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tv   Hearing on the Texas Abortion Ban  CSPAN  October 3, 2021 12:34am-3:06am EDT

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to retreat from that and felt it was the right of the supreme court to say this wasn't in the constitution or really what was intended. he stood up soundly against that. >> sunday night at 8:00 p.m. eastern on c-span's "q&a." listen as a podcast on our new c-span radio app. ♪ >> download c-span's new mobile app and stay up to date with live video coverage of the events. key congressional hearings, the white house events and supreme court documents. early here, we hear your voices every day. c-span has you covered. >> in september the supreme
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court -- the supreme court upheld the texas law banning abortions up to six weeks. they testified before the judiciary committee on the impact of texas law and the insight this gives into the court. this runs 2.5 hours. >> this hearing will come to order. i welcome the witnesses and say to my colleagues and say we have
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a role call vote scheduled to start at 10 30 together with a liberal voting period to follow. there may be a brief interruption as they go off to vote and return. i want to apologize to the witnesses for any convenience it may concern. it effectively bans all abortions even in cases of rape and incest. chief justice john roberts would
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have blocked the law from takingfect calling the pointsy hunter system unprecedented. at midnight on september 1 after skating through on the supreme court shadow docket, texas sb8 became the law in the nation's second largest state stripping away constitutional rights for millions of texans who live there. i would like to show a brief video about this texas law and what is at stake. >> the law -- the i positioner law went intofect september 1. the law bans abortion after around six weeks which is before many women even know they are pregnant. it makes no exception for victims of rape, sexual abuse or incest. >> that is all women get. >> i have dreams and hopes and ambitions. every girl graduating today does and without our consent, our
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control over that future has been stripped away from us. >> i didn't find out until i was eight weeks. you going to take away that power from me of being a rape victim at 13. you're going to tell me i have to have that child. allowing anyone to sue people who help women get an abortion like a dor doctor or clinical stap or drivers. >> outside the order neighbor court strategic. >> a conservative majority's abuse of the shadow docket to overall the law has been ringing alarm bells. >> this is rough justice. used in any number of different scenarios. it is a danger to everybody of every ideology. >> it may become a model for action by other states. >> this kind of scheme can nullify the constitution of the
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united states is one that all americans should fear. >> i hope you can feel how dehumanizing it is to have the autonomy over your own body taken away from you. >> for nearly half a certainly there has been a concerted campaign to undermine the supreme court's ruling in row vs. wade that women have a constitutional right to an abortion. past attempts by states to pass previability abortion bans have been stopped by federal courts which have blocked the states from enforcing these unconstitutional laws. it took a new approach. instead of having the state enforce an extreme abortion ban it put it in the hands of private citizens who can be awarded with a bounty of not less than $10,000. this is what is public lissized.
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it stays not less than $10,000, court costs and attorney's fees. people who aid or abet turned statute, an individual obtain an abortion in texas can now be sued by anybody and everybody under this bounty hunter system. this attorney in illinois has been one of the early playoffs that wrote a lawsuit. one san antonio doctor has been sue sued multiple times for providing an abortion to a woman in her first trimester. this is unprecedented. texas lawmakers parented with a clearly unconstitutional abortion ban especially. a group of healthcare providers sued officials in texas to try to block the law from takingfect. in a federal digit court scheduled a preliminary
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injunction hearing for august 30. without explanation, stopped all court proceedings. these decisions are often on short timetables without full briefing, public deliberation, detailed explanation or 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 ideologkly driven. it shall be granted only when
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the party seeking relief is likely to prevail and harm is likely to result if relief is not granted. recently, a book was published that it was wrong to characterize this court as political. justice amy coney barrett appeared at the university of louisville to make the same argument and to convince us this court is not comprised of a bunch of partisan hacks 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 eighted 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
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department, the supreme court granted it in 28 instances. 28 out of 36. but the case you have a law that is unconstitution ahl under supreme court precedent. if the law were allowed to stand, irreparable harms to texans, who would be deny reproductive healthcare. on august 30, the court did nothing as the clock struck midnight and texas' law went into effect. only later the next night, the court study a one paragraph opinion saying they had declined to stay the law because of its complex and novel prejudice really a questions. she said the supreme court has rewarded the state's effort to delay federal review of a plainly unconstitutional statute
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and enacted in disregard of the court's precedence of entanglements of the court's own creation. this may sound like some abstract legal debate. it is not. the court's handling had a dramatic real world impact. there are millions of people who last month would not exercise their fundamental reproductive right ins texas. could before and now they can't. we now have two dangerous new precedents to contend with. first with sb8, texas is undermining constitutional rights by using bounty hunter schemes. we have seen other states racing to copy that model. the supreme court has shown that it is willing to allow even faryblly unconstitutional laws to takefect when the laws align with certain id logical
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preferences. constitutional rights should not be stripped away in the dark of night. that is exactly what happened when the architects did their bidding. the supreme court allowed it. it is already too late for many texans whose rights have been suspended and who have been forced to leave the state to seek healthcare and but it is not too late for the rest of the country and the court to change course. i want to thank our witnesses. i turn now to senator grassily for opening remarks. >> thank you. we're having a hearing today because the supreme court did something very ordinary. so i would like to say that again so it sinks in. we're having a hearing because the supreme court did not do something extraordinary.
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it declined to intervene on exceedingly expeditedded basis while reserving judgment on complex legal issues. much of the talk about the case has referred to the court's so-called shadow docket. for a long time, the court and its practitioners have called this the emergency docket because it is designed so the court can provide relief in emergencies. a good amount of these orders have historically dealt with last-minute death penalty appeals. we didn't hear complaints from the liberals in the senate about the docket for those cases. so rather than relying on a catchy name invented by a law professor, let's look at what the supreme court actually said
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in its decision september 1. in that case, the malice aforethoughts 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 indicates. 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. they acknowledged that the plaintiffs had a serious case. the court also said that the case raised novel procedural issues. it noted that under current precedent, it was not clear that the plaintiffs could see the
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defendants. the texas heart beat 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
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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 in 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 merritts 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
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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. to have 59 countries that perm elective abortions, more than 75% do not allow elective abortions past 12 weeks of jestation. 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
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the public's trust in the supreme court has dropped. so why do polls show that public confidence may be decreasing? it is 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 called out justices. they have done it by name and said those justices will pay the price if they rule the wrong way. if the justice reach the wrong result, they were told "you won't know what hit you if you go forward with these awful decision." other dark money groups, partisans and activists undermined the court by claiming that justice barrett's confirmation was an illegitimate
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process because 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 "to strike down the affordable care act and eliminate protections for millions of americans pre-existing conditions." judge barrett, according to them was a judicial torpedo aimed at those protections from obama care. that scared a lot of americans but it sure wasn't true. barrett joined the court's 7-2 majority that upheld that law. some democrats have said the courts need to "heal itself" before the public demands that
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the court be restructured in order to reduce the influence of application. that's fancy way of saying that if the rulings don't change, they will try to pack the court. this campaign against the court and against individual justices has hurt the public. the dishonest rhetoric doesn't help the american people understand the issues. i'll continue fighting against the partisan efforts by dark money groups to attack our judicial judiciary. there is one final point i want to raise today before we hear from the witnesses. the house of representatives just passed a bill that could allow abortion on demand. it would preempt numerous pro life state laws and throe outs the protections of the religious freedom restoration act. if democrats truly believe that the court will overrule roe,
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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. >> thank you, senator grassily i don't know that there was anything sinister about scheduling this hearing. i don't know how anyone could ignore this has been a subject of a national debate about roeand 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 vs. wade i
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think is our responsibility and there was nothing sinister for selecting this date for the hearing. today we welcome five witnesses. our first witness is state representative donna of texas. she has been in the texas house of representatives for 15 years representing travis county. chairs the texas women's healthcare caucus. representative howard holds a bachelor's degree in nursing. a masters degree in health and education from the university of texas in austin and previously served on the board of the texas us inner's association and the texas public health association. edmond lacoresurntly serves in alabama and served in the alabama attorney general's office since 2018 and prior to that worked for a washington firm and the houston, texas
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office. he received his b. rarvetion from birmingham college. fatima is the president of the national women's law center. she has worked at nwlc for over 10 years. health reproductive rights. received her b.a. from ucla. clerked for judge diane wood on the seventh sitter. jennifer mascot is the director for the study of administrative state at george maison's universities. her scholarship focuses on administrative law, federal courts and constitutional law. previously worked as associate deputy attorney general and is deputy assistant attorney general. received her j.d. from george washington law school. clerked for justice clarence thomas and then breath
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kavanaugh. he joined the texas faculty in 2016 after teaching at the university of miami law school and american college of law. he has argued multiple cases before the supreme court. received his b.a. from amherst. clarked for 92nd judge marsha bershon. the mechanics of today's hearing is usual. we will swear in each witness. each senator will have five mince. senator klobuchar asked for special permission to question early. so she can attend a funeral for a wife of a former colleague. let me ask all of the witnesses to please rise for the oath.
