Senate Hearing on Texas Abortion Law Transcript

Mr. Durbin: (00:00)
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 SBA took a new approach. Instead of having the state enforce an extreme abortion ban, they put enforcement in the hands of private citizens who can be rewarded with an a bounty of not less than $10,000. $10,000 is often publicized as what’s at stake here. A statute expressly says not less than $10,000 court costs and attorney’s 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 wrote a lawsuit.

Mr. Durbin: (01:03)
One San Antonio doctor have 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 law makers 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, but 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 decision 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 injunction 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.

Mr. Durbin: (02:46)
Recently, Justice Briar 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 acts, but 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 in 28 instances. 28 out of 36.

Mr. Durbin: (03:45)
But in the case of SB8, 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, and acted in disregard of the court’s precedence through procedural entanglements of the state’s own creation. In other words, the SB8 scheme worked.”

Mr. Durbin: (04:49)
This may sound like some abstract legal debate. It’s not. The court’s handling of SB8 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 SB8, Texas has created a model to undermine constitutional rights by using bounty hunter enforcement schemes. We are already seeing law makers 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 laws aligned with certain ideological preferences.

Mr. Durbin: (05:40)
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 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.

Mr. Grassley: (06:19)
Thank you, Chairman. We’re having a hearing today because the Supreme Court did something very ordinary. So 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 death penalty appeals, but we didn’t hear complaints from the liberals in the Senate about the docket for those cases. So 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 one.

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 acknowledge that the plaintiffs had a serious case. But 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. But 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.

So why are we having this hearing at the last week of September? It’s because the Supreme Court starts hearing cases next week. And 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% do not allow elective abortions pass 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.

So why do polls show that public confidence may be decreasing? It’s because of dark money groups, like Demand Justice, are running multimillion 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, 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 preexisting 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 courts seven to two 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’s one final point 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 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.

Mr. Durbin: (15:12)
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 a subject of a national debate about ROE and the issue of abortion. And this committee is charged with the responsibility of oversight of agencies and the consideration of any measures relative to the Roe versus Wade. I think it is our responsibility and there was nothing sinister in selecting the state for the hearing. Today we welcome five witnesses. I want to thank them for joining us. Let me briefly introduce each. Our first witnesses 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 Corporations 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.

Mr. Durbin: (16:21)
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 and Ellis and Bancroft, and the Houston Texas office of Baker Botts. He received his BA from Birmingham Southern College, his JD from law school and clerk for Judge William Pryor in the 11th Circuit. Fatima Gross Graves is the President and the 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, clerk for Judge Diane Wood on the 7th 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.

Mr. Durbin: (17:18)
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, clerk for Justice Clarence Thomas, and for then DC Circuit Judge Brett Kavanaugh. Professor Steven Vladeck holds the Charles Allen 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 Miami Law School at American University Washington College of Law. He’s argued multiple cases before the Supreme Court, is nationally recognized expert on federal courts and constitutional law. Received his BA from Amhurst, his JD from Yale Law, clerk for 9th Circuit Judge Marsha Berzon, and 11th Circuit Judge Rosemary Barkett.

Mr. Durbin: (18:09)
The mechanics of today’s hearing is the usual. After we swear in witness, each witness will have five minutes for opening statements. Then we will turn to questions from senators, and each senator will have five minutes. Senator Klobuchar is asked for special permission to be recognized early so she can attend the funeral service for our late Susan Bike, wife of a former colleague. Will make that accommodation certainly for her. So let me ask all the witnesses to please rise for the oath. If you raise your right hand. Do you affirm that the testimony you’re about to give before the committee will be the truth, the whole truth and nothing but the truth so help you God? Let the record reflect that the witnesses answered in the affirmative. Representative Howard, you’re first.

Donna Howard: (18:55)
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 SB8 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 super majority 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 result 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. SB8 was the culmination of a decade of erosion of access to abortion healthcare, with the intent of creating a defacto ban without actually calling it a ban. Here’s a brief timeline of how this bill denies access to 85 to 90% 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 translate it into a whoosh whoosh sound as early as six 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. So someone can become pregnant unknowingly and unintentionally as contraceptives are not 100% 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 SB8 has been given to private actors with outstanding 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 six week patient who needs care that they determined 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. But 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 SB8. As someone who came of age pre Roe V Wade, when it was not only illegal to get an abortion, but also to get contraceptives, I can tell you, I’m 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% of the responsibility for the pregnancy, but oftentimes 0% 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.

