Two local governments-- those of Texas and Oklahoma-- have now effectively banned abortion in their states. Idaho, Ohio, Missouri, Kentucky, Tennessee, South Carolina and Louisiana have passed anti-abortion laws that are temporarily on hold. And North Dakota, Iowa, Arkansas, Georgia, Tennessee, Alabama and Mississippi have passed laws that ban abortion but that have been struck down by courts. The Mississippi appeal will be decided by the Supreme Court soon and it it widely expected that the radical right-wing majority on the court will use it to further destroy Roe v Wade.
Arkansas, Florida and South Dakota are already working on copy-cat bills and I imagine every red state will be pressured into doing exactly that. Tennessee has it's own anti-abortion bill that has been blocked in the courts and that Tennessee is appealing, prompting Gov. Bill Lee, an anti-Choice extremist, to say he won't be emulating Texas but will keep fighting for the bill that already passed in his own state. But even Texas, South Dakota and Arkansas are a little worried about how the Orwellian Nazi snitch thing is going to play out, something the Wall Street Journal editorial page was aghast at. I think that aspect-- and its potential ramifications-- is just starting to sink into conservative minds.
Earlier today, Walter Shapiro wrote that Texas has overplayed its hand. "Up to now-- despite vocal efforts of abortion rights groups-- the issue and the shape of the Supreme Court have mostly galvanized social conservatives. That was true in 2016, even after Mitch McConnell refused to allow Barack Obama to fill Antonin Scalia’s seat. According to the 2016 exit polls, Donald Trump narrowly edged Hillary Clinton among voters who considered 'Supreme Court appointments' to be an 'important issue' in shaping their electoral decision. The political logic has been clear. Anger is almost always a greater motivator to vote than smug complacency. For nearly a half-century, anti-abortion activists have been enraged that the Supreme Court tried to take the issue out of politics. Younger abortion rights supporters, on the other hand, have had trouble envisioning what life was like for women before Roe v. Wade."
Although no one on the left ever wished this to happen, the pendulum is fast shifting the other way. Suddenly, instead of abstract discussions of Supreme Court jurisprudence, the news is being filled with first-person stories of women in Texas unable to get abortions even though they are just seven or eight weeks pregnant.
Rhetoric alone is unlikely to change anyone's position on abortion. Over the years, the predictable arguments on both sides have lost the power to persuade. This is best reflected in the enduring stability of polling on abortion. According to Gallup, which has been charting the issue since the 1970s, roughly half of Americans are in favor of legal abortion with some restrictions. About 30 percent believe that abortion should be legal in all situations. And just around 20 percent want to render all abortions illegal.
For decades, Republican officials have been pandering to the militant 20 percent slice of the electorate. They got away with it politically because most of the extreme restrictions on abortion have been enacted in smaller, GOP-dominated states in the South. But with Florida poised to follow the example of Texas by enacting legislation that would effectively ban an estimated 85 percent of all abortions, we have entered an era when pregnant women will have few options in two of the nation’s three largest states.
Women in Texas are the latest victims of a Republican Party that has veered off into levels of zealotry on abortion unimaginable in the days when Ronald Reagan only gave lip service to the cause. But the remedy lies in our politics as much as long-shot dreams of some kind of reprieve from the Supreme Court. Conversations Thursday with political consultants in both parties led to a surprising conclusion: Abortion will prove to be a more potent factor for Democrats in 2022 if it is put in the larger context of Republican extremism.
The target voter might be a college-educated woman shopping at the upscale Fashion Square mall in Scottsdale, Arizona. She probably voted for Biden in 2020 because she was appalled by the bedlam and bombast of the Trump presidency. In normal times, she might drift back to the GOP over issues like taxes and the economy. But all the signals emanating from the Republicans, from anti-vaccine hysteria to heavy-handed abortion restrictions, suggest to her that the party of John McCain and Mitt Romney now exists in name only.
