Oh, BOO FUCKING HOO.
Last night Justice Amy Coney Barrett stood next to GOP Senator Mitch McConnell at an event hosted by the University of Louisville's Mitch McConnell Center to fete McConnell for getting her confirmed, and complained about mean media bullies calling the Supreme Court's decisions "political."
Not in an Onion post. Not in an "SNL" sketch. In real life.
"My goal today is to convince you that this court is not comprised of a bunch of partisan hacks," she said at the private event to honor the man who shoehorned her into Justice Ruth Bader Ginsburg's seat just a week before the election on the promise that Barrett would go on to gut Roe v. Wade. Yes, that would be the same Mitch McConnell who held Justice Antonin Scalia's seat open for more than a year because it would be too "political" to confirm a Supreme Court justice in the last year of a (Democratic) presidential administration.
And now, just days after the Supreme Court painted a target on the back of every pregnant person in Texas, Barrett has the unmitigated gall to complain that Americans perceive the court as deciding cases first and then back-formulating a justification to suit their political ends — if they can even be bothered to do that much.
"The media, along with hot takes on Twitter, report the results and decisions," the Louisville Courier-Journal reported her saying. "That makes the decision seem results-oriented. It leaves the reader to judge whether the court was right or wrong, based on whether she liked the results of the decision."
Well, no shit, lady. You just overruled the viability framework of Roe and Casey on the goddamn shadow docket, and you greenlighted a bounty system on pregnant women to make it happen. You were so hot to blow up abortion rights, you couldn't even wait to do it this fall with that 15-week ban out of Mississippi. So, yeah, we're treating the decisions as "results-oriented," because that's what they are.
But mad props to Justice Karen for turning herself into the real victim here. Not everyone would have the chutzpah to dedicate her professional life to the theory of the unitary executive and then rule that the president is powerless to set immigration policy and is obligated to maintain his predecessor's policies indefinitely.
And of course the court was always a political institution. It was bullshit in 2005 when Supreme Court nominee John Roberts promised "to call balls and strikes, and not to pitch or bat." But Chief Justice Roberts was confirmed 78-22, so his claim to be an apolitical jurist had at least the patina of honesty. By contrast, Barrett was confirmed on a party-line vote as the president was openly speculating that she would deliver the White House for him, and has quite consistently sided with her more conservative colleagues.
It's the rankest gaslighting for her to congratulate herself and her fellow jurists on being "hyper vigilant to make sure they're not letting personal biases creep into their decisions, since judges are people, too." She was nominated explicitly because of her personal biases and utter lack of respect for precedent, and she proves it every single day. How else to explain the court's decision to take up a case that would overrule McGirt v. Oklahoma, a decision pertaining to Native American tribal land that was handed down in July of 2020?
In short, this "The Handmaid's Tale" character is doing exactly what she was hired to do. And having a wonderful time trolling the shit out of the American public, while she's at it.
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ABOUT. FUCKING. TIME.
Remember last week, when Texas and the federal court system took a shit all over women's rights and then flushed them both down the toilet? And the government did basically nothing but issue angry press releases?
Well, looks like my government is finally doing something about it!
Yesterday, the DOJ sued Texas to stop enforcement SB 8, which bans basically all abortions by, as the DOJ puts it, "deputiz[ing] private citizens ... to serve as bounty hunters."
Correctly pointing out that "Texas enacted S.B. 8 in open defiance of the Constitution[,]" the United States asks a federal court to find that the law is unconstitutional under the Fourteenth Amendment's Supremacy Clause, preempted by federal law, and a violation of intergovernmental immunity. The DOJ is seeking a declaratory judgment that the law is some illegal bullshit (paraphrasing), and for it to be enjoined.
As the lawsuit lays out,
It takes little imagination to discern Texas's goal—to make it too risky for an abortion clinic to operate in the State, thereby preventing women throughout Texas from exercising their constitutional rights, while simultaneously thwarting judicial review. Thus far, the law has had its desired effect. To date, abortion providers have ceased providing services prohibited by S.B. 8, leaving women in Texas unacceptably and unconstitutionally deprived of abortion services. Yet, despite this flagrant deprivation of rights, S.B. 8 remains in effect.
The legal issues
The jackasses who drafted this bill were very clear that they were purposefully crafting it in a way they hoped could avoid judicial review altogether. Because who needs "rights," anyway?
