https://www.theguardian.com/commentisfree/2021/sep/02/roe-v-wade-texas-abortion-law-us-constitution
~~ posted for dmorista with introduction by dmorista ~~
Introduction:
As the U.S. reels from storms and floods in the East and wildfires in the West; as of midnight of August 31st a new social assault was launched against the women of America by the ultra-right regime of Greg Abbot and his antediluvian allies in the Texas State Legislature. The American right-wing has long railed against any use of public funds or resources to help the poor of the society and/or to ameliorate the many injustices inflicted upon them. Now, however, as a legal stratagem to avoid court rulings that prevent state governments from enforcing clearly unconsitutional laws, the State of Texas has enacted a law that encourages vigilantes to file lawsuits against anybody who “aids or abets” a woman seeking an abortion after there is a “fetal heartbeat”. This is “privatization” carried out to an extreme never seen in the U.S. before, and inconceivable in most of the developed world.
Some legal analysts do not think that Texas can, or will, enforce the law on people assisting women to leave the state to obtain an abortion in another state. Lawrence Tribe, a law professor at Harvard disagrees. His reasoning on that issue as well as the other negative aspects of this type of social control strategy is discussed in the first article, from The Guardian, posted here. There has already been a 400% increase in women appearing at abortion clinics in neighboring states.
The American right-wing, lavishly supported by the ultra-right rich, has managed to set up a Supreme Court with a 6 – 3 majority that supports reactionary social policies, some of which only have about 15% support among the population, and none of which have majority support. However, the membership of the Supreme Court, that is currently at 9, is not set by the Constitution but is set by Congress by the passage of legislation. Also the Constitution does not mandate life-time terms for the members of either the Supreme Court or the “lower” courts. The number of justices on the Supreme Court has been changed 7 times during the history of the nation. The current situation is dire and certainly crosses the threshold for action of this sort. The Website, Demand Justice, discusses various issues of the U.S. Federal Court system. This post includes some thoughts they have about the Supreme Court.
Some who read and comment here at Leftist Politics might dismiss this as “useless reformism”. I do not agree, while I don't think efforts at these sorts of reforms should be the leading component of the efforts of leftists, we certainly should support these worthy efforts as carried out by the sort of people who concentrate their efforts on such initiatives.
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Article:
For years, as the supreme court’s composition kept tilting right, reproductive rights have been squarely on the chopping block. Now they are on the auction block as well.
Observers have speculated how today’s new ultra-right court would commence the slicing: by chipping away slowly at Roe v Wade? Or by taking the political heat and overruling it outright? Few imagined that the court would let a statute everybody concedes is flagrantly unconstitutional under the legal regime of Roe not only go into effect without being judicially reviewed but become the centerpiece of a totally unique state scheme that puts a bounty of at least $10,000 on the head of every woman who is or might be pregnant.
It wasn’t just Roe that died at midnight on 1 September with barely a whimper, let alone a bang. It was the principle that nobody’s constitutional rights should be put on sale for purchase by anyone who can find an informant or helper to turn in whoever might be trying to exercise those rights.
That, after all, is how the new Texas law works. Its perverse structure, which delegates to private individuals anywhere a power the state of Texas is forbidden to exercise itself until Roe is overruled, punishes even the slightest form of assistance to desperate pregnant women. Doctors, family members, insurance companies, even Uber drivers, are all at risk if they help a woman in need. And the risk is magnified by the offer of a big fat financial reward for whoever successfully nabs a person guilty of facilitating an abortion once a heartbeat can be detected, typically six weeks after a woman’s last period, well before most women even know they are pregnant. There is not even an exception for pregnancies resulting from rape or incest. No law remotely like this has ever been allowed to go into effect.
The prospect of hefty bounties will breed a system of profit-seeking, Soviet-style informing on friends and neighbors. These vigilantes will sue medical distributors of IUDs and morning-after pills, as well as insurance companies. These companies, in turn, will stop offering reproductive healthcare in Texas. As of a minute before midnight on 31 August, clinics in Texas were already turning patients away out of fear. Even if the law is eventually struck down, many will probably close anyway.
Worse still, if women try to escape the state to access abortion services, their families will be on the hook for offering even the smallest aid. If friends or family of a woman hoping to terminate her pregnancy drive her across state lines, or help her organize money for a plane or bus ticket, they could be liable for “aiding and abetting” a now-banned abortion, even if the procedure itself takes place outside Texas.
Adding insult to injury, if a young woman asks for money for a bus ticket, or a ride to the airport, friends and parents fearful of liability might vigorously interrogate her about her intentions. This nightmarish state of affairs burdens yet another fundamental constitutional privilege: the right to interstate travel, recognized by the supreme court in 1999 as a core privilege of federal citizenship. Welcome to Gilead!
Many wealthy women will presumably still find ways to access care. But their poor, disproportionately minority sisters will be stuck, forced to face down the barrel of unimaginably cruel choices. Desperate women will still seek abortions but will be forced to do so on the black market and in back alleys. Fewer Samaritans will risk heavy fines or imprisonment to help them. Some will die trying.
What can be done? We can give up on this court and try pressuring Congress to pass the Women’s Health Protection Act, which would enshrine a federal statutory right to provide and receive abortion care free of these sorts of state schemes. But such a bill would die at the hands of Mitch McConnell, the minority leader, in a Senate filibuster.
And what if it were somehow to pass? Odds are that a court majority, despite having held that Congress is empowered to enact a nationwide ban on certain late-term abortions because medical procedures are part of interstate commerce, would suddenly “discover” new limits on the reach of the commerce clause as a source of congressional power and strike the act down. When the court so casually lets a law that flouts its precedents take effect, all bets are off.