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raise your right hand. do you affirm the testimony you're about to give before the committee is the truth, the whole truth and nothing but the truth so help you god. representative howard, you're first. >> thank you, donna howard, state representative from austin, texas and chair over the texas women's health caucus. i'm here to provide an overview and discussion of bill eight and its impact on texans. it reduced access to care by creating medically unnecessary obstructions to healthcare. a quick summary how we got here. following the 2010 elections when the tea party got a super majority in the texas house. they cut the budget for women's health by 2/3 and by creating a tiered system that was intended to capture such providers as
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planned parenthood. unfortunately there was significant collateral damage if that it captured faith-based clinics and academics-based clinics and closed 80 clinics. the safety nets have been shattered and it has taken years to build back a system that would serve as many texans as prior to the 2011 cuts. it required a transvaginal conn sonogram being portland 202 hours before an abortion could be performed. efforts to require medically unnecessary standards for providers and facilities. it was culmination of a decade of erosion of access to abortion healthcare with the intent of creating a defacto ban without
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calling it a ban. here is how it denies access to 85% to 95% of those seeking to terminate an unwanted pregnancy. it is based on a false premise meant to tug at one's heart strings. no abortion avenue the heartbeat can be determined. cardiac cells can be amplified by a transvaginal sonogram and translated into a woosh sound as early as six weeks jestation which is only four weeks of pregnancy and two weeks behalf a missed period. someone can become pregnant unknowingly and unintentionally as contraceptives are not 100% effect pivment regardless, when
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someone suspects they might be pregnant they are already past four weeks jestation measured from the first day of the last menstrual period likely at least five weeks gestation at the earliest. they make a very personal decision about whether abortion is the option they want to pursue and make the appointment to receive the initial required sonogram and come back 24-72 hours later to receive another 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 they did not want and enforcing it has been given to private actors who can sue minimum mum of $10,000 opening up the possibility of frivolous lawsuits having doctors denied to provide the medical care they have taken an oath to provide.
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we're not just talking about apportion providers. this has had a chillingfect on emergency rooming ifses and any professional who might be having to balance that against losing their practice through costly litigation. texas women now have limited options those who can afford to can go out of states. that is if other states have capacity. this is not an option for at least half of those seeking abortions who do not have the resources to travel for days to meet the out of state requirements or arrange child care or be out of work and be to beinged. significant economic hardships are most impacted by fb8. as someone who came of age preroe v. wade, i can tell you i
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am very concerned about going back and erasing all the progress we made over the past certainly. the ability to pursue education over that time, having autonomy over their bodies something that men enjoy despite they share 50% of the responsibility for the pregnancy and oftentimes zero% of the consequences. this is about freedom and women knowing what is best for them and their destiny. this is healthcare, trusting the doctor-patient relationship. this is about having yellow without government interference. thank you. >> thank you. >> mr. chairman. ranking member grassily and distinguished members of this committee. thank you for inviting me to testify. i'm honored to be here. i'm the solicitor general of
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alabama. i litigate between federal and state courts on behalf of my home state. many cases involve timely matters. in many of these cases have gone before the supreme court. i have firsthand experience with the docket and in particular the 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 inept. as the committee is aware, this raises the question of ruling the supreme court makes each year. shadow docket is largely narrowed in scope to refer all to the court's emergency proceedings. these proceedings hardly warrant such a nefarious name. a criticals piece of any court's business including federal
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district courts, the court of appeals and the supreme court. the entire docket is freely searchable online. while the proceedings are 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 decision in emergency proceedings often offering less guidance, typically serve the parties well. two of alabama's recent cases illustrate the point. requiring the state to seek emergency relief from the supreme court. though the supreme court has warned lower courts against changing voting laws on the eve of an election because it chris voter confusion, the federal district court changed important alabama voting laws weeks after absentee voting had begun. the supreme court stayed the lower court's injunction and allowed alabama to again enforce
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its laws. the other case, dunn v. smith did not go alabama's way but also illustrates the poncier of the docket. willie smith is an inmate scheduled for execution earlier this year. he said its violated his religious liberty rights because it did not allow for his pastor to accompany him into the execution chamber. the alabama court disagreed with him. 11 hours before the execution he was granted an injunction. both sides were able to brief arguments and submit to the court given the emergency posture of the case. a majority of the justices ultimately rejected it. the order was not accompanied by a lengthy majority opinion, the state made clear that the state would need to alter its
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execution protocol and press on through the normal appellate process. 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 note politics, the texas sb8 litigation was an entirely ordinary ruling. after all, one thing most everyone agrees on about sb8 is that it raises unprecedented and jurisdictional questions. had the court granted an injunction when it was highly doubtful the court has authority to act. i would like to thank you again for the opportunity to offer testimony today. i'm happy to answer any questions the committee may have
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for me. >> thank you. miss graves? >> chairman durbin, ranking member grassily. thank you for the invitation to testify today. my name is fatima graves. i'm here today because both our right and access to abortion are at a perilous cross roads. with that our liberty and equality are in crisis as well because with every attack on our fundamental human rights to reproductive healthcare including abortion care, each of those values erode. a right without access is a right denied. abortion opponents know this. and have mounted their offense since roe was decided and have dramatically increased those
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efforts over the last three years. in 2021, they introduced more than 560 restrictions and passedded more than 90. those laws forced clinics to close and caused delays in receiving care and denied access to constitutionally protected health kay. these laws are dangerous threatening patience' health and well-being and financial securities and this is all by design. the courts have become more and more an anti-abortion. make no mistake. abortion opponents want the court to overturn roe. and that goal may be in reach. on december 1, the supreme court will hear an oral argument in a
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case about a mississippi ban of abortion 15 weeks into pregnancy. it presents a direct challenge to roe. it seeks to eliminate abortion access. texas sb8 was written to ensure its six-week ban on abortion would evade judicial review and quickly go intofect. in a ruling in the middle of the night without full briefing and oral argument, five supreme court justices allowed texas to shut down legal e abortion in the states. the dramatic shift in the law limiting access to the constitution, was brought in under the guiseof the procedure. sb8 is having its intendedfect. as a result to have law, abortion providers in the state
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have stopped providing nearly all abortions after six weeks. to be clear, laws like sb8, they don't eliminate the need for abortion. they remind us of the indignity of not being afforded our full constitutional protection. bearing the brunt will be black and latinx individuals. bearing the brunt will be workers who can not afford to get time off 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 child care and add more expenses to an already broken system and the person who lives in the rio grand valley, someone who is an immigrant won't beache able to make the
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trip out of state. what's happening in texas is a result of the horrifying outcome of a decades long campaign by anti-abortion state lawmakers and after nearly 50 years, the supreme court has effectively overturned row for one -- roefor one in 10 women in the country. in a one paragraph opinion, where does it end? i would like to remind everyone 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 protects and expandedst abortion access and i'm asking all of of you here today to see the reality of this moment for what it is.