Meanwhile is there anything Democrats can do? The fatuous bill NARL wrote for Judy Chu years ago is almost a joke and, if it's meant to address the Texas situation, will have be rewritten from top to bottom, as real legislation rather than useless pro-choice talking points that will only make judges laugh out loud-- presumably why Pelosi said the House will wait 3 weeks before taking it up. This, for example, sounds great to progressive activists but it has nothing to do with law:
Abortion-specific restrictions are a tool of gender oppression, as they target health care services that are used primarily by women. These paternalistic restrictions rely on and reinforce harmful stereotypes about gender roles, women’s decision-making, and women’s need for protection instead of support, undermining their ability to control their own lives and well-being. These restrictions harm the basic autonomy, dignity, and equality of women, and their ability to participate in the social and economic life of the Nation.
What matters in a court is what a law prohibits, or what it requires, and how that’s enforced. Not stuff like-- and I quote-- "Reproductive Justice requires every individual to have the right to make their own decisions about having children regardless of their circumstances and without interference and discrimination. Reproductive Justice is a human right that can and will be achieved when all people, regardless of actual or perceived race, color, national origin, immigration status, sex (including gender identity, sex stereotyping, or sexual orientation), age, or disability status have the economic, social, and political power and resources to define and make decisions about their bodies, health, sexuality, families, and communities in all areas of their lives, with dignity and self-determination."
Elie Mystal of The Nation insists the only thing the Democrats can't do to address what just happened is nothing. "The only question is how far Democrats are willing to go to defend women’s rights. No matter what fresh lawlessness Republicans commit, or what their legal enablers on the Supreme Court do to support that agenda, you can count on some Democrat or liberal-adjacent person saying, 'But what can the Democrats do?' Never mind that Democrats control both chambers of Congress and the entire Executive Branch. They walk around every day like a defeated minority unable to stop Republicans-- who lost-- from having their way with our country."
Democrats, wrote Mystal "can work around the Texas anti-abortion law. To do this, however, they will need to get creative to protect women’s rights. They will need to be willing to challenge 'norms.' They will need to act like Republicans.
Conservatives think they’ve been very clever with the Texas ban, because the enforcement of that ban is not done by the state. Instead, private citizens do the dirty work. The law empowers them to sue abortion providers, or those suspected of “aiding and abetting” the provision of abortion services to women who are more than six weeks pregnant, and to then cash in for $10,000. Because of this, conservatives argue that the law is not a “state” restriction on abortion, and it cannot be challenged as a violation of Roe in federal court. The Democrats can be clever too, however. Consider the doctrine of qualified immunity. Qualified immunity protects government employees from private lawsuits arising out of the performance of their jobs. Conservatives love to defend qualified immunity when a cop shoots a black person to death or a CIA agent tortures a suspected terrorist. So here’s an idea: If abortion providers were made federal officials-- call them 'privacy protectors'-- who were deemed to be operating under the authority of the government, they would be protected from the private civil actions Texas now authorizes."
The right to an abortion is constitutionally protected, and the executive branch has a duty to enforce and defend the constitution. Federal abortion services might be untried, and provocative, but since Texas has gotten cute with its attempt to evade constitutional review, the Biden administration must be willing to try new things to defend women’s rights.
Or… Biden and the Democrats could expand the Supreme Court and the US Court of Appeals for the Fifth Circuit and stop the forced-birth madness Republicans now think they can get away with. That’s also an option. If Democrats don’t like the “radical” solution of federal abortion trucks, then they could stop the courts from letting women and girls become the target of vigilantes looking for a cash grab.
Yes, Congress is broken and Manchurian Democrats Joe Manchin and Kyrsten Sinema are willing to allow women who don’t want to carry a pregnancy to term to be treated as unruly wombs that don’t know their place. But if Democrats are not willing to enforce the kind of consequences that will inspire their colleagues to end the filibuster and allow democratic self-government to take place, then Biden must do what is necessary to defend the Constitution from all threats, foreign and Texan.
Either way, Democrats must do something. They can’t throw up their hands and say, “The Republicans, who have lost the popular vote in seven of the last eight presidential elections, are too powerful, so we must accept bounty hunting of abortion providers. Blue Wave 2022!” They can’t allow a couple of fifth-column Democratic senators to thwart the expressed will of the rest of the party.
