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We Have to Stop Limiting Our Focus to Courts in the Defense of Abortion Rights

We can’t solely rely on legal strategies to defend our rights.

An activist speaks outside the Supreme Court in protest against the new Texas abortion law on September 2, 2021, in Washington, D.C. The Supreme Court declined to block the law and will let the legal battle play out in lower courts.

A state defies a landmark decision by the Supreme Court and enacts legislation that effectively bans a hotly contested civil right. The state designed the legislation to evade the federal courts’ jurisdiction. The Supreme Court hears the case and, in a unanimous opinion, blocks the state’s actions. Each justice signs their name to the beginning of the opinion and they condemn the state’s attempt to “nullify” the Court’s landmark decision through “evasive schemes.”

That’s what should have happened to Texas and SB 8, which defied Roe v. Wade by effectively banning all abortions after about six weeks into a pregnancy. Instead, the Supreme Court let SB 8 “evade federal judicial scrutiny,” as Justice Sonia Sotomayor put it in her dissent. The Court went in the opposite direction of the opening narrative, which is from the civil rights era, when it struck down state laws undermining desegregation and Brown v. Board of Education. Those rulings established the federal courts as the legitimate enforcers of constitutional and civil rights for the last 60 years.

But the Supreme Court has now decided to let a state openly defy the federal court system. And if the “supreme” body of an institution gives up on asserting its authority, then we have to ask whether we should continue trusting that institution. The common sense of going to federal court when your rights are violated or donating to a legal organization to fight the bad guys may not make sense anymore.

Maybe the fight to reform and relegitimize the federal courts really is worth it, but we can’t solely rely on legal strategies to defend our rights. We have to question these strategies if the conservative justices — a few people in black robes — can discard a crucial civil rights system with such indifference. Our best strategies don’t rely on top-down institutions, but on social movements and grassroots and working-class institutions, such as unions. Either way, we can’t stick around just because that’s where legal advocates have spent the last two generations or because of a misguided belief that “the law” will eventually be just. The law, like any other institution in our society, is malleable and rarely a level playing field.

The federal courts rose with the civil rights movement and may now fall with the end of Roe. Rather than stand lopsided, we have to start fighting on our own terms.

Supreme Court Ruling Has Opened the Floodgates

Texas designed SB 8 to get around the way federal courts normally stop unconstitutional state laws, including other six-week bans on abortion: They order state officials to not enforce the law. However, SB 8 gives enforcement powers not to state officials, but to private citizens (and many anti-abortion “vigilantes” will take up that mantle). The law allows them to sue and win, at minimum, $10,000 in “damages” from anyone who “aids or abets” a banned abortion. And since the federal courts have no state official to order around, the logic goes, they can’t block the law as unconstitutional until someone actually tests it out by suing.

But the damage will already be done. Abortion providers in Texas are closing and reducing services. Up until now, federal courts had blocked these flagrantly unconstitutional laws before they went into effect. That approach softened the blow on abortion providers by reducing their legal risk. It was how this process was “supposed” to work. A state restricts a civil right, civil society groups ask legal organizations for help, the lawyers go to federal court and the court stops the law. It wasn’t perfect, and states were still bringing death by a thousand cuts to abortion providers.

The Supreme Court has now opened the floodgates. Even the conservative justices couldn’t deny there were “serious questions regarding the constitutionality of the Texas law.” But their opinion took SB 8’s scheme at face value, saying its “complex and novel” procedures — lawsuits by private citizens — had to play out first. The Court is inviting states to challenge the legitimacy of civil rights enforcement in federal courts. States will pass all kinds of unconstitutional laws designed to evade judicial review. Federal courts may eventually patch up the specific jurisdictional hole that Texas used, but there will be others.

The Civil Rights Era of the Federal Courts

This is how states resisted desegregation after Brown — the federal courts won, and won big. After the “Little Rock Nine” and a federal troop occupation began integrating schools in Arkansas’s capital city in 1957, the state legislature and governor passed laws that did not explicitly challenge Brown but still, as the Supreme Court justices at the time put it, “reflect[ed] their own determination to resist this Court’s decision.” One such law, eerily similar to SB 8, gave money to school districts to attack integration in court. And the school district officials, not those actually behind these legislative schemes, were the only ones whom civil rights activists could sue.

The Supreme Court struck down the laws despite this procedural trickery — and in some ways, because of it. Arkansas essentially challenged the legitimacy of the federal courts, and the justices had to beat that back. That’s why they, for the only time in history, all signed their names to the beginning of the opinion. The state’s “evasive scheme” of using school district officials as a legal decoy could not hide the fact that “vindication” of a constitutional right “was rendered difficult or impossible by the actions of other state officials.” The unconstitutional laws had to go, and the justices unanimously signaled the federal courts’ power over the states.

The Supreme Court’s assertion of its own authority boosted the institutional legitimacy of the federal courts, and it spawned the world of federal civil rights litigation that we know today. It’s an industry where hundreds of legal organizations spend billions of dollars every year to advance civil rights. And it became the commonsense place to go to fight tyranny. When Trump won the 2016 election, the ACLU threatened him with its “full firepower” and “staff of litigators and activists in every state … ready to fight against any encroachment on our cherished freedom and rights.” Donations soared.

The Limits of the Federal Courts and the Law

But is this the system we really want to rely on? A system whose legitimacy depends on pretenses like nine people in black robes signing their names on a piece of paper? A system where our rights rise or fall based on procedural technicalities only understood by the lawyers who create them? For people who believe in “the law,” maybe that checks out. But for the rest of us, who see politicians and the rich flout every rule while the courts throw poor and oppressed people in prison, it’s time to take this latest hint from the Supreme Court and move on.

That doesn’t mean lawyers (like yours truly) and our many great legal organizations have no role to play. And even the conservative justices in control of the Supreme Court have not totally abdicated the idea of civil rights. It was, after all, Justice Neil Gorsuch who wrote the Bostock v. Clayton County opinion, which extended Title VII protections to gay and trans people. We can and should use the federal courts, state courts, and whatever other legal avenues are out there to help people and push back against tyranny. And we should reform those institutions to make them more just.

But the law is a means, not an end. It’s useful for some things, and not for others. In particular, the past two generations of federal civil rights litigation have not panned out as a way to build power at the grassroots. To the contrary, institutions designed to build grassroots power have suffered from overreliance on lawyers and judicial intervention.

In unions, for example, lawyers started negotiating the contracts and trying to enforce them in court, rather than workers sitting at the table and using the strike tool as leverage. Unions told workers to take their disputes not to their co-workers and fellow union members, but to a legalistic grievance process where they were basically a spectator. Today, unions have resurged not because of smart lawyers, but through rank-and-file organizing and strike activity that have energized the communities around them.

Even where we see victories in top-down institutions — such as Mexico’s Supreme Court’s decriminalization of abortion — the underlying role of social movements is clear. Argentina’s “green wave,” a women-led movement of hundreds of thousands, won the right to abortion through legislation less than a year ago. That wave swept into Mexico and will be necessary to support this fledgling right against challenges on new institutional battlefields in both countries. There are fights to come over funding, accessibility, training and cultural competence, and religious exemptions.

Meanwhile, we are sliding backwards in the United States. Why are we facing the impending fall of Roe when we should be gaining ground by repealing the Hyde Amendment, which bans federal funding for abortion, and passing Medicare for All? The unavoidable answer is that our strategies are not working. Frustrating as it may be to watch the Supreme Court delegitimize itself, the next generation of change needs a broader, more grassroots horizon.

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