By now, everyone has heard about the U.S. Supreme Court’s midnight raid on the Constitution, in which it allowed a clearly unconstitutional Texas law on abortion to go, at least temporarily, into effect.
But if you’re among those cheering the unsigned 5-4 ruling, one that takes Texas back to its pre-Roe roots, let me see if I can explain what really happened and why everyone, left or right, who cares about the rule of law should be outraged. I mean, come on, remember freedom? This is not first-graders wearing a mask. This is the most anti-freedom ruling I can recall in modern times. And here’s the really scary part: it won’t be the last.
One of the many reasons Donald Trump will be remembered as among the worst presidents ever is that this version of the Supreme Court is his legacy, and, of course, Mitch McConnell’s. Does anyone believe we won’t soon see adverse rulings on voting rights? How about gay rights? We should make a list, but I don’t know if there’s enough room.
We’ve already seen the court use the so-called shadow docket — this is how emergency rulings are made, usually without legal argument — to block the extension of an emergency federal ban on evictions. And that’s just one example of the trend, which now includes abortion and vigilante justice.
The latest case began, of course, with the Texas legislature writing a law that was designed with only two things in mind — to effectively end abortion in Texas without the trouble of overturning Roe v. Wade and to make it extremely difficult for the Supreme Court to block it before it could be enforced.
The thing is, Texas was clear about the con when it wrote the law. And the five conservatives — Chief Justice John Roberts, who opposes abortion, dissented — who refused to block the law basically admitted in its one-page brief that it was a con job and allowed it to go forward anyway. The court said it was not ruling on Roe’s constitutionality, ahem, but only on a procedural issue. But do we really need a clearer signal that Roe will soon be history?
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How bad is the court ruling? Just try it with other issues and it becomes ever more obvious. The Texas abortion law got around the all-too-willing court by saying the government would not enforce it, therefore leaving complainants with no state official to sue. Instead, it will leave the enforcement to Texas citizens, who can take anyone to court without risk, anyone they suspect might have helped a person break the six-week, fetal-heartbeat rule by getting what should be a legal abortion.
If those spy-on-your-neighbors citizens win in a civil lawsuit, they get $10,000 from the defendant plus all court costs. If they lose, they pay nothing, including court costs. They can sue anyone involved except the woman who actually gets the abortion. As an example, they could sue you for giving the person a ride. Or, presumably, for holding someone’s hand. Certainly, the doctors and nurses and receptionists and God knows who else are in harm’s way. It’s tricky, and it’s not tricky. It’s unprecedented, but was also clearly signaled.
There is no one involved who doesn’t understand what just happened. And there are five justices who are complicit. John Roberts was on to that, saying in his dissent that the law should not go into effect before the court resolves the issue of whether a state can legally avoid responsibility for the laws that it makes.
Typically, when the court is asked for injunctive relief on a confusing/unprecedented law like this one, the justices say maybe we should shine a little more light on this before we allow, say, women’s rights to be trampled and to leave them in the hands of bounty hunters roaming the streets. If that isn’t dystopia, I don’t know what is.
It may not be “The Handmaid’s Tale,” as many see as a working comparison, but author Margaret Atwood has spoken out on the topic, comparing the ruling to Romania under Nicolae Ceaușescu. He outlawed abortion and contraception and demanded that each woman bear at least four children, many of whom ended up in orphanages. Atwood says the anti-abortion crowd too often doesn’t care what happens to the child after it’s born.
“That’s where the concern seems to cut off with these people,” she told a New York BookCon crowd. “Once you take your first breath, [it’s] out the window with you. And, it is really a form of slavery to force women to have children that they cannot afford and then to say that they have to raise them.”
Instead, women in Texas who want an abortion after six weeks, when many women don’t yet even know they’re pregnant — now we have the menstrual-cycle police — will have to go to another state. And Texas clinics, meanwhile, are in danger of folding. In other words, for rich women, it’s a burden and an inconvenience. For the poor, it’s far worse.
The court’s ruling was stunning, but not a bit surprising, not with the three Trump appointees on the court, the three whose nominations were each confirmed, you’ll recall, with the help of former Sen. Cory Gardner, who was elected while saying, with the Denver Post’s editorial board approval, he would play no role in limiting a woman’s right to choose. The Post later changed its mind, but a little too late.
OK, so let’s try the scenario with guns. Let’s say the Colorado state legislature, ignoring Supreme Court rulings, outlaws all guns and demands they be turned in. But Colorado decides it won’t enforce the law. it will leave the work of enforcement to bounty hunters, to vigilantes, to a modern-day citizen Stasi, to a low-tech lynch mob — just like Texas abortion law does.
Can you imagine the outrage?
Remember all the outrage about masks and vaccines and freedom? What if the governor — not likely in Jared Polis’ case — mandated vaccines for all Coloradans, but said the government wouldn’t be involved. He — it’s always a he, to this point, in Colorado — would leave it to the bounty hunters et al.
How much outrage could we get on that one?
I could go on — the scenarios are endless — but what’s the point? The only way that the court’s ruling can be understood, Berkeley School of Law dean Erwin Chemerinsky told the Los Angeles Times, “is that there are five votes to overrule Roe v. Wade.”
The court has already agreed to hear a Mississippi case this fall on a law that would end abortions after 15 weeks, well before the long-held standard of fetal viability. The Supremes could have waited to make a decision then, after, you know, the law had moved through the lower courts, after a full Supreme Court hearing, after arguments and briefs had been submitted from both sides, before dismantling the rights that have been guaranteed for half a century.
This ruling was all about legal maneuvering, all about a con game in which everyone was in on the con, all about, as Slate columnist Dahlia Lithwick put it, “blessing an unconstitutional and brutal piece of lawless vigilantism, because it’s only about women.” The 5-4 ruling is a loud cry for Supreme Court reform, not that anyone expects that to happen. The Senate would need to end the filibuster, and even then, there would be Democratic dissenters.
I’ve always maintained that since a healthy majority of Americans oppose making abortion illegal, overturning Roe v. Wade would be a disaster for Republicans. What are the chances of someone who wants to make abortion illegal in Colorado winning a statewide race? You may recall that Coloradans just overwhelmingly voted down a ban on late-term abortions. Politicos will be watching the coming elections in California and Virginia for a reading. Then, of course, there are the midterms. Michael Bennet is already all over this. And McConnell’s reaction has been, well, muted.
But this is where those who fight the endless culture wars were always hoping to take us. And now, ready or not, it seems we have arrived.
Mike Littwin has been a columnist for too many years to count. He has covered Dr. J, four presidential inaugurations, six national conventions and countless brain-numbing speeches in the New Hampshire and Iowa snow.
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