Abortion-Ban Horse is Out of Constitution's Barn
Let the mansplaining begin, from the governor of Texas on down, about how girls have to understand, it’s not like the great state of Texas is outlawing abortions even if we’re survivors of rape or incest—abortion can still happen before six weeks or in a “medical emergency,” understand. This new-fangled Texas law, the one the Supreme Court refused to block in early September, just forbids anyone from aiding or abetting an abortion once a “fetal heartbeat” (what right-wing propaganda calls one, anyway) has been detected, understand. If someone violates the law, anybody greedy or vindictive enough to sue can get, like, money. Nothing unconstitutional about that, understand?
Except we’ll explain women have enjoyed a constitutional right to safe and legal abortion since 1973, roughly a half-century and two generations ago. That’s when the Supreme Court made a decision called Roe v. Wade (“Roe” for short) which determined that to deny women abortion, at least in the first trimester (first three months, you understand) of pregnancy, infringes upon Americans’ right to privacy and freedom from discrimination.
That’s as good a way as any to explain the consequences of the Texas Heartbeat Act, which Gov. Greg Abbott signed last May (along with some other laws which restrict abortion but aren’t getting so much publicity). Even the “Heartbeat” name shows willful ignorance—a weeks-old embryo is not a fetus and has no heartbeat.
After Abbott signed this “Heartbeat” propaganda masquerading as law, abortion providers in Texas, including Whole Women’s Health, hauled Texas into federal court. By September the case made it to the Supreme Court, which had the option to take or not take the case, and also to block or not block the law until after they heard it. Five justices—all appointed by Republican presidents who campaigned on anti-abortion platforms—decided there were “serious questions regarding the constitutionality” of the law, but the law was just too “complex and novel” for them to block until they could have a hearing on those “serious” questions. In short the court just allowed the law to take effect until they get around to making an actual ruling, sometime in 2022. (The court will also be ruling on a Mississippi law that bans abortion after fifteen weeks, which seems downright liberal in comparison to the Texas law. By then perhaps the case of Dr. Alan Braid, a San Antonio doctor who’s stepped up to test the Texas law, may be before the court, too.)
While the Supreme Court fiddles and Texas women’s constitutional rights burn, copycats to this bizarre right-to-sue law proliferate. Oklahoma, Ohio and Florida are getting in line. States could also adopt right-to-sue laws that would encourage anybody to sue anyone who aids or abets same-sex marriage--or any other constitutional right (pick one, any one) including voting, birth control, school desegregation, or the Miranda decision.
What alternatives being floated to combat this extreme right-wing agenda consist of, in essence, locking the constitution’s barn door long after the horses of right-wing apocalypse have run loose and caused irrevocable damage to countless women’s lives. One suggestion being floated is to “codify” the Roe decision—pass a federal law that says states may not interfere with abortion. Another involves somehow reforming the Supreme Court to seat more justices, ones that would be presumably appointed by a president who supports women’s constitutional right to abortion, and a senate willing to confirm them. Both suggestions are blind to the reality poking the entire abortion-rights movement in the eye right now.
In reality the great majority of congressional Republicans boast proudly of being what they call “pro-life” (catchphrase for, anti-woman) and they’re not voting for any codifying abortion rights or jiggling the Supreme Court. The Democratic Party has a long history of defending women’s right to abortion (often against long odds) but unless enough Democratic senators are elected to either abolish or overcome the senate’s filibuster rule, dreams about codifying abortion rights and/or fiddling with the Supreme Court aren't coming true.
The last time Democrats had enough political power to accomplish such lofty goals came in 2008 with the election of Barrack Obama—one of only three presidents (out of ten) in fifty years who’ve supported women’s constitutional right to abortion. Nearly 70 million people voted for him, including a majority in several states normally termed “red” or Republican-friendly—Florida, Ohio, Iowa, Indiana, Maine, North Carolina, along with some risky swing-with-the-political-wind states—Wisconsin, Pennsylvania. Democrats also controlled the senate, counting sixty Democratic votes (including independent Bernie Sanders, a dependable vote for the Democratic agenda). The sixty votes were, theoretically, immune to Republican filibuster threats although, as now, one or two conservative Democrats spoiled the calculation.
