Deep in the Heartbreak of Texas: Why Its Virtual Ban on Abortion Matters to All of Us
This week of democracy-ish, Danielle and Toure discuss the new Texas abortion law and the state of reproductive rights in America.
Late on the night of Wednesday, September 1, the Supreme Court declined to block Texas Senate Bill 8, a new law that essentially bans abortion statewide. It sends an alarming signal: If given the chance, the majority conservative Court could overturn Roe v. Wade.
The law, which was drafted to be uniquely difficult to challenge in court, sets a dangerous precedent and all but enables other states to follow suit with their own restrictions on abortion.
This is a terrifying prospect for progressives who see reproductive rights as fundamental to our liberty. And it has reverberating effects for marginalized communities because the right to choose is a matter of racial and economic justice.
On this episode, Toure and Danielle are regretting all the times they pondered, tongue-in-cheek, whether we’ll have a country next week. Now, it seems like one of the constitutional rights we hold dear –– women’s bodily autonomy –– hangs in the balance.
“Do we still have America in parts of America?” Toure asks. “In Texas, we have perhaps the end of America.”
That’s because the U.S. Supreme Court refused to block Senate Bill 8, a law passed by the Texas legislature (sometimes referred to as the “Heartbeat Act”) that prohibits abortion beyond six weeks after conception. Because 85 to 90% of abortion procedures in the state happen after the sixth week, it amounts to a complete ban on abortion in the state, even though it has been constitutionally protected since the Roe v. Wade decision in 1973.
S.B. 8 restricts abortion in a more insidious way than any challenge to Roe v. Wade since Planned Parenthood v. Casey, the 1992 case that affirmed Roe, saying states may not impose an “undue burden” on the right to abortion before a fetus is viable outside the womb.
What’s worse: the uniquely pernicious construction of the law, which deputizes private individuals to sue anyone who performs abortion or “aids and abets” it. Drafted in a way that makes it difficult to challenge in court, S.B. 8 presents a profound threat to reproductive rights in the rest of the country.
Danielle puts it this way: The Republican party, or perhaps more broadly the right-wing zealots in power, are “enshrining Christian fundamentalism” in our statutes across the nation.
But we can’t look at the abortion issue in a vacuum. It’s part of a larger right-wing agenda that aims to restrict voting rights, dismantle the social safety net and perpetuate white supremacy across America.
If you’re not angry yet, you’re about to be.
Episode Highlights –– Mess with Texas
As Toure explains, the Texas law comes down to this: “Paying people to hunt and snitch on their fellow citizens.”
That’s not precisely the case, though –– which he’s quick to clarify.
“The state government of Texas is not going to pay people, but [a citizen] is able to file a civil lawsuit against an Uber driver, a friend, the receptionist at an abortion clinic, the janitor who cleans up that clinic and sue them in civil court for $10,000,” he explains.
Now, many of the abortion clinics that were still operating in Texas have shut their doors (with one reportedly providing services until 11:56 p.m. the night before the new law took effect).
“They cannot afford potentially being shut down by a bunch of fucking vigilantes,” says Toure.
Texas’ statute puts the legal exposure squarely on the enablers of abortion, not the patient who has the procedure. Already, Uber and Lyft have created legal funds “to defend their drivers against potential bounty abortion hunters,” Danielle notes.
From slave catchers to ‘deputized’ Texans
“Is there any other crime for which we are deputizing people to help the government track down people who participated in it?” she asks. “This sounds extraordinarily like slavery and––”
Toure knows exactly what she means: It evokes the mercenary “slave catchers” of America’s past –– specifically, the “agents” enabled by the Fugitive Slave Acts of 1850 and 1793.
The only things that come close are whistleblower laws, but those have a moral premise at their core. They provide protection (not a reward) for reporting wrongdoing.
“Can you imagine the fear and secrecy,” asks Danielle, “for every single person who’s like, yeah, I gave her 100 bucks. I gave her a ride. I checked her in. The depth of the attack on women this represents is unprecedented. It’s deep. It’s pernicious. It’s a mean-spirited law.”
Toure thinks that concept is lost on many who “live in blue states, who work in elite industries, who always want to shrug off what southern states are doing” –– as if the people who live in them have a choice to pack up and move “when political atrocities happen.”
Don’t call S.B. 8 ‘Sharia’
Now, “Florida is coming right on Texas’s heels,” says Toure. “I think we’re going to see a lot of red states –– Southern and Midwestern states controlled by Republicans like Kansas, Tennessee, Louisiana, Mississippi and Alabama saying we can do that too.”
Invariably, the Republican gubernatorial, senatorial and presidential candidates over the next few years will respond with: “This is the way America should go, because this is what Republican voters want,” he adds. “So we have ‘The Handmaid's Tale’ in Texas, coming soon to Florida and to a red state near you.”
Speaking of creepy religious extremism, Toure is also frustrated with people on social media calling this American Sharia law.
“No, you don’t have to degrade the characteristics or commandments of other religions in order to just call this what it is: Christian fundamentalism. It’s not Christian fundamentalism masquerading as the Taliban.”
And it’s specifically white evangelical Christian fundamentalism, the tenets of which are quite radical compared to the beliefs and social mores of most Americans. Yet, it’s now represented at the highest levels of power: the majority of the Supreme Court and a precariously large percentage of lawmakers on every level of government.
Calling the Texas law “Sharia” detracts from “the evil and the cruelty that’s always been the foundation for these radical right-wing conservatives,” she adds.