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and the tremendous loss of liberty, e quality and justice that we face if we do not stop it. thank you. >> thank you very much, miss graves. now professor mascot, please. >> good morning. chairman durbin and ranking member grassley. i'm a professor scalia law school. my testimony will address the recent emergency motion on the texas hartsbeat act and touch on general trends and supreme court resolution of nonmerritts matters. on september 1, the supreme court declined the order of the texas heartbeat act. it was consistency with long standing federal jurisdictional doctrines, with state sovereign immunity and the federal
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judicial role to resolving case and controversieses. in light of these issues and the lack of a dispute involving the dfds from the litigation, it would have been to grant the order on the merice itselfs of the state law. this hearing will examine in part the recent pace over the supreme court's issue without merritts briefing but such an order was not issued in the texas case. unlike in past case where is the federal government sought relief from injunctions and policies there are serious jurisdictional questions here whether the court could provide any relief in whole women's health in jackson. a private party, county judicial clerk and one state court judge. taking any actions to enforce the texas law's private remedy and not establishing a base is in which the federal court would have the power to issue an order
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at this time. they have not identified a specific party against which the court could have issued an order in this case. over the last parts of the 20th certainly, as federal courts routinely stepped in to make it their business, the american public grew more accustomed to thinking of federal courts as ar bit ofs avenue fair policy but but they have such a powerful role when they issue final resolutions in cases that judicial review should be exercised of great care. it limits the role to case and controversies against particular parties. the drafters and ratifiers of the constitution rejected the proposal for a revision to review abtract legal questions and the court's repeatedly reaffirmed its lack of power to issue advisory opinions. it should not and cannot
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generally review litigation out the concrete disputes. in u.s. representative public structure, federal and state legislatures, their general responsibility for policy may go making to especially help ensure laws represent the interest to have electorate. it has the more modest role step inning when laws create the disspeut of the party that initiates the case challenging the law. our structure of principles like the three branching separation of powers in federalism prevents a role for state bodies. one of those providing that structure is state sovereign immunely against states and various state officials and the well established case, the supreme court dismissed the decision where none of the state officers held a position and where it was alleged to be unconstitutional. litigation could not serve as a vehicle to bring a general challenge to the law's
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constitutionality. the supreme court noted complex and novel guess whole women's health. the court acknowledged applicants raised serious constitutional questions and reviewed the merritts of the law would not be appropriate in the e current psture. in contrast of the task of enforcing laws. for a
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the best solution would be for more policy-based decisions across the board. here with the texas law, the super court likely lectures at this time and the decision to incline to reach out and take the case anyway preserved the prelitigation status quo. thank you. >> thank you for the invitation to testify today. i want to explain why they have far more in common than the interception in the 5-4 ruling. they both have ominous implications for the rule of law. what cannot be stressed enough is the extent to which the law is carefully and liberally designed to do this through an
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array of cynical procedural contrivances, statements that are succeeded in private millions of people of the federal constitutional rights. it should go without saying mr. chairman that constitutional rights should not be left to the whims of 50 different state legislators even if we disagree as to what those rights are. that is one of the central reasons why the constitution creates an independent federal judiciary. too many people have no problem with what texas have done or they throw their hands up because 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 the same thing about the supreme court possible reliance on the shadow docket to handout cryptic decisions affecting noise of
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people. as i know in my written testimony, far more often than ever before, the justices were granted emergency believe that either freezes government policy or allows policies that were frozen by lower courts to go back into effect. they are doing terrorist -- they are doing so through inconsistent rulings that they are simultaneously extracting lower courts to treat as presidential. anyone who suggests this is missing the fact that this "never said these were presidential. it is not the volume by itself that is the problem. more and more of these rulings are directly and permanently shaping policy and not just narrowly and temporarily is -- temporarily adjusting the status quo. this practice has become so pervasive that for a court that
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expressly defined his legitimacy by its ability to offer principled justifications for its decisions, its inability and refusal to do so on the shadow docket as equally troubling implications for the rule of law. defenders of the court efforts gravitate toward the bottom line. these are trivial or terminological or these criticisms who are unhappy with the results. is that so long as the court is getting the merit right? the persuasiveness of their explanations of simple don't matter. that is why this is so revealing. it is not just that the court declined the -- this from going into effect, it is not the only justification the majority offered was a cryptic paragraph presenting a single procedural question, it is that this was
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the same five justice majority that passed even more significant procedural roadblocks to join multiple state covid mitigation policies on religious liberty grounds. rulings that they have not mentioned this point. not only with a barely explained nonintervention in texas but inconsistent with its repeated intervention in california and new york but the process -- in the process, the court rewarded texas for his cynicism. they became the stated justification for not blocking a patently unconstitutional batch. i don't count myself a pessimist. it is hard to look at these development and be especially optimistic about the future of our legal institutions. it is the supreme court, not state legislators that gets the final word on what the court protects. it is the court's obligation to
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explain themselves. it may be tempting to some to sacrifice these longer-term possibles in the name of short-term victories but it is in my view irredeemably myopic. such institutions may be destined to pass away but it is the duty of the court to be last, not first. thank you. i look forward to your questions. >> thank you. senator klobuchar: represented of howard, good to see you again. the texas law was described as a flagrantly unconstitutional law engineered to prohibit women from exercising their right. you are former registered nurse, you are chair of the texas house women's health caucus, can you briefly say a bit more about what you have seen on the ground in texas since the texas law
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took effect four weeks ago? >> we have seen and heard from constituents across the state about their inability to access care, trying to get to a clinic before a six week time, getting there, having the transvaginal sonogram and hearing the audible sound and being turned away. the providers are saying they are doing crisis counseling now for these people who are coming with their unwanted pregnancies, unable to terminate them, desperate about what they're going to be able to do and if the law -- what is the impact on your state? >> it is beyond abortions because they provide health care for women. we are talking about a space that has limited access.
