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Supreme Court Overturns Roe v. Wade, But Won’t Stand Up to Admit It

Almost fifty years after the Supreme Court’s landmark decision in Roe v. Wade, the Supreme Court has just overturned it. Not with a bang, not even with a whimper, but with cowardly silence.

Texas, which has now become the worst state in the country, yesterday passed through a bill which would outlaw every single abortion after six weeks. And to show that “Cruelty” is now their state motto, they even will be giving out bounties of $10,000 to anyone who can find a woman who has an abortion after six weeks; seeks an abortion; is a doctor or nurse who tries to help a woman get one; is a cab driver who drives a woman to a place to get one. I am surprised that they are not giving out the bounties for killing anyone thinking of having an abortion, but they will get there.

The United States Supreme Court could have immediately set a hearing on this law, but they delliberately have not, and almost certainly will not. Because: 1) That carefully handpicked Court majority wants to completely overturn Roe v. Wade; and, 2) They do not want to actually say it, nor do they want to just carve away at it. They would prefer to simply and clearly give their imprimatur to any state which will effectively or completely outlaw abortions.

This is the culmination of the Republican dream. Why there has been this long furor over the right to an abortion, is an interesting, but at this point, indulgently abstract, consideration. I am a man, so my perspective may be limited in that regard. I have always thought that the first attack on the Roe decision was a way of trying to punish those people in the 1970’s who the Far Right thought were engaging in free love, and using abortion as a form of birth control, which is mostly absurd, but so are they. Then it became about controlling women, forcing them to stay “barefoot and pregnant.”

Only later, it seemed to me, did it become about fetuses, and whether they had rights. But it was a powerful rallying image. The bitter irony is that these fanatics don’t care one bit about babies, whether they are born with crack addictions, or impoverished mothers. They just want to punish the women, and to some extent the men who got the women pregnant, even if they both employed protection, and did not want, or could not afford, to have a baby at that time.

So the anti-abortion zealots worked tirelessly to fill the Supreme Court with justices who would overturn Roe v. Wade. It took a long time, but they got there. For every one of the last 48 years, people have warned that if you let the Republicans win the presidency, they will pack the Court with anti-abortion justices. And after making a few mistakes in that regard, they managed to do that

Every judge which the Heritage Foundation put up to the acquiescent Republican presidents, was a sure vote to overturn Roe. Look at all the Catholics which they have put on the Court. And presidents like GHW Bush, who probably did not want Roe overturned, helped it happen by putting Thomas on the Court. His son GW Bush put on Roberts and Alito. Bush did not win that election, but the Supreme Court handed it to him, including Sandra Day O’Connor, who supposedly said “That’s awful,” when she was told that Gore was going to win. O’Connor of course had previously upheld Roe, but Roberts and Alito would not.

And over and over, people like Barbra Streisand would say that “The election is about the Supreme Court, the Supreme Court, the Supreme Court,” but not enough would listen. 2016 was the culmination. Justice Scalia died, President Obama nominated Garland to replace him, and McConnell would not allow a hearing, because he knew that Garland would be confirmed, and would be the swing seat. And Obama apparently felt that there was nothing he could do about it.

And then Trump won, because far too many people decided that they could indulge themselves and not vote, or vote for Stein or Johnson, because “they just didn’t like Hillary”; or they were angry Sanders supporters who wanted him to be the president the next time; or they were people who had made a voting career out of disparaging both parties. Varieties of each of these stupid, foolish or self-indulgent (THEIR states would not ban abortion)) people. I could write a book about how such people were major dupes and useful idiots in the now successful Radical Faux Religious Right’s efforts to make abortion a crime. I wonder how they will rationalize this. Bill Clinton appointed Breyer and Ginsburg to the Supreme Court. Hillary would have appointed great Justices. Trump got to appoint three, Gorsuch, Kavanaugh, and Barrett.

The last one, Barrett, was rushed in, as Republicans showed that everything they said about the Garland nomination was an utter lie. Did you know that McConnell, when asked, recently said that if Biden had a Supreme Court opening to fill in 2024, he would block it? What is the saying, “Fool me 7,890 times, and you are the most obtuse person imaginable”?

