. Lower Federal courts do so
regularly. How does the Supreme Court's emergency docket differ
from lower courts decision-making with respect to injunctions
and temporary restraining orders?
Mr. LaCour. Ranking Member Grassley, you're correct that
it--similarly, I mean, with--we've faced TROs from district
courts where we have received the order from the court orally,
from the bench, with no written order, and these are emergency
situations where courts need to act quickly. I think one of the
difficulties the Supreme Court might have that a single
district court judge might not have is that the district court
is writing for himself or herself alone, whereas the Justices
are--have to try to convince at least four of their colleagues,
if not more, to join a particular opinion. I think that is
potentially one reason why the opinions are a bit shorter than
you might get from the merits docket, or sometimes you only get
the order itself, but again, that happens, as well, at district
courts and at courts of appeals.
Senator Grassley. With--same to you. Without the Supreme
Court's emergency docket, how can litigants whose fundamental
rights are at stake seek immediate relief?
Mr. LaCour. They can seek it from lower courts, but there's
no principled reason why the lower court necessarily should
have the last word, as opposed to the highest court.
Senator Grassley. To you, also, in response to a question
for the record, Elizabeth Prelogar, this administration's
nominee to be Solicitor General at the Federal level, suggested
that, quote, ``nationwide injunctions generally exceed district
courts' constitutional and equitable authority,'' end quote. If
the district court issues a nationwide injunction that exceeds
its authority, is it an appropriate use of the Supreme Court's
emergency docket to stay that injunction pending appeal?
Mr. LaCour. I believe it would be, Ranking Member Grassley.
Senator Grassley. Based on your experience litigating cases
before the Supreme Court, do the Court's emergency proceedings
provide parties sufficient opportunity for briefing and
presenting their arguments?
Mr. LaCour. I believe they do. We could always use more
time, but we've been able, oftentimes, in--for example, in the
Dunn v. Smith case I referenced earlier, we had less than 24
hours, but we worked through the night, and we presented a
strong case to the Court, I thought. Mr. Smith's counsel was
able to represent him well, and he ultimately prevailed in that
particular emergency proceeding.
Senator Grassley. Ms. Mascott, why would it be unusual or
problematic for Federal courts to resolve new and complicated
procedural questions in the context of emergency application
for relief?
Professor Mascott. I think here, in the particular motion
involving the Texas case, the question was really whether the
Court had jurisdiction to be able to issue an order against any
of the parties, and I think it--from--it was clear from the
information that it gave us that it had serious questions that
it did, and so it declined, really, to step in and change the
status quo of what had happened in the lower courts in that
case, but recognizing that there were potentially serious
constitutional questions. I think in the discussion today, it's
really important generally to keep in mind that the Supreme
Court does not reach out and control its docket. It's resolving
matters that are brought to it. It's sometimes up through
regular petitions for cert, and then sometimes through requests
for emergency relief.
Again, particularly with the Texas case, that bill was
enacted in May, and litigants waited months to bring the
request. If the Court was rushed in its consideration here,
again, it was responding to the timing of the parties that
brought the matter to it. If folks are concerned here today, it
seems to me the decision there not to step in is--would be
consistent with concerns here that the Court not step in too
quickly.
Senator Grassley. Yes. Last and short question: Can--to
you. Can Federal courts enjoin laws rather than specific
parties? Why or why not?
Professor Mascott. Sure, Senator. Under Article III, the
Federal judicial powers sends just the cases or controversies,
so the Court's got to be acting against specific parties and
specifically does not have the power to generally review
legislation. Thankfully, we have legislative bodies that we can
go to, to, you know, petition for policies to be reviewed and
not look to the Court to answer every policy question for the
country.
Senator Grassley. Thank you. Mr. Chairman.
Chair Durbin. Thanks, Chairman--former Chairman, or my
friend, Senator Grassley.
Isn't this interesting? If you listen to what the witnesses
have said and what's been said on the Republican side of the
table, you wouldn't even know what the nature of S.B. 8 is. For
them, it's just a routine Supreme Court procedural decision. It
has nothing to do with the substance of the bill that was
before the Supreme Court. You have to ignore the statement by
Sotomayor that this was flagrantly unconstitutional, which
ought to give special moment to a decision, whether it's going
to be a shadow docket or a merits docket decision, wouldn't you
think? To argue that this shadow docket is just routine, it
just happens, nothing to see here, move along--the numbers
don't tell that story.
Eight times, in 16 years, the shadow docket was requested
and used by Obama administration and Bush administration. Eight
times, 16 years. Then, when it came to the Trump
administration, 36 times in four years, and the Trump Justice
Department won in 28 cases. When Justice Breyer decides to
write a book, and Justice Barrett decides to go to the
McConnell Center in Louisville, Kentucky and argue that--no
politics, we're just playing them straight, call them as we see
them, and then you look at this. It defies description. Perhaps
now some other Members on the other side will actually try to
defend S.B. 8. I'm anxious to hear it, but so far, not a one.
Let me ask you, Ms. Howard. You were present at the scene
of this legislative crime. When we talk about the liability
under S.B. 8, it's been suggested that including categories of
people who aid and abet in the performance or inducement of an
abortion would be the clinic and its employees, doctors,
receptionists, security guards, relatives or strangers who pay
for the abortion, donors to Planned Parenthood, insurance
companies--they're expressly mentioned in the statute--those, I
suppose, providing transportation to and from the clinic,
counselors, including clergy. If we're talking about the
potential civil liability of a minimum of $10,000, was this
discussed in the Texas House of Representatives, as to the
number of people who would be inadvertently swallowed up in
this law?
Representative Howard. It was absolutely discussed and
debated, but to no avail could we get any change made to that.
We have heard of multiple instances now of, for instance, Uber
or Lyft drivers not being willing to take someone to a Planned
Parenthood clinic. This is something that's--has an extreme
amount of confusion. People do not know if they're going to be
held liable for even counseling. Those that are doing sexual
assault counseling, in particular, are upholding what they know
is appropriate to do in counseling those that come to them, the
survivors, but are absolutely concerned now about what that's
going to mean for liability for them.
Chair Durbin. Long time ago, I used to be a practicing
lawyer, filing civil litigation lawsuits, and this bill has
something in it I have never seen before. The defendant has the
burden to prove that they did not break the law. Not the
plaintiffs proving that the law was broken. They've completely
flipped the burden of proof. If I'm sued, now I have to prove
that I didn't break the law. Think about that for a second.
It's exactly the opposite of normal legal practice. The burden
is on the accused, not on the accuser. Was that discussed when
the Texas House of Representatives debated this law?
Representative Howard. Of course it was discussed, and we
tried to make changes there, as well. The fact is that that's
what I'm hearing from many physicians that I've spoken with,
that they are talking about retiring, leaving the State. They
are somewhat risk averse to begin with, and they're not going
to risk their profession by being sued for something that they
may not have even done. There is--it's absolutely chilling.
Chair Durbin. There's no rape or incest exception in this
law, correct?
Representative Howard. That's correct. That's correct.
Chair Durbin. Except there's one reference to rapists that
I can find, and that reference says that no exceptions for
victims of rape to be able to sue under this law. The Texas
House of Representatives decided, well, we aren't going to
create an incest or rape exception, but wait a minute, we're
not going to let the rapists turn around and sue under this law
and recover from their own victims. Was that discussed in the
Texas House of Representatives?
Representative Howard. Again, yes. We tried to amend that
to get better coverage so that we would make sure that rapists
were not allowed to sue at all. The fact is, though, that
because there's no exception for incest and rape--is egregious
on its face. What it also says to us is that in order for you
to be protected here, if we're going to look at rape and
incest, then we're saying you have to be assaulted first, in
order to get your constitutional rights. This is really--the
entire bill is just egregious.
Chair Durbin. Thank you. I'm going to go off and vote.
Senator Whitehouse is going to preside, and I believe Senator
Cornyn is next.
Senator Cornyn. Thank you, Mr. Chairman. Mr. Chairman, I
would think that if we're going to single out individual States
and individual cities, that we can anticipate a future hearing
on why the city of Chicago has the highest murder rates, among
the highest murder rates in the Nation. I really think it's
inappropriate for the Federal Government, for the Senate
Judiciary Committee, to try to single out individual States,
but you have, and so let's talk a little bit about this.
