Abortion

Floor Speech

BREAK IN TRANSCRIPT

Mr. DURBIN. Mr. President, earlier today, as we just heard from my colleague from Texas, the Judiciary Committee held a hearing on the abortion ban that took effect in the State of Texas earlier this month. I hope every American who tuned in to this hearing listened very closely--very closely--because here is what we heard:

My Republican colleagues on the committee literally made no effort to defend the Texas abortion law, the Texas abortion ban--SB 8, as it is known in Texas--not a single effort to defend it on its merits. They made no effort to engage on the issue of the shadow docket process through which the Supreme Court allowed this bill to become law, and they made no effort to argue that women's constitutional rights should be protected.

What we witnessed during today's hearing was the opening salvo on the fate and future of Roe v. Wade. Here are the facts:

This Texas law is no ordinary piece of legislation. To quote Supreme Court Justice Sonia Sotomayor, it is ``a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny.''

This law has effectively banned abortion after 6 weeks in the Nation's second largest State, even in cases of rape and incest. The fact is, many women do not even know they are pregnant by 6 weeks.

The architects behind SB 8 took an extreme proposal that clearly violated Supreme Court precedent and paired it with a new, disturbing private bounty hunter enforcement scheme, and they did so in the hope that the courts would not block the law because it wasn't clear who should be sued.

At midnight on September 1, the Supreme Court allowed SB 8 to go into effect. As a result, millions of Texas women have had their constitutional rights challenged and suspended.

This attack on women has already caused irreparable harm to countless women who lost their right to reproductive care in Texas.

At today's hearing, we heard from Donna Howard, a State representative from Texas. In her written testimony, she shared the story of a woman who was denied the healthcare she was entitled to under the Federal Constitution. The woman went in to an appointment on August 31 of this year, and at the time, there was no heartbeat detected on the State-mandated sonogram. But when she came back the next day to have the procedure done, a cardiac motion was detected.

Representative Howard said of this woman that at only 5 weeks--5 weeks of pregnancy--she was too late to receive an abortion under the provisions of this new law. She was devastated. She already had a child at home and knew that bringing another child into their lives threatened her family's situation and their financial security.

As Representative Howard went on to note, having an abortion was ``the right decision for this mother's life and her family's well- being.''

But the Texas law went into effect, and the Supreme Court deprived this woman of her constitutional right.

SB 8 marks a turning point in the decades-long campaign to undermine the Supreme Court's holding in Roe v. Wade. For years, legislative efforts to ban previability abortion have been stopped by courts. Until now.

The legal architects behind this Texas law crafted a scheme to avoid judicial review. They lifted the responsibility of enforcement from the State and put it in the hands of private citizens. Listen to this: As a result of this Texas law, they have turned ordinary citizens into bounty hunters.

I want to clarify something. I have read it and asked the Texas State representative to verify. It has been said that you can sue a person who aids and abets an abortion in Texas and recover $10,000 costs and attorney's fees. That is not what the law said. The law says you can recover not less than $10,000 in costs and attorney's fees. The first lawsuits have been filed already against doctors in these clinics, and they are seeking damages in the amount of $100,000 or more.

You don't even have to live in Texas to receive this bounty. Consider Dr. Alan Braid, the first person to be sued under this new Texas law. Earlier this month, Dr. Braid, a practicing OB-GYN in San Antonio, penned an op-ed in the Washington Post explaining why he is continuing to provide abortions despite the law.

As someone who has worked in medicine since 1972, the year before Roe v. Wade, Dr. Braid remembers a time when women could not safely access abortion care. He believes he has a ``duty of care'' to his patients, and he refuses to ``sit back and watch us return to 1972,'' in the doctor's own words. Well, as I mentioned, he is already facing the legal consequences of this new Texas law.

Who is exactly the bounty hunter who filed the first lawsuit against him? You might guess it is a fellow Texan, right? You are wrong. It is a disbarred lawyer who lives in Arkansas, a bounty hunter; $100,000 is what he thinks this law is going to give him.

That lawsuit being filed against Dr. Braid illustrates how irregular this Texas law's bounty hunter enforcement model really is. Anyone from any State can file a lawsuit against any physician. But when we include the categories of people who aid and abet the person receiving the abortion, the categories go wide afield, from the people who gave her advice, the folks who gave the transportation to the clinic, the minister who counseled her--all of these things makes them eligible to be sued for a minimum of $10,000 now in Texas.

