The Supreme Court Just Let Texas Outlaw Abortion

The Supreme Court Just Let Texas Outlaw Abortion

Abortion is now effectively banned in Texas. It wasn't necessary for anyone to bother challenging Roe v. Wade in the Supreme Court. Instead, Texas just passed its own reprehensible law and the Supreme Court refused to respond when the ACLU filed an emergency request blocking the ban. (The Supreme Court can act swiftly when it wants to, as evidenced when it blocked the Biden administration's eviction moratorium last week.)

The Texas state Senate passed the so-called “fetal heartbeat bill" in May. It's “so-called" because what's actually being detected are "amplified electrical impulses" not a fully developed heart. Fetal pole cardiac activity typically starts before a missed period, which is when someone usually wonders if they oh god might be pregnant. These abortion bans are insidious because they technically still allow abortion but within an impossibly narrow window. This is why no such "six-week" abortion ban (really two weeks after that first missed period, if a person has regular periods to begin with) has been permitted to go into effect even briefly.

However you frame it, Roe v. Wade and the right to choose is dead. I'd hoped that the media would frame it this way, but instead this was CNN's headline:


Madonna's 1989 “Like a Prayer" video was “controversial." This law all but ends reproductive freedom. The media goes into higher — far higher — dudgeon over cancelled Dr. Seuss books.

The Texas abortion ban, which is just the start, is devastating, especially to marginalized groups. Well-off white cis women might find ways around the law, because this was never about the “right to life" in a state where, as of today, you can carry a handgun without a license of training. No, it's about controlling who can get pregnant and when. And forced birth is a proven but barbaric way of keeping certain people in poverty forever. The children who result from such laws are not treated like Kal-El from Krypton when he arrived on Earth. They are often swiftly placed on the prison pipeline.

Abortion foes have long attacked the right to privacy at the core of Roe v. Wade, and the same people who'll celebrate the Texas law's passage have also grossly co-opted abortion rights language — “my body, my choice" — when protesting public health measures against COVID-19.

Elie Mystal, justice correspondent at The Nation, argued that a better constitutional grounding for abortion rights is the 13th Amendment, which prohibits slavery. It's illegal to force someone to labor against their will unless they've committed a crime. We can discuss our fucked-up prison system later, but for now, we can agree that having sex while in possession of an active uterus isn't a crime.

The Texas abortion ban has sinister shades of the Fugitive Slave Act of 1850, which extended slavery's reach into supposed “free" states. Bounties are now placed on the heads of people who seek to control what happens to their bodies, as well as anyone who assists them. This includes health-care workers, clergy, and even ride share drivers, who have enough problems. Random people with no relation to the pregnant individual can sue anyone who “aids and abets" an abortion for at least $10,000. This is very cruel and unusual. Even if I Rear Window my neighbor killing his wife, I can't personally cash in.

But that's the perfidious twist on the law, as Supreme Court precedents, to the extent those matter anymore, "forbid states from banning abortion before fetal viability, the point at which fetuses can sustain life outside the womb, or about 22 to 24 weeks." The Texas law however bars state officials from enforcing it but delegates the responsibility to private individuals eager to cosplay the villains from The Handmaid's Tale. Congratulations, Texas, you've just successfully privatized fascism.

(Yes, of course "the state" still has to adjudicate the claims, thus enforcing them. It's a bullshit distinction, and the courts apparently don't care.)

If Cori Bush saying “defund the police" into a mirror three times summons the electoral Candyman, you'd think the “sue the Uber driver for giving a ride to a pregnant person" law would have some political fallout for Republicans. But it seems like Democrats have trouble escalating beyond level 5 “woe is me."

Joy-Ann Reid summed up the situation well: "Democrats continue to act like they can reason with a Republican Party that is fully at war with them on behalf of forces that are not open to appeals to reason or mitigable through appeasement. They'll find out the hard way I guess, that there is no appeasing fascism."

Maybe. People are suggesting that Democrats immediately move to add more seats to the Supreme Court, but do we really think that will happen? When asked if he was an “extremist," Malcolm X said this was only because the condition of Black people in America was “extremely bad" and thus “extreme" measures were necessary. Democrats are still dealing with Republicans as if they are Adam West Batman villains instead of the current, horror movie version of the Joker who had his own face peeled off and then wore it as a mask.

The Supreme Court is expected to rule shortly on an emergency application from abortion providers seeking to block the nightmare law, but it's hard to hold out much hope for a court without Ruth Bader Ginsburg.

Noah Feldman at Bloomberg wrote an absurd article a couple weeks ago bearing the headline, "Kavanaugh Is the Last Hope for Abortion Rights." The premise was that Kavanaugh styles himself after former swing vote and abortion rights defender Justice Anthony Kennedy, but Kavanaugh isn't Obi-Wan Kenobi. He's a smug credibly accused sexual predator who arguably lied his way through his Senate confirmation hearings.

The last hope for abortion rights was probably President Hillary Rodham Clinton. There are no do overs or mulligans when you let Mitch McConnell put three right-wing justices on the Supreme Court in four years.

[The New York Times]

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Stephen Robinson

Stephen Robinson is a writer and social kibbitzer based in Portland, Oregon. He writes make believe for Cafe Nordo, an immersive theatre space in Seattle. Once, he wrote a novel called “Mahogany Slade,” which you should read or at least buy. He's also on the board of the Portland Playhouse theatre. His son describes him as a “play typer guy."


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