First of all, I would say this is part of a concerted
effort, really a shameful broadside on the part of our
Democratic colleagues to attack judicial independence. If
there's one thing that distinguishes the United States of
America from other countries, it is the independent judiciary.
When politicians decide to attack judges and courts, it's an
unfair fight because the judges can't fight back. They're not
going to go public and engage in a public debate about their
practices and procedures.
It's clear that this is a part of a concerted effort to
intimidate and bully the members of the Supreme Court. We saw
that with the shameful remarks made by the Senate Majority
Leader from New York, when he actually had a press conference
in front of the Supreme Court and threatened two Justices with
retaliation if they didn't rule the right way. We also have
seen this with the efforts to--or the plans to pack the Court,
to try to achieve a particular political result. Something that
not even the liberal members of the Court have said would be a
good idea, including Justice Ginsberg and Justice Breyer.
I think it's worth noting that, since we're talking about
abortion, that the Declaration of Independence does say, ``We
hold these truths to be self-evident, that all men area created
equal, and they are endowed by their creator with certain
unalienable rights, and among these are life, liberty, and the
pursuit of happiness.'' I would point out that since Roe v.
Wade was decided, approximately 62 million innocent lives were
denied what our Founders said was a self-evident, unalienable
right to life.
During my time in the Senate, I proudly fought to outlaw
abortions after 20 weeks of gestation, which is the time in
which science tells us that an infant can feel pain. The U.S.,
of course, is currently an outlier in the international
community. We are ranked right up there with North Korea and
China as one of the most permissive countries in the world when
it comes to elective abortions because abortion advocates deny
the humanity of unborn, innocent life. I've also supported--
after the Governor of Virginia, a physician, by the way,
shamefully said that the appropriate care for an infant that
was born alive is simply to let that infant die if it was
unwanted, basically embracing infanticide. I was proud to
support the effort to protect the rights of children who are
born after botched abortions, but all of our Democratic
colleagues voted against that.
[Poster is displayed.]
In the meantime, here's what our Democratic colleagues
advocate. This is the bill that was passed in the House by
Speaker Pelosi and House Democrats: prohibits States from
outlawing abortion as a method of gender selection; undermines
State efforts to protect unborn babies with disabilities,
including Down syndrome; restricts State laws protecting a
doctor's right to opt out of an abortion based on a religious
or moral objection; requires States to allow elective abortions
up to 40 weeks, based on one doctor's opinion. I would point
out the Supreme Court has actually held that late-term,
partial-birth abortions can constitutionally be prohibited, but
not under Pelosi's abortion law. Finally, we give the Attorney
General sweeping authority to block State laws protecting the
right to life. Ms. Howard, if given an opportunity to vote yes
or no on this bill, how would you vote?
Representative Howard. Senator, I have not read the bill. I
am obviously part of the Texas legislature and would not have
an opportunity to vote on that bill.
Senator Cornyn. I know you're part of the Texas
legislature, but it seems like Texas Democrats are spending
more time in Washington, DC. these days than they are in
Austin, in spite of the special session. As I've described it
to you, would you support this legislation or not?
Representative Howard. What I support is that this is a
medical situation, a medical determination. It should be
between a doctor and that doctor's patient. It does not----
Senator Cornyn. And does the----
Representative Howard [continuing]. Need to have Government
interference.
Senator Cornyn. Does the unborn infant have any rights at
all?
Representative Howard. I'm sorry?
Senator Cornyn. Does the unborn child have any rights
whatsoever, in your opinion?
Representative Howard. You know, I think we can agree on
the fact that there is potential life. I don't think that
there's consensus, necessarily, around when life begins.
Senator Cornyn. The Supreme Court precedent which
establishes viability roughly at 24 weeks--you're aware of the
fact that when Roe was decided, viability was at 28 weeks,
roughly, but due to advances in medical science, it's now--even
a younger unborn child can be saved? Is viability any less
arbitrary than some of these other events in a fetal
development, like a heartbeat or a quickening, when the baby
first is felt to move in a mother's--in the mother?
Representative Howard. Certainly there are ranges----
Senator Whitehouse. [Presiding.] Senator Cornyn, you're
well over----
Representative Howard [continuing]. Within which these----
Senator Whitehouse [continuing]. Your time allotment, so
we'll--let me let the witness answer, but please----
Senator Cornyn. If you'd let the witness answer----
Senator Whitehouse [continuing]. Respect your colleagues
who are waiting.
Senator Cornyn [continuing]. I'd appreciate it.
Representative Howard. Thank you. I'm saying that there are
ranges in any kind of metrics that you're looking at, if that's
what you're asking me.
Senator Whitehouse. Senator Leahy is next in order. You've
just come in. If you're ready to proceed, you may proceed.
Senator Leahy. I am, and I appreciate that. I was able to
listen to the things as we have been going back and forth. I
guess everybody's been going back and forth for votes.
Professor Vladeck, I'm sure you would agree--in fact, every
lawyer would agree--that we should be able to trust that the
U.S. Supreme Court will honor precedent and protect well
established constitutional rights for everybody. But by
allowing Senate Bill 8 out of Texas to go into effect, the
Court, I believe, through its shadow docket, has caused
irreparable harm to hundreds, if not thousands, who are now
unable to obtain critical healthcare services. Of course Roe
and Casey are dead letter across the State of Texas, and that
affects families working to make ends meet, young women of
color. I'm not questioning the existence of the shadow docket.
My concern is when it's used on very consequential cases that
have nationwide impact and do it in the shadows.
Professor, your testimony discusses the frequency of
applications for emergency relief and how the Court has granted
emergency relief far more often in the last few years. What
trends give you the most concern regarding the Court's growing
reliance on the shadow docket?
Professor Vladeck. Senator, I think the most concerning
parts of the trend, I think, are twofold. First, I think it's
not the volume, by itself, but it is the extent to which the
Court is treating these rulings as much more impactful than
emergency rulings of the past. That instead of, you know,
unsigned orders that don't have any analysis, that no one
expects to have effect beyond the parties to that case, the
Court has actually now gone out of its way to chastise lower
courts for failing to follow unsigned orders. I think that
really ups the ante for the significance of these rulings.
That goes, I think, to why many of the critics--or
defenders of what the Court's been doing really have to
mischaracterize what the criticisms are. It's not about the
volume, and it's not about the fact that we need an emergency
docket. There's not a lawyer out there who would dispute that.
It's that what the Court is doing is having greater impact in
ways that are inconsistent. That, to me, Senator, is where the
S.B. 8 case really is a sharp point of relief. It's not just
that the Court declined to intervene. If we had no significant
shadow docket rulings over the last five years and the Court
declines to intervene in the S.B. 8 case, I think this is a
different conversation. It's against the backdrop of all the
contexts where the Justices did intervene.
Senator Leahy. I worry that it could cause people to lose
faith in the Supreme Court, and I say that as one who's voted
on more Supreme Court Justices than anybody in this room. In
fact, I believe I've voted for more Republican nominees than
any Republican on the Senate Judiciary Committee because I
believe in the integrity and impartiality of the Supreme Court,
but I'm afraid that view is being eroded.
I was thinking, listening to Representative Howard--tell me
a little bit more. I, you know, was a former prosecutor and one
who saw what happened when we had back-room artists involved
with abortion, people I'd go after. They were doing, however,
not--a non-medical situation, and people died, and--to say
nothing about a whole lot of other things that went on. Then I
see delegating enforcement to everyday citizens. Cash bounties
of at least $10,000 to bring suits, even if they're frivolous,
against medical practitioners. Can you speak to the harmful
effects of the private enforcement mechanisms on women and
healthcare providers in your district--actually, across the
State of Texas?
Representative Howard. Yes, sir. As I've said, it has a
chilling effect on the services even being provided, at this
point in time. The people who are working in the clinics are
having to hire security guards to protect them. It's--there's
this sense of pitting neighbor against neighbor, and I must
say, it's a different issue, but this is at the same time that
Texas passed permitless carry, without any license required to
carry a firearm, where we saw people coming up to abortion
providers' clinics, right after this law went into effect, and
bringing their guns and displaying them. It's absolutely
creating much anxiety and fear among people.
Senator Leahy. Thank you. Thank you, Mr. Chairman.
Senator Whitehouse. Senator Lee.