There is a reason why the Texas legislators designed the law this way. They sensed an opportunity on the Supreme Court. They knew an emergency legal challenge to this Texas law had a good chance of coming all the way to the Supreme Court. And they knew the Supreme Court has shown a willingness to allow sweeping changes to the law to take place on a short timetable without detailed explanation.

It was interesting to listen to the Republican Senators go into orbit over the fact that we would raise questions about the shadow docket. It is a motions docket where the Justices on the Supreme Court can decide an issue on a very short timeframe without even explaining their position.

That is exactly what happened with SB 8. When the law came before the Supreme Court, a majority of Supreme Court Justices, late at night, allowed it to take effect.

The next day, the Court issued a one-paragraph opinion to explain it. It said they would not stay Texas's abortion ban because of the law's ``complex and novel'' procedural questions. In other words, the Texas legislators got their way. By designing SB 8 with a new bounty hunter enforcement model, Texas lawmakers managed to evade judicial review.

In her dissent, Justice Sotomayor explained how this scheme worked. She said, ``The Court has rewarded the State's effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the Court's precedents, through procedural entanglements of the State's own creation.''

The Court's ruling on SB 8 is distressing for a number of reasons. For one, it has galvanized lawmakers across the country to undermine constitutional rights in their States. Over the past month, lawmakers and candidates in Arkansas, Florida, South Dakota, and other States have pledged to follow suit and copycat the Texas law. They saw what happened when this bill came before the Supreme Court. The Supreme Court basically said it can go forward.

Additionally, the conservative majority on the Supreme Court has now signaled that it is willing to use the shadow docket to allow even laws unconstitutional on their face to take effect, as long as it aligns with certain ideological norms.

Another witness we heard from today was Professor Steve Vladeck, an expert in constitutional law who has written extensively about the Court's shifting use of the shadow docket.

The shadow docket, of course, refers to situations where the Court issues decisions outside the traditional merits docket. Historically, shadow docket orders are used to help resolve routine or procedural questions frequently without public deliberation, full briefings, or even signed opinions.

But as Professor Vladeck testified, there has been a notable uptick in the Supreme Court issuing shadow docket orders that are ``having a far broader substantive impact, for better or worse, compared to [the] emergency rulings in the past.'' And many of these shadow docket orders appear to be driven by ideology.

Let me tell why I say that. Listen to these numbers. During the 4- year Presidency of Donald Trump, the Supreme Court issued 28 grants of emergency relief on the shadow docket at the request of the Trump administration--28 grants of shadow docket relief out of 36 requests. Each of these orders advanced President Trump's political agenda, including one that allowed the resumption of Federal executions for the first time and in nearly two decades.

Now, let's do a comparison. If there were 36 requests of the Supreme Court for shadow docket opinions and 28 of them were granted in the 4 years of Donald Trump, how about previous Presidents? During the 16 years of the George W. Bush and Obama Presidencies, from 2001 to 2017, the Supreme Court issued four--four--orders in 16 years. In this last 4-year period of time, they granted 28 out of 36 with the Trump Justice Department.

With its handling of Texas's abortion ban, as well as other shadow docket orders, the Supreme Court's conservative majority has indicated a willingness to change substantive law in sweeping ways without due deliberation and public reporting.

In doing so, they are undermining confidence in the Court, and the conservative majority has opened the door for ideologically driven legal schemes to rewrite laws from the shadows, like SB 8. This is a five-alarm fire for due process, as well as our constitutional rights.

And as I expressed during this today's hearing, I hope every Member of the Senate--Democrat or Republican--will join together to protect and preserve independent, transparent, and reasoned judicial decision making based on the rule of law.

At a time when the public's confidence in our governmental institutions has been greatly eroded, we must restore it.
BREAK IN TRANSCRIPT

Mr. DURBIN. Madam President, more than 680,000 Americans have died from COVID. The majority of these deaths occurred before we had viable, effective, and safe vaccines. Doctors were begging for these vaccines to save lives, and now we have three safe, effective, widely available vaccines in America. All three have been proven successful and safe.

However, one in four adults in America still refuses to get the vaccine. According to the CDC, these unvaccinated individuals--listen to this--are 10 times more likely to be hospitalized from COVID, 10 times more likely to die from COVID than those who got the shot. And as long as large numbers of Americans remain unvaccinated, this virus is going to continue to spread and raise the risk of mutation and more deadly variants.