Mr. Durbin: (24:19)
Thank you, Representative Howard. And now Mr. LaCour.

Mr. Edmund Lacour: (24:26)
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 Edmond 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. Now, 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 risk, 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 11 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 thoughtful ruling, given the emergency posture of the case. And 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 state 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 emergencies of 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 SB8 litigation to deny the plaintiff’s request for an injunction was an entirely ordinary ruling. After all, one thing most everyone agrees on about SB8 is that it raises unprecedented and difficult jurisdictional questions. It thus would’ve 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.

Mr. Durbin: (28:40)
Thank you, Mr. LaCour. Ms. Graves.

Ms. Fatime Goss Graves: (28:48)
Chairman Durban, 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. And I’m here today because both our right and-

Ms. Fatima Goss Graves: (29:03)
… Center, and I’m here today because both our right and access to abortion are at a perilous crossroads. And 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. And 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 danger, threatening patients’ health and wellbeing and financial security, and 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 or oral argument in Dobbs versus Jackson Women’s Health Organization, a case about the Mississippi ban on abortion after 15 weeks in pregnancy. 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 SB8 was written to ensure that its six 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. SB8 is having its intended effect. As a result of the law abortion providers in the state have stopped providing nearly all abortion after or six weeks.

To be clear laws like SB8, they don’t eliminate the need for abortion. They simply remind us of the indignity of not being afforded our full constitutional protections. And 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 a 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 country. 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 were 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.

Mr. Durbin: (33:50)
Thank you very much, Ms. Graves. Now Professor Mascott, please.

Prof. Jennifer Mascott: (33:57)
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 docket. I’m a professor at Scalia Law School where I teach and write in the areas of constitutional law in 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. 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’ve 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 Woman’s Health versus Jackson. The petitioners sued several state defendants who like 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 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 Three 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 counsel of revision to review abstract legal questions, and the courts repeatedly reaffirmed over hundreds of years, its lack of power to issue advisory opinions. It should not, and really lawfully cannot, generally legislation or provide legal guidance outside the context of concrete disputes.

In the US representative Republic structure, federal and state legislatures bear general responsibility for policy making to help ensure that laws regulating citizens represent the interest 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 laws’ Constitutionality.

In light of these principles, the Supreme Court noted complex and novel antecedent procedural questions in Whole Woman’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 with the judicial power to enjoin individuals tasks 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, and recently as folks here have said the Court’s orders dockets received more attention because of a well-marketed smart law review article coining the edgy phrase, “Shadow docket,” but 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 [surpetitions 00:38:34], request 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 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.

Mr. Durbin: (39:04)
Thank you, Professor Vladeck.

Prof. Stephen Vladeck: (39:06)
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 SB8 and the Supreme Court shadow docket have far more in common than simply their intersection in the Court’s 5-4 ruling on September 1st. In different, but powerfully related ways, they both have ominous implications for the rule of law.

Taking SB8 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 virtual 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 SB8, defenders of the court’s efforts gravitate toward the bottom line, brush them 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 SB8 case is so revealing. It’s not just that the Court declined to stop SB8 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 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 states 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 principle 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.

Mr. Durbin: (44:05)
Thank you very much, professor. Senator Klobuchar?

Sen. Amy Klobuchar: (44:09)
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 are a former registered nurse. You are chair of 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?

Rep. Donna Howard: (44:42)
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 six 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.

If the law causes health clinics to close, what’s the impact on your state?

Well, it’s beyond abortions because most of these clinics also provide preventative 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.

Exactly. Ms. Graves, I’m concerned about what Justice Sotomayor described as the Texas law’s creation of Texas bounty hunters, citizen bounty hunters, who are offered in her words, “Cash prizes for civilly prosecuting their neighbor’s 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?

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.

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?

Well, 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 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, so for many people abortion is already out of reach.

Okay. My last question, Professor of Vladeck, the Texas case is just the most recent example of the Supreme Court issuing short, unsigned five to four decisions without old 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 5-4 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 of 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?

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, in response to the Ranking Member, I guess my response is, 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.

