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Month: September 2021
This approach to banning abortion is strange, but it is a harbinger of what’s to come. Not that we didn’t know it. Irin Carmen has the details:
The Supreme Court has, as of this writing, allowed Texas to ban abortion after six weeks of pregnancy — before many people even know they’re pregnant. The Court did this in the middle of the night. They did it by doing nothing.
This was always the direction the Court was headed. When Donald Trump won the presidency after openly promising to appoint justices who would “automatically” overturn Roe v. Wade, those who warned that the future of reproductive autonomy was at stake were dismissed as Chicken Littles. But to ban abortion in the dark this way, even temporarily, exceeds their bleakest imaginings.
The law, which took effect today, not only bans abortion at six weeks’ gestation — which, practically speaking, is two weeks after a missed period — but empowers private individuals to sue anyone they believe violated it. “This law was designed to create chaos and to evade judicial review. It is creating chaos,” Stephanie Toti, senior counsel at the Lawyering Project, which represents the Texas groups that, because they help Texas patients pay for their care, could be sued for “abetting” abortion, told me this morning. “The law is undoubtedly unconstitutional. It is our hope and expectation that eventually it will be struck down.”My Week In New YorkA week-in-review newsletter from the people who make New York Magazine.
The justices might still act today or later this week. Maybe a dissent, or several, is in the pipeline. But for now, pregnant people in Texas — and soon, possibly, in other hostile jurisdictions that will race to follow Texas’s lead — are being denied the protection of the Constitution. Even in the most generous reading, the Supreme Court feels no particular urgency to respect their dominion over their own bodies. And even if it pauses this law for the time being, the fact that the Court agreed to consider a case on a 12-week ban out of Mississippi this fall is ominous for the future of abortion rights.
If the Court allows the Texas law to stand, it will present its own legitimacy crisis. Like many of its most controversial decisions lately, this one took place within the so-called shadow docket, which constitutes emergency petitions and orders the justices often act on quickly and with little explanation. These directives don’t command the same kind of attention as full briefings and oral argument and dozens of pages of opinions and dissents. I’ve long predicted that the Court would evade public support of abortion rights — and to be clear, the majority of Americans do support the right for the patient to decide — by trying to bore us to death with a seemingly anodyne reading of the law. It turns out, instead, that they’ve decided to confuse us with process.
The law has been written to thwart those who would try to block it in court. “What’s different about this law is the enforcement mechanism,” Toti explained. “It’s not enforced through criminal penalties or direct government action. Instead it’s enforced through private lawsuit. It incentivizes individuals to sue abortion providers under this law. It puts a bounty on the head of abortion providers. Because of the court’s technical rules around standing and jurisdiction and other procedural issues, it gives the defendants an argument that they can’t be sued in advance.”
In other words, the law presents a Catch-22. If the Court says the law can only apply when it actually gets enforced, abortion providers have to wait to violate the law and be sued by some private actor. “We don’t think it’s a winning argument,” said Toti, because the plaintiffs have argued the government is still effectively enforcing the law and can be sued. But in practice, the providers are likely unwilling to risk the financially ruinous implications of breaking the law, which could allow Texas to get away with it without any actual judicial oversight. “There is a long history of precedent saying that someone in this situation shouldn’t have to risk violating the law, that the Court should be able to step in advance,” Toti said. “But we’re at a moment in our history where all precedents are up for debate.”
How did we get here? Until now, the Court has done just enough to curb abortion rights to keep rage at a low ebb among everyone but the most engaged, lulling the rest of the public into complacency. Anthony Kennedy’s decision to retire gave Trump the opportunity to replace the begrudging and agonized protector of abortion’s technical legality. Ruth Bader Ginsburg’s death weeks before the 2020 election dashed the slim hope that Chief Justice John Roberts would slow down the inevitable out of concerns for the Court’s legitimacy, as he did when he effectively sided with abortion rights in the spring of 2020.
To undermine a near-half-century of precedent in the middle of the night is particularly odd because it undermines the highest court’s own power to let the lower courts, in this case the Fifth Circuit Court of Appeals, do the dirty work. “After all, the Court has usually been pretty protective of its own prerogatives; that is, it has liked to be the only entity that could alter its own rulings,” University of Michigan law professor Margo Schlanger wrote in an email. “But Justice Kennedy was the most attached to that approach – and if abortion is murder (as several of the justices probably think), then some justices may view the 5th Circuit as a little eager, but admirably so, and not want to swat it down.”
It’s now a matter of when, not if, the Court will rob people in red states of what’s left of their right to end a pregnancy, and much more would have to change than a presidential commission on court reform to stop it.
There you have it.
