As Donald Trump embraces an online campaign filled with vulgar imagery attacking women, he continues to brag that he “killed” abortion by appointing Supreme Court justices who, with the Dobbs v. Jackson Women's Health Organization decision, reversed more than 50 years of women’s reproductive freedom.
Last week’s Texas abortion case and matters like it show that the only thing Republicans have killed is their own claim that banning abortion is about saving lives.
This is how we got to Texas.
For Republican attorneys general, it’s all about control. The Dobbs ruling leaves women’s medical decisions up to the vote of strangers, and Republican state attorneys general are trying to tighten the screws.
Over the summer, Republican state AGs served a notice of rulemaking opposition on the Department of Health & Human Services, to block a federal HIPPA rule designed to protect private health care information of women obtaining abortions in states where abortions are legal.
Demanding access to out-of-state abortion medical records, Republican AGs claimed, fantastically, that there was no legal or legislative need to protect the medical privacy of these women, because “no states that outlaw or heavily restrict abortion access penalize people who seek abortions.”
Enter AGs Todd Rokita of Indiana and Ken Paxton of Texas, breast-beating about their legal prerogative to make sure abortions — even legal ones — are penalized.
Indiana’s AG pretended to protect ‘the privacy’ of a nine year old rape victim.
Following Dobbs, a nine-year-old Ohio girl was raped and impregnated by her mother’s boyfriend. Because Ohio Republicans had passed a law that would force the child to carry and give birth to her rapist’s child, she sought an abortion in neighboring Indiana, where Republicans’ abortion ban had also passed but was not yet in effect. The child obtained a legal abortion in Indiana with the help of Indianapolis obstetrician-gynecologist Caitlin Bernard.
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At first, conservatives — including Ohio Attorney General Dave Yost, who is among the AGs challenging women’s medical privacy rights — claimed the child-rape was fabricated to embarrass hardline anti-abortion Republicans. Yost and his colleagues had to change tack when the child rapist officially pleaded guilty under Ohio’s criminal code.
Incensed that the public saw evidence that children were, indeed, raped and impregnated and in need of state protection, Indiana’s AG Todd Rokita set out on a face-saving vendetta to destroy Bernard.
Rokita filed an official misconduct complaint against Bernard with the state Medical Licensing Board, seeking to end her medical career and suspend her license to practice medicine, mainly because she allegedly violated the child’s “medical privacy” when she went public with the (anonymous) child’s story.
Savoring his revenge, Rokita appeared on Fox News to gloat and defamed Bernard as an “abortion activist acting as a doctor.” After Indiana’s medical board sanctioned Bernard mildly, Rokita then filed a lawsuit against the doctor’s employer, Indiana University Health, alleging it had also violated the girl’s “privacy rights.”
Rokita, naturally, is among the 19 Republican AGs who formally assert that women getting legal abortions have no right to medical privacy.
To date, Rokita has not reconciled his embrace of privacy rights for a rape victim whose pregnancy embarrassed him with his simultaneous position that women seeking an abortion are not entitled to medical privacy at all.
Something is amiss in Texas
Rokita’s abuse of power, galling though it is, has just been upstaged in Texas.
Last week, a Texas judge ruled that expecting mother Kate Cox’s pregnancy met the state’s “save the life of the mother” medical exception under the state’s abortion ban, because of a diagnosis of trisomy 18.
Trisomy 18 is a defect that almost always ends in death to the fetus, and is known to present serious medical risks and extreme pain to the mother, jeopardizing her future ability to give birth.
When the judge ruled that Cox was legally entitled to an abortion, a livid Paxton hit the warpath. Immediately following the ruling, Paxton threatened Texas health care providers with felony prosecutions. He sent an intimidating letter to each individual hospital where Cox’s doctor held admitting privileges, warning them not to permit Cox’s abortion despite the judge’s ruling authorizing it. The court’s ruling, Paxton threatened the hospitals, “will not insulate you, or anyone else, from civil and criminal liability for violating Texas’ abortion laws, including first-degree felony prosecutions.”