We have tried approaches to incentivize people. What more can we do? We created a lottery in Illinois and said: If you are vaccinated, you are automatically buying a lottery ticket; you don't even have to pay for it.

The head of the Federal Bureau of Prisons union for employees, with only 50 percent of those working in Federal prisons vaccinated, said they were going to set up a popcorn machine at the prisons in the break room in the hopes of getting people to be vaccinated--trying everything to get people to try the vaccine.

We have tried every approach to incentivize them, but the vaccine numbers are not where they need to be. So, facing this reality, the President accepted responsibility to try harder. He has directed Federal Agencies and OSHA to mandate vaccination for Federal employees and certain private workers. These directives were issued under the OSHA Act and other established legal authorities; and, listen, they have been welcomed by the Business Roundtable and other employers who were waiting for a signal from the White House that we were serious, and they are supported by a majority of the American people.

I recognize that some of my colleagues disagree with that action, and that has prompted this bill from my friend and fellow Senator from Utah. His bill, the Don't Jab Me Act, would create a private right of action for any ``aggrieved individual'' to sue the Federal Government ``for injuries sustained as a result of a COVID-19 vaccination mandate.''

I know that the Senator is careful in his words. I would ask him to look carefully at that word ``injuries.'' It is misleading.

COVID-19 vaccines are safe and effective. They were evaluated in tens of thousands of clinical trials. They meet the FDA's rigorous scientific standards for safety, effectiveness, and quality. They have undergone and will continue to undergo the most extensive, intensive safety monitoring in history.

In an extremely rare case that an individual suffers an injury, a harm, from a COVID-19 vaccine, there is a system in place to provide compensation. Under the Countermeasures Injury Compensation Program, a person can already seek to recover damages for physical injuries suffered because of COVID-19 vaccines.

The Senator from Utah's bill appears to go beyond compensating individuals for physical injuries caused by the vaccine. It lets people sue the government for ``injuries sustained as the result of a COVID-19 vaccine mandate.''

Now, what kind of injuries might there be?

Well, we surely don't know. The bill does not define the type of injuries that a person could sue for. The entire bill is two and a half pages of very vague language.

What we do know is that the bill, if enacted, would authorize a flood of lawsuits by individuals claiming that a vaccine mandate injured them in some physical, maybe nonphysical way. We don't know.

It is ironic. For more than a year, my Republican colleagues claimed the pandemic would create a tsunami of COVID lawsuits. Remember all of the times Senator McConnell went to the floor and said: Hang on tight. The trial lawyers are just going to be hell-bent now, filing lawsuits all across America. There will be a tsunami of lawsuits.

Well, it never happened. Despite that fact, the Senator from Utah is apparently urging a new set of lawsuits to be filed.

I am a former trial lawyer. I made a living at it. When people have been harmed, I support their day in court, but liabilities laws need to be carefully calibrated to promote the right behavior and incentives. This short, vague bill does not even try to strike a balance between health and safety. It is a shot across the bow to entities that are using vaccine mandates.

Remember, courts have long rejected challenges to vaccine requirements imposed by public entities. And the Senator might take a look at his home State. In Senator Lee's home State of Utah, there are public actors, like Salt Lake Community College, the University of Utah, and Utah State University, that are using COVID vaccine mandates to promote health and safety.

And I want to show the Senate this chart because it tells an amazing story.

Remember the report about all the attorneys general who were going to file lawsuits, in keeping with the Senator's message, against Joe Biden for these mandates for these employees?

Well, we took a look at their State.

Twenty-four States threatened lawsuits against Joe Biden for the very reason stated by the Senator from Utah.

How are they doing compared to all the other States, the 26 States that didn't file a lawsuit?

Well, it turns out the infection rate for COVID-19 over the past 3 months is more than twice in those States as it is in the States not filing these lawsuits. Since mid-June, the death rate is almost three times the rate of those States that didn't file the lawsuit, and the vaccination rates are significantly lower.

So for those who have an idea about guiding the State to the right outcome, shouldn't public health and safety be important?

I am sure we all understand the issue of liberty and how important it is to America, but there was a word before liberty that the Founding Fathers used: life. Life.

BREAK IN TRANSCRIPT

Source