It's all stupid bullshit, but because we live in the dumbest timeline, far too many people are taking it seriously.
Who to sue
Lots of Very Smart People are taking the ridiculous argument seriously that no one can sue over this law because the state just created the abortion bounty hunters, but the abortion bounty hunters aren't technically arms of the state. In pretending like this is a good faith argument, all of these Very Smart People are making it seem like this is a close call. It's not. It's really, really not.
While the state deputizing abortion hunters is an impressive privatization of fascism, that certainly shouldn't make it unchallengeable. Even John Roberts wrote in last week's dissent, "The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime."
DOJ says "fuck that." (Paraphrasing again.)
The United States has the authority and responsibility to ensure that Texas cannot evade its obligations under the Constitution and deprive individuals of their constitutional rights by adopting a statutory scheme designed specifically to evade traditional mechanisms of federal judicial review. The federal government therefore brings this suit directly against the State of Texas to obtain a declaration that S.B. 8 is invalid, to enjoin its enforcement, and to protect the rights that Texas has violated.
The "it's fine because pRiVaTe aCtOrS" argument also entirely ignores the role of the fucking legal system in enforcing judgments. The claim is that it's totally fine to allow for the state to use private citizens to destroy the US Constitution. Even though the state was who enacted the damn law. But, umm, who will actually be enforcing judgments, again? The courts. And what are courts? Arms of the goddamn state.
That constitutional rights apply in court enforcement of judgments isn't even novel. In defamation and libel lawsuits, the First Amendment applies, even though the plaintiffs aren't state actors. You know why? Because courts, which would enforce any judgment, are state actors. In the same vein, courts can't enforce racist covenants. And why is that? Because courts are state actors.
The DOJ alludes to this in the complaint, noting that "Texas has mandated that its state judicial officers enforce this unconstitutional attack by requiring them to dispense remedies that undeniably burden constitutionally protected rights."
The DOJ also argues that SB 8 is effectively deputizing abortion bounty hunters as "agents" of the state, and therefore it can sue the state directly. After all, "[t]hese individuals are also state actors to the extent they are significantly involved in conduct that would be unconstitutional if engaged in by the State itself or Texas has sanctioned their conduct."
"No one can be sued to stop this incredibly unconstitutional law" is, simply, not a legitimate argument. It's just not. Sure, it looks like at least five tyrants on the Supreme Court are ready to roll with it, but we already know this Court is nothing but the judicial branch of the Republican Party.
And, like Garland noted at his press conference announcing the suit, "This kind of scheme to nullify the Constitution of the United States is one that all Americans – whatever their politics or party – should fear." I agree. It's absolutely fucking insane that any court would accept the argument that literally no one can sue to protect their constitutional rights, as long as the autocracy is privatized.
If the Supreme Court adopts the reasoning that bounty hunters don't count and no one can sue, (a) fuck them, and (b) it is fucking on. Let's take this to the next step. I want blue states to start cranking out bounty hunter laws of their own. Bounty hunters for people who own firearms. Bounty hunters for people who refuse to wear masks. Bounty hunters for anti-vaxxers. Bounty hunters for Trump voters. Bounty hunters for all Republicans!
Hell, I think we should pass a law to ban all ejaculation that doesn't happen pursuant to a notarized agreement to procreate. If the aim is really to stop abortion, not just control pregnant people, stopping ejaculation sounds like a pretty damn effective way to do it.
If the state can ban our constitutional rights simply by paying thugs to do their dirty work for them, we effectively have no constitutional rights at all.
Fun legal theories
The complaint also asserts some pretty fun legal arguments that aren't typically seen in these kinds of cases. It uses the Commerce Clause to argue that the law "forces women who wish to obtain these services to travel out of Texas to other states in order to exercise their constitutional rights and it hinders businesses and non-profits engaged in this commercial activity."
States don't get to tell the feds what to do; the doctrines of preemption and intergovernmental immunity, as well as the Fourteenth Amendment, make this a big no-no. States don't get to prohibit the federal government from doing things. Or, to put it in a way Republicans may understand: That's not how federalism works, dummies.
Does anything even matter?