Senator Leahy. I'll submit my other questions for the
record.
Senator Whitehouse. The Senator's questions for the record
will be accepted.
[The information appears as a submission for the record.]
Senator Lee.
Senator Lee. Thank you, Mr. Chairman. Right around the
Washington Monument, there's a display. It's a fascinating
display, visible from a distance. You can see white flags, the
number of them is approaching 700,000, surrounding the
Washington monument, each one of them representing one of the
sacred, unrepeatable, infinitely valuable lives that have been
lost to the COVID-19 pandemic in the United States. This is
tragic, and it has me wondering about other flag displays that
we could put up. Those are each represented by white flags,
small ones. It looks like snow, from a distance.
What if we put up little red flags, each representing one
of the American lives lost to abortion every year? It would be
in the same ballpark, but every single year. Imagine further
that--see, this roughly 700,000 figure for the lives lost to
COVID, that's not just this year, that's this year and that
year, it--last year. It's throughout the duration of this
pandemic. What if we could show a red flag for every human life
taken since Roe v. Wade was decided in 1973?
Let's be really honest about what this was. What this was,
was a decision by the Supreme Court of the United States saying
that a State may not exercise its sovereign police powers.
Police powers--sort of broad power to protect life, liberty,
and property. To protect health, safety, and welfare that State
governments have and that the Federal Government decidedly does
not. That the Founding Fathers willfully, intentionally
withheld from the Federal Government because they were too
important to be exercised at the national level. The Supreme
Court of the United States says, no, no State may protect
unborn human life. They decided that in 1973, nearly 50 years
ago.
If we had a red flag for every human life that's been taken
since 1973, and we put that around the Washington Monument,
there wouldn't be room enough to hold all those red flags. I
doubt there would be enough grass in the entire Mall, between
the Capitol Building, the Washington Monument, and the Lincoln
Memorial. Unlike snow, it would look like something else from a
distance, look like something that it is.
Let's not dress this up in clinical terms that make it
sound like something that it is not. We are talking about the
taking of unborn human life, innocent life, life of a being
that has a right to exist, life of a being that would cry out
in pain if it had the capacity to do so, but we can't hear it.
If a Court is going to take that right away, a State, whose
citizens regard that as being a morally consequential decision,
let's--setting aside for a minute questions about exceptions to
restrictions on abortion, before we even get to those, if what
we're saying is that a State effectively may not protect unborn
human life--and make no mistake, that is what it is--sure, it
underwent some changes, nearly 20 years after Roe was decided,
with Casey--the effect is still essentially the same. We've
made what was a State issue, involving general police powers
for the protection of health, safety, and welfare, something we
give to the States, we don't have in the Federal Government--we
made it a Federal issue and a Federal judicial issue, thus
insulating the law from the people, the one thing in our system
of government you cannot do.
So, yes. Is Texas's law that they came up with unique? Yes.
Is it different from 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?
Look, I understand not everything that is a good idea in
the wisdom of most of the voters in a State or in the wisdom of
those they elect to make laws in their State will be
constitutional. Yes, the Constitution is counter-democratic in
some respects, in that it takes some things outside of the
power and authority of a government. Sometimes the Federal
Government, sometimes the States, sometimes both. Abortion is
not on that list. I challenge any one of you to tell me what
provision of the Constitution uses that term or refers to it,
directly or indirectly. It cannot be found. No, they fashioned
it from whole cloth, as if out of thin air. It's wrong. It's
amounted to a betrayal of their oath to uphold the U.S.
Constitution and to interpret it based on what it actually says
rather than what they wish they meant.
As to the shadow docket, it, like any court in the United
States, State or Federal or municipal--yes, the Supreme Court
of the United States, where I served as a law clerk, has a
motions docket. No court should--could exist without it. You
wouldn't want one without it. Yes, in some circumstances, that
motions docket involves emergency motions. To call that a
shadow docket, as if to suggest that there's something shady
about it or nefarious going on, is an illegitimate attempt to
belittle the Court, to disparage it, to intimidate it, and to
threaten it. This is sometimes what happens in advance of
certain people feeling and fearing that members of the Supreme
Court of the United States might actually rule in a way that
doesn't benefit them, even if it's a ruling in favor of the
Constitution. It's not appropriate. It's beneath the dignity of
this Committee and of the U.S. Senate. We should not harass,
threaten, or intimidate.
Finally, with regard to the ruling in this particular case
that apparently prompted this hearing, there was no defendant
properly before the Court to establish Article III standing of
justiciability. One must have an injury, in fact, fairly
traceable to the defendant, that's capable of being remedied by
the Court. There was no defendant charged with enforcing this
particular statute in that case.
Yes, I get the fact that for policy reasons--I get the fact
that based on your interpretation of the way things should be--
some of you believe that the Court should've just invalidated
the whole law. That's not how our system works. They didn't
have jurisdiction because they didn't even have a defendant.
Thank you, Mr. Chairman.
Chair Durbin. [Presiding.] Thank you, Senator Lee. Senator
Whitehouse.
Senator Whitehouse. I think it goes without saying that I
have a rather different view of what is going on here than some
of my Republican colleagues. There is a well-known practice of
regulatory capture, where a powerful interest or industry
essentially takes over a regulatory agency, and the regulatory
agency then, thus captured, delivers decisions that benefit
that industry that captured the agency. I suppose, sooner or
later, it was inevitable that minds of an evil bent would take
the stratagem of regulatory capture and apply it to courts and,
in particular, to our Supreme Court.
Obviously one way you control an agency or a court is to
control the appointments, and we know very well the Federalist
Society turnstile that was run in the Trump administration that
put three of these Justices on the Court. We know very well of
the Judicial Crisis Network and its dark money funding, that's
spent tens of millions of dollars, related to Supreme Court
appointments, on advertising campaigns. What we don't know is
who was behind all of this, who provided what The Washington
Post described as $250 million in money to make all this
happen. Two hundred and fifty million is a lot of money, and
people don't spend that kind of money unless they want results.
We have no idea, because of secrecy, who is behind this scheme.
The next thing, once you've captured an agency that you
want to do is to tell it what to do. Sure enough, we see
national right-wing litigation groups that bring cases to the
Court. There is kind of an expedited fast lane for them to
bring cases to the Court that they think the captured Court
will rule for them on. Very unusually, they rush into court and
say, ``Your Honor, we'd like to lose. Please rule against me as
quickly as possible so that I can get up to a friendly Supreme
Court and we can get our policy work done there.''
Then behind those groups that fly behind plaintiffs of
convenience that they have worked to locate are flotillas of
amicus curiae, friends of the court--amici curiae, I should
say, is the plural--who come in an orchestrated chorus and tell
the Court what the dark money groups behind them want in this
decision. Again, we don't know who's behind them, because
again, they're funded by dark money. The whole thing is just
wreathed in secrecy, which is usually not a good idea. Most
often, in a courtroom, people want to know who else is in the
courtroom with them. A masked entity, a front group in a
courtroom is a very un-American thing, in my view.
Of course, what you most want from capturing a regulatory
agency or a court is results. Sure enough, we've tracked 80--
80--partisan 5-to-4 decisions under Chief Justice Roberts that
give clearly identifiable wins to big Republican donor
interests. Eighty is a lot. I'm not a great lawyer, but I bet
you that I could've taken a string of 80 to 0 and brought a
pretty good bias and discrimination case based on that pattern
of behavior. Eighty to 0 is the pattern of partisan 5-to-4
decisions with Republican donor interests involved.
It should probably come as no surprise, when you look at
the 80 5-to-4 decisions, they fall into four major categories,
as we pointed out. One is helping Republicans win elections.
Another is attacking civil rights. Another is protecting the
Republicans' corporate benefactors, particularly from
liability. The fourth, of course, is pushing a far-right social
agenda that they can't get legislators to vote for but an
undemocratic Court will deliver for them.
It comes as no surprise that, when you look at what's been
going on in the shadow docket, it's a pretty damn good match
with the results that were produced from the capture of the
Court in those 80 partisan 5-to-4 decisions. Again, helping
Republicans win elections, taking away civil rights, protecting
corporate interests--in this case, particularly landlords and
polluters--and pushing a far-right social agenda such as the
far-right social agenda that is represented in this case.
My time is expired, and I'll leave it at that. I thank the
witnesses for bringing this before us, and I think that there
are important questions here, we should be having this hearing,
and I'm glad we are.
