The ACLU asks the Supreme Court to step back in on SB8
The civil rights group says a lower court’s delay on a recent abortion ruling is costing pregnant people across the country. Plus: Updates on voting rights and Build Back Better.
Yikes: The US set a global record of more than one million COVID-19 cases yesterday. Cases have nearly doubled in four days since the previous record of more than 580,000 cases set last Thursday. Public health professionals knew Omicron had the potential to be bad. They didn’t think it’d be this bad this fast though.
The ACLU grows impatient with the Fifth Circuit: The American Civil Liberties Union posted a Twitter thread a few minutes after I sent yesterday’s newsletter with a bit of news:
“The Fifth Circuit’s delay is unacceptable. Texas’ draconian six-week abortion ban has already been in effect since Sep. 1, 2021, when the Supreme Court initially denied our request to block the law,” Chelsea Tejada, Justice Catalyst Legal Fellow at the ACLU Reproductive Freedom Project, said to me in an email. “This has wreaked havoc for pregnant people and families across the state of Texas, who have been denied access to essential health care.”
Tejada shared anecdotes of some pregnant Texans with the means and ability to travel out of state having to go long distances to access abortion care — including a mom who drove 15 hours overnight with her kids to access abortion care in Kansas. I also learned about a teenage rape survivor who was forced to travel to Oklahoma in order to access the care that Texas denied. Clinics in neighboring states have reported huge upticks in Texas patients. As a result, all patients — no matter their geography — have endured weeks-long wait times for urgent care.
Then there are the people without the resources to travel. “These burdens most deeply impact already marginalized communities, including people with low incomes, young folks, and Black, Brown, and immigrant communities,” Tejada said. “Every day that this law remains in effect will be devastating for the pregnant people who need access to abortion, and their families.”
Let’s rewind for a moment to see how we got here. The Supreme Court ruled last month that Texas could continue to enforce SB 8, a controversial law that bans abortion after six weeks while it is challenged in a federal lower court. (The Justices heard oral arguments for another anti-abortion law passed by Mississippi’s state legislature days before issuing their decision on SB 8.)
President Biden said then that he was concerned about the decision due to the significant consequences the Texas ban has for women in Texas and around the county. “As I have made clear from Day One, I am deeply committed to the constitutional right recognized in Roe v. Wade nearly five decades ago.” The president also reiterated his support for the Women’s Health Protection Act last year, a bill that passed the House last year and would codify Roe as the law of the land. But the bill lacks enough Republican support to pass the Senate.
I was curious about how the process of “sending a case back” from an appellate court to a district court works so I asked Tejada to make it plain for me. (A spokesperson for the Department of Justice declined a request for comment for this story.)
She put it like this: When only part of the case has been decided, for example if the case is at a preliminary stage, there may be more for the lower court to do after the higher court decides the appeal. In that instance, the higher federal court would release its decision and issue a mandate directing the lower court how to proceed. When the Supreme Court does this, it typically issues the opinion but then waits 25 days to issue the official mandate, to afford the losing party an opportunity to seek rehearing.
What was unique about the Texas SB 8 case is that the Supreme Court agreed to hear the appeal before the Fifth Circuit issued a final judgment on the original appeal from the district court. “In other words, our case leapfrogged from the district court up to the Supreme Court on an unusual and highly expedited basis,” Tejada said. “The Supreme Court ultimately reversed most of the district court’s ruling, dismissing all of the defendants central to SB 8’s bounty-hunter enforcement scheme.” But the Court allowed abortion providers to still seek relief against the state officials authorized to impose licensure penalties on clinics and providers based on a violation of the six-week abortion ban.
The ACLU filed a motion asking the Supreme Court to send the case back and not wait the typical 25 days to issue the mandate. Justice Neil Gorsuch issued an order agreeing to immediately issue the mandate and sent the case to the Fifth Circuit for further proceedings consistent with the Court’s opinion. All the Fifth Circuit has to do is send the case to the district court so the case can proceed against the state licensing officials, who the Supreme Court determined were appropriate defendants in this case. But it denied the ACLU’s request and instead scheduled an oral argument on the question of whether and how the case can proceed, rehashing questions already resolved by the Supreme Court’s decision.
The oral argument before the Fifth Circuit is scheduled for this Friday. In the meantime, ACLU filed something called a “writ of mandamus” with the Supreme Court, which Tejada tells me is essentially a request that the Supreme Court order the Fifth Circuit to send the case back to the district court. If the Court grants ACLU’s request, then the organization would quickly work to get a ruling against the state licensing officials, who the Supreme Court said were proper defendants in this case.
“This cruel and unlawful delay prevents Texans who need abortions from getting any near-term relief, even on the narrow path forward that the Supreme Court left open,” Tejada said. “We will keep fighting and do everything in our power to stop this law from continuing to wreak havoc on Texans’ health and futures.”
The cycle continues: For most of the time, Democrats have controlled the Senate a familiar pattern has occurred: Senators will propose ambitious policies and Sen. Joe Manchin of West Virginia will pump the breaks grinding the legislative process to a halt.
So it’s no surprise that a day after Senate Democratic Leader Chuck Schumer set a deadline to pass voting rights or reform the rules that enable Republicans to block the legislation by Martin Luther King Jr. Day, Manchin said aht aht!
“Being open to a rules change that would create a nuclear option, it’s very, very difficult. It’s a very heavy lift,” Manchin said to reporters this afternoon. “For us to go at it alone, no matter what side does it, ends up coming back at you pretty hard.”
Manchin argued that once you change a rule, “you eat the whole turkey — there’s nothing left.”
The Senate changed the rules to lift the government’s borrowing limit. Critics of Manchin’s position say voting rights are as important as the full faith and credit of the country.
Manchin said that conversations on a path forward are ongoing.
Spokespeople for Schumer did not respond to a request for comment on Manchin’s remarks or if they impact the MLK Day deadline he set yesterday for action on voting rights legislation.
Build Back Never? Manchin was also asked about the status of Build Back Better, the jobs, education, health care and climate plan he stalled before Christmas.
“There’s been no conversations [with the White House] after I made my statement,” he said. “I was very clear. I feel as strongly today as I did then.
Schumer said he intends to hold a vote and will keep doing so until the Senate gets a bill passed. “The stakes are too high for us to find common ground.”
A point of personal privilege: My friend Evette Dionne’s book Lifting As We Climb: Black Women’s Battle for the Ballot Box is now available in paperback.
Lifting As We Climb, which debuted in April 2020, was nominated for a National Book Award and earned a Coretta Scott King author honor, celebrates the role Black women played in the movement to end slavery and secure the right of women to vote.
Evette and I worked together nearly a decade ago on a scrappy digital magazine I founded while I was in college. And like everyone on that team, I knew she would take the world by storm. And with every project, including this masterpiece of a book, she proves me right.
“This book changed everything for me. It changed my life. It is the lighthouse that I swam toward and opened all the shores for me,” Evette said to me earlier today. “I am so honored that I was chosen by my publisher [Penguin Random House] to bring this particular story to life, that it has resonated with the people it’s supposed to resonate with and reached the children that it’s supposed to reach. It’s all I could I could have asked for.”
Today in Politics
President Biden and Vice President Harris received their daily intelligence briefing this morning. This afternoon the two met with the members of the COVID-19 Response Team for an update on the Omicron variant. White House Press Secretary Jen Psaki briefed reporters for the first time in 2022.
The House is in recess.
The Senate is in session with a vote scheduled to advance the nomination of a judge in the US Courts of Appeals.
The US Capitol Police department held a news conference to outline security improvements since the Jan. 6th insurrection.
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