Thank you very much. Thank you, Mr. Chair.

Mr. Durbin: (49:27)
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 court decisions making with respect to injunctions and temporary restraining orders?

Mr. Edmund LaCour: (50:12)
Ranking Member Grassley, you’re correct that it, similarly, I mean, we’ve faced TROs from district courts where we have received the order from the court orally from the bench with no written order. I mean, 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 a district court is writing for himself or herself alone, whereas the justices have to try to convince at least four of their colleagues, if not more, to join a particular opinion. I do 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 a courts of appeals.

Same to you, without the Supreme Court’s emergency docket, how can litigants whose fundamental rights are at stake seek immediate relief?

I mean, 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.

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’s injunctions generally exceed district courts constitutional, 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?

I believe it would be, Ranking Member Grassley.

Okay. 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?

I believe they do. We could always use more time, but we’ve been able, oftentimes, 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. And Mr. Smith’s council was able to represent him well and he ultimately prevailed in that particular emergency proceeding.

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?

Well, 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. I think 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.

But 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 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 requests. 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.

Yeah. Last and short question to you, can federal courts enjoin laws rather than specific parties? Why or why not?

Sure, Senator. Under Article Three, the federal judicial powers sends just the cases or controversy, so the Court’s got to be acting against specific parties and specifically does not have the power to generally review legislation. But thankfully we have legislative bodies that we can go to to petition for policies to be reviewed and not look to the Court to answer every policy question for the country.

Thank you, Mr. Chairman.

Mr. Durbin: (54:46)
Thanks Chairman, or former Chairman, my friend, Senator Grassley.

Mr. Durbin: (54:51)
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 SB8 is. For them it’s just a routine Supreme Court procedural decision and 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 a special moment to a decision, whether it’s going to be a shadow docket or a merits docket decision, wouldn’t you think?

Mr. Durbin: (55:22)
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 him straight, calling 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 SB8. I’m anxious to hear it. But so far, not a one.

Mr. Durbin: (56:14)
Let me ask you, Ms. Howard, you were present at the scene of this legislative crime. When we talk about liability under SB8, 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, receptionist, security guards, relatives or stranger 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?

It was absolutely discussed and debated, but to know avail could we get any change made to that. We have heard of multiple instances now out of, for instance, Uber or Lyft drivers not being willing to take someone to a Planned Parenthood clinic. This is something that 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 and counseling those that come to them, the survivors, but are absolutely concerned now about what that’s going to mean for liability for them.

Mr. Durbin: (57:56)
A long time ago I used to be a practicing lawyer, filing civil litigation lawsuits-

Mr. Durbin: (58:02)
Lawyer filing civil litigation lawsuits. And this bill has something in it I’ve 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.

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. So it’s absolutely chilling.

Mr. Durbin: (59:03)
So there’s no rape or incest exception in this law, correct?

That’s correct. That’s correct.

Mr. Durbin: (59:08)
Except there’s one reference to rapist that I can find. And that reference says that no exceptions for victims of rape to be able to sue under this law. So 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 rapist turn around and sue under this law, and recover from their own victims. So was that discussed in the Texas House of Representatives?

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, but 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. So this is really the entire bill is just egregious.

Mr. Durbin: (01:00:11)
Thank you. I’m going to go off and vote. Senator Whitehouse is going to preside, and I believe Senator Cornyn’s next.

John Cornyn: (01:00:20)
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 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. But 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.

So 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 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 Ginsburg and Justice Breyer.

But 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 are created equal. And they are endowed by their creator with certain unalienable rights. And among these are life, liberty, and the pursuit of happiness.” And 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 US, 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, and basically embracing infanticide, I was proud to support the effort to protect the rights of children who were born after botched abortions. But all of our Democratic colleagues voted against that.

In the meantime, here is 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. Restrict state laws protecting a doctor’s right to opt out of an abortion based on a religious or moral objection. Requires state aids 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. And finally 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?

Rep. Donna Howard: (01:05:30)
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.

Well 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. But as I’ve described it to you, would you support this legislation or not?

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 need to have government interference.

Does the unborn infant have any rights at all?

I’m sorry.

Does the unborn child have any rights whatsoever in your opinion?

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.

