Somehow the Dallas Cowboys became America’s Team a decade or more ago. Maybe that had to do with cowboys and sagebrush and all that “don’t fence me in” stuff. There’s nothing more American than a cowboy out there on the open range, his own man, a man of few if any words, ready to shoot first and ask questions later, or maybe never at all. He needs no one. But don’t mess with him. That’s Texas. And that’s America. And that’s nonsense. Cleveland is America too. So is the East Village. So is Malibu. There’s nothing more American than a dude on a surfboard. And so is Harlem.
No, Texas doesn’t lead the way, and the Dallas Cowboys weren’t that good. Texas isn’t America. It only pretends to be. But they’re trying it again:
A Texas law prohibiting most abortions after about six weeks of pregnancy went into effect on Wednesday after the Supreme Court did not act on a request to block it, ushering in the most restrictive abortion measure in the nation and prompting clinics in the state to turn away women seeking the procedure.
The justices may still rule on the request, which is an early step in what is expected to be an extended legal battle. In the meantime, though, access to abortion in Texas has become extremely limited, the latest example of a Republican-led state imposing new constraints on ending pregnancies.
Texas will fix this abortion thing, showing the rest of America how it’s done:
The law, known as Senate Bill 8, amounts to a nearly complete ban on abortion in Texas because 85 to 90 percent of procedures in the state happen after the sixth week of pregnancy, according to lawyers for several clinics. On Tuesday night, clinics were scrambling to see patients until the minute the law went into effect, with six-hour waits for procedures in some places. By Wednesday, the patient lists had shrunk, clinic workers said in interviews.
And this was done to force the Supreme Court give up on the Roe nonsense:
Many who oppose abortion said they were cautiously optimistic that the Supreme Court might allow the law to stand for now and were awaiting word from Justice Samuel A. Alito Jr., who oversees the federal appeals court in question.
“We’re not fully celebrating until we officially hear from Alito,” said John Seago, legislative director for Texas Right to Life, the largest anti-abortion organization in the state. “The motion is still pending. He has to do something with it. He can’t just ignore it.”
He added: “But in the meantime, it seems like the industry is going to comply and that’s definitely a victory for us.”
They’re waiting. Trump appointed a third of the current court. This might work. It was working already:
Texas has about 24 abortion clinics, down from roughly 40 before 2013, when the State Legislature imposed a previous round of restrictions. It was not immediately clear on Wednesday if every one of them was complying with the law, which the Republican governor signed in May, but many, in interviews, said they were.
In the emergency application they wrote urging the justices to intervene, abortion providers in the state said the new law “would immediately and catastrophically reduce abortion access in Texas,” and most likely force “many abortion clinics ultimately to close.”
That was the whole idea, and this new law may be bulletproof:
Supreme Court precedents prohibit states from banning abortion before fetal viability, the point at which fetuses can sustain life outside the womb, or about 22 to 24 weeks into a pregnancy. The law in Texas says doctors cannot perform abortions if a heartbeat is detected, activity that starts at around six weeks, before many women are even aware they are pregnant.
Many states have passed such bans, but the law in Texas is different. It was drafted to make it difficult to challenge in court.
Usually, a lawsuit seeking to block a law because it is unconstitutional would name state officials as defendants. However, the Texas law, which makes no exceptions for pregnancies resulting from incest or rape, bars state officials from enforcing it and instead deputizes private individuals to sue anyone who performs the procedure or “aids and abets” it.
Sue anyone who might somehow be aiding and abetting an abortion in Texas and get rich:
The patient may not be sued, but doctors, staff members at clinics, counselors, people who help pay for the procedure, and even an Uber driver taking a patient to an abortion clinic are all potential defendants. Plaintiffs, who do not need to live in Texas, have any connection to the abortion or show any injury from it, are entitled to $10,000 and their legal fees recovered if they win. Prevailing defendants are not entitled to legal fees.