Chair Durbin. Thank you, Senator Whitehouse. Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman. You know, the Senate
Judiciary Committee is busy. They're not busy focused on the
crisis on our southern border. In nine months, we've had zero
hearings on the crisis on the southern border, even though 1.2
million people have crossed illegally and there's a public
health crisis playing out, but Senate Democrats have no time to
worry about that.
Senate Judiciary Committee is not worried about Big Tech
censoring and silencing free speech. That is not a concern for
big Democrats that are funded by Big Tech. No, instead their
priorities are, number one, amnesty. There's no priority they
care more about than amnesty. We've had four amnesty hearings
this year. Number two, trying to intimidate the Supreme Court
and Article III judges. That is a high priority. I have to say,
the Senator from Rhode Island--I always enjoy his charts. I do
wonder where the red yarn is, connecting one conspiracy point
to the other.
I will say, this topic today on the shadow docket--this
is--that is ominous. Shadows are bad. Like, shadows are really,
really bad. Mr. LaCour--actually, General LaCour. You're a
solicitor general, damn it. Let's use proper titles. General
LaCour, the Senate Democrats have a point here. Before Donald
J. Trump, the Supreme Court had never decided emergency
motions, is that correct?
Mr. LaCour. Any emergency proceeding whatsoever?
Senator Cruz. Yes.
Mr. LaCour. That's not correct, Senator.
Senator Cruz. Wait a second. Before Donald J. Trump, every
single case the Supreme Court decided was fully briefed and
argued, isn't that right?
Mr. LaCour. That would not be correct.
Senator Cruz. That's--you mean they've decided emergency
motions before the advent of the terrifying President from
Trump?
Mr. LaCour. Yes, before our 45th President.
Senator Cruz. Professor Mascott, you clerked at the Supreme
Court for Justice Thomas. Surely it must be correct that there
was no shadow docket, and you worked on no emergency matters
during your time as a clerk. Is that right?
Professor Mascott. Senator, certainly the orders docket----
Senator Cruz. You've got to turn your mic on.
Professor Mascott. Certainly, the orders docket's typical,
and, yes, it's been around for a very long time. On the
jurisdictional points, California v. Texas, just last term,
2021, Justice Breyer actually underscored what the Court said
again in this most recent ruling here, which is, folks need to
have standing--and can provide remedies only against parties,
not general concerns about bills.
Senator Cruz. You know, there's an old line that hypocrisy
is the tribute that vice pays to virtue. The Democrats are fond
of concocting ominous terms. Dark money is one of their
favorites, and I mention hypocrisy because the Democrats
receive far more dark money than Republicans. While they're
shoveling in hidden money from giant donors, they complain,
``Hidden money from giant donors is a terrible thing.'' Then
they come up with the shadow docket, which I suppose dark money
ought to cast a shadow. Although, actually, it ought to be
light money, I suppose, if it's casting a shadow.
What they're calling a shadow docket is the ordinary
operation of every court that's been in existence since the
ratification of our Constitution, whether a district court, a
court of appeals, or the U.S. Supreme Court, if there's a
motions docket. The motions docket is handled on the motions
docket. That has been always the case.
When I was a clerk at the Supreme Court, I remember every
damn execution in the country. The clerks are there until late
at night, and many of the States have executions at midnight.
On the West Coast it would be three in the morning, and you'd
have the clerks there till three in the morning, dealing with
the emergency motions that every time there's an execution, 30
minutes before the execution, you get something. At the time I
was clerking, they were faxed in. Professor Mascott, you
probably don't know what faxes are. They weren't there when you
were clerking. It would be an emergency appeal at the end, and
strangely enough, you'd call your Justice and wake up your
Justice at midnight or one or two in the morning, to cast a
vote on the emergency appeal filed at the very end, to try to
delay the execution. This whole notion of a shadow docket is
called an operating court that is deciding emergency motions.
Look, what this is really about is trying to demonize Texas
and trying to demagogue on the question of life. When it comes
to demonizing Texas, I suppose I can understand the incentive
of Senate Democrats to do so. Chairman Durbin is from Illinois.
I just looked up the statistics in the year 2020 of what States
people are moving out of. The number one State is New Jersey.
The number two State is New York. The number three State is
Illinois. Illinois did better. A year ago, it was the number
two State for people fleeing. Last year, it was number three.
Illinois is doing better.
Where do the people from Illinois go? Clearly they don't go
to the hellholes like Texas or Florida. No, actually, that's
exactly where they go. They go to Texas and Florida. Why?
Because we actually have jobs there. We have low taxes, and we
protect people's rights.
Look, today's Democrats on the question of abortion are
radical and extreme. Their position: they support unlimited
abortion on demand up till the moment of birth, partial-birth
abortion, with government funding, with no parental consent and
no parental notification. It is radical. It is extreme. Nine
percent of Americans agree with the positions of every Democrat
on this Committee because they have handed their abortion
agenda over to the radical left.
Texas made a perfectly reasonable decision to protect life.
Life is valuable. You know, I would note the Texas law triggers
when the unborn child has a heartbeat. The last I checked,
clumps of cells don't have heartbeats, but the extreme
Democrats don't want to talk about that. Instead, they concoct
a hearing on ominous Texas, ominous shadow dockets, all of
which is political theater, none of which is addressing the
real issues people care about.
Chair Durbin. Senator Booker.
Senator Booker. Thank you very much, Mr. Chairman. This is
clearly a issue that there's a lot of very different and strong
beliefs on both sides. I find it shocking to the conscience
that a woman who was repeatedly raped, doesn't even know that
they're pregnant, could have the government swooping in to tell
them what they can do with their body. When we know all the
challenges that often women face just accessing healthcare at
all--we know we are a nation that does not take care of low-
income women, in particular, in terms of their access to
healthcare, and abortion care is healthcare--it could often be
going directly to the life of a woman or a birthing person.
I find it difficult when I see people talking about the
sanctity of life and what happens to women who do not have
adequate care. We're a nation that has one of the highest
maternal mortality rates of developed nations, with African-
American women being four times more likely to die in
childbirth than white women. It seems stunning to me that there
are so many things that we could do that elevate human well-
being that preserve life. We know that women who are afforded
healthcare and family planning have lower rates of unwanted
pregnancies. You say that's a fact, correct?
Representative Howard. Yes, indeed.
Senator Booker. In fact, Colorado reduced their weight--
rate of young women having abortions.
Representative Howard. That's correct.
Senator Booker. By 40 percent. 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 and
empowered women with doula care, with healthcare, with
reproductive freedom, with science-based sex education. Did the
Republican majority in Texas consider bills about any of those
things that are factually connected to lowering rates of
unwanted pregnancies?
Representative Howard. Senator, I've had legislation for
the past several sessions to ensure that those that are on CHIP
can have access to contraceptives, in terms of reimbursement,
as is done in every other State except one, and I have not been
able to get that passed through our legislature.
Senator Booker. Can a wealthy woman, under this law, a
wealthy person in Texas, have access to abortion care?
Representative Howard. Yes, sir, she can. She can travel
out of State.
Senator Booker. Right. Who's most affected by a law like
this?
Representative Howard. Those that do not have the means,
those that have limited means, people of color. The fact is,
too, as you point out, significantly more chance of death by
carrying a pregnancy than there is by having an abortion--and
disproportionately impacts women of color.
Senator Booker. That's what gets me is if you value life,
you're creating an environment where you're putting lives at
more risk than other alternatives that are empowering
individuals. I recently just spent time doing research about
what women are listing, who terminate a pregnancy, what reasons
they're listing. One of them, I--depending on the study, is the
fact that women are 400 percent more likely to plunge into
poverty. They mention financial issues. Are there--is there
legislation coming out of the Republican majority to help
economically empower women of birthing age who choose to have
children or improve the childcare system, foster care system,
or anything like that?
Representative Howard. We have continued to underfund all
of the things that you mention, and absolutely, to your point,
valuing life means valuing the lives of the women who are asked
to carry these pregnancies.
Senator Booker. Poverty, healthcare, the kind of healthcare
that shows you from doula care to access to family planning--
those things are not being invested in. Those things are not
being valued. Wealthy folks can get access to this care, but
the lives, the dignity, the well-being, the health of low-
income women and birthing people--in your opinion, are those--
not through rhetoric but through substantive laws we know could
elevate their well-being, is that--are those the things that
are being attended to?