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we have a lot of difficulty with women getting the health care they need. this will make it even worse. >> i am concerned about what the justice described as the texas law creation of texas bounty hunters, citizen bounty hunters who are offering cash prizes for civilly prosecuting their neighbor's medical procedure. that is what this is. that is why i am working with the number of senators on this committee. she is leading 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 incentive in the texas law to collect health care related information? >> i share that concern in part because abortion access already
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happened in a backdrop where there is a long history of vigilante violence without that ounce he, without that incentive and i am extremely concerned about the policing of women's bodies in this way by their neighbors, strangers, anyone in the general populace. >> along those same lines, can you say more about how the texas law is part of a larger effort to undermine the protections of roe v. wade? >> one of the things that representative howard had named is this is not the first restriction. we have seen hundreds of restrictions passed over the last decade and in isolation, one of these types of restrictions might harm someone, it might force you to go deeper
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into your pregnancy, you will have to travel hundreds of miles. these restrictions are happening on top of each other in places like texas. for many people, abortion is already out of reach. >> my last question, professor. the texas case is just the most recent example of the supreme court issuing short, unsigned 5-4 decisions without full briefing or oral argument that directly impacts people's lives. we have seen voting rights where one day before wisconsin's primary election, they released in decision reversing a district court order that allowed voters to count absentee balance in the middle of a pandemic. instead, we saw voters standing in long lines in garbage bags in a rainstorm. what does it mean for public
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confidence in the court when it issues decisions that are so fundamental to people's rights, including endangering voter health and undermining women's access to health care in the middle of the night on a shadow docket? >> i think unless the court explains itself, harder it is for the public to have confidence in these decisions. all we are doing is tallying up the score. in response to the ranking member, my response is the court has brought upon itself that if a court is worried about public confidence, what it can do is restore that confidence by endeavoring to explain is decisions in this context more fully. >> thank. as you mentioned in your opening statement, this is an important
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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, preliminary injunctions and temporary straining orders -- restraining orders. how does the emergency docket get from lower court decisions with respect to injunctions and temporary restraining orders? >> you are correct that we face this from district courts where we receive the order from the court with no written order. these are emergency situations where the courts need to act quickly. i think one of the typical thesis is is that district court
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is writing for himself or herself alone. the justices have to convince three or four of their colleagues. that is why the opinions are a bit shorter. that happens as well. >> same to you. without the supreme court emergency docket, how can they seek immediate relief? >> they can seek it from lower courts but there is no principled reason why the lower court should have this order as opposed to the highest court. >> in response to a question for the record, elizabeth, this administration suggests that
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nationwide injunctions generally receive constitutional and equitable authority. if they reach a nationwide injunction, if that exceeds its authority, is it an appropriate use of the supreme court emergency docket? >> i believe it would be, ranking number grassley. >> based on your experience litigating cases before the supreme court, do the emergency proceedings provide parties sufficient opportunity for briefing and presenting their arguments? >> i believe they do but we could all have used more time but we have been able to -- we had less than 24 hours in that case but we worked through the night and presented a strong case.
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he ultimately prevailed. >> why would it would be -- would it be unusual or problematic for federal courts to resolve new and complicated procedural questions in the context of emergency application for relief? >> i think that in the particular motion involving the texas case, the question was whether the court had jurisdiction to be able to issue against any of the parties. i think it was clear from the information it gave us that it had serious questions that it did so it declined to step in and change the status quo of what had happened in the lower courts in that case but recognizing there were potentially serious constitutional questions. at the get is important that is up in court does not reach out for this.
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it is of four regular petitions then sometimes through requests for emergency relief. particularly with the texas case, that bill was enacted in may and it took months to bring the request. if the court was rushed in consideration here again, it was responding to the timing that brought the matter to it. if people are concerned, it seems this would be consistent with concerns about the court not stepping too quickly. >> the last short question. federal courts enjoy specific parties, why or why not? >> under article three, the court has to be acting against specific parties and it does not have the power to generally review legislation but thankfully we have legislative bodies that can go to this to be
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reviewed and not look to the court to answer every policy question for the country. courts thank you former chairman. this is interesting. you listen to what the witnesses have said and what has been set on the republican side of the table, you would not even know what the nature of this is. for them, it is just a routine supreme court decision with the substance of the bill that was before the supreme court. you have to ignore the statement. this was flagrantly unconstitutional. we are trying to give a special moment to a decision. to argue that this shadow docket 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 and attrition.
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eight times, 16 years. and it came to the trump administration, 36 times in four years and the trump justice department one that in 28 cases. justice breyer decides to write a book and decides to go to the mcconnell center and argue, no politics, we are just calling them straight, playing them as we see them, then you look at this and it defies description. maybe some members on the other sidewall try to defend this. so far, not a one. that me ask you ms. howard, you are president -- you are present at the scene of this legislative crime. when we talk about the liability under sba, it has been suggested including categories of people who aid and abet inducement of an apportionment -- of abortion,
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doctors, separatist, security guards, relatives or strangers who paid for the abortion, donors to planned parenthood, insurance companies, they are expressly mentioned. those providing transportation to and from the clinic, counselors including clergy. we are talking about the potential civil liability with a minimum of $10,000, was this discussed in the texas house of representatives? the number of people who would be inadvertently swallowed up? >> it was absently discussed and debated but to no avail. we have heard of multiple instances now of uber or the drivers not being willing to take someone to a planned parenthood clinic. this is something that has an extreme amount of confusion.
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people don't know if they will be held liable for counseling, those that are doing sexual assault counseling in particular are upholding what they know it is appropriate to do. they have concerns about what that will mean for liabilities for them. >> a long time ago, i used to be a practicing lawyer. this bill has something in it i have never seen before. the defendant has the burden to prove that they did not bring this. they completely flipped the burden of proof. if i am sued, i have to proof that i did not break the law. think about that. it is the zack upset of normal legal practice. the burden is on the accused, not the accuser. was that discussed when the texas house of representatives made this law?
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>> of course it was. we tried to make changes that as well. that is what i'm here for many physicians i have spoken with, that they are talking about retiring, leaving the state, they are somewhat risk-averse to begin with. they are not going to be risking their profession by being sued. this is not something they may have even done. it is absolutely chilling. >> there is no rape or incensed exception in this law except there is one reference to rapists that i can find. that reference says no exceptions for victims of rape to be able to sue under this law. so the texas house of representatives decided we are not going to create an incensed or rape exception. we are not going to let the rape victim turned around and sue under this law. and recover from their own
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victims. was this discussed? >> yes, we try to amend that to better coverage so that we could make sure rapists were not allowed to sue at all. because there is no exception for incensed and rape, it is egregious on its face but what it also says to us is in order for you to be protected here, if we are going to look at rape and incensed, you have to be assaulted first in order to get your constitutional rights. this is -- the entire bill is egregious. >> i am going to go off and vote, the senator from the white house is going to reside -- preside. >> mr. chairman, we are going to single out individual states and cities that we anticipate. the city of chicago has the highest murder rates. among the highest murder rates
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in the nation. i think it is inappropriate for the federal government, the senate judiciary committee to try to single out individual states. you have so let's go ahead and talk about this. i would say this is part of a concerted effort, a shameful and broadside on the part of our democratic colleagues to attack judicial independence. there is one thing that distinguishes the united states of america from other countries. it is the independent judiciary. when politicians decide to attack judges and courts, it is an unfair fight. the judges can't fight back. they are not going to go public and engage in a public debate about their practices and procedures. it is clear this is part of a concerted effort to intimidate and bully the members of the
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supreme court. we saw that with the shameful remarks made by the senate majority leaders from new york. they actually had a press conference inside that and they were threatened -- they threatened to justices with retaliation if they did not rule the right way. we have seen this with efforts with plans to pack the court to try to achieve a particular political result, something that not even little liberal numbers of the court has said would be a good idea. including justice ginsburg and justice breyer. but i think it is worth noting that since we are talking about abortion, the declaration of independence does say we hold these truths to be self-evident. that all men are created equal and are endowed by their creator with certain unalienable rights.