For the rest of Obama's presidency Democrats failed to conserve that political power, squandering the party’s long-term ability to protect abortion or any other civil liberties. By 2016 Obama and the Democrats had lost Indiana, North Carolina, Illinois, Wisconsin, Pennsylvania, Iowa, Colorado, and North Carolina, and with them, control of the senate. Republicans—almost all campaigning on “pro-life” (a. k. a. woman-hating) platforms—were in control of 54 senate seats and, led by arch-conservative Mitch McConnell, became more and more openly hostile to Obama and the entire Democratic agenda.
Obama’s and the Democrats’ ability to protect abortion and other civil liberties became more and more limited as the power demonstrated in 2008 vanished. The Democrats' failure to keep that base was never more apparent than in 2016 when arch-conservative justice Antonin Scalia, one of the Supreme Court’s most hostile abortion foes, died.
In response McConnell and the entire Republican senate majority disrespected their president and defied the constitution they’d sworn to protect and serve, secure in the privilege their predominately white male support afforded them. They simply refused to allow Obama a third Supreme Court appointment. Every Republican senator mutely complied with the scheme to strangle Obama’s (and their own) constitutional duty. They didn’t even bottle the nomination up in committee or vote it down, they simply stonewalled. Their refusal to properly govern the country contains, from this vantage point, eerie similarities to what the Supreme Court’s majority did this year to women’s constitutional rights in Texas.
Republicans were correct in predicting they wouldn’t be held accountable for such an act—one that bordered on insurrection--because, come the 2016 election, the former Obama-majority states of Florida, North Carolina, Iowa, Michigan, Wisconsin, Indiana, Pennsylvania, and Ohio all voted for Republicans for president and senate. Roughly 63 million voters nationwide thought Donald Trump, the guy that bragged, “There should be some punishment for the woman” who seeks an abortion, and whose attitude toward women was profanely demonstrated when he boasted, “Grab ‘em by the pussy!” was their type of president.
Democratic voters could have provided the country an exit from this Republican stranglehold, had only the pattern of Obama's victory held. The Democratic nominee for president was Hillary Clinton, and she would have been only the third president, ever, to support women’s abortion rights. Blaming Clinton’s loss on the Electoral College (she won about 66 million popular votes) is fashionable, but ignores how winning the Electoral College is the goal of presidential politics.
More graphic demonstration of the forces that led to Clinton's loss was found in a forest of anti-Clinton and anti-Democratic social media messages that circulated during the election season. Thousands, perhaps millions, of vicious anti-Clinton and anti-Democratic memes (many, it turned out, Russian-generated) flooded the Internet, including ones that sang variations on, “I don’t care about the Supreme Court!" often accompanied by anti-woman (thinly disguised as anti-Hillary) hate speech. That's the same Supreme Court that now, we're being told, suddenly needs major reformation—the one so many so proudly don’t care about five years ago.
What all that social-media bragging about, “I don’t care about the Supreme Court!” foreshadowed was four dysfunctional years of Republicans practicing a particularly toxic brand of conservatism. While Trump could barely talk or tweet without bashing civil liberties (or women), McConnell and the Republican-majority senate appointed three Supreme Court justices who shared many of the party’s more toxic views. (I don't even call those three justices "Trump appointees," I call them "McConnell appointees" because McConnell, not Trump, was the power that put them on the court. Trump acted as McConnell's agent, not the other way around.)
By 2020 the Democratic Party managed to revive enough of what had once been Obama’s support to elect Joe Biden—only the third president in American history who campaigned as being “pro-choice,” a catchphrase for supporting women's civil liberties. Even so, Democrats barely squeaked out enough votes across enough states to seize power in the senate.
For decades the American left has campaigned on women’s right to abortion being “choice” without tying it to other civil liberties--as if "choice" isn't the same as the right to privacy, the right to be free from discrimination. Obviously that messaging has proven too weak to withstand decades of relentless right-wing “fetal heartbeat” propaganda. Republicans cultivate power from a certain stream of American culture—millions of voters who dutifully vote for sexism, racism, homophobia, xenophobia, and often even against their own economic self-interests.
Obama’s victory, and the senate seats carried with it, demonstrated how an alternative stream of American thought can win millions of votes across a large and diverse swath of states. The Democrats have to rebuild that bigger, more inclusive base that reaches even into conservative states. The only other viable option is to allow the Republicans to continue to spit on the constitution—and on women--all they want.
y want.
posted by Lyn Jensen | 11:57 AM
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