Representative Howard. Senator, I'm a lifelong Texan. I
love Texas. I am not here to bash Texas. The fact is that we
have a lot of work to do that we haven't been doing. We have
the highest number and rate of uninsured in the entire nation.
We have refused to expand Medicaid coverage. Half of the births
in Texas are to Medicaid moms. We are not investing in those
things we need to invest in to support women and their
families.
Senator Booker. Thank you very much.
Representative Howard. Thank you.
Senator Booker. Professor Vladeck, forgive me, I didn't go
to a law school, I went to Yale Law School. I just want to--can
you clarify something for me? Because I fully concur that some
of my friends on the other side of the aisle are probably
better lawyers than me. My friend, my dear friend, someone I
value quite a bit, Senator Lee, said that the Supreme Court did
not have jurisdiction because there was no proper defendant.
I'll take my question with my mic off. I know my time's
expired, but could you answer that, please?
Professor Vladeck. Sure, Senator. I mean, I suffer from the
same disease of what law school I went to, but I will say, I
mean, I think the--there have been various mischaracterizations
from, I think, both witnesses and Senators today about what was
before the Supreme Court. The providers were not just seeking
an injunction against the eight defendants, at least two of
whom--I think if we had time, we could talk about why they were
entirely proper defendants. The providers were also asking to
lift the emergency stay that the Fifth Circuit had imposed that
had actually blocked the district court from answering some of
the procedural questions that Senator Lee and Professor Mascott
have suggested deprived the Court of jurisdiction.
I think the story about the S.B. 8 case, Senator, is a
little more complicated. The notion that the whole matter rose
and fell on whether all eight of the named defendants could be
subject to an injunction by the Supreme Court misses all of the
different things that providers were asking for, short of an
emergency injunction, and it also misses the Fifth Circuit's
role in provoking the emergency by stopping the district court
from holding the hearing it was planning to hold on Monday
morning, August 30th, that would've given it a chance to
consider those questions, to actually resolve them, to build
the very record, the absence of which the majority relied upon
in its short ruling.
Senator Booker. You have redeemed our alma mater. Thank you
very much. Thank you, Mr. Chairman.
Chair Durbin. Thank you, Senator Booker. The Republican
staff advises me--Senator Blackburn, then Senator Cotton, then
Senator Hawley. Senator Blackburn.
Senator Blackburn. Thank you, Mr. Chairman, and thank you
all for your opening statements and for your time today. Ms.
Goss Graves, I want to come to you. In 2019, you were before
the House, and you stated, and I'm quoting you, ``The
legislators passing restrictions on abortion want to control
the lives and futures of women, denying them equality.'' Let me
ask you this. Do you believe that having children negatively
impacts the lives and futures of women? That having children
somehow makes them unequal?
Ms. Graves. You know, I believe, Senator, that the ability
to determine when or whether you have children or how you
parent those children is fundamentally tied not only to your
personal liberty and privacy but your ability to be truly equal
in this country, your ability to participate in our economy,
your ability to participate in society, your ability to
participate in our politics, to be seen as equal citizens.
That's one of the things that has me----
Senator Blackburn. So----
Ms. Graves [continuing]. So upset about----
Senator Blackburn [continuing]. What you're saying is,
women cannot be considered equal unless they have access to
abortion.
Ms. Graves. For sure. We are in day 29----
Senator Blackburn. So----
Ms. Graves [continuing]. Where people in the State----
Senator Blackburn [continuing]. You believe----
Ms. Graves [continuing]. Of Texas no longer----
Senator Blackburn [continuing]. That even----
Ms. Graves [continuing]. Have those same freedoms.
Senator Blackburn [continuing]. Though a child, an unborn
child, has a heartbeat, that that woman is not considered equal
unless she can terminate the life of that child?
Ms. Graves. I believe the ability to control your body,
your life, your future, your destiny----
Senator Blackburn. So you----
Ms. Graves [continuing]. Is bound up with your ability----
Senator Blackburn [continuing]. Do not have that control
unless you have----
Ms. Graves [continuing]. To be equal in this country.
Senator Blackburn [continuing]. Unfettered access to
abortion. Is that what you're saying?
Ms. Graves. The Supreme Court has actually outlined a
framework that has been reaffirmed, again and again, for 50
years, around exactly how to consider this question, and I
understand that in----
Senator Blackburn. You think abortion is----
Ms. Graves [continuing]. This room, there are
disagreements----
Senator Blackburn [continuing]. Essential for equality. Ms.
Howard, let me come to you. In direct response to pro-life
policy victories like the Heartbeat bill, the House passed the
Women's Health Protection Act. The way I look at it, this is a
radical piece of legislation that goes a lot further than just
codifying Roe v. Wade.
One of the most reprehensible provisions is the ban on
informed consent requirements and requirements that women be
given the opportunity--not mandated, but just given the
opportunity to view an image of their unborn child or listen to
that child's heartbeat. As the sponsor of the Women's Right to
Know Act, I am stunned that such a bill that purports to
protect women's health would include such a prohibition.
Doesn't a woman have the right to know about the medical risk
associated with an abortion procedure, and doesn't she have a
right to know the gestational age of that unborn child before
she makes that decision to have an abortion?
It's not saying she can't have an abortion. If she wants
one, she can have an abortion. She would have the right to know
what she was getting into, basically. The risks that are there.
That she would have the right to know the gestational age of
that baby. And--you got any thoughts on that?
Representative Howard. We have a requirement in Texas for
the distribution of a right-to-life--or right-to-know, I'm
sorry, a right-to-know pamphlet, booklet, that is required to
be distributed to everyone who comes in seeking an abortion.
The problem that I would have with that is that it's medically
inaccurate. I think that if we're going to be giving
information that we want to ensure that we're giving the
information that is medically accurate and, again, getting back
to the physician-patient relationship, rather than the
government interfering and dictating things that are not based
in science.
Senator Blackburn. Do you--have you ever seen a 3-D
ultrasound?
Representative Howard. I have.
Senator Blackburn. Tell me how you respond when you see a
3-D ultrasound.
Representative Howard. I'm not sure what your question is
about.
Senator Blackburn. What kind of emotion does it evoke for
you?
Representative Howard. The--I've seen a picture of
someone's 3-D ultrasound. I think that the issue here, again,
is what we are talking about is not--we're subjecting women to
a transvaginal sonogram prior to when it's medically
recommended----
Senator Blackburn. Okay. Let me----
Representative Howard [continuing]. That they have that.
Senator Blackburn. Let me tell you where I am on this.
Representative Howard. Okay.
Senator Blackburn. I think that with--that science is on
our side, when you talk about life, and I have a lot of
friends--I'm a grandmom.
Representative Howard. So am I.
Senator Blackburn. I have children and grandchildren. I
have three grandchildren. There are so many of my friends that
used to say, ``Well, you know, I'm pro-choice,'' and then their
daughter or daughter-in-law has a sonogram, 3-D. They can see
the images. They can see--they know if they're having a girl or
a boy, and they begin to make those plans. They begin to
decorate those nurseries. They celebrate this life, because
they can see those features. For me it was a joyous moment. My
second grandson--I looked at those features, and I thought,
``Oh, my gosh, he's going to have my eyes.''
That is where science comes into play on this. That is
where a policy that you have supported, that goes so far beyond
Roe v. Wade. I understand you did it because it was a--kind of
a kneejerk reaction----
Representative Howard. I'm not sure which policy----
Senator Blackburn [continuing]. To----
Representative Howard [continuing]. You're referring to.
Senator Blackburn. Excuse me. It was kind of a kneejerk
reaction to a bill that was brought forth that you didn't like.
I get that. You know, I do think we have to look at the fact
that science is on our side on this. I yield back.
Senator Whitehouse. Mr. Chairman.
Chair Durbin. Thank you, Senator. Senator Whitehouse.
Senator Whitehouse. May I interject for one moment to ask
that the report that we put together, Captured Courts: The
Republican Judicial Assault on Reproductive Rights, be entered
into the record of the hearing?
Chair Durbin. Without objection.
Senator Whitehouse. Thank you.
[The information appears as a submission for the record.]
Chair Durbin. Senator Hirono. It's not on. Try it now.
