Gender

'The State’s gambit has worked': Justice Sotomayor decries the court's refusal to lift the Texas abortion ban

U.S. Supreme Court Justice Sonia Sotomayor issued a lone dissent on Friday as her colleagues once again refused to block the Texas abortion ban, even under a request from the Department of Justice.

The court did agree to take up the matter for oral arguments swiftly. On Monday, Nov. 1, the court will hear from both sides in the case on the question of whether the U.S. administration can intervene and temporarily block the law from going into effect as the cases proceed.

But Sotomayor, as she has previously, argued that the court should have issued an injunction blocking the abortion ban from being enforced immediately. The law is already having massive effects on the constitutionally protected right to obtain an abortion in Texas, she argued, and yet a majority of the justices is allowing the state to use procedural loopholes to undermine the court's own ruling precedents.

"The State's gambit has worked," she wrote. "The impact is catastrophic."

To circumvent existing law protecting the right to get an abortion, Texas legislators enacted a scheme the prohibits abortion after six weeks — well before a pregnancy may have even been detected — but outsources enforcement to the courts and citizens. The ban, known as S.B. 8, allows anyone to sue those who assist in an abortion for $10,000. Because of this unique enforcement mechanism, a majority of the Supreme Court's conservative justices have said that the issues are too complex to warrant an immediate injunction against the law.

This decision, Sotomayor argued, is a betrayal of the court's authority — and it is having the practical effect of infringing on the rights of people seeking abortions. She explained:

On a human level, the District Court relied on credible declarations that described the threat of liability under S. B. 8 as "nothing short of agonizing" for abortion care providers. ... Providers are "seriously concerned that even providing abortions in compliance with S. B. 8 will draw lawsuits from anti-abortion vigilantes or others seeking financial gain." ... Patients are "devastated" to learn they cannot access care, and the "turmoil" caused by the Act leaves them "panicked, both for themselves and their loved ones." ... Even among the few women who are able to receive abortion services in Texas, S. B. 8 pushes patients "to make a decision about their abortion before they are truly ready to do so."
To be sure, the court agreed, "[p]regnant people from Texas are scared and are frantically trying to get appointments" in other States. ... The court found, however, that many patients are unable to seek out-of-state care based on financial constraints, dangerous family situations, immigration status, or other reasons. Id., at *42. These individuals "are being forced to carry their pregnancy to term against their will or to seek ways to end their pregnancies on their own." ...
The court also found that patients who are able to leave Texas have encountered restrictions and backlogs exacerbated by S. B. 8, citing evidence of the Act's "stunning" and "crushing" impacts on clinics in Oklahoma, Kansas, Colorado, New Mexico, and Nevada. ... An Oklahoma provider, for example, reported a "staggering 646% increase of Texan patients per day," occupying between 50% and 75% of capacity. ... A Kansas clinic similarly reported that about half of its patients now come from Texas. Id., at *44. The District Court found that this "constant stream of Texas patients has created backlogs that in some places prevent residents from accessing abortion services in their own communities.

"I cannot capture the totality of this harm in these pages," she continued. "But as these excerpts illustrate, the State (empowered by this Court's inaction) has so thoroughly chilled the exercise of the right recognized in Roe as to nearly suspend it within its borders and strain access to it in other States."

Most legal observers expect that the court is well on its way to formally overturning Roe and Casey, the precedents recognizing a right to get an abortion, or to so drastically alter the interpretation of this right that they may as well have been overturned. But it's widely believed the court will use an upcoming case about a Missippi abortion law if it truly does intend to make major changes to its precedent. It's much less clear how the court will handle the Texas case after oral arguments.

‘Male chauvinist pig’ was the ultimate feminist insult during the 1960s — and they are ‘alive and kicking’ in 2021: historian

Back in the 1960s and 1970s, the term "male chauvinist pig" was the ultimate insult from feminists. It isn't a term that is used a lot among modern-day feminists and Millennials. But Texas Tech history professor Julie Willett, in an article for Mother Jones' November/December issue, stresses that "male chauvinist pigs" are alive and well in 2021.

"It would be hard to deny today that the male chauvinist pig is still alive and kicking, running amok in his own filth," Willett argues. "The election of Donald Trump and his 'grab 'em by the pussy' regime mixed misogyny, mockery, and race privilege with delight. (Former New York Gov.) Andrew Cuomo's domineering behavior in politics echoed his sexually belittling actions in private. Both were proud of being jerks, personally and professionally, and both got called 'male chauvinist pigs.'"

The term "male chauvinist pig" had a lot of bite during the Gloria Steinem/Betty Friedan era of feminism. And the Archie Bunker character on Norman Lear's 1970s sitcom "All in the Family" was a textbook example of a fictional "male chauvinist pig" in pop culture.

Willett, author of the book "The Male Chauvinist Pig: A History," discusses the origins of the term, noting that before the 1960s, racists were sometimes described as "White chauvinists" — and 1960s-era feminists applied the "chauvinist" concept to women's rights.

"In the 1960s, as feminists — many of them red-diaper babies — created their own networks, they adopted the language to name patriarchy," Willett recalls. "Pig was an obvious addition, an old insult for those holding corrupt power. Its historical links to racialized policing perhaps led to 'pig' as a moniker for White police terror."

