Texas Asks SCOTUS To Do Them A Solid And Just Overturn Roe Already
On the first day of September of this year, Texas thought they'd finally done it. They thought they'd finally figured out a way to ban abortions in the state, with the added bonus of giving their anti-choice constituents the ability to publicly shame their neighbors while turning a tidy profit. It was going to be perfect. The Supreme Court decided to ignore it, and they were in the clear.
Then it all fell apart, briefly, on October 6, when Texas federal Judge Robert Pitman blocked the law from being enforced. Just two days later, a three judge panel on the Fifth Circuit court of appeals decided to unblock the law and let the lawsuits commence. The Biden administration is now asking the Supreme Court to step in, vacate the Fifth Circuit's stay, and uphold Judge Pitman's ruling, which seems pretty damned unlikely.
Texas Attorney General Ken Paxton also has some requests for SCOTUS. First, he would really like it if they could reject the bid from Texas abortion providers to have their case heard ASAP. Second, he would like to request that if the Supreme Court is going to move forward in the matter at all, that they do so by just overturning Roe v. Wade, please and thank you.
The Justice Department on Monday suggested that the justices could bypass the lower courts already considering the matter and hear arguments in the case themselves. Paxton's filing said that if the justices do that, they should overturn Supreme Court precedents including Roe v. Wade, the 1973 decision that recognized a woman's right under the U.S. Constitution to terminate a pregnancy.
"Properly understood, the Constitution does not protect a right to elective abortion," Paxton's filing said, adding that the state law furthers "Texas's interest in protecting unborn life, which exists from the outset of pregnancy."
The court is already scheduled to hear a challenge to Roe from the state of Mississippi on December 1, but that's just not soon enough for Ken Paxton. He is ready to see some Hester Prynnes out and about so he can yell, "Behold, verily, there is the woman of the scarlet letter; and, of a truth, moreover, there is the likeness of the scarlet letter running along by her side! Come, therefore, and let us fling mud at them!" like a Puritan street urchin.
One thing that may be worthwhile to note, again, is that Jonathan Mitchell, the architect of this law, has no intention of stopping at abortion. He's also made it clear that he really wouldn't be too sad if the Supreme Court overruled Obergefell and Lawrence right afterwards.
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.
Obergefell, of course, was the ruling that gave us same-sex marriage. Texas v. Lawrence was the 2003 decision that outlawed sodomy laws, which 14 states still had on the books at the time, and which targeted not only same-sex intercourse but often oral and anal sex between heterosexual people.
This was never about any great love of fetuses. For all that the Right insists that giving those who do choose to have children parental leave is a secret plot to do tyranny to them, we're not the ones who have ever been concerned with getting to control what kind of sex people are allowed to have or who they are allowed to love and marry, so long as it is consensual. Hell, you still can't legally buy a dildo in Alabama. It is also illegal to own more than six dildos in Texas and was illegal to sell even one up until 2008.
Whether SCOTUS takes up this case or waits until December, it's readily apparent that Roe is not long for this world. It should also be apparent that it's not going to just end there.
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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