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among these are life, liberty and the pursuit of happiness. i would point out that since roe v. wade was decided, 62 million innocent lives were denied. when our founders said was a self-evident, a nelly able right to life. during my time in the senate, i fought to outlaw abortions after 20 weeks of gestation. that is the time within which science tells us that an infant can feel pain. the u.s. 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 and i
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the humanity of unborn, innocent life. i also supported after the governor of virginia, a physicians shamefully said the appropriate care for an infant that was born alive is simply to let that infant die if it was unwanted, basically bracing infanticide. i was proud to support the effort to protect the rights of children who were born after botched abortions. all of our democratic colleagues voted against them. 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 prohibiting states from outlawing abortion
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as a method of gender selection. under state efforts to protect unborn babies with disabilities. including down syndrome, restrict straight -- restrict state laws right based on a religious or moral objection. require states to allow elective abortion up to 40 weeks based on one doctor's opinion. i would point out the supreme court has actually held late-term partial-birth abortions can constitutionally be prohibited but not under pelosi's abortion law. finally, we have the attorney general with sweeping authority to block state laws protecting the right to life. this would give us an opportunity to vote yes or no on this bill. >> senator, i have not read the bill. i am obviously part of the texas legislature but i would not have an opportunity to vote on that
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bill. >> and know you're part of the texas legislature but it seems texas democrats are spending more time in washington dc these days than austin in spite of this special session. i described it to you, would you support this legislation or not? >> this should be between a doctor and the doctor's patient. >> do they have any rights at all? >> does the unborn child of any rights in your opinion? >> i think we can agree on the fact that there is potential lies. i don't think there is consensus around when life begins. >> the supreme court precedent which establishes viability roughly at 24 weeks, you are aware of the factor that when roe was decided, roe was at 28
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weeks roughly but due to advances in medical science, and even younger unborn child can be saved. his viability any less arbitrary than some of these other events in a fetal development like a heartbeat? >> let me let the witness answer. >> saying there are ranges in any kind of metric you are looking at if that is what you're asking me. >> center early 80 -- senator leahy is next. >> i appreciate that.
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i was able to listen to the things as we have been going back and forth. professor, i am sure that you would agree that we should be able to trust the united states supreme court law under president. but by allowing senate bill eight, i believe the shadow docket has caused irreparable harm to hundreds if not thousands who are unable to obtain critical health care services. families are working to make ends meet.
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young women of color. i am not questioning the existence of the shadow docket. my concern is when it is used on very consequential cases that have a nationwide impact. professor, your testimony discusses the frequency of applications for emergency relief. this is becoming something that happens far more often in the last few years. >> at think the most concerning parts are twofold. i think it is not the volume by itself but the extent to which the court is treating these rulings as much more impactful that emergency rulings of the past. instead of unsigned orders that don't have any analysis, that no
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one expects to have that effect, the courts have gone out of their way to chastise lower courts for failing to follow on this. i think that ups the ante. it goes up into why many of the critic have to mischaracterize what the criticisms are. there is not alert out there that would dispute that. but the court is doing is having a great impact in the ways that are inconsistent. that is where the case really is a sharp point of relief. it is not just that the -- we had no significant shadow docket rulings over the past five years. >> i worry that it could cause people to lose faith in the
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supreme court. i believe i have voted for more republican nominees than any republican on the senate judiciary committee. i believe in the integrity and impartiality of the supreme court. i fear that view is being eroded. i was thinking, listening to represented of howard, tell me a little bit more. as a former prosecutor involved with abortion, people go after it in nonmedical situations and people died.
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a lot of other things went on. then i see everyday citizens, cash bounties of at least $10,000 would bring suit even if they are frivolous against medical practitioners. these are the private enforcement mechanisms. >> yes. as i said, it has a chilling effect on the services being provided at this time. people working in the clinics have to hire security guards to protect them. there is a sense of pitting neighbor against neighbor and i must say it is a different issue. this is at the same time that texas passed, this carry without
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a license to require the rectifier -- carry a firearm. we saw people coming up to abortion provider clinics whereafter this law went into effect and bringing their guns and displaying them. it is absolutely creating much anxiety and fear among people. >> thank you. center early -- senator lee: around the washington monument, there is a display visible from the difference -- distance, you can see white flags, a number of them is approaching 700,000, surrounding the washington monument. each one representing one of the
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sacred unrepeatable infinitely valuable lives that have been lost to the covid-19 pandemic in the united states. this is tragic. it has me wondering about others -- other flags we could put up. as each represented by white flags, small ones. i don't we put up little red flags representing each one of the american lives lost to abortion each year. it would be in the same ballpark. but every single year. imagine further -- not it is throughout the duration of this pandemic. what if we can show a red flag for every human life taken since roe v. wade was decided in 1973. let's be really honest about
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what this was. what this was was a decision by the supreme court of the united states saying estate may not exercise its sovereign police powers. police powers, the broad power to protect life, liberty and property, health, safety and welfare. the federal government does not have that power. the founding fathers willfully, intentionally withheld from the federal government because they were too important to be exercised at the national level. this up in court of the united states says no state may protect unborn human life. if we had a red flag where -- for every human life that has been taken since 1973 and we put that around the washington monument, there would not be room enough to hold off those
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red flags. unlike snow, it would look like something else from a distance. let's not dress this up in clinical terms that make it sound like something it is not. we are talking about the taking of unborn human life. the life of the being that could cry out if it had the capacity to do so but we can't hear it. if a court is going to take that right away, estate whose citizens regard them as being a morally controversial decision -- setting aside questions about questions -- questions about
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restrictions to abortion. saying that a state can't protect unborn human life -- make no mistake, that is what it is. we made it a federal issue. thus insulating the law from the people. the one thing in our system of government you cannot do. it is texas's law that they came up with. is it different than other laws we have seen? yes it is. is it surprising at all that a state would want to protect human life? no, it isn't. who can blame them? i understand.
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not everything that is a good idea will be constitutional. it takes some things outside of the power and authority of the government. sometimes the federal government, sometimes the state, sometimes both. abortion is not on that list. i challenge anyone of you to see what that refers to. they fashioned it from whole cloth. it amounted to a trail of the oath. the u.s. constitution and to interpret based on what it says rather than what they wish admit.
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this up in court of the united states has emotions docket. you would not want one without it. in some circumstances, that motions docket involves emergency motions. to call that a shadow docket, it is an illusion that attempt. we can for little to, disparage it, intimidate it and threaten it. this is sometimes what happens. certain people fearing that members of the supreme court and the united states rule in a way that does not benefit them, even if it is a ruling in favor of the constitution. it is beneath the dignity of this merely.