Willett notes that while the Black Panthers, during the 1960s, used the "pig" concept to attack racists, feminists applied it to sexists.

"Huey Newton of the Black Panther Party said…. 'pig' was chosen to show 'grotesque qualities' and create a 'detestable' picture 'that takes away the image of omnipotence' of the White power structure," Willett notes. "The male chauvinist pig thus captured feminist fury as intertwined with other movements on the left: against nationalism, against racism, against capitalism and against cops. As activist Robin Morgan explained in the underground newspaper Rat in 1968, women wanted to target 'all the good old American values.' The insult did just that."

Willett adds, however, that some men — for example, the late far-right talk radio host Rush Limbaugh — considered it a badge of honor to be called a "male chauvinist pig."

"This embrace of what was meant to be derogatory rendered the real complaints of women unserious," Willett observes. "By the 1990s, Rush Limbaugh proudly called himself a pig. He could take a joke; why couldn't the women he called 'feminazis?' Cuomo, similarly, dismissed his female accusers as humorless, allowing him to frame his own actions as benign. Cuomo's political demise may indicate that this tactic no longer works, that the chauvinist pig has been put in his place. But then again, they say Trump could run in 2024."

Biden lifts Trump abortion 'gag rule' that targeted women using family planning clinics

The Biden administration is lifting a Trump-era rule imposed on family planning clinics receiving federal funding, which banned them from referring patients to abortion service providers.

As a result of the Trump administration move many family planning clinics left the program in protest, but starting November 8 that rule will be gone, freeing up hundreds of millions of dollars in federal funds, the Associated Press reports.

"The Department of Health and Human Services said its new regulation will restore the federal family planning program to the way it ran under the Obama administration, when clinics were able to refer women seeking abortions to a provider," the AP adds. "Women's groups labeled the Trump policy a 'gag rule,' and medical organizations called it a violation of the clinician-patient relationship."

The announcement comes on the first day of the news U.S. Supreme Court's season, one in which it will review a case that could blast a hole through the 1973 Roe v. Wade decision securing the right to an abortion.

'Not ashamed': Democratic congresswomen testify about their personal abortion stories

Reproductive rights advocates on Thursday expressed gratitude to three Democratic congresswomen ahead of their testimonies at a House Oversight Committee hearing on protecting abortion access, as Reps. Cori Bush (D-Mo.), Pramila Jayapal (D-Wash.) and Barbara Lee (D-Calif.) planned to share their own personal stories of obtaining abortion care.

"Thank you for your vulnerability to advance justice," said Rep. Ayanna Pressley (D-Mass.) on social media to her colleagues ahead of the hearing.

The three lawmakers are testifying at the committee's hearing on "Examining the Urgent Need to Protect and Expand Abortion Rights and Access" beginning at 10:00am.

Watch the hearing below:

Examining the Urgent Need to Protect and Expand Abortion Rights and Access in the United States. www.youtube.com

"Today, I am testifying before you because I want you to know there are so many different situations that people face in making these choices," said Jayapal. "It is simply no one's business what choices we as pregnant people make about our bodies."

On Wednesday evening, Bush, Jayapal, and Lee also shared their personal stories in an interview with MSNBC correspondent Ali Vitali.

"When I found out that I was pregnant it was very difficult because I still didn't understand what was happening," said Bush, who became pregnant as the result of being raped at the age of 17. "I just knew I wasn't ready for a child."

"I am not ashamed," Bush said on Twitter Wednesday.

Jayapal shared that she had an abortion after getting pregnant following her first "incredibly difficult pregnancy," after which she suffered severe postpartum depression.

"I just realized that there was no way I could have another baby at that time and that I could not go through what I had gone through," said the congresswoman.

The hearing comes days after the House passed the Women's Health Protection Act, which would ensure access to legal abortion care in every state, and is being held amid increasingly extreme attacks on reproductive rights in Republican-led states, including the passage of Texas' six-week abortion ban, S.B. 8. In December, the Supreme Court will hear arguments in a Mississippi case which directly challenges Roe vs. Wade.

"The Senate and the White House must act swiftly to pass [the Women's Health Protection Act] and sign it into law," said Pressley at the hearing. "It has been 30 days since the Texas law went into effect. Each day that goes by without congressional action more and more people are denied their constitutional right to critical abortion care."

How family courts are skewed against women

The last few years have seen the growth of groups who call themselves "Men's Rights Activists." These are often men who think feminism has gone too far and now men are the oppressed group. Some of their favorite issues are poor incels, circumcision, rape laws run amok, and of course, that the family court system is biased against men.

While the general public has mostly dismissed these rallying cries as misogynistic and ridiculous, though incels seem to garner a bit too much sympathy for comfort, somehow the idea that the family court system is biased against men has stuck. Maybe it's because that myth is actually based on a patriarchal idea that women are natural caregivers who should be home with their children. In reality, the family court system, like most systemic systems, is biased against women and mothers, and regularly rewards abusive men.

