September 29, 2021

Durbin Questions Witnesses at Hearing on Texas's Unconstitutional Abortion Ban and the Role of the Shadow Docket

WASHINGTON – U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, today questioned witnesses at a Senate Judiciary Committee hearing entitled “Texas’s Unconstitutional Abortion Ban and the Role of the Shadow Docket.”  Durbin began his questioning by highlighting how the Supreme Court’s “shadow docket” has been used in recent years.

“To argue that this shadow docket is just routine, it 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 the Obama Administration and Bush Administration [for requests for emergency relief]…and then when it came to the Trump Administration: 36 times in four years and the Trump Justice Department won in 28 cases.”

Durbin then asked Texas State Representative Donna Howard (D-48), Chairwoman of Texas’s Women’s Health Caucus, about Texas’s S.B. 8 abortion ban.

“When we talk about the liability under S.B. 8, [it includes] categories of people who ‘aid or abet’ in the performance or inducement of an abortion. [That] would be the clinic and its employees, doctors, receptionists, security guards, relatives or strangers who pay for the abortion, donors to Planned Parenthood, insurance companies…those providing transportation to and from the clinic, counselors including clergy. If we’re talking about the potential civil liability of a minimum of $10,000, was this discussed in the Texas House of Representatives? The number of people who would be inadvertently swallowed up in this law?”  Durbin asked.

State Representative Howard stated it was absolutely discussed and debated, but they could not secure any changes. She said there have now been multiple instances where Uber or Lyft drivers have not been willing to take someone to a Planned Parenthood clinic. She said that the law has created an extreme amount of confusion about what actions would make people liable under the new law.

“This law has something I’ve never seen before. The defendant has the burden to prove they did not break the law. Not the plaintiffs proving that the law was broken. They’ve completely flipped the burden of proof,” Durbin continued. “It’s exactly the opposite of normal legal practice. The burden is on the accused, not the accuser. Was that discussed in the Texas House of Representatives?”

State Representative Howard stated it was discussed and they were unable to make changes to it. She said she has heard from many physicians who are considering retiring or leaving the state because they are afraid of the risks of practicing in Texas. She called the situation “absolutely chilling.”

Durbin also asked State Representative Howard about the law’s failure to protect survivors of rape and incest. She responded that while it is egregious on its face that S.B. 8 does not have an exception for rape or incest, she also highlighted that it should not have to be the case that a law would only permit people to exercise their constitutional rights if they survive a sexual assault.

Video of Durbin’s questions in committee is available here.

Audio of Durbin’s questions in committee is available here.

Footage of Durbin’s questions in committee is available here for TV Stations.

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