Texas Abortion Ban Architect Just Really Wants Everyone To Stop Banging, OK?
In the beginning of this month the Supreme Court decided to allow Texas to essentially ban abortion by outsourcing enforcement of the law to "citizens" willing to snitch on people they believe may have helped someone have an abortion after six weeks. Now, Jonathan Mitchell, the former Texas solicitor general who designed the law, has set his sights on overturning Roe v. Wade entirely.
Mitchell said the quiet part out loud when he argued this week in a Supreme Court brief that one of the reasons that without Roe, "women can "control their reproductive lives" without access to abortion; they can do so by refraining from sexual intercourse."
This, really, has always been what the anti-abortion shit has been about. It was never about the babies, it was always about reversing course on the sexual revolution. Which Mitchell in fact addresses in the next few sentences, with the kind of resentment that is traditionally only seen in incel forums.
What the Casey plurality meant to say is that women (and men) should have the right to freely engage to sexual intercourse while having abortion available as a fallback method of birth control. But that has nothing to do with "reliance interests"; it is an ideological assertion that the cause of sexual liberation should take priority over the lives of unborn human beings. Many supporters of abortion share that view, but it has no place in an analysis of stare decisis.
Yes, Mitchell, people should be allowed to have sex without it ruining their entire lives or their bodies. That is not a radical notion. And yes, it should take priority over the "lives of unborn human beings" when said "unborn human beings" are not yet human beings and cannot survive outside of the womb.
He also argues that "the freedoms enumerated in the Bill of Rights have nothing to do with sexual liberation or reproductive freedom," but does not say where in the Bill of Rights it gives anyone a right to force someone to give birth. In fact, abortion was legal at the time the Bill of Rights was written and remained so in this country until about 1873-1880, depending on the state. In fact, it was extremely common, with about 1 in 5 women having had at least one and at least 20-35 percent of all pregnancies during that era ending in abortion. The reason it was outlawed, by the way, had nothing to do with the morality surrounding it, but rather due to the newly-formed American Medical Association not wanting to compete with midwives and to prevent women from going to college to study obstetrics and gynecology.
While people of all genders can get pregnant and have babies, there is no question that pretty much the entire history of anti-abortion nonsense (as well as much of the history of trying to destroy the social safety net) has been about controlling women.
But back to the brief! Mitchell is not just coming for heterosexual non-procreative sex. He notes in his argument that people worry that overturning Roe and Casey could lead to cases like Loving v. Virginia (legalized interracial marriages), Texas v. Lawrence (legalized "sodomy") and Obergefell v. Hodges (legalized same-sex marriage) being overturned as well.
Mitchell explained that it wouldn't affect Loving, ostensibly because he's not quite ready to start throwing blatant racism into this juggling act ... but WHOOPS. Same sex marriage and non p-in-v sex may have to go, because people don't really have a "right" to those things any more than people have a right to abortions. According to Mitchell, anyway.
The news is not as good for those who hope to preserve the court-invented rights to homosexual behavior and same-sex marriage. These "rights," like the right to abortion from Roe, are judicial concoctions, and there is no other source of law that can be invoked to salvage their existence. Mississippi suggests that Obergefell could be defended by invoking the "fundamental right to marry" which is " 'fundamental as a matter of history and tradition.' ". But a "fundamental right" must be defined with specificity before assessing whether that right is "deeply rooted" in this Nation's history and tradition." Otherwise, long-prohibited conduct can be made into a "fundamental right" that is "deeply rooted in this Nation's history and tradition," so long as a litigant is creative enough to define the "right" at a high enough level of abstraction. The right to marry an opposite-sex spouse is "deeply rooted in this Nation's history and tradition"; the right to marry a same-sex spouse obviously is not.
He does, however, note that SCOTUS does not have to throw these rulings out right away.
This is not to say that the Court should announce the overruling of Lawrence and Obergefell if it decides to overrule Roe and Casey in this case. But neither should the Court hesitate to write an opinion that leaves those decisions hanging by a thread. Lawrence and Obergefell, while far less hazardous to human life, are as lawless as Roe.
None of this was ever about the babies. It was always about creating the society that the Christian Right wants but can't have because they keep losing the "culture war." They don't want LGBTQ+ people to exist, and they want all women, gay or straight, as well as those assigned female at birth to be virgins until entering into a heterosexual marriage, become homemakers and pop out babies one after another. That's the goal. That's what they want. And if they can't get it through purity balls, abstinence-only education and bigotry, they're going to keep trying to fashion some kind of Frankenstein's Stepford Wife through legislation.
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Robyn Pennacchia is a brilliant, fabulously talented and visually stunning angel of a human being, who shrugged off what she is pretty sure would have been a Tony Award-winning career in musical theater in order to write about stuff on the internet. Follow her on Twitter at @RobynElyse