One way the myth that family courts are biased against men is the misuse of statistics. While it is more likely that women get custody of children after a divorce, about 68-88 percent across jurisdictions, 91 percent of custody agreements are decided without any court interference and in 51 percent of child custody cases, both parents mutually decided that the mother would have full custody.

How can courts be biased when they're not even involved? Additionally when a judge gets involved and awards the mother custody, it's often based on outdated gender stereotypes or the assumption that men don't want full custody (that's not exactly a feminist victory).

Men's Rights Activists will use the fact that women usually get full custody of children as proof that the system is biased against men without including the context that most men don't fight for full custody. It's also important to note that an arrangement with mothers having full custody doesn't mean fathers never get to see their children. Mothers are often awarded full physical custody so that children aren't shuffling between homes during the school week.

Women are more likely to get custody, which means they're also more likely to get child support orders — a fact that, of course, serves the myth that the family court is biased against men. I'm sure you've all seen narratives about women spending their exes money meant to support children. Unfortunately, despite the orders, only 44 percent of child support orders are collected in full and about 30 percent of those owed child support received no payments at all. Single parent households are more likely to be headed by women and more than 30 percent of households led by unmarried women live in poverty (compared to 15 percent of households led by unmarried men).

Unfortunately, when one considers divorce cases where there is actually abuse, we do see there is family court bias — in favor of fathers. Many of the custody cases that go to trial involve domestic abuse of some kind. These are called "high conflict" divorces.

The abuser often controls the money and can afford a better lawyer while appearing more amenable and "stable" in court. In contrast, an abused woman might appear emotional and combative, which can turn off a judge and be used against her. Additionally, family courts favor the parent who wants to maintain the children's relationship with the ex. If a woman is afraid of her abuser, she's not inclined to prioritize contact with her ex. Abuse results can often make a woman seem less fit as a parent. She might have PTSD or have been isolated from a support system. If a woman seems angry or too emotional in court, this will be used against her. Accusations of abuse will also be suspect as opposing counsel can dismiss them as a ploy to win custody.

Battered women's advocates suggest that many high conflict divorces result from abuse even if it isn't brought up during litigation. While there isn't much research on the subject, a 1997 study suggests that domestic violence is an issue in 20-55 percent of contested custody cases. A 2004 study actually showed that bringing up domestic violence during a custody battle made it more likely a woman would lose custody of her children. However, if a mediator discovered the abuse without the mother bringing it up, they were likely to recommend forms of protection like supervised visits.

Unfortunately, children testifying to abuse doesn't always help, even if the children are the ones being abused. In 1985, child psychologist Richard Gardner coined the term "Parental Alienation Syndrome" to describe a set of behaviors he saw in children to explain why they were hostile or afraid of one parent. The "syndrome" was famously used by Woody Allen against Mia Farrow to discredit Dylan Farrow's abuse. Parental Alienation Syndrome (PAS) has no empirical studies backing it up, was excluded from the DSM and has not been accepted by major medical or psychiatric associations. But that hasn't stopped courts from accepting evidence of PAS to ignore testimony about abuse.

Richard Gardner was convinced there was hysteria around false sexual abuse claims in the 1980s, which likely colored his work. His 1987 book on the syndrome, The Parental Alienation Syndrome and the Differentiation Between Fabricated and Genuine Child Sex Abuse is full of sexist explanations for why he thought a "vindictive" mother, because of course he said it was usually mothers, would want to turn a child against their father using false sexual abuse allegations including the classic "Hell hath no fury like a woman scorned." Gardner would recommend that children be placed with the spouse who didn't "concoct" false sexual abuse allegations over the child's objections.

While some parents claim PAS is real, and while some parental alienation might exist, there is no proof of a recognizable syndrome. Unfortunately, that doesn't stop some courts from still considering it. One study found that abuse claims make it more likely the person bringing up the allegation loses custody and that alleging parental alienation by a father doubles the likelihood a mother loses custody.

As long as our larger legal system is biased against women, and populated by judges with patriarchal conditioning, the family court system will replicate those biases. We can't allow decontextualized statistics about custody to blind us to the reality of the family court system's complicity in covering up abuse. Family courts must have better screening systems for abuse, must not be immediately suspect of abuse allegations, and absolutely must connect physical abuse to parenting skills. Claims that the family court system is biased toward women are not only wrong, but serve to hide the ways in which abusers are able to manipulate the system for their own benefit.

What would justice look like if all missing women got the attention Gabby Petito did?

The mysterious disappearance of Gabby Petito took the internet by storm. Gabby Petito's boyfriend, Brian Laundrie, returned home from a heavily documented road trip without her. Because there was so much information available online, her story captivated true crime fans and led to amateurs combing through every social media post.

The fact that Laundrie, the obvious suspect, had fled authorities only added to people's intense interest. Despite the intense media attention to the case, something many have rightly pointed out only happens if the victim is young, pretty and white, Gabby's body was found in Wyoming and her cause of death has been ruled a homicide. As this article is being written Laundrie has still not been captured by authorities after being on the run for five days.

Women in particular are drawn to true crime stories, especially those where other women are the victims of domestic violence, because we live with the danger of that violence in our everyday lives. Seeking out true crime stories not only provides us with tools to learn about our fears, and hope that if we learn enough we can protect ourselves, but also hopefully access the possibility of justice that in real life is sorely lacking in response to violence against women.