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we should not harass, threaten or intimidate. with regard to the ruling in this particular case that prompted this hearing, there was no defendant properly before the court. one must have an injury fairly traceable the defendant that is capable of being remedied by the court. there was no defendant charged with enforcing this particular statute in that case. i get the fact that for policy reasons and your interpretation of the way things should be, some of you believe the court should have just invalidated the whole law. that is not how our system works. they did not have jurisdiction or a defendant. >> i think it goes without saying that i have a different view of what is going on here
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than some of my republican colleagues. there is a practice of rigell tory capture. we would take the strategy a regulatory capture and apply to court and in particular to our supreme court. obviously, one where you control in agency or a court is to control the appointments. we know very well the turnstile that was run in the trumpet administration.
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we know about the dark money funding. tens of millions of dollars was spent related to advertising campaigns. but 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. people don't spend that kind of money unless they want results. we have no idea because of the secrecy of who was behind this scheme. the next thing you do when you capture an agency is you want to tell them what to do. sure enough, we see actionable right wing litigation groups that bring cases to the court, there is an expedited fast lane for them to bring cases to the court that they think the captured court will rule on for them. they rush into court and say
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honor -- your, we would like to this. rule against me so as -- rule against me as quickly as possible so i can get up to a friendly cream court and we can get things done there. there are flotilla's of the friends of the court to come in and orchestrate a chorus and tell the court what the dark money groups behind them want in this decision. we don't know who is behind them. again, they are funded by dark money. most often in a courtroom, people want to know who is in the courtroom with them.
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it should probably come as no surprise that when you look at the 5-4 decisions, they help republicans win elections. the other is attacking civil rights.
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with the results that are produced, the capture of the court and those 80 partisan 5-4 decisions. protecting landlords and polluters and pushing a far right social agenda that is represented in this case. my time has expired, i will leave it at that. i think the witnesses were bringing this before this. -- before us. i think there are important questions before us here. we should be having this hearing
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and i'm glad we are. >> the senate judiciary committee is busy. they are not focused on the crisis on our side of the border -- or southern border. even the 1.2 million people have crossed illegally and there is a public health crisis playing up a senate democrats have no time to worry about that. the senate judiciary committee is not worried about big tech censoring and silencing free speech. that is not a concern for big democrats funded by big tech. instead, their priorities are amnesty. there is no parity they care about more than amnesty. we have had for amnesty hearings this year. the senator from rhode island, i always enjoy his charts. i wonder where the redline is connecting one conspiracy theory to another. shadows are really bad.
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shadow docket. general, let's use proper titles. general, the senate democrats have a point here. before donald j. trump, the supreme court had never decided emergency motions. is that correct? >> any emergency proceeding whatsoever? that is not correct. >> before donald j. trump, every single case this report decided was fully briefed and argued. >> that is incorrect. >> you mean they decided once before the terrible 45th president? surely it must be correct that that -- there was no shadow
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docket and you worked on emergency matters during your time as a clerk. >> certainly the orders dockets yes. it has been around for a very long time and on the jurisdictional point, justice breyer actually underscored what the court said in this most recent ruling here. >> there the old line that the hypocrisy is the tribute advice pays virtue. the democrats are fans of concocting ominous terms. dark money is one of them. while they are shoveling in hidden money from giant donors, they complain.
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that has always been the case. i remember every execution in the country. the clerks are there until late at night. at the time i was clerking, there were faxes. it would be an emergency appeal at the end. strangely enough you would call your justice and wake-up your justice at midnight or 1:00 or 2:00 in the morning to cast the vote on the emergency appeal filed to try to delay the
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executive. this whole notion of a shadow docket is called an operating court that is decided emergency motions. what this is really about is trying to demonize texas and trying to demagogue on the question of life. when it comes to demonizing texas, i suppose i can understand the incentive of senate -- senate democrats to do so. i just looked up the statistics in the year of 2020. what states people are moving out of. the number one state is new jersey. the number two state is new york. number three is illinois. illinois did better. illinois is doing better. where did the people from illinois go? they clearly don't go to the hellholes like texas or florida. weight that is exactly where they go. they go to texas and for a. why? we have jobs, low taxes and we protect people's rights.
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today's democrats on the question of abortion are radical and extreme. the position they support is on them and it abortion on demand up until the mode of birth. with no parental notification. it is radical, it is extreme. not percent of americans agree with the positions of every democrat on this committee because they have handed their abortion agenda over to the radical left. texas made a perfect 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. 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
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people care about. >> thank you very much. this is clearly an issue that has a lot of different and strong beliefs on both sides. i find it shocking to the conscious that a woman who was repeatedly raped does not even know they are pregnant could have the government sweeping -- swooping into tell them what they can do with their body. when we know all of the challenges of accessing health care at all, we know we are a nation that does not take care of though income women in particular in terms of their access to health care and abortion care is health care. it will often be directly going to the life of a woman or birthing person.
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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 for 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 we could do that elevate human well-being and preserves life. we know that women who are afforded health care and family planning have lower rates of unwanted pregnancy. that is a fact, correct? >> actually.
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why colorado register their rate of this not by attacking women and taking away health care but by giving them more reproductive freedoms. the stunning thing to me is that we know what would elevate human life and well-being. if we invested in and empowered women with dual care, health care, reproductive freedom. with science-based sex education. do republicans in texas consider any of those things question mark >> i have had legislation for the past several sessions to ensure that those that are on ships can have access to
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contraceptives in terms of reimbursement as it is done in every other state except the one. i have not been able to get that passed through our legislature. >> can a wealthy woman under this law have access to abortion care? >> yes, she can. she can. she can travel out of state. >> who is most affected by a law like this? >> that -- those that do not have the means, people of color, the fact is to as you point out, significantly more chance of death by carrying a pregnancy then there is by having an abortion and that this proportionately impacts women of color. >> if you value life, you are creating an environment where you are putting lives at more risk and other alternatives that are empowering individuals. i recently spent time and research on women who terminate
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pregnancy, what reasons they are listing. they mention financial issues. is there legislation coming out of the republican majority? >> to your point, valuing life means valuing the lives of the women who are asked to carry these pregnancies. >> from do look to access to family planning, those things are not being valued. wealthy people can get access to this care.
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the lives, the dignity, the well-being, the health of low income women and birthing people , in your opinion, not through rhetoric but through substantive laws that we know, could that elevate the well-being? are those things being attended to? >> i am a lifelong texan, i love texas. we have a lot of work to do that we have not been doing. we have the highest number and rate of uninsured in the entire nation. half of the births in texas are through medicaid moms. >> thank you very much.
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i did not go to a law school, i went to yell law school. -- yale law school. some of my friends on the other side of the aisle are probably better lawyers than me. my dear friend said this report did not have jurisdiction because there was no proper defendant. i will take my >> sure, senator. i suffer from the same disease of what law school i went to, but i will say, i mean i think the there have been various mischaracterizations from i think both witnesses and senators today about what was before the supreme court. the providers were not just seeking an injunction against the eight defendants, at least two of whom i think if we had time 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
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some of the procedural questions that senator lee and professor mascot has suggested deprived the court of jurisdiction. so i think the story about the spak center is a little more complicated. and the notion that the the whole matter rose and fell on whether all eight of the name 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 circuits role in provoking the emergency by stopping the district court from holding the hearing it was planning to hold on monday morning, august 30, 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 in its short ruling. >> you have redeemed to our alma mater. thank you very much. >> thank you. >> mr. chairman, thank you.