To be clear, a bored teenager sitting at home in Altoona could sue every doctor in Texas, claiming that each of those doctors was aiding and abetting abortions in Texas. Win just one case and get ten grand. Lose them all – the doctor is innocent – and not one of them can claim that you should cover their legal fees to prove you’re an asshole. They cannot touch you.
How sweet is that? Sue absolutely everyone. They’re all screwed:
That novel formulation has sent clinics scrambling.
Dr. Jessica Rubino, a doctor at Austin Women’s Health Center, a small, independent clinic in the state capital, said that at first, she wanted to defy what appeared to be an unconstitutional law. But she said she concluded that doing so would put her staff at risk.
“If this was a criminal ban, we’d know what this is and what we can and cannot do,” Dr. Rubino said. “But this ban has civil implications. It requires a lawyer to go to court. It requires lawyers’ fees. And then $10,000 if we don’t win. What happens if everybody is sued, not just me?”
She added: “My staff is nervous. They’ve been asking, ‘What about our families?’”
And there’s this too:
Doctors who are sued, even if the suit is dismissed, have to report the lawsuits when they renew licenses or obtain hospital admitting privileges, according to Amy Hagstrom Miller, the chief executive at Whole Woman’s Health, which operates four clinics in Texas.
In this case, accusing the totally innocent will ruin their careers, and any appeal up to the Supreme Court may be impossible:
The immediate question for the justices is not whether the Texas law is constitutional, but whether it may be challenged in federal court. The law’s defenders say that, given the way the law is structured, only Texas courts can rule on the matter and only in the context of suits against abortion providers for violating the law.
And that may be that:
Concern spread on Wednesday not only among doctors who provide abortions but also to organizations and volunteers who help women get to their appointments. The law created a new worry that a difficult environment in Texas had become legally perilous, even if every aspect of the new regulations was followed.
“Every single incentive to file these frivolous lawsuits is written into the bill,” said a board member at Clinic Access, a Houston-based nonprofit group that provides practical support – including transportation and paying for a hotel stay or child care – for anyone seeking abortion access in the Houston area.
And think about this, that is, think about these words right here. Is any discussion of this online or in the press or on Facebook actually aiding and abetting, however indirectly, abortion in Texas? You might get sued for ten grand for a Facebook post. Actually, expect that, and Michelle Goldberg adds this:
The most shocking thing about SB 8 is the power it gives abortion opponents – or simple opportunists – over their fellow citizens. The law is written so that they, not the police or prosecutors, get to enforce it, and potentially profit off it. Under SB 8, any private citizen can sue others for “conduct that aids or abets the performance or inducement of an abortion.”
That’s rather clever:
The law’s procedural trickery has so far kept it from being enjoined, though the Supreme Court could still decide to act. As the legal journalists Dahlia Lithwick and Mark Joseph Stern wrote in Slate, “Typically, when a state restricts abortion, providers file a lawsuit in federal court against the state officials responsible for enforcing the new law. Here, however, there are no such officials: The law is enforced by individual anti-abortion activists.” It is, they wrote, “an Escher staircase for litigators.”
It is also an outgrowth of a Republican Party that increasingly encourages vigilantism.
That is an issue now:
Today’s GOP made a hero out of Kyle Rittenhouse, the young man charged with killing two people during protests against police violence in Kenosha, Wis. Leading Republicans speak of the Jan. 6 insurgents, who tried to stop the certification of an election, as martyrs and political prisoners.
Last year, Senator Marco Rubio praised Texas Trump supporters who swarmed a Biden campaign bus, allegedly trying to run it off the road: “We love what they did,” he said. This weekend in Pennsylvania, Steve Lynch, the Republican nominee in a county executive race, said of school boards that impose mask mandates, “I’m going in with 20 strong men” to tell them that “they can leave or they can be removed.”
There’s a pattern here:
Over the last several years, Republicans have taken a number of steps to legalize various forms of right-wing intimidation. Several states have granted immunity to drivers who hit people protesting in the street. In some states Republicans have given partisan conspiracy theorists access to election equipment to search for ways to substantiate accusations of voter fraud. They’ve also passed laws empowering partisan poll watchers, who have a history of intimidating both voters and election workers.
