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 happen before six weeks or in a “medical emergency,” you have to 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, do you understand? If someone violates the law, anybody greedy or vindictive enough to sue can get money. Nothing unconstitutional about that, understand, right?
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 of facts — a weeks-old embryo is not a fetus and has no heartbeat.
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 (or “Roe” for short) which determined that to deny women abortion, at least in the first trimester (first three months) of pregnancy, infringes upon Americans’ right to privacy and freedom from discrimination.
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 other words, 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’s already passed a law that copies the Texas one, and Florida’s getting in line to do so. Conservative states could also perhaps adopt right-to-sue laws that would encourage anybody to sue anyone who “aids or abets” same-sex marriage — or voting rights, 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. 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 jiggling 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 Republicans — in both the House and Senate — boast proudly of being what they call “pro-life” (catchphrase for anti-women) and they’re not going to vote for any codifying of abortion rights or jiggling of the Supreme Court. The Democratic Party has a long history of defending women’s right to abortion, but unless enough Democratic senators are elected to either abolish or overcome the Senate’s filibuster rule, daydreams about codifying abortion rights and/or fiddling with the Supreme Court aren’t going anywhere.
The last time Democrats had enough political power to accomplish such lofty goals came in 2008 with the election of Barack Obama — one of only three presidents in 50 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, North Carolina, along with some swing states — Wisconsin, Pennsylvania. Democrats also controlled the Senate, counting 60 Democratic votes (including independent Bernie Sanders, a dependable vote for the Democratic agenda). The 60 votes were, theoretically, immune to Republican filibuster threats although, as now, one or two conservative Democrats spoiled the calculation.
Over the next 10 years Democrats squandered those hard-fought victories. The majorities that made Obama president and put 60 Democratic votes in the Senate vanished. In 2012 Obama lost Indiana and North Carolina. By 2016 Democrats had lost Senate seats in what had been the Obama-friendly states of Wisconsin, Pennsylvania, Iowa, Colorado and North Carolina. Republicans — almost all campaigning on “pro-life” 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.
In 2009 and 2010 Obama had nominated and the Democratic senate majority had confirmed two Supreme Court justices, Elena Kagan and Sonia Sotomayor. Both were dependable defenders of women’s constitutional rights. Then in February 2016 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. They simply refused to allow Obama a third Supreme Court appointment. Every Republican senator mutely complied with the scheme to backstab Obama. They didn’t even bottle the nomination up in committee or vote it down, they simply stonewalled. Their refusal to do what would normally be done contains, from this vantage point, eerie similarities to what the Supreme Court’s majority did this year to women’s constitutional rights in Texas.
Millions of voters apparently couldn’t care less 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.
During the same election cycle the Democratic nominee Hillary Clinton — a candidate with a proven record of supporting women and abortion rights — was on the ballot. Instead, roughly 63 million voters thought Donald Trump was their kind of president. Understand, that’s the same guy who said, “There should be some punishment for the woman” who seeks an abortion, and whose attitude towards women was graphically and profanely demonstrated when he boasted, “Grab ‘em by the pussy.”
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. You can campaign to change the rules, but that’s not a substitute for winning the campaign by the rules you start with.
Clinton’s loss came down to a few thousand votes in Michigan, Ohio, Wisconsin, and Pennsylvania — states Obama won. This happened after an election season that saw thousands, perhaps millions, of vicious anti-Clinton and anti-Democratic memes (many of them, it turned out, Russian-generated) circulated widely across social media, a disturbingly large number of them boasting some variation on, “I don’t care about the Supreme Court!” amid a forest of vehement anti-Clinton and anti-Democratic negativity.
What all that negativity and viciousness (and sexism) foreshadowed was four dysfunctional years of the 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 the party’s most toxic views.
During the 2020 election the Democratic Party managed to revive enough of what had once been Obama’s coalition to elect Joe Biden — only the third president in American history who campaigned as being “pro-choice,” a catchphrase for supporting reproductive rights. Even so, the Democrats barely squeaked out enough support across states to seize power in the Senate.
For decades the American left has campaigned on women’s right to abortion. As if “choice” was separate from other civil liberties. Obviously that messaging is 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 at best have a bigger, more inclusive base, but that base needs motivation to faithfully get to the polls every cycle, because the only other viable option is to allow the Republicans to continue to spit on the Constitution — and on women — all they want.