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>> now the republican staff advises me that senator blackburn, then senator cotton, then senator hawley. senator blackburn. >> thank you, mr. chairman, and thank you all for your opening statements. miss gross graves. i want to come to you. 2019, you were before the house and you stated and i'm quoting you, the legislators passing restrictions on abortion, want to control the lives and futures of women, denying them equality. 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? marsha blackburn: you know, i believe, senator, that the ability to determine when or whether you have children or how you parent those children is fundamentally tied not only to your personal liberty and privacy, but your ability to be truly equal in this country.
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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 -- >> so what you are sating -- saying is women cannot be considered equal unless they have access to abortion. >> for sure. we are in day 29 where people in the state you believe no longer, have -- >> so even though a child, an unborn child has a heartbeat, that that woman is not considered equal unless she can terminate the life of that child. >> i believe the ability to control your body, your life, your future, your destiny. >> so you do not have that ability unless you had unfettered access to abortion. is that what you're saying?
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>> the supreme court is actually outlined a framework that has been reaffirmed again and again for 50 years around exactly how to consider this question. >> so you think abortion is essential for equality. miss 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
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further than just codifying roe v. wade. one of the most reprehensible provision 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 risk that are there, that she would have the right to know the gestational age of that baby. do you have any thoughts on
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that? >> we have a requirement in texas for the distribution of a right to know pamphlet 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. >> tell me how you respond when
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you see a 3d ultrasound. >> i am not sure of your question. >> tell me what kind of emotion it evokes for you. >> i have seen a picture of someone's 3d ultrasound. i think that the issue here again is what we are talking about is not where we're subjecting women to a transvaginal sonogram. prior to when it's medically recommended. >> let me tell you where i am on that. i think that with that science is on our side when you talk about life. i have a lot of friends. i'm a grandmom and i have children and grandchildren. i have three grandchildren. and there are so many of my friends that used to say, well, you know, i'm pro choice. and then their daughter or daughter-in-law has a 3d sonogram. they can see the images.
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they know if they're having a girl or boy. they begin to make those plans, they begin 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 kind of a knee jerk reaction. >> i'm not sure 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.
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but you know, i do think we have to look at the fact that science is on our side on this. i yield back. >> thank you. senator senator white house, may i interject for one moment to ask that the report that we put together captured courts, the republican judicial assault on reproductive rights be entered into the record of the hearing . >> without objection. >> thank you. >> senator hirono. it is not on. try it now. >> okay, i think it's on now. thank you. i want to start with something that the mississippi attorney general lynn fitch said because
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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 raised children. i want to see whether either of you have any comments about that kind of statement, that women will somehow be empowered if roe v. wade were overturned. >> so today women are empowered to participate in the economy. i think overturning roe v. wade would have the opposite effect of diminishing their ability to work when they want to work to space their children when they want to space their children. but if there 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
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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. 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 more. i would be really surprised frankly if mississippi provided any of those kinds of programs protections. professor, what effects do late night unsigned rulings like uh
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the one the supreme court issued in the texas case have on judicial transparency and accountability and how does this affect litigants, strategies and reliance on prior court decisions? >> you know, it's a fair question, senator. and i think the tricky part is we don't know. we have rulings at the supreme court hands down that have no majority opinion. i cite 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. so i think that's, you know, again, just to sort of respond a bit to senators lee and cruz, this is the shadow docket is not new, the emergency doctor 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 of a sort of an analysis of the kind of decisions that the supreme court is making using the shadow docket process, which is not even a process? >> i i realize that my written
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statement is 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 -- 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 in these cases as a full court, the average during the 1st 10 years of chief justice roberts tenure was about five. >> i'm sorry, we are running out of time but basically i want to know if there is any kind of an ideological uh thing going on with the use of the shadow docket. >> i think the shadow docket rules have been far more homogeneous lee ideological than the merits docket, just one example i believe 69 rulings on , the shadow docked at 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 the justice to the left. these are all breaking down on what we might call the classic ideological grounds. >> and when we see a lot more of
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these kinds of orders after the three supreme court justices, they have 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 are asking me? >> does texas have any other laws besides this law where they actually let bounty hunters go out and 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 a 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.
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>> do you think texas would ever have a similar law where you can go after people who own guns and let the private sector led private citizens and force going after people who own guns and you get $10,000. do you think texas would ever enacted into 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. >> thank you. >> i am -- stephen vladeck seems amused by the title of days hearing the supreme court's shadow docket is that 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
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francisco, where a single radical judge issues some nationwide injunction to prevent the former administration from building a wall to secure our southern border from the millions of illegal migrants who have poured across it this year . or maybe blocking travel from countries that are rife with terrorists and have no way to vet those travelers. i don't know what else they did in the trump administration. maybe some judge in the 9th circuit ordered donald trump to bring qasem soleimani back to life and to apologize for killing iran's terrorist mastermind. or look at some of the cases on the shadow docket, which you had radical governors in places like nevada, in california, who would block christians from going to church to worship god while they allowed liquor stores, marijuana shops, and casinos to stay open. i'm not saying those things should 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
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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 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, argued that this bill merely codifies roe v. wade. oh, would that that were so, roe v wade the wrongly decided at least acknowledged at least
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acknowledge our people's legitimate abiding interest to protect innocent life before a child is born. the law that passed in the house of representatives last week allows abortion to occur up until the very moment of birth, 40 weeks or even beyond, displaying a grotesque indifference to the most vulnerable kinds of human life. i remember when my son was in the nicu, it was adorned with photos on the wall matching on the one hand, a small child that had been born at 30 weeks or 28 weeks or even 23 weeks, sometimes so small, it was held in the palm of a doctor, to the picture of that child at age five or 7 or 11, riding a bike , performing in a ballet, running through a field of
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flowers, all of whom would have 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 and her failed presidential campaign said that abortion should be safe, legal, and rare. not many democrats would say that today. miss howard, would you agree with bill and hillary clinton that abortion should 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,
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making sure that they have insurance coverage or medicaid coverage. there are many things that we could do that would give them more of a choice in their own uh 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. >> my question is 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, that there's 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. >> senator blumenthal. >> thank you, mr. chairman.
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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 16, 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 in indicating that roe might well be overturned. and i would invite my colleagues to have a look at the
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transcript. but more important, to consider seriously the issues that we raised and the need that was demonstrated to protect roe v wade and reproductive rights against the onslaught of state law restrictions, which are unprecedented. absolutely unprecedented in our history. reproductive rights are under attack, an onslaught as never before since roe v. wade. i clerked for the supreme court justice who wrote it shortly after roe was handed down and we never, ever could have anticipated the hundreds of state level restrictions being proposed and enacted throughout the country. representative howard, you've spoken about the ways that the texas law is a violation not
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only of constitutional rights to abortion but also our legal and medical systems. and as you've explained, under sb eight, rapist could sue a doctor if they provide an abortion to a rape survivor. if you process the insurance paperwork for an abortion, you could be sued, you could be sued if you so much as respond to a friend in texas with the location of an abortion clinic out of state. if you drop your sister off at a healthcare clinic where she has an abortion, you could be sued again by anyone in the entire united states. 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
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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. who are they? people of color, people who are poor. those are the people are 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?
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>> 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 local on the texas taxpayer as well. as i said before, over half of the births in texas are to medicaid patients, and women do get medicaid when they're pregnant in our state. so very likely we would see increased cost to the medicaid program, as well.