Domestic violence is the leading cause of physical injury to women, and more than half of female homicide victims are killed as a result of intimate partner violence. Currently 25 states have some form of "mandatory arrest" law for domestic violence but many of those laws still require the officer's discretion to determine if there has been a domestic violence incident. A 2009 study found that in 70 percent of police investigated domestic violence incidents prosecutors decline to bring charges. When men are convicted for killing an intimate partner, they only serve 2-6 years in prison on average.

In Utah, where police responded to a domestic violence 911 call about Brian Laundrie slapping Gabby Petito, the law is written with a lot of police discretion: "If the peace officer has probable cause to believe that there will be continued violence against the alleged victim, or if there is evidence that the perpetrator has either recently caused serious bodily injury or used a dangerous weapon in the domestic violence offense, the officer shall arrest the alleged perpetrator into custody." Police had the 911 call that reported that Laundrie slapped Gabby Petito multiple times and chased her down, but body cam footage shows the police joking with Laundrie about histrionic women and only urged the couple to spend the night apart. They had the ability to arrest Laundrie under the mandatory arrest domestic violence law, but claimed there was insufficient evidence.

Historically, true crime interest has been more prurient and lurid. It first developed in the 19th century with newspapers sensationalizing the murders of young women. They would be described as beautiful and drawn in sexualized poses in death. The public couldn't get enough of reading about young unmarried murdered women like Helen Jewett, but the press coverage rarely resulted in convictions even when police made an arrest. Instead the men who killed these women were let off with bizarre defenses like sleep walking or accidental drowning with no water in the lungs. The "beautiful female murder victims" were all young, white unmarried women. Black women weren't even seen as victims by society and the violence against them went unnoticed as well as unpunished.

Very little has changed in terms of prosecuting violence against women. White women, like Gabby Petito, still get the attention of the media while Black and brown women are completely ignored. Black women experience intimate partner violence at a rate 35 percent higher than white women and over half of Indigenous women have experienced physical violence by an intimate partner.

Despite the outsized media attention in Gabby's case and the large public interest, statistics tell us she will likely never get justice. Gabby's experience of domestic violence was still ignored by police, supporting the idea that police shouldn't even handle domestic violence, and murdered. Gabby's likely murderer is on the run and even if he is caught might never be convicted. Interest in her case was not out of a deep concern for domestic violence and harm to women, but instead because young, pretty, murdered white women make good tv. However, that interest still helped to find her body and give her family some answers. In some cases the media interest in missing white women can actually help us find them alive. So while our true crime obsession rarely leads to actual justice for murdered women, if we put some of our attention to missing Black and Brown women we might bring a few more of our sisters home.

Consider supporting the Black & Missing Foundation and the National Indigenous Women's Resource Center.

The dirty secret behind Texas' anti-abortion law

Texas, with the help of conservative justices on the U.S. Supreme Court, has made abortion all but illegal for most pregnant people living within state borders. Republican state legislators passed a draconian and diabolically innovative bill that Gov. Greg Abbott signed into law in May ensuring that all abortions after six weeks of gestation can be subject to lawsuits brought by any individual anywhere against anyone involved in the procedure. That includes the patient, their medical provider, or even their Lyft driver. Those seeking abortions will likely need to leave Texas, effectively making the procedure out of reach of the poorest residents of the state.

Blair Wallace, of the American Civil Liberties Union of Texas, told NBCNews.com, "We know the brunt of this will fall on our Black and brown communities and our poor communities the most." Only those with the financial resources and ability to take time off work can travel to neighboring states to terminate a pregnancy. Already abortion providers in Louisiana are fielding calls from desperate Texans seeking abortions, leading to longer wait times.

Imani Gandy, senior legal analyst for RewireNewsGroup.com, explained to me in an interview that the Texas law is "really, really pernicious," because it is "using taxpayer dollars to provide a bounty for bounty hunters to go attacking or harassing abortion providers."

In fact, the hundreds of Republican-led state-level legislative attacks against abortion have cost taxpayers millions of dollars in legal fees of both pro-choice and anti-abortion forces. According to the Washington Post, "states have paid at least $9.8 million in abortion providers' [attorney] fees," in the last four years alone. This is money that could be put to better use—such as providing health care to low-income residents that includes abortion and other reproductive medical care.

For a party that has been railing in favor of "individual liberties" when it comes to lifesaving masks and vaccinations during a pandemic, asserting that a series of electrical impulses between newly formed cells are more important than a person's bodily autonomy is the height of hypocrisy and reeks of performative politics.

Indeed, Republicans may be victims of their own success, having relied on the Supreme Court for years to preserve the seminal Roe v. Wade precedent against most egregious anti-abortion laws in order to score political points with evangelical voters. According to one legal analyst for Slate.com, Mark Joseph Stern, "it seems undeniable that Republicans did not anticipate this abrupt triumph over Roe, instead assuming that the Texas law would be blocked by the courts."

Gandy called the Texas law "patently unconstitutional," and pointed out that "no federal appeals court has upheld" it, which is why pro-choice activists and legal scholars had expected the nation's highest court to intervene. Except that the Supreme Court is currently, as Gandy described, "hyperpartisan and captured by conservatives."