Well, the Supreme Court precedent, which establishes viability roughly at 24 weeks, you’re aware the fact that when Roe was decided, viability was at 28 weeks roughly. But due advances in medical science, it’s now even a younger unborn child can be saved. But 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 the mother.

Certainly there are ranges within which these-

Sheldon Whitehouse: (01:07:10)
Senator Cornyn, you’re well over your time allotment. So let me let the witness answer, but please, you have colleagues who are waiting.

If you’d let the witness answer, I’d appreciate it.

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 Leahy is next in order. You’ve just come in. If you’re ready to proceed, you may proceed.

Patrick Leahy: (01:07:37)
I am. And I appreciate that. I was able to listen to the things as we’ve 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 United States Supreme Court will honor precedent and protect well established, constitutional rights for everybody. But by allowing Senate Bill 8 out Texas to go to 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. And of course, Roe and Casey are a dead letter across the state of Texas. That affects families working to make ends, meet young women of color.

I’m not questioning 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. Now, 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?

Prof. Stephen Vladeck: (01:09:18)
Well, Senator, I think the most concerning parts of the trends 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 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. And I think that really ups the ante for the significance of these rulings.

And that goes, I think, into 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. And that, to me, Senator is where the SB8 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 SB8 case, I think this is a different conversation. But it’s against the backdrop of all the context where the justices did intervene.

I worry that it could cause people lose faith in the Supreme Court. And I said, as one who’s voted on more Supreme Court justices than anybody in this room, in fact, I believe I 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. And I was thinking, listening to Representative Howard, tell me a little bit more. The former prosecutor, and one who saw what happened, we had backroom artists involved with abortion. People I’d go after. They were doing however in a non-medical situation and people died. And to say nothing about a whole lot of other things that went on. And then I see delegating enforcement to everyday citizens, cash bounties of at least $10,000 who bring suits, even if they’re frivolous, against medical practitioners. Can you speak to the harmful effects of the private enforcement and mechanisms on women and healthcare providers in your district, actually across the state of Texas?

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. 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. So it’s absolutely creating much anxiety and fear among people.

Thank you. Thank you, Mr. Chairman.

Senator Lee.

And also my other question for the record.

The Senator’s questions for the record will be accepted. Senator Lee.

Mike Lee: (01:13:14)
Thank you, Mr. Chairman. Right around the Washington monument, there’s a display. It’s a fascinating display, invisible 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.

Mike Lee: (01:14:02)
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 you see this roughly 700,000 figure for the lives lost to COVID, that’s not just this year. That’s this year and 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.

Mike Lee: (01:14:37)
And 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.

Mike Lee: (01:15:27)
If we had our red flag for every human life that’s been taken since 1973, and we put that around the Washington Monument, there would be room enough to hold all those red flags. I doubt there would be enough grass in the entire Mall between the Capital 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. So 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.

Mike Lee: (01:16:16)
So if a court is going to take that right away, a state whose citizens regard that as being a morally consequential decision, 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.

Mike Lee: (01:17:14)
And so, yeah, is Texas’s law that they came up with unique? Yes. Is it different than 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? Now 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.

Mike Lee: (01:18:05)
Abortion is not on that list. I challenge any one of you. 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. This amounted to a betrayal of their oath to uphold the US Constitution and to interpret it based on what it actually says rather than what they wish they meant.

Mike Lee: (01:18:35)
As to the shadow docket, like any court in the United States, state or federal or municipal, yes, the Supreme Court of the United States, where I served served as a law clerk, has a motions docket. No court could exist without it. You wouldn’t want one without it. And 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.

Mike Lee: (01:19:17)
This is sometimes what happens in advance of certain people feeling and fearing that members of the Supreme Court of the United States might 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 United States Senate. We should not harass, threaten, or intimidate.

Mike Lee: (01:19:41)
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 Three standing at 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. So yeah, 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 have just invalidated the whole law. It’s not how our system works. They didn’t have jurisdiction because they didn’t even have a defendant. Thank you, Mr. Chairman.

Mr. Durbin: (01:20:28)
Thank you, Senator Lee. 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. And 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.

Now, 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 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 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. 250 million is a lot of money, and people don’t spend that kind of money unless they want results. And 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. And 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.”

And 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. And 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. And a masked entity, a front group in a courtroom, is a very un-American thing in my view.