The unborn are ‘morally uncomplicated’
Danielle thinks progressives need to talk about it in these explicit terms or risk being “caught off guard” by states with Republican leaders who want to pass “copycat” laws.
“Folks on the right talk about “the unborn –– that's who we are standing up for,” says Toure. “But they don’t seem to care much … after they’re born, which I would think is more important, with safety net programs, early childhood public education and things that help them live.”
He points to Marc Lamont Hill’s recent Instagram post that featured a quote from Dave Barnhart, a pastor in Birmingham, Alabama, excerpted below:
The unborn are a convenient group of people to advocate for. They never make demands of you; unlike the incarcerated, addicted or the chronically poor; they are morally uncomplicated. They don’t resent your condescension or complain that you’re not politically correct; unlike widows, they don’t ask you to question patriarchy; unlike orphans, they don’t need money, education or childcare; unlike aliens, they don’t bring all that racial, cultural and religious baggage you don’t like; they allow you to feel good about yourself without any work at creating or maintaining relationships; and when they’re born, you can forget about them, because they cease to be unborn.
Toure adds that as a group, “the unborn seem morally powerful. But they never ask anything of you, as opposed to Black or Brown or trans or immigrant people, or gay people, women or other groups that might turn and say, You could do more: Challenge patriarchy, be a better advocate, defund police –– whatever it might be.”
Whiteness (and the patriarchy) is ‘a cancer’
There’s another aspect to the Texas decision: It presumes that lawmakers (mostly white men) know better than women themselves.
“One of the statistics about abortion that I always come back to is that most women who seek abortions are mothers,” says Toure. “They know what it entails and what they are capable of, in terms of having a household that can support a certain number of children.”
The GOP’s “attempt to be the party of family values, the superior party of patriotism, of morality … standing in judgment, acting without empathy. This is what we have to contend with.”
The majority of Republicans are white people whose “superiority is morally, geographically, economically and racially so critical to the very meaning of whiteness … and such a cancer on this country.”
That malignancy takes the form of “standing in judgment of how they think others who aren’t like them should live, be it getting an abortion, living your true self as the gender you really are, not getting married, having rights if you are gay, getting safety net protections if you are Black, being able to become American if you’re an immigrant.”
Justice denied and delayed
It’s noteworthy that Texas’ war on women comes shortly after an assault on voting rights.
“This is not an accident. It is a coordinated attack against American civil liberties,” says Danielle.
“They don’t really want anybody to vote, aside from straight white people,” Toure points out.
Meanwhile, “the left is not really powerful in its defense of these people,” he adds. That’s because often Democrats seem just as concerned with assuaging the concerns of corporations.
“Well, what’s even more disgusting is the lack of will on Democrats’ part to do anything about it,” Danielle says. “Where the fuck is Merrick Garland’s Justice Department?”
She has been seeing legal scholars ask this over and over again, including the renowned constitutional law expert Lawrence Tribe (one of Obama’s former professors), who argued in an op-ed with fellow Harvard prof David Rosenberg that S.B. 8 violates the rights not only of Texas women but all Americans.
Article four, section four of the Constitution guarantees a “Republican form of government,” which essentially means that the federal government cannot “cherry-pick” rights to be upheld in certain states and not others. Put simply: Roe v. Wade guaranteed the right to abortion on a federal level, so it can’t be OK in New York but not Texas or Florida or Tennessee.
“That’s not how it fucking works,” says Danielle. “Does Merrick Garland know these things? Well, one would think so. He was made the Attorney General of the United States, and yet there’s no fucking action. How are all of these things happening with a Democratic president and a Democratic Congress?”
Note: After this episode was recorded, Garland announced that the Department of Justice is suing Texas, arguing that S.B. 8 is unconstitutional.
“This kind of scheme to nullify the Constitution of the United States is one that all Americans — whatever their politics or party — should fear,” he said in a press conference Thursday.
Republicans’ ‘war’ on the Constitution, SCOTUS … basically everything
“The current state of the Supreme Court scares the shit out of me,” says Toure. “Because this is just one of the many things we’re going to see out of them that are going to make us pull our hair out and wonder if we’re still actually in America –– on civil rights, abortion rights, gun control, all sorts of things. And it is clear that the Republicans in the Senate will go to war to prevent the number [of justices] on the Supreme Court from changing.”
That’s because they’ve already gone to war “over replacing a conservative appointee with another and replacing a potential liberal appointee with a conservative,” he adds.
“They have not yet faced the situation of a conservative appointee dying, or God forbid retiring, and being replaced by a Joe Biden nominee.”
If that day comes, he thinks they will “absolutely go to war” again and block Biden’s pick the same way they did with Obama’s (who, of course, was Merrick Garland after Justice Scalia passed away in 2016).
Toure doesn’t see why we wouldn’t have a two- or three-year vacancy on the court. Mitch McConnell has already signaled his willingness to block a liberal Court nominee again, and “Chuck Schumer and the Dems are clearly not playing the game the same way,” he says.
“But here’s the thing,” Danielle replies. “We are running out of time.”
Next week: Live from Gilead
Danielle points out that we have midterm elections coming up next year, “and it is very likely we’re going to lose the House and the Senate.”
She says that “this administration is running out of time, this Congress is running out of time, and unless they want to act as if we are at war, it's going to be up to the rest of us to decide how far we are willing to go to preserve what little rights we have left.”