Of the five justices who chose to let the ban remain, three were appointed by former President Donald Trump as a gift to evangelical voters. Robert P. Jones, author of White Too Long: The Legacy of White Supremacy in American Christianity, wrote a year ago that "white evangelicals' political behavior is animated by racial resentment," and that this demographic "will be the most powerful force in hindering this work for racial justice and reconciliation." Given that low-income people of color are likely to be the most impacted by the Texas ban, this prediction appears prescient.

It isn't solely Trump's fault that the right to an abortion is on its way out. Maine's supposedly moderate and pro-choice Republican Senator Susan Collins in 2018 cast a deciding vote for Trump's anti-abortion nominee for the Supreme Court. In voting to confirm Justice Brett Kavanaugh, who was one of five justices choosing to let the Texas abortion ban stand, Collins now bears partial responsibility for beginning the end of abortion rights in the United States.

Even Democrats bear some blame. A party that has upheld the right to an abortion as the centerpiece of its feminist agenda has done remarkably little to ensure the law is preserved from the Supreme Court's increasingly activist conservative justices. In the nearly 50 years since the Roe v. Wade decision, Democrats have enjoyed political power in the House, Senate, and White House simultaneously four times—under Presidents Jimmy Carter, Bill Clinton, Barack Obama, and now Joe Biden—and could have passed legislation protecting the constitutional right to an abortion so that it didn't hinge on the Supreme Court's political makeup.

In the short term, corporations like Uber and Lyft have offered to pay the legal fees of any of their drivers who might get sued for transporting a pregnant person to get an abortion. Some celebrities are announcing their own boycotts of the state of Texas, and the city of Portland, Oregon, is also considering a boycott.

But none of these commercial responses are a substitute for decisive government action ensuring that all Americans, especially low-income communities of color, have an equal right to access abortion care. In the wake of the Texas abortion ban taking effect, House Speaker Nancy Pelosi announced that the House of Representatives would soon take up a vote on the Women's Health Protection Act, which, if passed, would ensure that the right to an abortion was cemented in law.

While Gandy denounced Democratic inaction, saying, "we've had Democrats in office that have not bothered to codify Roe," she added that the lawmakers' inaction "really underscores how powerful the anti-abortion lobby is." A majority of Americans support the right to an abortion, and yet the demands of the anti-abortion minority have held the nation hostage to its whims.

Although Biden's Justice Department has filed a lawsuit and is seeking an injunction to stop the law from being enacted in Texas, critics point out that it is a long shot. Now, six other states, including Florida and Mississippi, are hoping to follow in Texas' footsteps and pass similar abortion bans. The train has left the station, so to speak.

In addition to legislation like the Women's Health Protection Act, activists want Biden to use his executive powers right now to protect abortion access. Kristin Ford of NARAL Pro-Choice America said, "The White House should make clear their commitment to this critical legislation to ensure no other state has the opportunity to follow in Texas' footsteps."

According to Gandy, "the bottom line is, there will always be abortion." In light of the Texas ban, the questions center on "how people are going to access it, and who the lack of access is going to affect most—which is poor people, and people of color."

Nations like Poland and Nigeria offer a glimpse of the mental and physical toll in store for Americans if the Texas ban were to take hold nationwide. Polish women are suffering from a mental health epidemic as a result of their nation's abortion ban. In Nigeria, dangerous back-alley abortion procedures are endangering lives.

Other nations offer a different path. Shortly after the Texas ban took effect, Mexico's Supreme Court decriminalized abortion, setting the stage for a nationwide legalization of the procedure. And, in France, where abortions are legal for pregnancies up to 12 weeks of gestation, the government says it will begin offering free contraception for everyone under the age of 25.

Here in the United States, California is bucking the terrifying state-by-state anti-abortion trend by considering a bill that will make the medical procedure cheaper, and even free of charge. Already it is one of only six states that require health insurance plans to cover abortion care. California State Senator Lena Gonzalez said, "We're taking a stance, not just to make abortions available but to make them free and equitable." Indeed, if such a trend were pursued nationally, the right to control one's body would not be relegated to the privileged among us.

Sonali Kolhatkar is the founder, host and executive producer of "Rising Up With Sonali," a television and radio show that airs on Free Speech TV and Pacifica stations. She is a writing fellow for the Economy for All project at the Independent Media Institute.

This article was produced by Economy for All, a project of the Independent Media Institute.

Jim Crow tactics are reborn in Texas abortion law

by Stefanie Lindquist, Arizona State University

The new Texas law that bans most abortions uses a method employed by Texas and other states to enforce racist Jim Crow laws in the 19th and 20th centuries that aimed to disenfranchise African Americans.

Rather than giving state officials, such as the police, the power to enforce the law, the Texas law instead allows enforcement by “any person, other than an officer or employee of a state or local governmental entity in this state." This enforcement mechanism relies solely on citizens, rather than on government officials, to enforce the law.

This approach to enforcement is a legal end-run that privatizes a state's enforcement of the law. By using this method of enforcement, state officials are shielded from being sued for violating the Constitution, and the law is made, at least for a time, more durable.