And of course, what you most want from capturing a regulatory agency or a court is results. And sure enough, we’ve tracked 80 partisan five to four decisions under Chief Justice Roberts that give clearly identifiable wins to big Republican donor interests. 80 is a lot. I’m not a great lawyer, but I betcha that I could have taken a string of 80 to zero, and brought a pretty good bias and discrimination case based on that pattern of behavior. And 80 to zero is the pattern of partisan five to four decisions with Republican donor interests involved.

So it should probably come as no surprise when you look at the 80 five to four decisions, say they fall into four major categories as we’ve pointed out. One is helping Republicans win elections. Another is attacking civil rights. Another is protecting the Republicans’ corporate benefactors, particularly from liability. And 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.

So 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 five to four 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. So my time has 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.

Mr. Durbin: (01:25:36)
Thank you, Senator Whitehouse. Senator Cruz.

Ted Cruz: (01:25:40)
Thank you, Mr. Chairman. 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.

Ted Cruz: (01:26:10)
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. And number two, trying to intimidate the Supreme Court and Article Three 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.

Ted Cruz: (01:26:32)
And I will say this topic today on the shadow docket, that is ominous. Shadows are bad. 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?

Ted Cruz: (01:27:01)
… emergency motions. Is that correct?

Speaker 1: (01:27:04)
Any emergency proceeding whatsoever?

Ted Cruz: (01:27:06)
Yeah.

Speaker 1: (01:27:07)
That’s not correct, Senator.

Ted Cruz: (01:27:09)
Well, wait a second. Before Donald J. Trump, every single case the Supreme Court decided was fully briefed and argued isn’t that right?

Speaker 1: (01:27:17)
That would not be correct.

Ted Cruz: (01:27:18)
You mean they’ve decided emergency motions before the advent of the terrifying President from Trump?

Speaker 1: (01:27:25)
Yes. Before our 45th president.

Ted Cruz: (01:27:30)
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, on no emergency matters during your time as a clerk. Is that right?

Professor Mascott: (01:27:41)
Senator, certainly the orders-

Ted Cruz: (01:27:43)
You got to turn your mic on.

Professor Mascott: (01:27:44)
Certainly the orders dockets it’s typical and yes has been around for a very long time. And on the jurisdictional points at California versus Texas, just last term, 2021 Justice Briar 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.

Ted Cruz: (01:28:05)
No, 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 mentioned hypocrisy because the Democrats received far more dark money than Republicans. So while they’re shoveling in hidden money from giant donors, they complain, “Hidden money from giant donors is a terrible thing.” And then they come up with a 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 or court of appeals of the United States Supreme Court, if there’s a motion docket, the motions docket is handled on the motions docket, that has been always the case.

Ted Cruz: (01:28:54)
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. And so on the west coast, it’d be three in the morning. And you’d have the clerks there until 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, but 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.

Ted Cruz: (01:29:39)
So this whole notion of a shadow docket is called an operating court that is deciding emergency motions. But look, what this is really about is trying to demonize Texas and trying to demagogue on the question of life. Now, 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. So Illinois is doing better. Where do the people from Illinois go? Well, clearly they don’t go to the hell holes like Texas or Florida. Well, no, actually that’s exactly where they go.

Ted Cruz: (01:30:31)
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 until the moment of birth, partial birth abortion with government funding with no parental consent, no parental notification. It is radical, it is extreme, 9% of Americans agree with the positions of every Democrat on this committee because they have handed their abortion agenda over the radical left. Texas made a perfectly reasonable decision to protect life. Life is valuable. 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, so 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.

Senator Booker: (01:31:47)
Thank you very much, Mr. Chairman. This is clearly an 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. And when we know all the challenges often women face just accessing health care 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 health care and abortion care is healthcare. 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 wellbeing, that preserve life. We know that women who are afforded health care and family planning have lower rates of unwanted pregnancies. You would say that’s a fact, correct?

Yes, indeed.

In fact, Colorado reduced their rate of young women having abortions.

That’s correct.

By 40%, not by attacking women, not by taking away healthcare, but by giving them more reproductive freedoms. And the stunning thing to me is that we know what would elevate human life and wellbeing if we invested and empowered women with doula care, with health care, 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?

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.