So listen. I appreciate this suit and I'm so happy to see someone in government finally, actually do something to try to stop it. And I like the complaint. But — you knew there was a but, right? — (a) I would like to see a whole lot more more happening to stop this insanity; and (b) it probably doesn't even fucking matter, anyway.
The good news: US v. Texas has been assigned to Judge Robert Pitman, an Obama appointee who was ready to enjoin SB 8 before it went into effect.
The bad news: All the appellate courts. The Fifth Circuit has been garbage for a very long time and is continuing that proud tradition to this day. Oh, and our Supreme Court is full of fascists and religious oligarchs in training.
As the Supremes showed us just last week, they are pretty much ready to accept any bullshit argument that lets them take rights away from women and pregnant people. At least five justices demonstrated that they're willing to allow pretty much anything when it comes to controlling women and pregnant people. And those five votes are all they need to bring the country back to the time of unsafe, back alley abortions.
So it doesn't even matter how good of a decision the DOJ gets; the appellate courts can just stay it until SCOTUS gets around to overturning Roe in Dobbs v. Jackson Women's Health Organization next summer.
We have an incredibly narrow window of opportunity, here. It is almost certain that, this time next year, Roe will be gone, and abortion will be criminalized in states all around the country. And who knows how many millions of lives will be ruined when that happens.
We need radical action or we will be living in a Handmaid's Tale-style dystopian hellscape.
This suit is great, but it's only one small step.
Here's the DOJ's complaint:
Follow Jamie on Twitter to learn more about just how much she hates Texas and the current Supreme Court.
It's almost like they don't care about what is effective.
This week, as you likely know by now, Texas essentially banned abortion. Or, at least, they banned abortion for poor people by giving citizens the right to sue anyone who gives someone else money for an abortion or drives them to a clinic. Rich people will not be impacted at all. In fact, in all likelihood, there will probably be the same number of abortions in Texas, because banning them does not eliminate the need for them, and because banning abortion does not actually reduce abortion.
As Zara Ahmed of the Guttmacher Institute points out, "The data shows that abortion rates are roughly the same in countries where abortion is broadly legal and in countries where it isn't. And abortion rates are actually four times higher in low-income countries where abortion is prohibited than in high-income countries where it is broadly legal." Studies show that the Mexico City Policy, which prevented federal dollars from being used to fund family planning clinics overseas if said clinics so much as mention that abortion exists, led to a 40 percent increase in abortions in sub-Saharan African countries. As abortion and family planning clinics tend to go hand in hand, decreased access to abortion often means decreased access to birth control, which — surprise! — tends to lead to more abortion.
One would think that people who are so incredibly desperate to reduce abortions, due to their great love of fetuses, would pay attention to things like this. But oddly enough, they have absolutely no interest in what is or is not known to actually be effective in terms of reducing the number of abortions.
What does lead to fewer abortions? Well, birth control for one. Obviously. Increased access to birth control leads to lower abortion rates. But for some strange reason, you don't see a lot of these people championing free and easily accessible birth control. In fact, you are more likely to hear them pushing to make that illegal as well, and claiming that it "causes" abortions.
Similarly, one might also note that comprehensive sex-ed is known to be far, far more effective in terms of reducing teen pregnancy than "abstinence-only education" is. Not only does abstinence-only education not do anything to prevent teen pregnancy, it has been known to increase the likelihood of teen pregnancy in areas where it is practiced. Unwanted pregnancies are certainly a leading cause of abortion, and so you would think that they would be big fans of comprehensive sex-ed, but that does not tend to be the case.
Awkwardly, Texas teens won't be learning about condoms until next year.
If I wanted to reduce something, the first thing I would look at is why that thing happens in the first place. The number one reason people have abortions is that they are not financially prepared to have children. (Or more children, as the case often is.) The average cost of giving birth in a hospital, with insurance, is $4,500. Without insurance, that number goes up to about $30,000 for a vaginal birth, $50,000 for a C-section. And that's literally just the giving birth part, not any of the other doctor's visits or other costs associated with simply being pregnant.
Then let's say they keep the baby. The average cost of childcare for one year is about $9,000 to $15,000. The average cost of any kid, without childcare, is about $12,980. Someone working full time at the federal minimum wage makes $15,080 a year.
According to the USDA, the average cost of raising a child born in 2015 will be $233,610 and that does not even include college.