The U.S. Justice Department filed suit against the state on the grounds the law violated a woman's constitutionally protected right to terminate a pregnancy before fetal viability. In its suit, the Justice Department specifically cites one of the cases that was brought over a Texas Jim Crow law that excluded Blacks from participating in primaries, which was struck down by the Supreme Court in 1944.

Privatizing discrimination

Following Reconstruction in the South, Texas banned African Americans from voting in party primaries in a law adopted in 1923. This was an example of Jim Crow, a system of laws and customs that institutionalized anti-Black discrimination in the U.S.

When this state law was challenged before the Supreme Court and struck down in Nixon v. Herndon in 1927, the Texas Legislature responded in 1928 with a tricky maneuver much like the current Texas abortion law. Texas repealed the offending statute and enacted legislation that specifically delegated to political parties the power to determine “qualifications of voters in primary elections," thus seeking to take the state out of the equation.

By putting that power in the hands of private parties, allowing them to discriminate against and prevent African Americans from voting, the state sought to avoid legal rules, based on the Constitution, that required “state action" before a law could be struck down. Essentially, the state contracted out the dirty work of denying Black Texans the right to vote.

In the landmark 1944 ruling in Smith v. Allwright, the Supreme Court “looked behind the law and ferreted out the trickery," as expressed by future Supreme Court Justice Thurgood Marshall, who argued the case at the court. The court ruled that no matter how “uninvolved" the state of Texas attempted to be, primary elections involved state action sufficient for purposes of a successful lawsuit under the 14th Amendment.

The court concluded that the constitutional right to vote “is not to be nullified by a state through casting its electoral process in a form which permits a private organization to practice racial discrimination in the election."

Not giving up

Democratic Party members in Texas, bent on prohibiting African Americans from voting, turned to yet another privatization strategy to accomplish their objectives.

Since 1889, the “Jaybird Association" in Fort Bend County, a Democratic political organization that was made up exclusively of qualified white county voters, ran its own “pre-primary" to vet and select Democratic candidates for office. Blacks were excluded from these privately run contests. This selection process determined who would run in and likely win the Democratic primaries, which effectively meant only whites would gain those offices.

Blacks in the county sued. Yet again, in the 1953 ruling in Terry v. Adams, the Supreme Court invalidated this privately run primary process as a violation of the Constitution. As the court pointed out, the “Jaybird primary has become an integral part, indeed the only effective part, of the elective process that determines who shall rule and govern in the county."

The court's ruling invalidated similar privately enforced discrimination in voting in other states, such as South Carolina.

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Resurrecting Jim Crow

The new law, formally called the Texas Heartbeat Act, constitutes a similar attempt by the state to privatize enforcement of state policy – all in an effort to prevent legal moves that would stop it from going into effect.

Texas has resurrected a decades-old technique that it used during the Jim Crow era to insulate its discriminatory laws from constitutional review in the courts. And by delegating enforcement authority to private individuals, Texas has transformed its population into a cadre of private law enforcers. Now that the federal government has sued the state over the law, the courts will be in a position to review the constitutionality of the statute.

Nevertheless, the statute raises grave issues about how states go about enforcing their policies. Will Texas voters appreciate that the state has resurrected a Jim Crow-era mechanism to avoid legal responsibility for its policies?The Conversation

Stefanie Lindquist, Foundation Professor of Law and Political Science, Arizona State University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

How Ruth Bader Ginsburg envisioned changing Roe v. Wade

Buckle up for my fourth column on the state of abortion in less than two months and my third addressing the new Texas six-week abortion ban. It looks like the federal government is interested in taking up the fight, but how successful it will be is still left up in the air. When facing gerrymandered Republican controlled states and a Trump-packed federal judiciary, we need to fight these laws with every tool we have. That means grassroots advocacy and support, federal lawsuits and, hopefully, federal legislation. I know this is all overwhelming, which is why I'll write as many columns on abortion access as we need.

The United States Supreme Court allowed a six-week abortion ban in Texas to go into effect, because it found the new procedural questions just too baffling to handle. Apparently, if you want to pass a blatantly unconstitutional law, all you have to do is ignore longstanding civil procedure and have civilians enforce your law through civil court, thereby bypassing the need for state actors! Sorry, but you too would be snarky if you had been covering this ridiculous law that would be laughed out of a 1L civil procedure class for almost two months.

Anyway, with the decision by SCOTUS to let the law go into effect, the likelihood of a successful judicial challenge remains unclear. Luckily, a lot of people are still trying. There was a small judicial victory last week when a Texas judge temporarily blocked one anti-abortion group from suing one abortion provider. Judge Maya Guerra Gamble's ruling stops Texas Right To Life from suing any workers or abortion providers at Planned Parenthood clinics. While it doesn't do anything to the law generally, the ruling does take a step to protect those providing abortions and stop one of the groups most dedicated to funding suits under the new law.

