Abortion-ban Horse is Out of Constitution’s Barn

Texas law is the result of of decades long failure to protect women’s privacy

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 they are 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 leave 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 antiabortion 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 choose, 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.

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.

Barack 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.