And special perverse credit should be given to Susan Collins, who would always tell us that she did not want Roe v. Wade overturned, but that she would vote for Barrett, because she and the Court would not overturn it. Maybe she was in on the con; the Court did not actually write a decision overturning it, they just allowed it to be overturned by state courts, without doing anything about it. Oh, those Republicans, spending every waking hour when they are not counting their money, working on ways to circumvent, deceive, find flaws and loopholes to use to their advantage.

To say that this is a truly chilling day in American history, would not be overstating it. Many more Red States will pass bans on abortion just as totalitarian and inhumane as the one that Texas passed. In (don’t mess with) Texas, you can’t get a hospital bed, you can’t go to a school or a job with a vaccine or mask mandate, and you can’t get an abortion after six weeks, which is probably the earliest you could even know that you are pregnant. This is out of some nightmarish dystopian book or television show, and it is real.

So what can be done, if anything? Well, the Congress could pass a bill making Roe v. Wade a national law, which under our system, would supersede anything a state legislature could do, or a Supreme Court could rule. That is conceivable, but of course there is the filibuster to overcome, though this would be a possible opportunity for Manchin and Sinema to carve out an exception. I suppose that our government could try to cut off funds to Texas, or sue them, under the argument that they were violating Roe. This is unlikely to work, but it would highlight things. We could to try to add Court seats, but that is not getting through any time soon.

People, maybe including some of those who couldn’t be bothered to vote in 2016, might want to boycott any product coming out of Texas, and not go to sports events where any team from there is playing. That might upset them. And then of course everyone has to vote, although it is getting harder to do that each day. Any state with a Republican-controlled legislature, and there are some in “Blue States,” which just one time, elects a Republican governor, risks a draconian anti-abortion law.

There are realistic things which can be done, but it will take Democrats working in concert. Part of this zero-sum game reality, is that we have to stay united. We can’t divide and be conquered. Republicans have become thoroughly evil, and just enough Democrats were too fragmented or myopic to see what their endgame was, and how it would be realized. Now we have to undo it.

28 Responses

  1. Biden needs to expand the court – enough is enough is enough. What’s happening in Texas is psychotic, women scrambling to get an abortion while emboldened angry anti abortion mobs outside await them

    Where are the people in Houston & Austin up in arms? There should be a million person March at their Capitol in Austin…. I can’t blame them though, these people don’t know any better. It’s as if the women’s movement never happened down there, they don’t teach about it, there’s no awareness just like critical race theory. The DNC needs to buy some TV slots in these red states and air some documentaries showing where women came from. They’re too used to Hooters waitresses and Dallas cheerleaders in hot pants, time for a wake up call!

    • I agree. There should be an absolutely massive reaction to this.

    • Texas Republicans have just caught the car they have been chasing. Just as many Republicans get and/or pay for abortions as Democrats and Independents do, maybe more. I hope the backlash is severe.

      The actions of the Fifth Circuit in blocking the district court hearing and that of the Supreme Court are shameful.

      • Bunch of slimy oil men in stetsons controlling women’s bodies 🤢🤢🤮🤮 #TexasSexBoycott

  2. Texas women – are you really going to take this sh*t? Boycott sex!! Make every man’s life a living hell in Texas!

  3. All i have to say is like gay marriage and other issues blue states are going to get a lot of money. Women who can afford to are going to fly to NY to get healthcare. The bad part about it is the women, the white women who voted for Trump & the GOP, are going to be suffering the most from these decisions along with working class women of color who mostly didn’t vote for this nonsense.

    • GA6thDem, I remember you saying a few years ago that you thought that the future of the United States would resemble “The Handmaid’s Tale.” it appears that you had an accurate sense of it, though we hope that we can do something about it.

      • Well, the good news is the GOP operatives seem to be sweating is the word on the street. People are pissed. I hope it lasts until November 2022 but people like Terry MacAuliffe can start measuring the drapes.

    • I haven’t read the full text of the Texas law, so I don’t know if helping a woman leave the state to obtain an abortion esewhere (say, by selling her a plane ticket, driving her to the airport, etc.) runs afoul of it.

      • i have not read where that is explained. As I understand it there is nothing about going out of state. It all seems to refer to Texas. However I am not sure how they are going to know who gave someone a ride. This is a total CF where people can routinely be falsely accused as it seems there isn’t much of a standard to file a suit.

