I keep
trying to write about Texas and the future of Roe v. Wade, and I keep needing to rewrite my thoughts because of
all the twists, turns and drama in the news cycle – not just in the Supreme
Court but across the Divided States of America.
For
example, you may have heard this morning that in Virginia, anti-choice
candidate Glenn Youngkin won the election to be the state’s next governor. Mr.
Youngkin boasts many unremarkable characteristics as a Republican male,
including not just a striking resemblance to
Brett Kavanaugh,
but also a desire to ban library books that just so happen to feature black, minority or LGBT
characters, or
really any book that might help with illuminating the experiences of anyone who
doesn’t look like him.
However,
Mr. Youngkin did demonstrate one remarkable characteristic as an otherwise generic
Republican: He barely spoke about his position that women should be stripped of
their constitutional right to abortion. Way back in June, when Mr. Youngkin was
speaking at far-right fundraisers, audience members asked of him why he wasn’t
talking abortion. He openly said the quiet part out
loud: “I’m gonna be
real honest with you, the short answer is… I can’t. [It] won’t win my
independent votes that I have to get.” Bro, imagine having positions so toxic
that you can’t even campaign on them openly.
But that was actually pretty smart, because it just so happens that the great majority of Americans would prefer that constitutional rights such as Roe v. Wade not be overturned. And when we say a vast majority, we mean 70 to 80 per cent, according to a poll taken just one week after Texas passed its S.B. 8 abortion ban. For comparison, Dwayne “The Rock” Johnson is the most popular celebrity in the world, with an approval rating of 83 per cent. That’s right, Roe is as popular as The Rock.
I presume it’s because most Americans actually think women are people and deserve rights, though I understand controversy still exists around this radical left-wing feminist view. I say this because despite the popularity of women’s rights and the Republican claim that they’re the party of “LAW AND ORDER!!!”, other states seem intent on following Texas’s unconstitutional behaviour. Florida and Ohio have proposed copycat abortion bans, although Ohio is at least trying to be original by being even more extreme. Whereas Texas’s S.B. 8 supposedly bans abortions after six weeks, coincidentally before women know they’re pregnant, Ohio is proposing to ban all abortion, period. South Dakota’s governor claims she’ll eventually introduce a similar proposal, and based on the composition of state legislatures, we expect 14 states will introduce S.B. 8-style abortion bans.
Now S.B. 8
is before the Supreme Court, where the justices are debating whether the
Constitution still applies to women. Today is 3 November, and we’re looking at
a Court where the previous President lost by 3 million votes, yet was able to
appoint 3 of his own justices, or one-third of the Court. Coincidentally, one-third of all the male justices
have a history of allegations around sexual assault and abuse. And one of those justices, Clarence
Thomas, has now served for 30 years and is the longest-serving justice on the
entire Court. It makes you wonder what Anita Hill thinks about that. And it
makes me wonder what American women think of a Court full of far-right sexual
predators debating the rights women should have.
Plenty of
pundits have pointed out how clever Texas’s abortion ban, S.B. 8, is.
Everyone’s heard of outsourcing, right? We always hear about how outsourcing is
annoying, how it hurts American families, how it results in bad service and
generally makes American customers more irritated than a Karen who sees Black Americans
being Black in public (or Black at Starbucks).
Well, Texas
looked at all that and decided outsourcing was a good idea anyway. The way that
S.B. 8 works is that its authors know that a traditional abortion ban, enforced
by state officials, would be too blatantly illegal, similar to Mark Zuckerberg
claiming he has a right to profit from hate speech. To avoid being instantly
blocked by courts, Texas designed S.B. 8 so rather than officials enforcing the
ban, enforcement is outsourced to private citizens, who can earn $10,000 for
suing Texans that they suspect of involvement with abortion, even if the person
suing doesn’t live in Texas.
Yeah, you
can make jokes all day about how Texas conservatives are so obsessed with
government intruding in their lives that they hired private citizens to intrude
for them. However, that’s low-hanging fruit. After all, this is the same Texas
that wants to force schools to teach “both sides” of the Holocaust, to avoid being
too critical of white supremacy.
Let’s examine the implications of a Texas victory in the Supreme Court. Suppose the U.S. Supreme Court upholds S.B. 8. Some of the implications are more obvious, like Roe becoming effectively meaningless, red states passing identical bans, and abortion increasing in blue states as abortion refugees travel there for their procedures. But what are the less obvious implications for Americans outside the 25 per cent of women who have abortions by age 45?
Let’s start
with the pro-life party’s favourite American right of all: Guns for killing. If
the Supreme Court upholds the legality of bounty hunters against abortion, then
the result would be a legal framework for… bounty hunters against gun owners.
Under that framework, a state could pass a law where you can sue someone
suspected of owning a gun or helping a neighbour to own a gun, and if you win, you
get $10,000, plus your legal fees. After all, the state isn’t technically banning
gun ownership. The state is just hiring citizens to intimidate gun owners,
that’s all.
This isn’t
a pure hypothetical. The justices explicitly asked the Texas Solicitor if he
could think of any reason states couldn’t enact similar laws against guns if S.B. 8 were upheld, and he was
forced to admit yeah, it was possible. The justices even pointed out that by his
logic, states could pass laws allowing bounty hunters against free speech or
religion too. Imagine a “democratic” nation where people can sue people for
saying something negative about our national treasure, Dwayne Johnson, or a country
where people can sue people they suspect of promoting Rastafarianism.
These may
sound like silly examples, but with the track record of the GOP, we can expect
that a victory for S.B. 8 would encourage, say, Missouri to legalise bounty
hunters to sue people suspected of criticising Rush Limbaugh, the Nazi sympathiser who defended white supremacists in
Charlottesville but is considered such a hero to Missouri lawmakers that they have a statue of him in the capitol. We could also
expect to see states legalising bounty hunters against Americans suspected of
being Muslim, though I suppose I should stop giving ideas to Trump if he runs
in 2024.
For these
reasons, one would expect an impartial Supreme Court to rule against blatant
undermining of the Constitution and overturn S.B. 8. However, we know the
Supreme Court isn’t impartial, so none can accurately predict how the justices
will rule on this case. We know from the 2014 Hobby Lobby case that the Supreme
Court allows laws that legalise discrimination against women and LGBT people.
Thanks to Google, I’m old enough to remember 1966’s Newman v. Piggie Park Enterprises, where a South Carolina
restaurant claimed it had a religious right to discriminate against Black
customers. The courts told South Carolina to bugger off then. Today’s Supreme
Court refuses to extend the same protection to women or LGBT Americans, thanks
to “sincerely held religious beliefs”.
Where does
that leave Americans who can’t count on the Constitution or the courts to reliably
protect them anymore? We have no magic bullets in our arsenal, only one mainstay:
The right to vote. Anybody who cares about constitutional rights already knows
why voting matters, and thanks to Google, I’m able to recall some choice words
to remind you of what voting meant to past generations…
“Give us the ballot and we will no longer
have to worry the federal government about our basic rights.
“Give us the ballot and we will fill our
legislative halls with men of good will.
“Give us the ballot and we will place judges on
the benches… who will do justly and love mercy.”