The Texas law should be seen in this context. It deputizes abortion opponents to harass their enemies. Texas Right to Life has already launched a “whistle-blower” website where people can submit anonymous tips.
That’s part of the new network of Christian Vigilantes. They keep an eye on everyone. They might sue. They might now. But they’re watching your every move and monitoring your every word. And they can ruin you. Be careful:
Once the lawsuits start, they can be challenged in court. But by then, both people and organizations might be ruined by legal fees. In a press call on Wednesday, Marc Hearron, a senior counsel for the Center for Reproductive Rights who represents some of the abortion providers fighting the law, explained how SB 8 could enable a legal bombardment.
“The law allows any individual citizen who lives in Texas to bring a suit in their own county, and the courts are blocked from actually transferring that case to a more appropriate venue. So you could have hundreds, thousands of cases, filed across the state, over the same abortion or a handful of abortions,” he said.
That’s the plan, and then the news broke:
The Supreme Court on Wednesday refused to block a Texas law prohibiting most abortions after about six weeks of pregnancy. The move, a response to an emergency application from abortion providers in the state, came less than a day after the law became effective, severely restricting access to the procedure.
The vote was 5 to 4, with Chief Justice John G. Roberts Jr. joining the court’s three liberal members in dissent.
The majority opinion was brief and unsigned, and it said the providers had not made out their case in the face of “complex and novel” procedural questions.
“In reaching this conclusion,” the opinion said, “we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’ law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”
Okay. Revise and resubmit. The court will consider what you come up with next time, but that may be bullshit:
In dissent, Chief Justice Roberts wrote that he would have blocked the law while appeals moved forward.
“The statutory scheme before the court is not only unusual, but unprecedented,” the chief justice wrote. “The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime.”
He was not impressed, and not alone:
In a separate dissent, Justice Sonia Sotomayor, joined by Justices Stephen G. Breyer and Elena Kagan, was more direct.
“The court’s order is stunning,” she wrote. “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand.”
“The court has rewarded the state’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the court’s precedents, through procedural entanglements of the state’s own creation,” Justice Sotomayor wrote. “The court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.”
But these four were outnumbered, so Kevin Drum has an idea:
There’s nothing unexpected about this. Ever since last year, when Republicans got a 6-3 majority on the Supreme Court, abortion activists have been eager to find test cases that will give the Court an excuse to overturn Roe v. Wade. Maybe it will be the Texas law or maybe it will be some other abortion law. But sometime in the next year or two this is going to happen, and there’s every reason to think that Roe will then be either completely or largely overturned. At that point, every state will have the authority to pass its own abortion laws, including ones that outright ban abortion.
If so, try this:
Even if Roe is overturned, there will still be states in which abortion is fully legal. For the sake of conversation, let’s pick California, Illinois, and New York as our examples.
So here’s my idea. Someone rich sets up an organization, probably in partnership with Planned Parenthood, that arranges for abortions in any state where it’s illegal. Basically, you call an 800 number and arrange a date. Maybe there’s phone counseling required too. On the date, a car comes to your house and drives you to the nearest airport. You get on a plane to the closest state with liberal abortion laws, where a car is waiting for you when you land. You head off to the clinic and get your abortion. Then a car takes you back and you’re home by nightfall. All of this is free of charge – or perhaps on a sliding scale depending on income.
My super rough horseback guess is that this would cost a billion dollars a year. Maybe two or three. This is really not much for a Bezos/Gates/Zuckerberg class of zillionaire for whom reproductive rights are something of a crusade.
And he’s kind of serious about this:
I know that I’m being cavalier about a billion dollars, but honestly, I’d be willing to vote for an initiative in California that would fund something like this entirely out of taxpayer pockets and make California the abortion capital of the country.