Or are they? Maybe even justices deeply hostile to abortion rights can be persuaded to balk specifically at the unprecedented financial incentives this grotesque law creates to put a price on the head of every pregnant woman or girl. Shades of sex slavery and prostitution might put this privatization of law enforcement in a light even conservative jurists find unbearable. What if women chilled by this business model, or those seeking to help them to avoid unwanted motherhood, were to sue the Texas authorities who stand ready to disburse $10,000 bounties for each forbidden abortion detected or prevented?
As Justice Sotomayor said in her dissent – there were four dissents in all – the Texas law “is a breathtaking act of defiance – of the constitution, of this court’s precedents, and of the rights of women seeking abortions throughout Texas”. After a puzzling silence of a day and night, “the court finally [told] the Nation that it declined to act because, in short, the State’s gambit worked.” Even if not a single justice in the 5-4 majority rejects the ability of a state to “evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry”, and even if all five of the justices in that majority stand ready to trash Roe v Wade, maybe at least one of those justices would agree that no state can hand out financial rewards to people – not only citizens in Texas but people from anywhere in the country, perhaps the world – shredding the constitution of the United States?
At least it’s worth a try.
Laurence H Tribe is the Carl M Loeb University professor and professor of constitutional law emeritus at Harvard University and an accomplished supreme court advocate. Follow him on Twitter @Tribelaw
Various suggestions for action by a reformist website:
Demand Justice at < Reform the Supreme Court: Demand Justice is leading the fight >
Our courts are in crisis
With a 6-3 Republican supermajority, the Supreme Court is too biased in favor of special interests and Republican politicians. Our democracy is at risk from decisions that suppress the right to vote.
Adding four seats is the solution—and we need your help to get it done. Congress can change the number of justices on the Court at any time with a simple piece of legislation, and it has done so many times throughout American history. Now, top Democrats have introduced a bill to add seats and restore balance. We need your help to get enough votes to make this bill a law.
Have questions about what it means to expand the court and why now is the time to get it done?
Frequently Asked Questions:
Why do we need to reform the Supreme Court?
We need to restore balance to the Supreme Court. With a 6-3 Republican supermajority, the Court is deciding cases in a consistently partisan, anti-democracy, pro-corporate direction. We need a Court that better reflects the whole country, not just special interests and the Republican Party.
To see how far tilted in one direction the Court is right now, you just need to look at what it’s been doing to our democracy. The Republican-appointed justices have opened the floodgates to unlimited spending in elections in cases like Citizens United, gutted the Voting Rights Act, and allowed partisan gerrymandering that benefits Republican politicians and special interests. We have to restore balance.
Why is adding seats the right solution?
Adding four seats is the only way to restore balance to the Court immediately. Adding seats to the Court is straight-forward, constitutional, and grounded in history. All it takes is a bill passed through Congress and signed by the president. And there’s nothing new about the idea of adding seats to the Supreme Court. The framers left it to Congress to decide how many justices sit on the Court, and Congress has changed the number of justices six times throughout history.
Where do things stand right now?
Reps. Hank Johnson, Jerry Nadler, and Mondaire Jones and Sen. Ed Markey have introduced a game-changing bill. Now we have to build a grassroots movement to win 218 votes to pass this bill in the House and 51 votes in the Senate. We have a once-in-a-generation, two-year window to pass this bill while Democrats control the House, Senate, and presidency.
We need to pressure every Democratic House member and senator to publicly announce their support for this legislation. We’ll do that by calling their offices, requesting constituent meetings, showing up at public events, writing letters to the editor, and taking other steps to blitz them with proof of how wide and deep the support is for this legislation. We must make these Democrats understand the urgency of cosponsoring this bill.
How does the fight for Court reform relate to other democracy reforms in the news?
As you have probably seen, there is a major effort among Democrats in Congress right now to pass democracy reform bills like HR 1 and the John Lewis Voting Rights Act. We believe all these bills are quite likely to pass in the course of the next year, with growing support for filibuster reform among top Democrats who had previously resisted it.
Our goal is to make the Judiciary Act part of this package of must-pass democracy reforms, and to pass it with 51 votes in the Senate just like we think will eventually happen with HR 1, the John Lewis Voting Rights Act and DC statehood. The rationale is clear: unless we reform the Court, all of these other proposals will be gutted by the Republican-appointed justices.
Can we really get this done?
Yes. The work ahead of us will not be easy, but we have the wind at our back. Support for adding seats to the Court has never been higher. The rush by Republicans to fill Ruth Bader Ginsburg’s seat last year produced a wave of support for this idea, and we picked up support from more than a dozen lawmakers like AOC to Ilhan Omar to Barbara Lee. Former Attorney General Eric Holder has announced his support. Alex Padilla, California’s newest senator who was picked to succeed Kamala Harris, announced he supports Court expansion before he was even sworn in. When Tom Cotton forced a vote in the Senate to try to make it harder to change the Court’s size, all 50 Senate Democrats voted together to keep the option of expanding the Court on the table. President Biden has announced a commission to study reforms, which is a sign that everyone now recognizes something must be done.
Much like the filibuster, Court reform is an idea that meets with initial resistance from people who have spent a lot of time in Washington but that will grow in support as people hear from the grassroots about why we clearly need it to save our democracy.
To convince Nancy Pelosi to bring this bill up for a vote on the floor, and Chuck Schumer to bring it up in the Senate, we need to show it will have the support of all Democrats. That’s why the first step is pressuring Democratic House members and senators to announce they will co-sponsor the Judiciary Act. That is the task in front of us–and we need all of you to make it happen
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