With costs like these, it is absolutely astonishing that anyone chooses to procreate, period. And yet, you do not really see anti-choice Republicans saying "Hey! What if we made it totally free to give birth in this country?" because that would be communism. Same with subsidized childcare, subsidized public college, affordable housing, or literally anything else that would make "choosing life" less of a financially devastating option.
In fact, many of those on the Right have been very open about the fact that one of the reasons they don't want subsidized childcare is because they want women to stay at home and raise children instead of having jobs. Which, given the costs I have just listed, doesn't seem like an option even for many of those who would want it.
The fact is, the anti-choice dream is not necessarily all about "fewer abortions." What they want is a society where people are not having non-procreative sex, where they settle down and get married and have children at a younger age, and where women don't work as much because they have to stay home with all of the babies they made. They want the opportunity to see certain stories play out — the young couple saving themselves for marriage, the mother told that giving birth will kill her bravely sacrificing her own life for her unborn child, the whore repenting after having to "face the consequences" of her actions, the formerly selfish woman whose behavior was corrected when she had to put her new child's needs before her own.
How do I know this? Because these are the romanticized "Well they can just ..." stories that anti-choicers tell whenever someone brings up the actual harm an abortion ban would bring. They don't care that abortion bans are not effective, because what they are actually invested in is getting to live in the kind of society where they would be.
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Every part of SB 8 is a parade of horribles, and they like it like that.
Welcome to Gilead.
Two days ago, because this is the Bad Place, a Texas law banning basically all abortion and deputizing abortion bounty hunters went into effect.
I am not exaggerating when I say SB 8 is the most batshit, psychopathic, sexist law I have ever seen actually take effect. And I used to work at the ACLU of West Virginia — I have seen a lot of shit!
All abortions after six weeks — or two weeks after the first missed period, if you are completely regular with your periods — are now illegal in Texas. And, just in case destroying people's lives wasn't enough, anyone can sue anyone who may have possibly thought about helping someone get an abortion. (Really, you can be sued for intending to abet an abortion that does not take place.) And, like SER and Robyn already told you, this week, the Supreme Court essentially overturned Roe v. Wade in secret. First, by failing to act. Then, by acting in the worst way possible.
I'm not sure if "misogyfascist" is an actual term, but I've decided to roll with it.
It's all bad.
Earlier parts of SB 8 get into the whole "heartbeat" thing. But, for the purposes of this post, here's the most relevant section:
Sec. 171.208. CIVIL LIABILITY FOR VIOLATION OR AIDING OR ABETTING VIOLATION.
(a) Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who:
(1) performs or induces an abortion in violation of this subchapter;
(2) knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter; or
(3) intends to engage in the conduct described by Subdivision (1) or (2).
Let's get something straight: There is no part of this law that isn't sadistic, psychopathic, and dumb as hell. And absolutely none of it would be acceptable under any circumstances. But what it actually does is so much worse than it even sounds, if you read most of the press coverage of SB 8.
Take a look at (3) right there. Not only is actually having an abortion or helping someone have an abortion illegal; it's also illegal to even consider having an abortion or helping someone get one.
So not only does this law allow any random-ass piece of shit to file a lawsuit against any person with a uterus accusing them of having an "illegal" abortion. And not only does it also allow those psychopaths to accuse any doctor of performing an "illegal" abortion. It also allows them to sue literally anyone they think might have ever considered having an abortion, or might have considered helping someone have an abortion.
So under what is now CURRENT, EXISTING TEXAS LAW, abortion bounty hunting can be brought by, for example:
- Abusive men who claim their partner/ex wanted to have an abortion, even if they didn't go through with it.
- Rapists who feel like banding together to sue each other's victims and share the bounties.
- Any fucking random sadist with nothing better to do.
- Abortion funds, their employees, and the people who donate to them.
- A mom who helps her teenager get a legal abortion in another state.
- Uber/Lyft drivers who may have transported pregnant people.
- Alllllll the OB-GYNs.
- People who actually care about women and pregnant people.
- Literally anyone with a uterus.
It's also fucking absurd.
In addition to all of the terrible things this law allows, it is also written so poorly as to give us some amazing possibilities, that certainly must have been unintended consequences.
With that part in section 3, allowing people to target anyone who "intends to engage" in "aiding or abetting" an abortion, I can make a good-faith legal argument that any man who has even thought about having heterosexual sex, much less had heterosexual sex, or even — gasp! — unprotected heterosexual sex, has intended to engage in aiding and abetting abortion.