Can a wealthy woman under this law, a wealthy person in Texas have access to abortion care?

Yes, sir. She can. She can travel out of state.

So who’s most effected by a law like this?

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.

So 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 terminated pregnancy, reasons they’re listing. One of them, depending on the study is the fact that women are 400% more likely to plunge into poverty, and they mentioned financial issues. Is there legislation coming out of the Republican majority to economically empower women of birthing age who choose to have children or improve the childcare system, foster care system or anything like that?

We have continued to underfund all of the things that you mentioned and absolutely, to your point, valuing life means valuing the lives of the women who are asked to carry these pregnancies.

So poverty, health care, 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, are the things that being attended to?

Senator, I’m a lifelong Texan. I love Texas. I am not here to bash Texas, but 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.

Thank you very much. Professor Vladeck, forgive me. I didn’t go to a law school. I went to Yale law school, and can you clarify something for me? Because I can fully concur that some of my friends on the other side of the island are probably better lawyers than me. But my dear friend, somebody, I value quite a bit, Senator Lee said that the Supreme Court did not have jurisdiction because there was no proper defendant. And I’ll take my question with my mic off. I know my time’s expired, but could you answer that, please?

Sure. Senator, I mean, I suffer from the same disease of what law school I went to. But I will say, I think 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 to 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 had suggested deprive the court of jurisdiction. So I think the story about the case center’s a little more complicated and 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 have 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 its short ruling. You have redeemed our alma mater. Thank you very much. Thank you Mr. Chairman.

Speaker 2: (01:39:27)
Thank you, Senator Booker. Now the Republican staff advises me Senator Blackburn, then Senator Cotton, then Senator Holly. Senator Blackburn?

Senator Blackburn: (01:39:36)
Thank you Mr. Chairman, and thank you all for your opening statement and for your time today, Ms. Goss Graves, I want to come to you. 2019, you were before the House and you as stated, and I’m quoting you, “The legislators passing restrictions on abortion want to control the lives and futures of women denying them equality.” So 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. Fatima Goss Graves: (01:40:22)
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 so upset about-

So what you’re saying is women cannot be considered equal unless they have access to abortion?

For sure. We are in day 29 where are people in the state of Texas no longer-

So you believe that even though an unborn child has a heartbeat, that that woman is not considered equal unless she can terminate the life of that child?

I believe the ability to control your body, your life, your future, your destiny, is bound up with your ability to be equal in the country-

And so you do not have that control unless you have unfettered access to abortion. Is that what you’re saying?

Well, so 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 [crosstalk 01:41:48]-

So you think abortion is 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. Now 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. So 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? Now it’s not saying she can’t have an abortion. If she wants one, she can have an abortion. But 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?

We have a requirement in Texas for the distribution of a right to know a 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, and 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.

Have you ever seen a 3D ultrasound?

I have.

And tell me how you respond when you see a 3D ultrasound.

I’m not sure what your question is about.

What kind of emotion does it evoke for you?

I’ve seen a picture of someone’s 3D ultrasound. I think that the issue here again is what we are talking about, we’re subjecting women to a trans vaginal sonogram prior to when it’s medically recommended that they have that.

Let me tell you where I am on this. I think that science is on our side when you talk about life. And I have a lot of friends, I’m a grand mom.

So am I.

And I have children and grandchildren. I have three grandchildren. And there are so many of my friends that used to say, “Well, I’m pro choice.” And then their daughter, or daughter-in-law has a sonogram, 3D. They can see the images. They know if they’re having a girl or a boy, and they began to make those plans, they began to decorate those nurseries. They celebrate this life because they can see those features. And 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.” And that is where science comes into play on this. And that is where a policy that you have supported, that goes so far beyond Roe V. Wade. And I understand you did it because it was a knee jerk reaction.

I’m not sure of which policy you’re referring to.

Excuse me. But it was kind of a knee jerk reaction to a bill that was brought forth, that you didn’t like, and I get that. But I do think we have to look at the fact that science is on our side on this. I yield back.

Speaker 4: (01:46:49)
Mr. Chairman.

Speaker 2: (01:46:51)
Thank you, Senator. Senator Whitehouse?

Speaker 3: (01:46:53)
Object 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?

Speaker 2: (01:47:02)
Without objection.

