Tell your Members of Congress: End the Filibuster to Protect Reproductive Justice

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Call Script

My name is __________. I am a constituent, and my zip code is _______. I am a member of Indivisible SF.

The Roberts Supreme Court thumbed its nose at precedent last week by using its shadow docket to let Texas implement its unconstitutional law prohibiting almost all abortions. We must protect everyone in America who can get pregnant by ensuring that they can make their own decisions about their own bodies, regardless of what state they live in.

[Pelosi]: We thank Speaker Pelosi for responding by bringing the Women’s Health Protection Act up for a vote in the House and urge her to do all she can to ensure its passage.

[Speier]: We thank Rep. Speier for signing on as a cosponsor of the Women’s Health Protection Act and urge her to do all she can to ensure its passage.

[Senators]: We thank you for cosponsoring the Senate version of the Women’s Health Protection Act and urge you to push all your colleagues to end the filibuster to get it passed. Once you’ve done that, I urge you also to pass the For the People Act to give all Americans equal power to vote for those who protect the rights we cherish.

Background

“The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.” —Justice Sonia Sotomayor

Before SB8, abortion services were already extremely difficult to access in Texas. On August 30, an emergency request at the Supreme Court was filed on behalf of Texas abortion providers and advocates for reproductive rights. In addition to asking for the law to be blocked, the emergency request asked that district court proceedings be allowed to continue. By refusing to take any action, SCOTUS allowed Texas’ SB8 to take effect. The most bizarre aspect of SB8 is that it empowers vigilante justice by being enforceable not by the state, but exclusively through private civil actions. This was specifically designed to evade Ex parte Young, 1908. Young established that a plaintiff may sue a state official charged with enforcing a state law in order to block it, but if no state official is charged with enforcing the law, there’s no one to sue.

Members of the Republican supermajority on SCOTUS won Senate confirmation in part by attesting to their respect for precedent. However, this decision simply ignores decades of precedent, including Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). In addition, making this decision on the “shadow docket” rather than in a detailed public debate suggests their disinterest in, or even contempt for, the concept of transparency in law.

The Women’s Health Protection Act (WHPA), which has been introduced in every Congress since 2013, is federal legislation that would codify the protections of Roe v. Wade, protecting the right to access abortion care throughout the United States by creating a safeguard against bans and medically unnecessary restrictions. Speaker Pelosi has promised to bring it to the floor for a vote as soon as Congress returns from recess.

A nationwide Women’s March is planned for October 2, 2021 to affirm the public’s commitment to ending gender bias and defending reproductive justice.

We also need to keep a careful eye on how the far-right majority on the Roberts Court uses the so-called shadow docket, which is ordinarily used for death penalty appeals and other emergency rulings as well as to manage cases while it decides which to resolve. In her dissent on the Texas ruling, Justice Kagan criticized SCOTUS’ use of the shadow docket as “emblematic of too much of this Court’s shadow docket decision making — which every day becomes more unreasoned, inconsistent, and impossible to defend.”

The Roberts Court has accelerated its use of the shadow docket in recent years, from just four orders in the 16 years of the Bush 2 and Obama administrations to 28 orders during the Trump administration alone. This allowed the Trump administration to enforce policies that lower court rulings had invalidated, and to directly block government policies at the outset of litigation when lower courts refused to do so. Since Justice Amy Coney Barrett joined the court in October 2020, the justices have issued seven emergency injunctions to block state coronavirus restrictions, compared with a total of four injunctions directly blocking state laws issued by the court during the first 15 years of Chief Justice Roberts’s tenure. We welcome the decision of the Senate Judiciary Committee to include this topic in their upcoming hearing on the Texas law.