Some of the intended consequences are also great. The abortion bounty hunter can sue whomever he wants, in any county in the (very large) state, and the defendant isn't allowed to move it to a closer venue. And even defendants who win because they had absolutely nothing to do with "aiding and abetting" an abortion can't recover their costs and attorney's fees.
So, one may wonder, what is stopping people from clogging Texas's court system with cases alleging every legislator who voted for this abomination has intended to aid and abet an abortion? In the furthest county from where they live? And forcing them to pay for attorneys to defend the case?
Can we fucking do anything about this?
Yes! The real question is whether Democrats actually will do anything.
The thing is, there actually are a whole bunch of things Democrats could do. But the problem is, most of these potential solutions require thinking outside the box. And if there's one thing the powers that be in the Democratic Party love, it's archaic norms.
Decades ago, Republicans and Democrats were in a basement, sitting at a table, playing chess. Then, the Republicans doused the basement in gasoline and set it on fire. But the Democrats are still sitting at the table, yelling about the rules of chess.
Like Elie Mystal writes over at The Nation, "The only question is how far Democrats are willing to go to defend women's rights." And, frankly, you can sing all the platitudes you want — I'll believe it when I see it.
There have been a lot of great press releases about protecting abortion rights this week. And that's nice. I appreciate words of support, I do. But, unless you are on the front lines doing absolutely everything you can to stop this, you can shove your press releases up your ass.
Want a few free ideas, Democratic leadership? Here you go!
- Pass Women's Health Protection Act, codifying Roe, fucking yesterday.
- Expand the goddamn motherfucking Court and our circuit courts before our democracy crumbles as we all sit here watching.
- As Mystal suggests, use the doctrine of qualified immunity for good, for once. Make abortion providers federal officials — like vaccine distribution, but for abortion. They will have qualified immunity for all of their official actions.
- Make DC and Puerto Rico states. (Assuming PR wants to be a state, that is. I certainly wouldn't blame Puerto Ricans giving that one a hard pass.)
For her part, Nancy Pelosi announced yesterday that she would be bringing the Women's Health Protection Act up for a vote when Congress returns. Awesome! But Congress is still chillin' until the end of the month. Shame on my fucking Congress for going on a two-month vacation without lifting a finger to stop this travesty, when we all knew it was coming
Yesterday, Biden, too, released a great statement. Noting that the Supreme Court had "unleash[ed] unconstitutional chaos and empower[ed] self-anointed enforcers to have devastating impacts" on people's lives, Biden directed the White House Counsel's Office and Gender Policy Council "to launch a whole-of-government effort" to respond to this decision. He asked the offices to "look specifically to the Department of Health and Human Services and the Department of Justice to see what steps the Federal Government can take to ensure that women in Texas have access to safe and legal abortions as protected by Roe, and what legal tools we have to insulate women and providers from the impact of Texas' bizarre scheme of outsourced enforcement to private parties."
Good. Great! But, again, I'll believe there is real action coming just as soon as it happens.
What's happening in Texas right now is already destroying lives, we have known since May that this was coming, and my federal government did absolutely nothing to stop it.
I have nothing good to say about any of this.
Unless we're counting things like "Maybe SCOTUS will wait a few years before going full fetal personhood and banning all abortion nationwide?" and "Rich people will always be able to get abortions" as "good" now, I got nothin'.
The Onion continues to be depressingly prescient, with a new post titled "New Texas Law Allows Private Citizens To Hold Pregnant Women Hostage Until Birth." And don't kid yourselves: That shit is coming next.
While our political and court systems continue to fail us, there are some amazing people in Texas fighting the good fight on the ground. Organizations like RAICES, the Texas Equal Access Fund, Frontera Fund, Jane's Due Process, and Fund Texas Choice are still working — and, in some cases, straight-up saying that laws like this one are "meant to be broken."
Now is a great time to donate to or volunteer with an organization helping people in Texas access the abortion care they need.
I have donated to a few Texas orgs and abortion funds this week. A few people have asked if I'm afraid of being sued. And you know what I have to say to that?
Bring. It. On.
Follow Jamie on Twitter, she has a lot more to say about abortion rights and misogyfascists.