Speaker 3: (01:47:03)
Thank you.

Speaker 2: (01:47:04)
Senator Hirono?

Senator Hirono: (01:47:20)
Okay. I think it’s on now. Thank you. So 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. But 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 Ms. Goss Graves, Representative Howard, whether either of you have any comments about that kind of statement. That women will somehow be empowered if Roe V Wade were overturned.

And so today women are empowered to participate in the economy. I think overturning Roe V. Wade would have the opposite of fact of diminishing their ability to work when they want to work, to space their children when they want to space their children. But if there’s interest in furthering women’s participation in the workforce, there are a range of policies that actually do that, like childcare, for example.

Representative Howard, do you have anything to add?

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.

Well, she goes on to say that women will be more empowered because there are numerous laws enacted since Roe adjusting 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 litigant’s strategies and reliance on prior court decisions?

It’s a fair question, Senator. And I think the tricky part is we don’t know. So we have rulings at the Supreme Court hands down that have no majority opinion, I cited a couple of them in my testimony. And 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. And so I think it’s again, just to sort of respond a bit to Senators Lee and Cruz, 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.

Have you done 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.

Yeah, I realize that my written statements pretty long, but on page five, there’s a chart that actually documents how many more of these rulings granting emergency relief there have been in the last couple of terms. This term, there were 20. That’s the most that I’ve tracked for as long as the court has been decided on these cases as a full court. The average during the first 10 years of Chief Justice Robert’s tenure was about five.

So, I understand that. I’m sorry to have running out of time, but basically I want to know if there is any kind of an ideological thing going on with the use of the shadow.

So, yes. I think the shadow docket rulings have been far more homogeneously 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

And where we see a lot more of these kinds of orders after the three Supreme court justices, of 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?

Does it have any other law that does that? Is that what you’re asking me?

Pardon me?

I’m sorry. Were you asking me, does it apply to any other-

Does Texas have any other laws besides this law where they actually let bounty hunters go out and enforce the laws?

This is the only one I’m aware of.

Why do you think that is?

Well, 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.

Do you think Texas would ever have a similar law where you can go after people who own guns and let the private citizens and force going after people who own guns and you get $10,000? Do you think Texas would ever in Accenture law?

Those kinds of scenarios have been suggested. I have a hard time imagining Texas enacting that particular one.

I think that’s a rhetorical question at this point. Thank you.

Speaker 2: (01:53:01)
Thank you, Senator Hirono. Senator Cotton.

Senator Cotton: (01:53:04)
I have to say I’m a muse by the title of days 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 arrive 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 Kasam Suleimani back to life and to apologize for killing Iran’s terrorist mastermind. Or look at some of the cases on the shadow docket, 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. Now I’m not saying those things should have been closed, I’m saying they all should have been open to include churches where people of faith could go worship. And now 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. So 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. Now the Democrats over there, all but one of whom voted for it, argue that this bill merely codifies Roe V. Wade, oh, would that that were so. Roe V. Wade, the wrongly decided 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-

… 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 five or seven 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 be safe, legal and rare?

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 health care 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 how they have health care 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.

Ms. Howard, my question was simple. Do you agree with Bill and Hillary Clinton that abortion should be safe and legal and rare? And 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. 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.

Mr. Durbin: (01:58:31)
Senator Blumenthal.

Richard Blumenthal: (01:58:36)
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 United States Supreme Court and 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 and 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 not only of constitutional rights to abortion, but also our legal and medical systems. And as you’ve explained under SB8, 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 health care clinic where she has an abortion, you could be sued again by anyone in the entire United States.

And 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 six-week ban. So let me ask you Representative Howard, you testified repeatedly today about the dramatic impact that SB8 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.

Well, 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 take off from work. This disproportionately impacts women of color. And 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 a 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 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.

Thank you very much. Thank you, Mr. Chairman.

Mr. Durbin: (02:03:42)
Thanks Senator Blumenthal. Senator Hawley.

Josh Hawley: (02:03:46)
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 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 in the emergency aspect to it.

I thought the complaint and concern about 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. So 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, what this hearing’s really about. This hearing’s not really about that case at all. This hearing’s 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 United States Supreme Court ahead of this case, oral arguments to be heard I think on the 1st of December.

