THE ELEPHANT IN THE WOMB
Texas abortion law perfectly illustrates gender inequality
This week the Supreme Court refused to block a new Texas law that restricts women’s abortion rights after six weeks of pregnancy.
The Court voted 5-4 not to review the law, with Chief Justice John Roberts voting with the dissenters who said the court should step in because the law is plainly unconstitutional.
Even the five justices who voted to take no action said the Texas law was probably unconstitutional under Roe v. Wade, but declined to take the case because it was not procedurally ready for review. They said the Supreme Court should not get involved until the law is actually enforced by someone, and used to interfere with a particular pregnant woman’s rights.
The dissenting justices basically called the majority decision a cop-out, saying the court was sticking its head in the sand about a law that will eventually be struck down because it is so clearly unconstitutional. Most scholars agree the court could have taken the case because the Supreme Court does what it wants, and takes cases when it feels like it, regardless of procedural issues.
For now, the court’s decision to do nothing leaves the law intact, but multiple legal challenges remain pending in Texas courts, and those judges, too, have declined to rule on the constitutional question because like the Supreme Court they have doubts about whether the lawsuits are procedurally correct.
The cases were filed against the government, yet the government has no authority to enforce the law. Only private persons do — by filing lawsuits against doctors who perform abortions, and people who support women who obtain abortion services, after six weeks. It’s hard to sue the government when the government has no role in enforcement.
All other laws that restrict abortion rights are enforced by the state, but the new Texas law in a sense deputizes friends, family, neighbors and even complete strangers from other states to step in and file lawsuits whenever they become aware that an abortion was performed after six weeks. The law rewards them with a hefty $10,000 if they succeed, paid by the state, so the law gives government money to people who hunt down private medical information about women seeking to exercise their constitutional rights. It’s like letting people sue their neighbors for exercising their Miranda Rights.
Many people said this would never happen, and that because abortion rights have been in place since 1973 we could never go backward. But many things about women’s rights have gone backward. Title IX was enacted in 1972 to guarantee women and girls equal protection against sexual assault and other forms of sex discrimination in education, on par with race and national origin, but in August 2020 those rights were taken away. Now abortion rights are on the chopping block.
The primary reason why it is so easy to weaken women’s rights is that women still do not have full Equal Protection rights under the Fourteenth Amendment. Women were denied Equal Protection of the laws when the Fourteenth Amendment was adopted in 1868, and they remain unequal today even though the Equal Rights Amendment was ratified in January 2020.
The ERA has not yet been validated because Joe Biden and Merrick Garland are fighting against its validation in two federal lawsuits, and blocking the US Archivist from publishing the ERA as the Twenty-Eighth Amendment.
This means Joe Biden and Merrick Garland are responsible for what’s going on in Texas. They have the power to unblock the ERA and give women much stronger legal arguments against restrictions on abortion rights, including the new Texas law. All Biden has to do is make a simple phone call to the US
Archivist and tell him to publish the ERA. That’s it. One phone call and women will become fully equal citizens, with better legal protections for all their rights, including the right to terminate a pregnancy, for the first time in history.
But Biden refuses to make the call, while claiming to be outraged about the Texas law.
Tens of millions of women voted for Biden because Trump openly denigrated women and their rights, but under the rule of actions speak louder than words, Biden is no different.