  4. Congress needs to pass the Women’s Health Protection Act as soon as possible. During the 2020 campaign, candidate Biden promised that protection of Roe v. Wade would be codified through legislation. Now as president, Biden must use the bully pulpit to abolish or reform the filibuster so the Women’s Health Protection Act can pass in Congress and become federal law.

    • Yeah, but according to the Constitution each House of Congress makes its own rules and as long as the “Democrats” Manchin and Sinema are there, that rule change will never pass.

      • I admire your optimism.

      • I actually think that Sinema might vote to get rid of the filibuster for this matter. Manchin i am not sure about, whereas with regard to the HR4, I think that Manchin might vote to blow up the filibuster, while Sinema likely wouldn’t. But i don’t think it is certain that these two won’t finally decide that rights are being lost, and that keeping the filibuster protects very little at that point.

        • Manchin, who is Catholic, is one of only two Senate Democrats who are not cosponsors of the WHPA (the other is Bob Casey of PA). Sinema is a cosponsor of the WHPA but what that means to her with her whacky sense of logic is anyone’s guess.

          Possible allies? Lisa Murkowski, Shelley Moore Capito and Susan Collins have all voiced support for Roe v. Wade in the past. How are they feeling now? My guess is Collins is “concerned”.

  5. Okay, I’ve read it now. William, I have a legal question for you. The law explicitly allows any person to bring an action under it in Texas courts, even non-Texas citizens. Doesn’t the Constitution require actions between citizens in different states to be brought in Federal court? Isn’t this a violation of Article III, Section 2:

    The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–

    • Propertius, it has been a while since I studied Constitutional Law, and that was not an area I took more than the requisite courses in. I am assuming that the legislators in Texas did indeed write this too expansively with regard to plantiffs’ rights; and that a citizen of Texas would not actually have to defend such a lawsuit brought by a citizen of another state, in Texas court. I think that the writers of this law wanted to scare people as much as possible; that anyone anywhere could sue them. But I think you are right, that they could not, which I guess is a tiny bit of relief. Pretty clearly, the intent is to frighten everyone in Texas that if they do the slightest thing to aid an abortion, they will be sued.

      The part about defendants’ attorneys fees not being reimbursed even if they win; while those who take advantage of the free chance to win $10,000 or more, will have their fees paid if they win (they will probably get a contingency arrangement so that they don’t have to pay them even if they lose), is abhorrent, as befits this fascistic state.

      • The law also says this:

        (c) Notwithstanding Subsection (b), a court may not award
        relief under this section in response to a violation of Subsection
        (a)(1) or (2) if the defendant demonstrates that the defendant
        previously paid the full amount of statutory damages under
        Subsection (b)(2) in a previous action for that particular abortion

        It seems to me that one could launch the equivalent of DOS (denial of service) attack against this by preemptively bringing suit immediately after every single abortion and returning the $10,000 to the defendant upon award. They couldn’t be sued by anyone else for that abortion and you’d paralyze the Texas courts.

        If you can’t change the system, break it. Right?

        • If this were organized by a sufficiently well-funded nonprofit, they could afford to front the money to the defendants.

          • I like it! It makes sense, but they will read your comment, and amend their law to say that only legitimate defendants who are not funded by anyone but themselves, can sue. Even if they don’t read it, someone else will suggest this. And the major problem is that any abortion after six weeks is considered illegal; the only defense can be that there was no abortion, or it was before six weeks. And since very few women would know that they are pregnant before six weeks, they wouldn’t have it before six weeks, so they are prima facie (legal term!) guilty of violating the law. That is all that Texas wants: to stop all abortions, and to keep anyone, doctors or drivers or counselors, from helping. I have not read the bill, but apparently the woman not liable to be sued, it is the other people. I guess the woman would go to jail for having an illegal abortion. They want to scare everyone so that no one will have an abortion, except of course their mistresses or daughters.

            As I am thinking about all this, I believe that the Federal Government should sue Texas for violating the law (Right now, the law is Roe v. Wade modified by the limiting decisions of the Roberts Court). They should send troops down there to make sure that women have all the rights as the law currently stands. This of course would force the Supreme Court to get rid of Roe, or almost all of it, by decision. That would not help the women, but it would have political value, and maybe help us to expand the Court.

          • Nah, they’re not going to read that comment. Too many big words and not enough crayons.