Senator Hirono. Okay. I think it's on now.
Chair Durbin. Yes.
Senator Hirono. Thank you. I want to start with something
that the Mississippi Attorney General Lynn Fitch said because
the Supreme Court is going to be hearing the Mississippi case.
The Mississippi attorney general recently claimed that
overturning Roe v. Wade would somehow empower women to pursue
careers and raise children. I wanted to see if Ms. Ross--Goss
Graves, sorry, Representative Howard, whether either of you
have any comments about that kind of statement, that women
would somehow be empowered if Roe v. Wade were overturned.
Ms. Graves. Today women are empowered to participate in the
economy. I think overturning Roe v. Wade would have the
opposite effect of diminishing their ability to work when they
want to work, to space their children when they want to space
their children. If there is interest in furthering women's
participating in the workforce, there are a range of policies
that actually do that, like childcare, for example.
Senator Hirono. Representative Howard, do you have anything
to add?
Representative Howard. I would agree with what was just
said. The fact is that, as I said in my opening, I came of age
before Roe v. Wade, and I'm well aware of the obstacles that
women had in making educational and employment choices for
themselves if they found themselves pregnant and did not have
many options other than to carry that pregnancy to term. It
prevented them from their very destinies.
Senator Hirono. She goes on to say that women would be more
empowered because there are numerous laws enacted since Roe
addressing pregnancy discrimination, requiring leave time,
assisting with childcare, and more. I would be really
surprised, frankly, if Mississippi provided any of those kinds
of programs or protections.
For Professor Vladeck, what effects do late-night,
unsigned, terse rulings like the one the Supreme Court issued
in the Texas case have on judicial transparency and
accountability, and how does this affect litigants' strategies
and reliance on prior court decision?
Professor Vladeck. You know, it's----
Senator Hirono. Can you just briefly----
Professor Vladeck [continuing]. A fair question, Senator,
and I think that the tricky part is, we don't know. We have
rulings that the Supreme Court hands down that have no majority
opinion. I cite a couple of them in my testimony. Then lower
courts read them one way or the other, and the Supreme Court
chastises the lower courts that they think read the unexplained
ruling wrong.
I think that's--you know, it's--again, just to sort of
respond a bit to Senators Lee and Cruz, this is--the shadow
docket is not new; the emergency docket is not new. What is new
is how much more the Court is doing with it and how much it's
expecting, Senator, parties, lower courts, all of us, to
understand what these cryptic rulings mean.
Senator Hirono. Have you done a sort of an analysis of the
kind of decisions that the Supreme Court is making, using the
shadow docket process--well, it's not even a process----
Professor Vladeck. Yes, I mean--so, I----
Senator Hirono [continuing]. That was decided?
Professor Vladeck. You know, I realize that my written
statement's pretty long, but on page 5 there's a chart that
actually documents how many more of these rulings granting
emergency relief there have been in the last couple terms. This
term, there were 20. That's the most that I've tracked for as
long as the Court has been deciding these cases as a full
Court. The average during the first 10 years of Chief Justice
Roberts' tenure was about five. And----
Senator Hirono. No, I understand that. I'm sorry, I'm
running out of time, but----
Professor Vladeck. Yes.
Senator Hirono [continuing]. Basically I want to know if
there is any kind of an ideological thing going on with the use
of the shadow docket.
Professor Vladeck. Yes. I mean, they've been--so, I--yes, I
mean, I think the shadow docket rulings have been far more
homogenously ideological than the merits docket. Just one
example, Senator: There were, I believe, 69 rulings on the
shadow docket this term from which at least one Justice
dissented. There was not a single one where a Justice to the
right of the Chief Justice joined a Justice to the left. These
are all breaking down on what we might call the classic
ideological grounds.
Senator Hirono. We see a lot more of these kinds of orders
after the three Supreme Court Justices of the--President
Trump's Justices. I just have one question for Representative
Howard. Does Texas have any other laws where enforcement of the
law is left to vigilantes and $10,000 in bounty money for them?
Representative. Howard. Does it have any other law that
does that? Is that what you're asking me?
Senator Hirono. Pardon me?
Representative Howard. I'm sorry, were you asking me, does
that--does it apply to any other----
Senator Hirono. Does Texas have any other laws besides----
Representative Howard. No.
Senator Hirono [continuing]. This law where they actually
let bounty hunters go out and enforce the laws?
Representative Howard. This is the only one I'm aware of.
Senator Hirono. Why do you think that is?
Representative Howard. I think it was a scheme to get
around judicial review and to ensure that, whether it was ever
followed through with or not, there would be this immediate
chilling effect, which has occurred, where basically abortions
are not being provided because of the fear of the liability. It
achieved the purpose, I think, that was intended.
Senator Hirono. Do you think Texas would ever have a
similar law where you could go after people who own guns and
let the private sector--let private citizens enforce going
after people who own guns, and you get $10,000? Do you think
Texas would ever enact such a law?
Representative Howard. Those kinds of scenarios have been
suggested. I have a hard time imagining Texas enacting that
particular one.
Senator Hirono. Yes. I think that's a rhetorical question,
at this point. Thank you.
Chair Durbin. Thank you, Senator Hirono. Senator Cotton.
Senator Cotton. I have to say I'm amused by the title of
today's hearing, the Supreme Court's Shadow Docket, as if these
cases are happening in some dark, shadowy, nefarious place in
the Supreme Court Building, where the Justices are doing
something illicit like maybe actually reading the Constitution
of the United States. Let's look at some of the cases that have
resulted in this shadow docket in recent years, cases where you
have radical judges, usually in places like Hawaii or Seattle
or San Francisco, where a single radical judge issues some
nationwide injunction to prevent the former administration from
building a wall to secure our southern border from the millions
of illegal migrants who have poured across it this year or
maybe blocking travel from countries that are rife with
terrorists and have no way to vet those travelers.
I don't know what else they did in the Trump
administration. Maybe some judge in the Ninth Circuit ordered
Donald Trump to bring Qasem Soleimani back to life and to
apologize for killing Iran's terrorist mastermind. Or look at
some of the cases on the shadow docket in which you had radical
governors in places like Nevada and California who would block
Christians from going to church to worship God, while they
allowed liquor stores, marijuana shops, and casinos to stay
open. I'm not saying those things should've been closed. I'm
saying they all should've been open, to include churches, where
people of faith could go worship.
Look what liberals want to happen on the shadow docket.
They want the Supreme Court to enjoin cases in which the
lawyers in the lawsuit can't even find a proper defendant to be
sued. I know our Democratic friends think this shadow docket is
something extraordinary and novel and unprecedented. Maybe it's
the case that the lawsuits are so frivolous that they don't
even merit an oral argument and full briefing. Or maybe this
entire hearing is to distract from the radical law that just
passed the House of Representatives last week, the most extreme
pro-abortion measure to ever pass the Congress.
The Democrats over there, all but one of whom voted for it,
argue that this bill merely codified Roe v. Wade. Would that
that were so. Roe v. Wade, though wrongly decided, at least
acknowledged--at least acknowledged our people's legitimate
abiding interest to protect innocent life before a child is
born. The law that passed in the House of Representatives,
though, last week allows abortion to occur up until the very
moment of birth, 40 weeks or even beyond, displaying a
grotesque indifference to the most vulnerable kinds of human
life.
I remember when my son was in the NICU. It was adorned with
photos on the wall, matching, on the one hand, a small child
that had been born at 30 weeks or 28 weeks or even 23 weeks.
Sometimes so small it was held in the palm of a doctor, to the
picture of that child at age 5 or 7 or 11, riding a bike,
performing in a ballet, running through a field of flowers, all
of whom would've been subject to the most grotesque and abusive
kinds of abortions under the bill the House of Representatives
just passed.
The Democrats have come a very long way on the question of
abortion. All you have to do is look at Bill and Hillary
Clinton's position on the question to see how radical they have
become. Bill and Hillary Clinton, Hillary as recently as 2008,
in her failed Presidential campaign, said that abortion should
be safe, legal, and rare. Not many Democrats would say that
today. Ms. Howard, would you agree with Bill and Hillary
Clinton that abortion should be safe, legal, and rare?