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The rub is that Cox’s trisomy 18 diagnosis itself was never in dispute. The problem, according to Paxton and the all-Republican band of Texas Supreme Court justices, was Cox’s physician’s determination under a “good faith belief” that Cox’s condition met the medical standard for a legal exception under the state’s abortion ban.
Reversing the lower court and denying Cox’s plea for a legal abortion, the all Republican Texas Supreme Court decided that Cox’s doctor’s good faith medical belief was not sufficient. They wrote, “Some difficulties in pregnancy, even serious ones, do not pose the heightened risks to the mother the (Texas) exception encompasses.”
Via pen and hubris, the shockingly callous, non-medically-trained justices substituted their own medical opinion for that of Cox’s doctor, ruling that she may have been in danger, but she wasn’t close enough to death to meet the medical exception under Texas’ abortion ban.
About Alito
Supreme Court Justice Samuel Alito, a life-long misogynist whose club wanted to keep women out of Princeton, wrote the Dobbs decision that set this medical mayhem into motion.
Allowing non-medically trained, mostly male state legislators to control women’s healthcare, Alito nearly spit at the argument that Equal Protection — more than privacy — protects women’s health. Worse, he completely disregarded the foundational underpinning of the original Roe v. Wade decision: the 9th Amendment, which vested all “unenumerated” rights in the people, not the government.
Alito self-describes as a federalist, but rather than interpret Roe through the lens of 1780s textualism, as federalists do, Alito drove his results-driven analysis through the 14th Amendment, ratified nearly 100 years after the Constitution’s creation, to conclude that abortion is “unmoored” from the constitutional text and is not “deeply rooted” in United States history.
The crux of Alito’s analysis was that the Constitution does not mention privacy or abortion, therefore it does not protect those liberties. (Heads up: the Constitution does not mention the Supreme Court’s right of judicial review either.)
Alito’s Swiss-cheese-turned-Limburger opinion skipped over the originalist context in which the Constitution was ratified for a reason: As he admits, abortions were accepted and legally performed under common law up to the point of “quickening” in the womb, which typically occurs during the fourth or fifth month. The learned men who drafted the Constitution came from this English common law; they and their families were living under English common law at the time they wrote the Constitution, so they were well aware of the practice of abortion.
Justice Samuel Alito (Photo via Erin Schaff / for AFP)
If they had wanted to outlaw it vis-à-vis the Constitution, they would have. But instead of outlawing abortion, they did the opposite. They said, via the 9th Amendment, that whatever powers weren’t spelled out for the government, belonged permanently to the people. Pursuant to the 9th Amendment, government should stay out of people’s lives unless the Constitution specifically spells out a mandate to intervene.
Dobbs, of course, points to no mandate allowing the government to outlaw abortion or any other private healthcare decision. So, instead of examining the drafters’ lives, understanding, intent and context when they wrote the Constitution in 1787, like a true originalist would, Alito regressed 500 years to revive a 13th century treatise on English law and custom, which was written when women were chattel and nonconformists were burned alive at the stake.
It's hard to respect jurists who ignore the Constitution
Post-Dobbs, Republicans are abusing their powers of office to intimidate women and their families during times of extraordinary duress. Their abusive state conduct violates the Equal Protection clause of the 14th Amendment, which anyone can read without traipsing back to the early 1200s:
All persons born or naturalized in the United States… are citizens of the United States and of the State wherein they reside. No State (shall deprive) any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Re-writing the 14th Amendment to read “all persons unborn,” Alito and an activist Court have released the henchmen and trained them on the handmaids. As Alito so dismissively quipped in Dobbs, putting away his belt and wiping his upper lip, “women are not without electoral or political power.”
May we use our vote next year to reject the abortion policies of Trump and radical Republicans and elect leaders who will reign in an activist court hellbent on our subjugation.
Sabrina Haake is a columnist and 25-year litigator specializing in 1st and 14th Amendment defense. Follow her on Substack.