And 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 and favored court packing. Members of this committee, Senator Whitehouse filed a brief of 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’s 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. And I say extreme left advisedly, deliberately. Let’s talk for a second about the bill, that the House of Representatives, the United States House of Representatives just passed last Friday. This remarkable piece of legislation would mandate partial birth abortion across our country, all 50 states mandated. 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 on the Gonzalez case 2007, Gonzalez v. Carhart. And 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 is 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, 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 United States 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 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 to question. Thank you, Mr. Chairman.

Mr. Durbin: (02:09:53)
Senator Padilla.

Alex Padilla: (02:09:54)
Thank you, Mr. Chair. Going back to the item that is before us. When it comes to accessing safe reproductive health care, we’re seeing that a patchwork approach simply won’t work. In fact, the trend that we’ve seen in health care more broadly is to work toward more seamless, comprehensive health care services, not a patchwork whether it’s physical health, whether it’s mental health or anything else. But sadly just as with the assault on voting rights, we’re observing state legislatures across the country resolutely focusing on overturning Roe v. Wade. With SB8, Texas has effectively done just that.

So, 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 health care. 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 SB8 aside, can you give us a few other examples of the restrictions to abortion people face in states that are hostile to abortion care?

There are several categories. There are other bans at different points in pregnancy that have been passed by other states that have been con consistently struck down because of Roe. There have been delays so 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. So medically inaccurate shame-based scripts that providers are required to read.

And there are also things that have basically shutdown clinics so that in much of the south, many, many people have to drive hundreds and hundreds of miles already to access care. And all of that is on top up at the fact that many people if you were covered by Medicaid, for example, the Hyde restrictions mean that abortion care may be financially out of reach. If you’re thinking about someone like me who 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.

Yep. Well, thank you. And just sort of build on that, recent New York Times article highlighted one of Oklahoma’s four clinics that now has Texas residents making up 66% of their patients. I know we’ve touched earlier on 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 being concerned for clinics, but places in 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 caring their pregnancies to term, well, that would not be their preference. That maybe their only option. Can you explain what the lifelong effects are of caring and unwanted pregnancy to term?

I’m going to have to, I guess, put aside some of just the human dignity pieces of that, right? 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 health care, the thing that worries me the most are also maternal and infant mortality crisis which has heightened in Texas.

And when you add on that, that what we know about people and our ability to be able to be economically secure and to thrive, I am deeply worried about what is happening right now today, and about the copycat laws 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.

If I may, Mr. Chair, I know my time is up, but one additional legal question for Mr. Vladeck. Texas’s SB8 not only deputizes, incentivizes private individuals to sue abortion providers and anyone helping a person obtain an abortion or six 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 SB8 was intentionally designed to create such procedural traps?

Sure. I mean, Senator really, really briefly because I know that the time is short. There’s [inaudible 02:16:18] 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 them. But Senator if I may, I actually think that really underscores why the conversation about SB8 is about so much more than abortion. I mean, it is about abortion and it’s about so much more.

Because for all of the complaints by members on the other side about abortion, about the debate of 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. And 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.

Thank you. Thank you, Mr. Chair.

Mr. Durbin: (02:17:21)
Thanks, Senator Padilla. And I want to thank the witnesses. I’d like to make a few comments very quick 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 abortions, explicitly. So the presentation by Senator Hawley should be considered in that light.

Mr. Durbin: (02:17:56)
Secondly, 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 medical home and health insurance and the fundamentals and family planning.

Mr. Durbin: (02:18:37)
I have struggled. I respect those who have a different point of view on the subject, but I’ve 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. So 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.

Mr. Durbin: (02:19:07)
Now as I reflect on this hearing, it is interesting to me how little was said about SB8, 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 descending from the court’s order in SB8 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.”

Mr. Durbin: (02:19:49)
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. And so 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 spent with Supreme Court nominees preparing to ask the questions trying to envision what they might face on the court and 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.

Mr. Durbin: (02:20:51)
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.”

Mr. Durbin: (02:21:13)
Now I’m going to ask unanimous consent since someone’s here to object I think I’m going to win to enter a number of statements in record for 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 5:00 PM on Wednesday, October 6th. Watch for emails. I want to thank the witnesses again and the hearing stands adjourned.

Senate Hearing on Texas Abortion Law Transcript

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