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>> thank you very much. mr. chairman. >> i have to start by confessing a bit of confusion over today's hearing, particularly the title which links together texas's abortion ban and the role of the shadow docket. what mystifies me about this is that the motion's docket that we're talking about, the so-called shadow docket. i thought the complaint about the shadow docket, by the way, i clerked at the u.s. supreme court. i remember well the motions docket and and how it works in the emergency aspect to it. i thought the complaint and concerned about that were the summary reversals and the orders that the court supposedly issues when they intervene in cases when they grant emergency injunctions without the benefit of full briefing opinions et cetera.
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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 of proceed. so it's a strange complaint about the shadow docket. the court didn't do in this case what liberals wanted it to do, didn't reach out to insert itself an issue an emergency order in the way that the left wanted. this hearing is not really about that case at all. this hearing is really about the dobbs case. mississippi case. senator hirono did us the favor of reading from statements made by the mississippi attorney general who is, by the way, a woman, regarding that 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 first of december, and unfortunately there's a pattern of not only this committee but of democrats in
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this body doing so. just last year, chuck schumer went to the steps of the supreme court and directly threatened justices gorsuch and kavanaugh by name. he called their names out and said you won't know what's hit you if you don't change direction. basically, if you don't rule the way that we want you to rule of course, then he later came out in favor of court packing. members of this committee senator, white house filed a , brief on the court in which he explicitly threatened the court with restructuring, i believe was the term of choice unless the court ruled the way he wanted them to rule. that's what this hearing is about. this hearing is 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
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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 in the gonzalez case 2007 gonzales vs carhart and i quote, "dr. haskell went in with the forceps and grabbed the baby's legs and pulled them down into the birth 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 out. the doctor opened up the scissors, stuck a high powered suction tube into the opening
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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. 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.
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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 hearings 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 on life that is a baby that is already delivered. they want that to be the law of the land, they're voting for it. i look forward to voting on this. 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 i want to know. the american people deserve to know which senators support the delivery and killing of children out of the womb. let's find out. let's find out. i urge this committee to bring this legislation for markup. i urge us to vote on it and then
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we should vote on the floor. the american people should see what it is that today's democrat party is proposing. i think they would be absolutely revolted and appalled. but it's time, as they say, to call the question. thank you. >> senator patio. >> thank you, mr. chair. back to the item that is before us. when it comes to accessing safe reproductive health care, it would seem that a patchwork approach simply won't work. in fact, the trend that we've seen healthcare more broadly is to work towards more seamless comprehensive health care services, not a patchwork whether it's physical health or , mental health or anything else. but sadly, just as with the assault on voting rights, it were observing state legislatures across the country resolutely focusing on
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overturning roe v. wade. with sb eight, 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 healthcare and that patients continue to receive that care when they choose, free from unnecessary restrictions. simply put, this body must pass the women's health protection act and the each act. my first question for miss graves, roe is theoretically still in place. however, restrictions to care already exists in some states, even while roe stands.
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leaving sb eight 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, you know, there are other bands at different points in pregnancy that have been passed by other states, that have been consistently struck down because of roe. there have been delays. so, you know, waiting periods requiring people to wait a certain number of days. so pushing access to abortion care further into your pregnancy. there have been efforts to shame people who are having an abortion. so, you know, medically inaccurate shame-based scripts that providers are required to read. there are also things that have basically shut down clinics so that in much of the south, many, many people have to drive hundreds and hundreds of miles already to access care. and all of that is on top of the fact that many people who, if you are covered by medicaid, for example, the hyde restrictions
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mean that abortion care may be financially out of range. you know, if you're thinking about someone like me who, you know, i frankly could afford to leave my state. i'm thinking about, it's day 29 and the many, many people who wake up desperate today in texas who are wondering what options they have. >> 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 in the hearing on what the impact of such an influx of patients can bring to whether it's this clinic in oklahoma or others surrounding texas, not only from a staffing concern for clinics, but it places an enormous amount
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of stress, to your point on, residents of texas who can't afford to travel that distance when that distance is prohibitive. for those women, carrying their pregnancies to term, well, that would not be their preference, that may be their only option. can you explain what the lifelong effects are of carrying an unwanted pregnancy to term? >> you know, i'm gonna have to i guess put aside some of just the human dignity pieces of that, right? like your ability to control your body and determine for you. there is a piece about that dignity that would carry for any woman of any means, but for people who are especially low income and who already lack
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consistent access to healthcare. the thing that worries me the most is are also maternal and infant mortality crisis, which is heightened in texas and when you add on that that what we know about people and our ability to be economically secure and to thrive, i am deeply worried about what is happening right now today and about the copy cut 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. >> right. i know my time is up. but one additional legal question for mr. vladeck.
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texas' sb eight not only deputize is it incentivizes private individuals to sue abortion providers and anyone helping a person obtain an abortion after 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 sb 8 was intentionally designed to create such procedural traps? >> sure. i mean, senator really, really, because i know that i know that the time is short. there's a non bank, fifth circuit ruling from 2001 that specifically opens the door to this by saying that it's not state officers, the attorney general, governor, or not proper
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parties in pre enforcement suits if they're not in charge of enforcing. but but senator, if i may, i actually think that really underscores why the conversation about sb eight 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, you know, complaints by members on the other side about abortion, about the debate over abortion 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 will not end with abortion. a world in which our constitutional rights are worth nothing more than the whims of 50 state legislatures is not a federal system. it's not a system with the rule of law, and frankly, it's not a system that is going to be sustainable in the long term. >> thank you. >> thank you. >> i want to thank the witnesses. i'd like to make a few comments very quickly because you've been very patient and waited through a lengthy hearing.
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in response to senator hawley, senator blumenthal, who is the lead sponsor on the women's health protection act, confirmed that the bill explicitly says it would not supersede the law on partial birth abortions . explicitly. so the presentation by senator hawley should be taken, considered in that light. 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. i have struggled, i respect those who have a different point
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of view on the subject, but i have struggled with trying to understand this notion that eliminating or not providing family planning information is any hope of reducing the number of unwanted pregnancies. practical human experience tells us that's not true. i'll use the word rare on doing it in a positive way rather than a negative way of shutting down the clinics. now, as i reflect on this hearing, it is interesting to me how little was said about s8, 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 a process, what justice sotomayor said flagrantly unconstitutional. the word facially unconstitutional has been used . justice kagan said when descending from the court's
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order in sb eight case, the majority's decision is emblematic of too much of this court shadow docket decision making, which every day becomes more unreasoned, inconsistent, and impossible to defend. i don't know that any of us said anything more extreme than that, she has really laid it on the line, unreasoned, inconsistent, impossible to defend. and so to raise this question is not to intimidate the court, but to raise the fundamental question of court procedure. when i think of all the time i've spent in 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.
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it's a five alarm fire for due process. americans mourn the loss of justice ginsburg in part because she dedicated her life to equal justice as well as judicial independence. years before she passed, she wrote, "judicial independence in the u.s. to strengthen 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 of united political partisans." she had quite a way with words. i believe we share an obligation to protect and preserve this prices constitutional gift. now, i'm going to ask unanimous consent instance, no one's here to object. enter a number of statements and 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 p.m. on wednesday, october 6.
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watch for emails. i want to thank the witnesses again and the hearing stands adjourned.
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