            And yes, the patient is explicitly exempted from the law. She cannot be sued, presumably so they don’t run afoul of Roe. Here’s the text of the law: https://legiscan.com/TX/text/SB8/id/2395961

            Oh, I think you mean “plaintiffs”, rather than “defendants”. Even if they did make such a change, it might be useful since it would prevent anti-choice organizations from suing.

        • You guys are devious.
          I love it.

  6. The vote was 5-4, with Chief Justice Roberts joining Breyer, Kagan and Sotomayor in dissent.

    Roberts, in his dissent (joined by Breyer and Kagan), called the Texas law “unprecedented”.

    From SCOTUSblog:

    By deputizing private citizens to enforce the law, Roberts stressed the law “insulate(s) the State from responsibility”. He wrote that because of the novelty and significance of the question, he would stop the law from going into effect to preserve the status quo and allow courts to consider “whether a state can avoid responsibility for its laws in such a manner.”
    The Texas case will now return to the lower courts, where litigation will continue.

    • Texas’ legislature “cleverly” wrote the law so that it would not be the state enforcing it, but the bounty hunters. Roberts is concerned about that aspect, but likely would be happy to have Roe completely stricken from the books. Ordinarily, one can only sue when one can potentially show that they were damaged by the actions they are suing about. If someone slanders you, you can sue for damages, and must show the damages, though of course that amount is somewhat speculative in those matters. If someone hits your car with their car, you can sue for various damages including pain and suffering. But here, we have people who will have the right to sue based on….? That they don’t like abortions? That is goes against their beliefs?

      That opens up a vast array of situations where states could avoid nullifying codified laws, by not being the ones to punish, but rather deputizing anyone who wanted to take advantage of the bounty. The freepers’ dream: a country where you can make money by turning in and taking money from fellow citizens. You don’t like your neighbor? Accuse her of having an abortion; and then sue her boyfriend, her doctor, her psychologist, her bus driver, anyone you can get your hands on. You can win a lot of money. And if you lose, well, you have still cost her substantially in terms of the money she must pay to defend herself, which, by the law, is not remunerable to her. Plus the psychological damage, the shaming, the stocks–well, they’ve got to rebuild them first, they’ve got the templates from Puritan days. All else aside, “the winning defendant cannot recover attorney’s fees, but the winning plaintiff can,” should be unconstitutional on its face, in any valid society, as it completely intimidates defendants who cannot afford to pay for a defense attorney. I am not sure what kind of world they are trying to get back to. Not 1870 in the Wild West. Something like 1300’s England.

      • William, see below the emphasis on “outsourced enforcement to private parties” in Biden’s statement. Is that a possible way to declare the Texas law unconstitutional?

        • It certainly should be–but the Supreme Court has already essentially said it will not, by declining to even hold a hearing on the law. It is not only a draconian law, it is probably legitimately unconstitutional on more than one ground; but the Supreme Court is accorded the power to determine which laws are constitutional, and which are not. But as noted above, the argument her would certainly give more power to an effort to write a Congressional law, signed by the President, which would restore Roe rights.

          If it weren’t for the horror of this, it would almost be entertaining to see how the idiots in Texas have set up a system where extortionists could go around threatening various people with lawsuits for contributing to an abortion, unless they paid them not to sue. They might as well have legalized the mafia protection rackets in their state. They are truly evil and stupid people, but of course such people can cause immense damage.

      • It actually sounds more like Ancient Rome. In the Roman Republic there weren’t any such things as public prosecutors. Prosecutions were brought by private parties, who would retain the services of an orator/lawyer (like, for example, Cicero) to bring charges against the defendant. There really wasn’t a clear distinction between criminal and civil procedure: if someone killed a member of your family, you, not the State, brought charges against him or her. Of course this meant that crimes against poor people were almost never prosecuted. It also meant that people were often railroaded, since there weren’t any clear rules of evidence or procedure. Basically results were almost entirely dependent on the rhetorical skills deployed by each side.

        It’s a helluva way to run a legal system. Anglo-Saxon jurisprudence may have its issues, but it’s way better than that. I can’t believe they want to take a 2000 year step backwards. What’s next? Bringing back crucifixion?

  7. Today, Pres. Biden announced that his administration will “launch a whole-of-government effort to respond to this decision, looking 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.”

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