I don’t care if Biden has to move to Texas and perform abortions himself (and then make use of the presidential immunity afforded to Trump during his various schemes to bribe foreign governments and obstruct justice). This is an attack on the constitutional rights of women, Biden’s constituents, and he and his administration must act.
So don’t ask me what the Democrats can do, because they can do a lot. The only question is what the Democrats are willing to do. What they are prepared to do. What they are ready to risk doing to uphold and defend their principles.
The answer better not be “nothing.”
"Pre-Texas," wrote David Frum today, "opposition to abortion offered Republican politicians a lucrative, no-risk political option. They could use pro-life rhetoric to win support from socially conservative voters who disliked Republican economic policy, and pay little price for it with less socially conservative voters who counted on the courts to protect abortion rights for them. Pre-Texas, Republican politicians worried a lot about losing a primary to a more pro-life opponent, but little about a backlash if they won the primary by promising to criminalize millions of American women. That one-way option has just come to an end. Most American voters have quietly understood for a long time that most politicians who claim to be 'pro-life' are hypocrites. These politicians do not really mean what they say, or anyway, they do not really intend to do what they say. You might imagine that this assumption of hypocrisy would hurt. Sometimes it has. More often, though, it has protected politicians from accountability for the policies they advocate. Today, accountability has suddenly arrived. Texas Republicans have just elevated abortion rights to perhaps the state’s supreme ballot issue in 2022."
He suggests that Texas Republicans may have miscalculated. "Instead of narrowly failing again and again, feeding the rage of their supporters against shadowy and far-away cultural enemies, abortion restricters have finally, actually, and radically got their way. They have all but outlawed abortion in the nation’s second-largest state, and voted to subject women to an intrusive and intimate regime of supervision and control not imposed on men. At last, a Republican legislative majority has enacted its declared beliefs in almost their fullest form-- and won permission from the courts to impose its will on the women of its state. This is a new reality, and one that opens a way for the prolonged U.S. abortion-rights debate to be resolved. If the Texas Republicans prosper politically, then abortion-rights advocates must accept that the country truly is much more conservative on abortion than they appreciated and adjust their goals accordingly. But if not, and I’m guessing that the answer is not, anti-abortion-rights politicians are about to feel the shock of their political lives. For the first time since the 1970s, they will have to reckon with mobilized opposition that also regards abortion as issue No. 1 in state and local politics."
Steven Holden is the progressive Democrat running for the Syracuse-centered seat held by anti-Choice Republican John Katko. The district-- which voted 57% to 41% for Obama in 2012 and even gave a narrow win to Hillary in 2016, just gave Biden a 53.4% to 44.4% win over Trump-- is pro-Choice. So is Holden. But abortion rights haven't been a big issue in elections. This afternoon he told me that "Katko's position runs counter to the sentiments of Central New York voters. Even lifelong Catholics, such as my wife, are pro-choice. This is yet another position where he wants the government to control one of the most personal decisions a woman and her family can make. This issue takes on personal meaning in my family, where I have a part of this difficult decision. I wish no one must go through with this. If we truly want to reduce abortions, lets support birth control, sex education, WIC, mandatory Child Leave, Pre K through 12 education, and access to food. John Katko is not pro-life, he is pro-birth." I think we're going to hear a lot of messaging of this kind in swing districts across the country. Anti-choice Republicans in districts where independents have the balance of electoral power-- like Maria Salazar (FL), David Valadao (CA), Claudia Tenney (NY), Rodney Davis (IL), Don Bacon (NE), Young Kim (CA), Mario Díaz-Balart (FL), Brian Fitzpatrick (PA), Michael McCaul (TX), Andrew Garbarino (NY), Troy Nehls (TX), Fred Upton (MI) Michelle Steel (CA), Beth Van Duyne (TX), Steve Chabot (OH) and Mike Garcia (CA)-- are going to be doing a lot of tap-dancing for the next 14 months.