Judge Gamble managed to see the clear harm where SCOTUS was confused when she wrote "The Court finds that SB 8 creates a probable, irreparable, and imminent injury in the interim for which plaintiffs and their physicians, staff and patients throughout Texas have no adequate remedy at law if plaintiffs, their physicians, and staff are subjected to private enforcement lawsuits against them under S.B. 8." This same group, Texas Right to Life, also faced a setback when GoDaddy gave it 24 hours to find a new host for its website. The group moved to Epik which has a history of hosting controversial conservative sites. Despite Judge Gamble's ruling, many Texas abortion providers will still be wary about performing abortions under the new law and it will still serve to make abortions more difficult to access even without enforcement. The ruling will more likely save clinic workers from harassment and frivolous suits temporarily, an important aspect, than actually help people access abortions.

While the exact path of judicial challenges remains unclear, because Texas purposely is trying to thwart judicial review without including state enforcement, the Justice Department has brought suit against Texas in a US District Court in Austin. The Justice Department's complaint uses appropriately strong language to call out Texas' clearly unconstitutional law and, in fact, says that SB8 was enacted "in open defiance of the Constitution." It also plainly addresses the motivation behind the law which is to escape judicial review.

The suit also says that SB8 unconstitutionally impairs federal interests by prohibiting federal actors and agencies from "carrying out their responsibilities under federal law related to abortion services." The Hyde Amendment, which prohibits federal funding from going to abortions, has three exceptions that allow for the federal government to support abortions in the cases of the life of the mother or rape or incest. SB8 has an exception if the life of the mother is at stake but not in the cases of rape or incest and so, the complaint argues, could interfere with federal actions. Abbott has defended the law not having rape or incest exceptions by promising to eliminate rape and by claiming a six-week abortion ban provides six weeks to get an abortion if raped (best case scenario, it only provides two weeks). While we have no idea if this legal challenge will work it seems likely that it is just the first federal attempt to protect abortion rights.

Considering the conservative lean of the federal judiciary right now, thanks to Trump pushing through so many judges, many are looking to a legislative solution to the abortion crisis. After the Supreme Court's decision to let SB8 stand, Speaker Nancy Pelosi announced the House will vote on the Women's Health Protection Act, hopefully enshrining abortion protections into federal law. The WHPA would make it a right for patients to access abortion care and for healthcare workers to provide abortions. The WHPA is often described as a law that would "codify Roe" into law. While it doesn't literally write it into law, it does use similar justifications of the rights of doctors to protect pre-viability abortions. It protects against unnecessary procedures and restrictions as well as post viability abortions if there is a "good faith" determination by a medical provider that its necessary.

Now I hope this legislation makes it into law, and that somehow the Senate votes for it or we manage to get rid of the filibuster, but I think we can actually enshrine abortion into law with even stronger protections. Roe was decided based on a guaranteed right to privacy which was built on the legal justifications for a right to birth control in Griswold v. Connecticut. Many legal scholars, including Ruth Bader Ginsburg, think a privacy justification is a weaker legal foundation.

Ruth Bader Ginsburg argued for abortion protections based on an equal protection justification rather than privacy or any free exercise of the rights of a physician. Not only did Ginsburg think this would be a stronger justification legally, that would better hold up under further scrutiny, but it also has the benefit of being the real reason we need abortion protections. Without strong protections for reproductive healthcare women, trans men, and non-binary people can never have equal access to society or be treated equally.

The GOP's fight against abortion won't lose it many friends — but it will create new enemies

For today's edition of the Editorial Board, I have at the ready a tall pitcher of ice-cold water. I'm going to pour it all over a sizzling hot take I saw in the wake of the new law virtually outlawing all abortion in Texas, a law that's going to be copy-catted by other GOP-controlled states. The hot take was summed up on Friday by Will Wilkinson. "Roe makes the GOP safe for moderately conservative white women they're already losing in droves," Wilkinson said. "Expressive, grandstanding anti-abortion politics is one thing. The clear and present danger of losing control of your body and your life is another thing altogether. It creates a visceral sense of threat that cuts across party lines."

Now why would I want to pour ice-cold water over a hot take like that? Will Wilkinson is a nice guy and singular mind to boot! Well, for one thing, I don't think conservative white women are going to be animated by the United States Supreme Court's lawlessness the same way liberal white women are going to be. (We can't just ignore 50 years of legal precedent, but the high court did.) I'll get to this more in a moment, but let's say for now that the Democratic Party has been annoyingly hesitant to take on "culture war" issues for fear of driving conservative white voters away. With this new development, it's not hard to see a Democratic Party going all-in on the "culture war."

As for conservative white women, well, that's where the ice-water is needed. Presuming some of them, especially the suburbanites, will move over to the Democratic column is itself based on presumption — and it's that presumption we need to talk about. That presumption is the new Texas law, and similar laws enacted in other states, will regulate the bodies of all women. It presumes there is one system of justice. It presumes the rule of law applies equally. If that were the case, there would be no point in outlawing abortion. It never was about fetuses. It's about restoring America to its original, natural and "constitutional" state in which citizens are separate and unequal.

