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GOP Subversion of Democracy Curtails Abortion Rights

March 12, 2022

Summary: Yesterday was the end of the Roe era of federal protection of abortion rights. This is the culmination of decades of GOP anti-democratic efforts to undo majority-supported and health-enhancing reproductive autonomy.

Texas Supreme Court Shuts Down Final Challenge to Abortion Law
New York Times
March 11, 2022
By Kate Zernike and Adam Liptak

The Texas Supreme Court on Friday effectively shut down a federal challenge to the state’s novel and controversial ban on abortion after about six weeks of pregnancy, closing off what abortion rights advocates said was their last, narrow path to blocking the new law.

The decision was the latest in a line of blows to the constitutional right to abortion that has prevailed for five decades.

The Texas law, which several states are attempting to copy, puts enforcement in the hands of civilians. It offers the prospect of $10,000 rewards for successful lawsuits against anyone — from an Uber driver to a doctor — who “aids or abets” a woman who gets an abortion once fetal cardiac activity can be detected.

It is the most restrictive abortion law in the nation, and flies in the face of the Supreme Court’s landmark 1973 decision in Roe v. Wade, which prohibits states from banning the procedure before a fetus is viable outside the womb, which is currently about 23 weeks of pregnancy.

Abortion rights supporters and legal scholars said the Texas law would encourage other states not only to pass similar bans on abortion, but to attempt to nullify other precedents they oppose.

Comment by: Jim Kahn

Friday sadly marked the demise of Roe v. Wade, which since 1972 – half a century – protected abortion rights based on privacy protections in the 14th Amendment to the US Constitution. The end came in the form of a Texas Supreme Court decision rejecting the last legal path to invalidating a state law banning abortion after 6 weeks of pregnancy, even in cases of rape and incest.

This is almost certain to result in a flood of similar laws in other states and further restrictions in Texas, such as prohibiting help for women seeking abortion out of state. The result will be, aside from reversal of reproductive health autonomy for millions of women, the well-documented serious psychological and physical risks associated with taking an unwanted pregnancy to term – far in excess of harms from abortion. Plus the mortality and morbidity risks from unregulated illegal abortions offered in medically suboptimal settings, often by un- or underqualified practitioners. This is a medical and health justice nightmare.

Why does the title blame “GOP subversion of democracy” for this outcome? Because for two decades, the GOP has used profoundly anti-democratic tactics to mold the US Supreme Court into the perfect anti-Roe instrument. How? By stealing elections (mainly) and ignoring long-standing governing and legal norms. Here is a partial list:

2000: The GOP (George W. Bush) steals Florida and thus the presidential election, through a combination of blocking voting for tens of thousands of mostly minority individuals incorrectly listed as having felony convictions, a horribly confusing ballot design in Palm Beach County (a Dem error), and vote recount disruptions and delay orchestrated by Roger Stone. An already GOP US Supreme Court breaks precedent in a decision removing authority over state voting from the state (contradicting conservative legal doctrine) to end the recount while Bush is still ahead.

2004: Swift Boat dirty tricks gets Bush a second term.

2001-2008: Bush appoints 2 Supreme Court Justices.

2016: In mid-February, conservative Justice Antonin Scalia dies. Senate Majority Leader Mitch McConnell refuses to allow a hearing for Obama’s nominee Merrick Garland, despite nearly a year before the next president takes office. This is unprecedented obstruction.

2016: Trump is elected despite getting 2.9 million fewer votes, and with Russian social media support that some analysts believe tipped mid-western states and thus the election to him.

2017-2020: Trump appoints 3 Supreme Court Justices, creating a 6-3 conservative majority.

2021: Texas passes the abortion law, constructed with a novel and frightening legal theory: The state can evade 14th Amendment constraints on states taking away individual rights by delegating the enforcement of such rights limitations to private citizens via civil litigation. This has been called a “posse” or “vigilante” law – empowering individuals not working for the government to do what the government is not allowed to do. Astoundingly, the US Supreme Court (the conservative majority) permits this approach. This sets the stage for any state to circumvent any federal limits on state action, simply by delegating enforcement to the population.

Thus we see merged a heinous states-rights governing theory, harkening to the 19th century, with conservative social values. Note: only 27% of Americans wanted Roe over-turned.

The delegation legal approach likely will be used to deny other federally guaranteed rights.

A larger and more balanced Supreme Court is appealing. It can be done.


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