Late Wednesday evening, the U.S. Supreme Court denied an emergency petition to stay a restrictive Texas abortion law. The order is here: “Whole Woman's Health v. Jackson. The law has therefore gone into effect, banning abortions after six weeks by punishing providers and “aiders and abettors” with financially ruinous penalties. As a practical matter, Texas has outlawed all abortions after six weeks—in contravention of the federal constitutional right guaranteed in Roe v. Wade (and progeny).
The development is deeply disturbing on many levels. Although the effect on reproductive rights is devastating, the cause for alarm transcends the extra-judicial demise of Roe v. Wade. The law portends a society in which pregnant women are prey to be stalked by bounty hunters. Women have been stripped of autonomy over their bodies and have become chattel under the dominion of white, evangelical Christians who codified their religious beliefs as civil law. The law pits neighbor against neighbor, encouraging vigilantism and gross violations of personal privacy in the name of the state—tactics utilized in pre-war Germany and post-war East Germany.
There is much to discuss about the Supreme Court’s judicial dereliction in allowing Texas to circumvent settled constitutional law, but let’s skip to the end of the discussion—which may be the most important part. What does the ruling mean for those who seek to defend rights guaranteed by the Constitution? Have GOP-controlled states hit upon a strategy that will allow them to deprive citizens in their states of other constitutionally protected rights? Can we recover from the setback suffered at the hands of the reactionary majority on the Supreme Court?
Though I am optimistic about the future of our democracy, I also believe that we must be realistic about the challenges ahead. So, here’s my take: We will prevail in the end, but things will get worse before they get better. Much worse. Now that Texas has evaded Supreme Court review long enough to bankrupt all abortion providers in that state, other states will trip over themselves to replicate the result in Texas. The GOP controls the executive and legislative branches in twenty-three states. It is likely that most of those states will enact similar legislation—meaning that abortion will be outlawed in nearly half of the United States.
Worse, the Supreme Court has dropped all pretense of due process or respect for precedent in its haste to implement the conservative social agenda of the evangelical right. The court’s reactionary conservative majority will do whatever it wants without regard to logic, precedent, or the Constitution. Six members on the Court have made it their life’s mission to overturn Roe v. Wade and have not bothered to give it a decent burial. They will apply the same ruthlessness to other issues—indeed, they have done so already, as I discussed in a previous edition of the newsletter.
The Court’s failure to stay the Texas law while parties litigate the constitutionality of the measure signals that it believes it can act with impunity in implementing the full conservative social agenda. If the Court is not reformed, its failure to act on the Texas abortion law will pale in comparison to what is to come. In particular, religious freedom will become a “free pass” to discriminate and oppress all manner of people who do not “fit” into the white, evangelical Christian view of the “nanny state.”
We must abolish the filibuster, expand the Court, limit terms, impose a code of judicial ethics on the justices, limit its ability to decide substantive issues in summary proceedings, restrict its appellate jurisdiction, and more. I am hopeful that we can do so in the reasonably near future. Why? As the saying goes, “Be careful what you wish for.” Republicans have succeeded in overturning Roe v. Wade even though a strong majority of Americans (61%) opposed that result. See Pew Research Center, “U.S. Public Continues to Favor Legal Abortion, Oppose Overturning Roe v. Wade.” As Pew Research notes, “most millennials are not aware of the decision.” Those millennials (and younger generations) will become immediately aware of the significance of Roe v. Wade after their state adopts Texas-style legislation denying women the right to decide whether and when they have children.
We will prevail. It is only a question of when. Republicans have badly overplayed their hand and will pay dearly. Republicans succeeded in overturning Roe in the ugliest possible way—by creating an “informer state” in which family members, friends, and strangers “report” one another for contravening the dictates of the governing political party. When the repeal of Roe v. Wade is added to the burden of Republicans who are running under the weight of anti-vaccination, anti-mask, and anti-democracy platforms, the shrinking margins of loyal Republicans will shrink further.
Even if the law is enjoined in the near future (when someone sued under the statute files for an injunction), it does not matter. Texas has tipped the hand of conservatives and given us a preview of what is coming. If not now, then in the very near future—unless we reform the Court in a major way. As I said, I am confident that we can do so. In the meantime, if you needed any further motivation to become politically engaged, Texas just removed your last excuse.
My commentary on the development went on much longer than I had planned, so I will be brief in discussing the details of the Texas law. The law is complicated, so I commend to your attention the excellent reporting by Ian Millhiser in Vox, “The Supreme Court allows an alarming anti-abortion law to take effect.” This issue will dominate political discourse for months and years, so I suggest that you take twenty minutes to read Millhiser’s explanation in full. If you don’t have time, here are the essential provisions of the law.
The law imposes civil penalties on abortion providers and anyone who “aids and abets” those providers in connection with abortions more than six weeks after conception.
The law allows any person in the United States to sue a provider or “aider and abettor.” If the person bringing the suit is successful, he will recover $10,000 bounty and his attorney’s fees. If the defendant wins, the provider cannot recover its attorney fees.
If a provider loses a lawsuit, the state can shut down the provider.
The full text of the bill can be found here: SB 8. Given how the statute is structured, it is difficult for providers to obtain injunctive relief to protect themselves. Thus, as a practical matter, they will be driven out of business before they have a chance to contest the constitutionality of the statute on the merits. In other words, the statute is designed to deny due process to defendants who seek to challenge a statute that plainly violates the rights recognized in Roe v. Wade (and progeny).
A reader sent a note earlier today saying that Republicans in Texas are acting like the Taliban in Afghanistan: They are forcing women into the shadows, denying them the right to control the most fundamental and personal decisions relating to their personhood. Of course, Texas has unleashed a statute that relies on a “Big Brother” state to enforce unconstitutional legislation while at the same time claiming that the state has no right to require the public to wear masks to contain a pandemic.
The hypocrisy of evangelical Christians also deserves comment. Pastors are providing congregants “religious exemptions” to be excused from wearing masks or receiving the vaccine. See Baptist News, “Church ‘religious exemption’ letters against COVID vaccination mandates likely won’t work.” In evading public health measures on purported religious grounds, those pastors are actively threatening the lives of unvaccinated children and immuno-compromised adults—showing a callous disregard for life. And yet, their support for the Texas abortion ban (and other similar laws) is allegedly a “pro-life” stance. The danger to the lives of their congregants is not speculative—it is real. See Business Insider, “An outbreak at a church camp gave 87 people COVID-19. All but 8 were unvaccinated.”
The path forward.
Expand the majority in the House and Senate. Make Manchin and Sinema irrelevant to the question of the filibuster by gaining four seats in the Senate. We can do it. We must do it.
Susan Collins should resign in disgrace. She knew that Brett Kavanaugh lied to her about his intention to overrule Roe v. Wade. In the opinion issued late Wednesday evening, Kavanaugh’s vote was the difference between the issuance of a stay or allowing the Texas law to go into effect. Collins repeated Kavanaugh’s lie to her constituents and vouched for his integrity. Tonight, Susan Collins bears a large portion of the responsibility for the fact that millions of women in Texas have been denied the rights guaranteed to them by the Constitution. She will, no doubt, issue a mealy-mouthed defense of her actions claiming that the Supreme Court has technically left open the question of the status of Roe v. Wade. But that “technicality” means nothing to women in Texas who will have nowhere to go when all abortion providers close their doors awaiting a years-long appellate process. I hope that Collins’ constituents will let her know how they feel about her betrayal of the women of America.
Talk to you tomorrow. Stay strong. We will prevail.