Representative Howard. I would think that there's a lot of
options that we could put in place that would limit the need
for abortion, in terms of supporting healthcare for women,
access to contraceptives, making sure that they have insurance
coverage or Medicaid coverage. There are many things that we
could do that would give them more of a choice in their own--
how they have healthcare, so that they don't necessarily have
an unwanted pregnancy, but when they do have one, I think they
have a right to make the decision about whether or not they
want to continue that pregnancy.
Senator Cotton. Ms. Howard, my question was simple. Do you
agree with Bill and Hillary Clinton that abortion should be
safe and legal and rare? Your unwillingness to say yes just
demonstrates my point, case closed, that Democrats today will
not concede what Bill and Hillary Clinton conceded, that
abortion should be rare, because it implies that there is
something wrong about the practice. That there is something
wrong about ending an unborn life up to the point of birth at
40 weeks. It is wrong, and the Democrats will no longer
recognize that it is wrong.
Chair Durbin. Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman. I understand that
a number of my Republican colleagues have suggested earlier
that we ought to have a hearing on the Women's Health
Protection Act. Perhaps they would be surprised to know that we
actually have had a hearing on the Women's Health Protection
Act in this Committee. It was held by my Subcommittee on June
16th, I'm proud to say.
Senator Cruz can certainly attest to the fact that we had
that hearing, and at that hearing, we discussed many of these
same issues. It was before the crisis raised by the U.S.
Supreme Court in indicating that Roe might well be overturned,
and I would invite my colleagues to have a look at the
transcript but, more important, to consider seriously the
issues that we raised and the need that was demonstrated to
protect Roe v. Wade and reproductive rights against the
onslaught of State law restrictions, which are unprecedented,
absolutely unprecedented in our history.
Reproductive rights are under attack, an onslaught as never
before since Roe v. Wade. I clerked for the Supreme Court
Justice who wrote it, shortly after Roe was handed down, and we
never, ever could have anticipated the hundreds of State-level
restrictions being proposed and enacted throughout the country.
Representative Howard, you've spoken about the ways that
the Texas law is a violation not only of constitutional rights
to abortion but also our legal and medical systems. As you've
explained, under S.B. 8, a rapist could sue a doctor if they
provide an abortion to a rape survivor. If you process the
insurance paperwork for an abortion, you could be sued. You
could be sued if you so much as respond to a friend in Texas
with the location of an abortion clinic out-of-State. If you
drop your sister off at a healthcare clinic where she has an
abortion, you could be sued, again, by anyone in the entire
United States. Just weeks after the Supreme Court's decision,
we're already hearing tragic stories of women coming into Texas
clinics for abortion care and being turned away because of the
6-week ban.
Let me ask you, Representative Howard, you testified
repeatedly today about the dramatic impact that S.B. 8 is
already having on the ground as women are forced to leave the
State without the support of others, backing up waiting periods
for abortion in surrounding States. What is the situation like
for people who cannot travel, people who cannot travel because
they lack the means and wherewithal, and who are they? People
of color? People who are poor? Those are the people, but really
all people that are intended to be protected by the Women's
Health Protection Act, which I am proud to be the lead co-
sponsor of. Representative Howard?
Representative Howard. You articulated accurately that the
majority of those who are not able to access an abortion out of
the State are going to be those that do not have the resources,
who live in our rural communities, who can't find childcare or
take off from work. This disproportionately impacts women of
color. Certainly what's going to happen here is, being forced
to maintain a pregnancy and carry it to term, that was not
something that they wanted to do, is going to result in further
burdening that particular family in terms of their economics
and their opportunities, will further put them into poverty,
will increase the burden on the local--on the Texas taxpayer,
as well. As I said before, over half of the births in Texas are
to Medicaid patients, and women do get Medicaid when they're
pregnant, in our State, so very likely we would see increased
cost to the Medicaid program, as well.
Senator Blumenthal. Thank you very much. Thank you, Mr.
Chairman.
Chair Durbin. Thank you, Senator Blumenthal. Senator
Hawley.
Senator Hawley. Thank you very much, Mr. Chairman. I have
to start by confessing a bit of confusion over today's hearing,
particularly the title, which links together Texas's abortion
ban and the role of the shadow docket. What mystifies me about
this is that the emergency docket, the motions docket that
we're talking about, the so-called shadow docket--I thought the
complaint about the shadow docket--and, by the way, I clerked
at the U.S. Supreme Court. I remember well the motions docket
and how it works and the emergency aspect to it.
I thought the complaint and concern about that were the
summary reversals and the orders that the Court supposedly
issues when they intervene in cases, when they grant emergency
injunctions without the benefit of full briefing, opinions, et
cetera. In the Texas case, the Court simply refused to act.
They didn't intervene. The Court didn't use a summary reversal.
They didn't insert themselves at all. They just let the normal
course of the law proceed.
It's a strange complaint about the shadow docket that the
Court didn't do, in this case, what liberals wanted it to do.
Didn't reach out to insert itself and issue an emergency order
in the way that the left wanted. Which brings me, I think, to
what this hearing's really about. This hearing's not really
about that case at all. This hearing is really about the Dobbs
case, Mississippi case. Senator Hirono did us the favor of
reading from statements made by the Mississippi attorney
general, who is, by the way, a woman, regarding that State's
position in the Dobbs case.
This is plainly an attempt to intimidate the U.S. Supreme
Court ahead of this case. Oral argument's to be heard, I think,
on the 1st of December. Unfortunately, there's a pattern of not
only this Committee, but of Democrats in this body doing so.
Just last year, Chuck Schumer went to the steps of the Supreme
Court and directly threatened Justices Gorsuch and Kavanaugh 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. Of course,
then he later came out in favor of court packing.
Members of this Committee, Senator Whitehouse, filed a
brief with the Court in which he explicitly threatened the
Court with restructuring, I believe was the term of choice,
unless the Court ruled the way he wanted them to rule. That's
what this hearing is about. This hearing's about threatening an
institution of our Government to rule the way the extreme left
of the Democrat party wants it to rule.
I say extreme left advisedly, deliberately. Let's talk for
a second about the bill that the House of Representatives, the
U.S. House of Representatives, just passed last Friday. This
remarkable piece of legislation would mandate partial-birth
abortion across our country, all 50 States. Mandate it.
Partial-birth abortion. What am I talking about? Let's just
be explicit. This is from the Supreme Court of the United
States, their opinion in the Gonzales case, 2007, Gonzales v.
Carhart. I quote, ``Dr. Haskell went in with the forceps and
grabbed the baby's legs and pulled them down into the birth
canal. Then he delivered the baby's body and the arms,
everything but the head. Then the doctor stuck the scissors
into the back of his head, and the baby's arms jerked out. The
doctor opened up the scissors, stuck a high-powered suction
tube into the opening, and sucked the baby's brains out,'' end
quote.
That--that--is what the House of Representatives just voted
to codify as the law of the land. That procedure. A procedure
that is favored by almost no Americans. A procedure that
bipartisan majorities banned in 2003 in this body. And now the
House Democrats, and apparently all the Democrats in the
Senate, want to bring it back and mandate it nationwide,
reflecting the moral sensibility of the brutalist regime in
North Korea.
This is the ethics of North Korea on display. Killing a
child as she is already out of the womb, for heaven's sake.
She's already mostly delivered. Sticking scissors into the back
of her head and sucking her brains out. That is a quote from
the U.S. Supreme Court. That is what is on offer. That is the
platform of today's Democrat party in this body. It is
absolutely extraordinary.
That's what today's hearing's about. They want to
intimidate the Supreme Court of the United States to rule the
way they want them to rule. They want to enact the most
radical, pro-death legislation and agenda in our country's
history, the most radical assault on fetal life, on unborn
life--in the case of partial-birth abortion, on life that is
already--a baby that's already delivered. They want that to be
the law of the land. They're voting for it.
I look forward to voting on this in the U.S. Senate. We
ought to put every Senator on record in this body. We ought to
vote on this bill. Let's vote. We ought to mark it up in this
Committee. Let's do it. I want to know. The American people
deserve to know which Senators support the delivery and killing
of children, out of the womb. Let's find out. Let's find out.
I urge this Committee to bring this legislation for markup.
I urge us to vote on it, and then we should vote on the floor.
The American people should see what it is that today's Democrat
party is proposing. I think they would be absolutely revolted
and appalled, but it's time, as they say, to call the question.
Thank you, Mr. Chairman.