It has been obvious for some days that the right-wing is preparing a major pivot from hand wringing about Joe Biden’s alleged betrayal of Afghan refugees to hand wringing about all the Afghan refugees he brought into the country to kill us all in our beds. I wrote about the early shifts in perspective last week and it’s starting to come into full focus now that the military evacuation is over. Right-wing fear-mongering about immigrants and refugees is as predictable as Republican voter suppression.
Fox News celebrity Tucker Carlson has made the evacuation of refugees part of his Grand Unified Theory, The Great Replacement, whereby Joe Biden and the Democrats conspired to bring these foreigners to America in order to supplant good, pure white people and dominate the American culture and politics. Carlson is influential in right-wing circles but while his argument feeds into their sense of grievance, it may be a bit esoteric for many of the folks in his audience. Former president Trump’s top immigration adviser Stephen Miller makes it more explicit and folds in some of the old “welfare queen” arguments, complaining that the refugees will get benefits and it would be cheaper to settle them in Pakistan, which he thinks proves this is all about an “ideological objective to change America.”Advertisement:
House Minority Leader Kevin McCarthy, R-Calif., edged toward what is going to be the ultimate argument when he said this on Monday:
Knowing that they said they took more than a 120,000 lifts with only 5600 being American, I I think we should look through and screen before people come to America. We’ve got to make sure what’s in there.
When asked if he thought it was OK for these Afghan refugees to settle in the U.S., McCarthy replied “after we get the screening it’s a whole different question” which isn’t exactly responsive. But then he’s made his position clear before. According to the New York Times, he told a bipartisan group of House members last week, “we’ll have terrorists coming across the border.”
He knows his base. After all, back in 2016, Donald Trump had promised to repatriate all the Syrian refugees who had been fully vetted and already settled in the U.S. simply because you just can’t trust ’em. He wanted to send Congresswomen Ilhan Omar, Rashida Tlaib and Ayanna Pressley “back to where they came from” even though they are all American citizens, the latter two having been born here. (Not that that matters, he wanted to end birthright citizenship as well.)Advertisement:
https://imasdk.googleapis.com/js/core/bridge3.478.1_en.html#goog_1323372853Joe Scarborough has a new name for Trump: “He’s a fascist”00:00 00:00
As I noted last week, Trump himself has wavered between needling President Biden by pretending to care about the Afghans left behind and accusing the administration of allowing terrorists into the country. But on Monday, he told Fox News’ Stuart Varney, “We should have hit that country years ago, hit them really hard, and then let it rot” so it’s hard to believe any protests of concern for the Afghan people. It’s just not in him. I think we can expect him to jump on the “terrorist” bandwagon 100% from now on.
All signs point to the GOP believing that it can turn the “Biden screwed up Afghanistan” into “Biden brought the threat of terrorism back to the U.S.” And the whole thing fits neatly into their overarching worldview that they, and the U.S., have been humiliated at the hands of “the other” whether it’s a foreigner or devious Democrats stealing the election right in front of everyone. This is the same worldview that brought us the deranged mass shooters with their Great Replacement-style manifestos and screeds about Jews and caravans — and the violent events of January 6th.Advertisement:
All the screeching about phantom Afghan terrorists will end up inflaming the real would-be terrorists who live among us — and they are plenty inflamed already.
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All over the country, we are seeing anti-vaccine and anti-mask protesters explode into full-blown hysteria over the idea that kids might be required to get vaccinated and wear masks when they come to school. Dress codes and vaccines are already commonly required in public and private schools and have been for many decades. Now they are an infringement on the fundamental freedom of their parents to be irresponsible fools with their own families and the families of others. And they are getting more and more violent in their rhetoric:Advertisement:
It isn’t entirely unprecedented for GOP candidates to promote violence in recent years and be richly rewarded for it. One of them became president of the United States. You may also recall that a congressional candidate by the name of Greg Gianforte was even arrested for assaulting a reporter a couple of years back. He is now the Governor of Montana. But the myriad threats against local officials such as public health officers and school board members in the last year is an escalation of political violence on a new and much more intimate level than we’ve seen. Across the nation, aggrieved right-wingers are intimidating officials with the words “we know where you live, we will find you” and targeting at their homes.
And while most Republican officeholders are more or less standing back and allowing this to happen out of cynical self-interest, some are saying the quiet parts out loud themselves.Advertisement:
Congressman Madison Cawthorn, R-N.C., told a group of constituents the other day that “if our election systems continue to be rigged and continue to be stolen” there is going to be bloodshed and he really doesn’t look forward to taking up arms against other Americans.