Think of it this way. White women, not just conservative women, already understand at some level that they are the exception to the rule of law on account of being white women. They understand this to the extent that none of them would trade places with a non-white woman knowing full well how non-white women are treated by law enforcement and society in general. Add to this established context the fact that enforcement of the new law does not come from the state. It comes from private citizens incentivized to sue anyone enabling abortion services thanks to the creation of a bounty system. There are two reasons for taking enforcement out of the hands of the state. One, to avoid federal litigation (though that's to be seen). Two, to abandon the legal obligation to enforce the law equitably. It might take a while, but over time, all white women, not just conservative white women, will figure out the abortion ban does not apply to them.

But what about the six-week time frame? It's true that the law forbids abortion after six weeks, which is usually before most women even know they are pregnant. I think we should be asking ourselves why Texas lawmakers even bothered with it. You could say because that's when an embryo's heart cells start thumping, but let's not accept the GOP's bad faith. Let's imagine that Texas lawmakers understood the need for plausible deniability — that people who are the exception to the rule of law still need a period of time to get around a law. And let's imagine that that period of time is around six weeks. In that case, it's not hard to imagine the creation of an informal network of doctors and patients that understands the need for medical records showing pregnancies at 12 weeks are under six on paper. Corruption begets corruption. A law incentivizing lawlessness will be understood for what it is by doctors prepared to price-gouge vulnerable white women.

It's often said rich white women will have access to all the abortion services they need, law be damned, while poor white women will left behind. While I'm sure that will be the case some of the time, let's not underprice the immense wealth that comes with being white in Texas. All white women, not just rich white women, will in time figure out that the abortion law does not apply to them. To the extent that some are screwed by the law, well, they probably vote Democrat anyway, not because of any abortion ban, but because they are poor. The real white working class, earning less than $50,000 a year, tends to vote blue.

So let's dispense with the idea that the Republican Party might end up losing voters they need on account of passing laws similar to the one in Texas. As I said, lawlessness imperiling women's freedom is not going to radicalize conservative white women who already understand they are, and their daughters are, the exception to the rule of law.

Who will it radicalize? The very people who should have been radicalized but were too busy going to brunch to notice the rights and freedoms being taken away from non-white people. Democratic white women will understand, I think, that they are the exception to the rule of law, too, but Democratic white women will probably reject the law and its unequal treatment on ideological grounds. These are the people to whom Democratic leaders are right now signalling to. These are the people who will likely push the party nationally into leaning into the "culture war" instead backing away from it, as it usually does.

Brett Kavanaugh played Susan Collins for a chump

Sen. Susan Collins isn't eating crow — at least not yet — about her support for right-wing political operative-turned federal judge Brett Kavanaugh to sit on the Supreme Court for a lifetime appointment after this week's surprise 5-4 decision effectively allowing a total abortion ban to stand, in contravention of the precedent set by the landmark Roe v. Wade decision.

When Collins was weighing her 2018 decision to support then-President Donald Trump's second nominee for Supreme Court, the moderate Maine Republican went on the cable news circuit to assure worried viewers that he seemed largely harmless. To make her point, Collins repeatedly said Kavanaugh would not overturn the precedent of Roe v. Wade, which established abortion as a constitutional right — using the example as a stand-in to make a larger point: she did not expect the court to undertake hardline right-wing actions, despite Kavanaugh's record and a resurgent right-wing Christian movement empowered by Trump.

Yet on Wednesday, the Supreme Court all but nullified the 1973 ruling in the country's second-largest state, setting up a path for other states to do the same. The court, led by all three of Trump's nominees, failed to block a Texas law that effectively bans the procedure before most women know they are pregnant. Perhaps most notable is the law's enforcement mechanism, which deputizes anyone — quite literally anyone — to file a lawsuit against anyone (again, in the literal sense) who assists another person in obtaining an abortion.

Those affected by the law may still file a legal challenge, though that process will likely take months. In the meantime, officials in several other states, including Florida and South Dakota, have already announced plans to enact similar laws.

In light of the Supreme Court decision, critics have dredged up Collins' past comments — and the numerous warnings she was offered before acting as the key deciding vote to approve Kavanaugh — giving progressives a bittersweet "I told you so" moment.

Podcast host Brian Tyler Cohen even put together a supercut of all the times Collins, on national television, said Kavanaugh would not overturn Roe v. Wade:

"Susan Collins was wrong about Kavanaugh and Gorsuch. She sold women out, and Maine voters should never forget that," George Takei, the actor and progressive activist, tweeted.

Left-wing media outlet Occupy Democrats weighed in as well: "Retweet if you haven't forgotten that Senator Susan Collins insisted that Brett Kavanaugh would defend Roe v. Wade before she voted to confirm him to the Supreme Court — and even called those of us who criticized her for putting abortion rights at risk "gullible" and "naive."

Collins weighed in on the decision Thursday, calling the Supreme Court decision "extreme and harmful."

She joined a host of high-profile Democrats, including House Speaker Nancy Pelosi and President Joe Biden, in their criticism of the measure.

Biden said in a statement it was "an unprecedented assault on a woman's constitutional rights under Roe v. Wade, which has been the law of the land for almost fifty years."

Pelosi also called on Congress to pass a law codifying Roe v. Wade — which would likely prove to be an uphill battle for the evenly-divided Senate, even given support from Collins and Sen. Lisa Murkowski, R-Alaska.

Any abortion bill would have to garner a 60-vote filibuster-proof majority to pass.

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