Chair Durbin. Senator Padilla.
Senator Padilla. Thank you, Mr. Chair. Back to the item
that is before us. When it comes to accessing safe reproductive
healthcare, we've seen that a patchwork approach simply won't
work. In fact, the trend that we've seen in healthcare more
broadly is to work toward more seamless comprehensive
healthcare services, not a patchwork, whether it's physical
health, whether it's mental health or anything else. Sadly,
just as with the assault on voting rights, it--we're observing
State legislatures across the country resolutely focusing on
overturning Roe v. Wade. With S.B. 8, Texas has effectively
done just that.
No, we cannot rest in comfort, believing that Roe will
continue to serve as a barrier for State legislatures. Instead,
we must ensure that there is a statutory right for providers to
provide abortion and reproductive healthcare and that patients
continue to receive that care when they choose, free from
unnecessary restrictions. Simply put, this body must pass the
Women's Health Protection Act and the EACH Act.
My first question, for Ms. Graves, Roe is theoretically
still in place, however, restrictions to care already exist in
some States, even while Roe stands. Leaving S.B. 8 aside, can
you give us a few other examples of the restrictions to
abortion people face in States that are hostile to abortion
care?
Ms. Graves. There are several categories. You know, there
are other bans at different points in pregnancy that have been
passed in other States that have been consistently struck down
because of Roe. There have been delays. You know, waiting
periods. Requiring people to wait a certain number of days, so
pushing access to abortion care further into your pregnancy.
There have been efforts to shame people who are having an
abortion. You know, medically inaccurate, shame-based scripts
that providers are required to read.
You know, and there are also things that have basically
shut down clinics, so that in much of the South, many, many
people have to drive hundreds and hundreds of miles, already,
to access care. All of that is on top of the fact that many
people--if you are covered by Medicaid, for example, the Hyde
restrictions mean that abortion care may be financially out of
reach. You know, if you're thinking about someone like me,
who--you know, I frankly could afford to leave my State. I'm
thinking about, it's day 29, and the many, many people who wake
up desperate today in Texas who are wondering what options they
have.
Senator Padilla. Yes. Thank you. Just to sort of build on
that, a recent New York Times article highlighted one of the--
Oklahoma's four clinics that now has Texas residents making up
66 percent of their patients. I know we've touched, earlier in
the hearing, on what the impact of such an influx of patients
can bring to--whether it's this clinic in Oklahoma or others
surrounding Texas--not only from a staffing concern for
clinics, but it places an enormous amount of stress, to your
point, on residents of Texas who can't afford to travel that
distance, when that distance is prohibitive.
For those women, carrying their pregnancies to term, while
that would not be their preference, that may be their only
option. Can you explain what the lifelong effects are of
carrying an unwanted pregnancy to term?
Ms. Graves. You know, I'm going to have to, I guess, put
aside some of just the human dignity pieces of that, right?
Like your ability to control your body and determine for you--
there is a piece about that dignity that would carry for any
woman of any means, but for people who are especially low
income and who already lack consistent access to healthcare.
The thing that worries me the most is--are also maternal and
infant mortality crisis, which is heightened in Texas. When you
add on that what we know about people and our ability to be
able to be economically secure and to thrive, I'm deeply
worried about what is happening right now, today, and about the
copycat laws that are pass--that are going to come up and
likely will pass, as people have been inspired by Texas. We are
in both a public health emergency in this country and also a
constitutional crisis, and it keeps so many of us up at night.
Senator Padilla. All right. If I may, Mr. Chair, I know my
time is up, but one additional legal question for Mr. Vladeck:
Texas's S.B. 8 not only deputizes, it incentivizes private
individuals to sue abortion providers and anyone helping a
person obtain an abortion after 6 weeks of pregnancy. By
shifting enforcement from State officials to private
individuals, the State is attempting to evade legal
accountability and prevent the Federal courts from blocking
this unconstitutional ban. Can you talk more about how S.B. 8
was intentionally designed to create such procedural traps?
Professor Vladeck. Sure. I mean, Senator, really briefly,
because I know that the time is short--there's an en banc Fifth
Circuit ruling from 2001 that specifically opens the door to
this by saying that it's not--State officers, the attorney
general, the Governor, are not proper parties in pre-
enforcement suits if they're not in charge of enforcing.
Senator, if I may, I actually think that really underscores why
the conversation about S.B. 8 is about so much more than
abortion.
I mean, it is about abortion, and it is about so much more,
because for all of the, you know, complaints by Members on the
other side about abortion, about the debate over abortion in
this country, which of course has people's dander up, this
precedent--a universe in which Senator Cruz is comfortable with
State legislatures cutting off the enforcement of
constitutional rights that are still on the books--won't end
with abortion. A world in which our constitutional rights are
worth nothing more than the whims of 50 State legislatures is
not a Federal system, it's not a system with the rule of law,
and, frankly, it's not a system that is going to be sustainable
in the long term. So----
Senator Padilla. Thank you. Thank you, Mr. Chair.
Chair Durbin. Thanks, Senator Padilla. I want to thank the
witnesses. I'd like to make a few comments very quickly,
because you've been very patient and waited through a lengthy
hearing.
In response to Senator Hawley, Senator Blumenthal, who is
the lead sponsor on the Women's Health Protection Act,
confirmed that the bill explicitly says it would not supersede
the law on partial-birth abortions. Explicitly. The
presentation by Senator Hawley should be taken--considered in
that light.
Second, I'd like to say a word about Senator Cotton's
question to you, Representative Howard, about safe, legal, and
rare. I think what you said and what Senator Hirono said about
how to reduce the number of abortions in this country--there
are several ways to do it, I guess. One is to close down the
abortion clinics, which seems to be the goal in Texas. The
other is to empower and help women make the best decision in
their lives by providing them counseling and a medical home,
and health insurance, and the fundamentals--and family
planning.
You know, I have struggled--I respect those who have a
different point of view on the subject, but I have struggled
with trying to understand this notion that eliminating or not
providing family planning information is any hope of reducing
the number of unwanted pregnancies. Practical human experience
tells us that's not true. We can--I can focus--I'll use the
word ``rare''--on doing it in a positive way, rather than a
negative way of shutting down the clinics.
As I reflect on this hearing, it is interesting to me how
little was said about S.B. 8, how few really stood up and said,
``Great idea. I wish I'd have thought of it.'' I think they
basically understand that this is a flawed and dangerous
process. What Justice Sotomayor said--``flagrantly
unconstitutional.'' The word ``facially unconstitutional'' has
been used, too.
Justice Kagan said, when dissenting from the Court's order
in the S.B. 8 case, ``The majority's decision is emblematic of
too much of this Court's shadow docket decision-making, which
every day becomes more unreasoned, inconsistent, and impossible
to defend.'' I don't know that any of us said anything more
extreme than that. She has really laid it on the line.
Unreasoned, inconsistent, impossible to defend. To raise this
question is not to intimidate the Court but to raise a
fundamental question of Court procedure.
When I think of all the time I've spent and this
Committee's spent with Supreme Court nominees, preparing to ask
the questions, trying to envision what they might face on the
Court and get--have some clarity as to their position, this now
becomes an element. Are you going to let us know why you're
making these decisions? Is it going to be a motions docket that
is kept in the shadows? The way the Court is handling its
shadow docket is opening the door for ideologically driven
legal schemes to rewrite the law. It's a five-alarm fire for
due process.
Americans mourn the loss of Justice Ginsburg, in part
because she dedicated her life to equal justice, as well as
judicial independence. Years before she passed, she wrote,
``Judicial independence in the U.S. strengthens ordered
liberty, domestic tranquility, the rule of law, and democratic
ideas. It would be folly to squander this priceless
constitutional gift to placate the clamors of benighted
political partisans.'' Boy, she had a way with words. I believe
we share an obligation to protect and preserve this priceless
constitutional gift.
I'm going to ask unanimous consent--and since no one's here
to object, I think I'm going to win--to enter a number of
statements into the record from a wide variety of groups
supporting the Democratic position.
The hearing record will remain open for one week, for
statements to be submitted.
Questions for the record may be submitted by Senators by 5
p.m. on Wednesday, October 6. Watch for emails.
I want to thank the witnesses again, and the hearing stands
adjourned.
[Whereupon, at 12:25 p.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
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