Is there something I’m missing here? There’s a whole lot of us, billionaires and thousandaires alike, who would be willing to fund something like this. Would there be something illegal about soliciting across state lines? Am I miscalculating the cost by a factor of a hundred? Is there some other obvious thing I’m overlooking?
None of this is meant to minimize the preferred solution of simply keeping Roe alive across the country. But given the fact that this might not be possible, is there anything wrong with making plans for what to do if and when it falls? If we can truly guarantee reproductive rights for a few billion dollars a year, surely that’s not a very high price to pay?
And then let Texas be Texas, but Dana Milbank sees a problem with that:
Texas this week showed us what a post-democracy America would look like.
Thanks to a series of actions by the Texas legislature and governor, we now see exactly what the Trumpified Republican Party wants: to take us to an America where women cannot get abortions, even in cases of rape and incest; an America where almost everybody can openly carry a gun in public, without license, without permit, without safety training and without fingerprinting; and an America where law-abiding Black and Latino citizens are disproportionately denied the right to vote.
That was one week in the New America:
On Wednesday, a Texas law went into effect that bans abortions later than six weeks, after the Supreme Court let pass a request to block the statute. Because 85 to 90 percent of women get abortions after six weeks, it amounts to a near-total ban. Already on the books in Texas is a “trigger” law that automatically bans all abortions, even in cases of rape and incest, if the Supreme Court overturns Roe v. Wade. At least 10 other states have done likewise.
Also Wednesday, a new law went into effect in Texas, over the objections of law enforcement, allowing all Texans otherwise allowed to own guns to carry them in public, without a license and without training. Now, 20 states have blessed such “permitless carry.”
And on Tuesday, the Texas legislature passed the final version of the Republican voting bill that bans drive-through and 24-hour voting, both used disproportionately by voters of color; imposes new limits on voting by mail, blocks election officials from distributing mail-ballot applications unless specifically requested; gives partisan poll watchers more leeway to influence vote counting; and places new rules and paperwork requirements that deter people from helping others to vote or to register. At least 17 states have adopted similar restrictions.
But this is what Texans, the real Americans, really want, unless you ask:
Texans overwhelmingly object to permitless carry. Fully 57 percent of Texas voters oppose such a law and only 36 percent support it, according to a June poll by the University of Texas and the Texas Tribune. The partnership’s April poll found that, by 46 percent to 20 percent, Texans want stricter gun laws – and support for tougher laws is 54 percent among women, 55 percent among Latinos and 65 percent among Black voters.
Texans also oppose banning all abortions if Roe is overturned, with 53 percent against a ban and 37 percent for one. Women oppose the ban, 58 percent to 33 percent. A narrow plurality (46 percent to 44 percent) opposes the six-week ban, too.
Furthermore, pluralities of Texans opposed the ban on drive-through voting and restrictions on early voting hours. The drive-through ban was particularly objectionable to Black voters (52 percent opposed to 30 percent in the April poll) and Latino voters (44 percent to 36 percent), as were the limits on early voting hours, opposed 52 percent to 28 percent among Black voters and 46 percent to 31 percent among Latino voters.
So this is a special case:
Texas legislators aren’t answering to the people but rather to the White, male voters that put the Republicans in power. The new voting law, by suppressing non-White votes, aims to keep White voters dominant. As demographics turn more and more against Republicans in Texas, their antidemocratic actions will only get worse.
And they’re not good now:
In Texas, the legislature this term also banned the fictional menace of “critical race theory,” put in new restrictions on demonstrations and banned homeless encampments. Gov. Greg Abbott (R) also banned mask and vaccine mandates while the pandemic rages. Meanwhile the legislature failed to expand Medicaid eligibility to low-wage workers, refusing billions of federal health-care dollars for the state with the most uninsured residents in the nation. Instead, Texas cleared the way for people to buy beer and wine before noon on Sundays…
This is the present in Texas, and the future for all of us…
America becomes Texas? America needs to reconsider that. No one should be forced to cheer for the Dallas Cowboys. And who is America’s Team?