History Professor Ruth Ben-Ghiat defined what is happening in stark terms on “All in with Chris Hayes” on Monday: “Authoritarianism is when thugs and criminals become the lawmakers.” Hussein Ibish, Senior Resident Scholar at the Arab Gulf States Institute in Washington, made a startling observation about this turn of events in The Atlantic:
Decades of living in, studying, and writing about the Middle East have taught me that whenever a political faction becomes obsessed with violent rhetoric and fantasies, brutal acts aren’t far behind. And while there’s always been a strain of militancy on the American right and left fringes, there is something unmistakably new, and profoundly alarming, about the casual, florid, and sadistic rhetoric that is metastasizing from the Republican fringe into the party’s mainstream.
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The truth is that the violent rhetoric and fantasies have been there for quite a while, it’s just that they were channeled into wars on foreign soil like the tragic 20-year quagmire that ended this week. And soon they will no doubt be directed at the new immigrants from Afghanistan as “floridly as ever. The American right-wing has always found somebody to hate. But if Trumpism is defined by one unique characteristic it’s that it feels free to direct its violent rhetoric against fellow Americans in ways we have not seen since the Civil War.
“Sue your neighbor, please,” say Texas Republicans as their new abortion law takes hold.
The Texas Tribune outlines the basics of the new law:
The law prohibits abortions whenever an ultrasound can detect what lawmakers defined as a fetal “heartbeat,” though medical and legal experts say this term is misleading because embryos don’t possess a heart at that developmental stage.
Providers and abortion rights advocacy groups say this would affect at least 85% of the abortions taking place in the state. Many people don’t know they are pregnant within the first six weeks.
But the state wouldn’t enforce the law. SB 8 instead provides enforcement only by private citizens who would sue abortion providers and anyone involved in aiding or abetting an abortion after a “heartbeat” is detected.
This mechanism could allow SB 8 to skirt Roe v. Wade, the 1973 Supreme Court decision that legalized abortion, within some limits.
So, let’s get this straight (Axios), the new law “incentivizes individuals to sue anyone suspected of helping a woman obtain an abortion — and awards at least $10,000 to people who do so successfully.”
Yes, you read that right. How someone unconnected to the woman seeking an abortion has any standing to sue her over it is Cloud cuckoo land lawmaking. This from the erstwhile opponents of frivolous lawsuits.
Steve Vladeck of The University of Texas School of Law explained in a tweet thread that the law is written to evade court intervention:
If all the bill did was ban most abortions in Texas, it would be easy enough for courts to block it while constitutional challenges are sorted out. Indeed, that’s what’s happened in other states that tried to adopt similarly aggressive restrictions on pre-viability abortions.
But the bill also leaves enforcement entirely to private parties, and not to the State. Most have seen this as a cynical ploy designed to turn neighbors against each other with regard to abortions …
The *procedural* reason why it does that is to make it much harder to *challenge* the restrictions in court—because it’s not obvious who providers can/should sue.
That’s deliberate; if the legislature was confident in its constitutionality, there’d be no need for such a ploy.
MSNBC’s Stephanie Ruhle cannot believe the new law says what it says:
And the Supreme Court said nothing/did nothing to stop it. It could still act at any time.
Elie Mystal (Above the Law) believes it possible that the court is waiting to see how much blowback the law will receive. It’s only a fool’s hope, he says, quoting Gandalf. But while the court doesn’t generally care about public opinion, it is not looking for Bounty Gate, either:
Setting neighbor against neighbor is the Republican way, Donald Trump’s management style, and the right-wing’s business model. It’s what you get when voters give them control of government.
There is a master’s thesis in the Beltway foreign policy set’s criticism of President Joe Biden’s completing the Afghanistan withdrawal this week. The sunk cost fallacy and war fighting has been studied to death. But after 20 years of the shifting U.S. mission in Afghanistan, some master’s candidate will take it up again.
Withdrawal was set in motion last year by Biden’s predecessor. Biden could either pull the plug or double down with another surge like the one he opposed as vice president. He did what others would not. Biden finished it with a historic airlift.
Nonetheless, the press is in on the pile-on. I grabbed just a couple of headlines on Tuesday:
But people with more skin in the game than professional reputations, advertising to sell, and political axes to grind reacted differently. The American people were ready to leave Afghanistan if very serious people were not.
David Rothkopf’s has been a clear-eyed voice among the flurry of criticisms from armchair generals. He writes in The Atlantic:
Despite the criticism, Biden, who had argued unsuccessfully when he was Barack Obama’s vice president to seriously reduce America’s presence in Afghanistan, remained resolute. Rather than view the heartbreaking scenes in Afghanistan in a political light as his opponents did, Biden effectively said, “Politics be damned—we’re going to do what’s right” and ordered his team to stick with the deadline and find a way to make the best of the difficult situation in Kabul.
Jon Soltz, chairman of VoteVets, posted a thread Tuesday strongly in support of Biden’s decision.
But Biden can speak for himself. And with conviction and without equivocation, he did.