Texas is a foreign country to most Americans. Those are strange loud people down there. And there are those women with big hair, still, and businessmen in finely tailored expensive bespoke Italians suits, with the five-thousand-dollar hand-crafted cowboy boots and the string tie. But they are Americans and Texas may be America’s future.
That will be a struggle. Texas cannot be entirely unique:
A federal judge on Wednesday granted the Justice Department’s request to halt enforcement of the recently passed Texas law that bans nearly all abortions in the state while the legal battle over the statute makes its way through the federal courts.
In his 113-page ruling, Robert L. Pitman, a Federal District Court judge in Austin, sided with the Biden administration, which had sued to halt a law that has changed the landscape of the abortion fight and further fueled the national debate over whether abortion will remain legal across the country.
In short, Texas won’t decide this for America:
Judge Pitman used sharp language to criticize the law, known as Senate Bill 8, which was drafted to make it difficult to challenge in court by delegating enforcement to private individuals, who can sue anyone who performs abortions or “aids and abets” them.
“From the moment S.B. 8 went into effect, women have been unlawfully prevented from exercising control over their own lives in ways that are protected by the Constitution,” he wrote in his opinion.
“This court will not sanction one more day of this offensive deprivation of such an important right,” he added.
Delegating enforcement to private individuals was bad enough. Texas cannot say the Constitution, as lawfully amended, is bullshit too. But this won’t be easy. Texas had added a poison pill:
The law’s novel legal approach extends to what happens if it is temporarily suspended: Clinics can be sued retroactively for any abortions they provide while it is blocked. That means penalties could be imposed when the suspension is lifted for abortions that happened while it was in place, keeping clinics in a fraught legal environment.
“S.B. 8 says if an injunction is dismissed, you are still accountable for abortions you did while you were protected by that injunction,” said John Seago, the legislative director for the anti-abortion group Texas Right to Life.
So even though Judge Pitman ruled in favor of the clinics, they expressed hesitation on Wednesday night about when they might resume full activity.
Of course they did. The ruling from the federal bench protects them during the injunction. The State of Teas says no, it doesn’t. State law trumps federal law in this case. Perhaps state law always trumps federal law, even if the Constitution says it never does. The clinics paused. This was not their area of expertise. But what the heck:
Nancy Northup, the president and chief executive of the Center for Reproductive Rights, said in a statement that clinics her group represents “hope to resume full abortion services as soon as they are able, even though the threat of being sued retroactively will not be completely gone until S.B. 8 is struck down for good.”
Whole Woman’s Health, a group that operates four clinics in the state, said in a statement that it was “making plans to resume abortion care up to 18 weeks as soon as possible.”
A spokeswoman said she did not know precisely when that would be.
They’re working on it, but everyone is:
Texas, for its part, notified the U.S. Court of Appeals for the Fifth Circuit on Wednesday night that it would appeal the ruling. The court is one of the most conservative in the country. Mr. Seago estimated that decision could come in as soon as a few days.
But as for now:
Judge Pitman enjoined Texas or anyone acting on its behalf from enforcing the law. He also said state court judges and state court clerks who had the power to enforce or administer the law were not to do so…
In Washington, Attorney General Merrick B. Garland hailed the ruling as “a victory for women in Texas and for the rule of law.”
“It is the foremost responsibility of the Department of Justice to defend the Constitution,” he said in a statement on Wednesday night. “We will continue to protect constitutional rights against all who would seek to undermine them.”
But nothing is that easy:
At the center of the legal debate over the law is its use of private citizens, rather than the state’s executive branch, to enforce the restrictions. Plaintiffs are encouraged to file suit because they recover legal fees, as well as $10,000 if they win.
Judge Pitman said that through its abortion law, Texas has pursued “an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right.”
Perhaps so, but nothing is easy:
At a hearing last week to determine whether Judge Pitman would halt enforcement, William T. Thompson, a lawyer for the State of Texas, argued that the Justice Department did not have grounds to argue the case because the law did not harm the federal government. Texas argued that civil suits brought under the new law and heard in Texas state courts were the “proper cases for deciding the constitutionality of the challenged statute.” Few such suits have been filed so far.
But the Justice Department argued that Senate Bill 8 directly harms the federal government because it violates the supremacy clause, the constitutional principle that federal law takes precedence over state law when a conflict arises between the two. Brian Netter, a lawyer for the Justice Department, also argued that the Justice Department had the right to challenge the law because it effectively deprives a group of citizens of a constitutional right. Abortion gained federal protection in 1973 in the landmark Supreme Court decision Roe v. Wade.
Texas doesn’t care, and that’s the mess:
There is no guarantee that the Justice Department’s civil suit against Texas will make its way to the Supreme Court. Should the U.S. Court of Appeals for the Fifth Circuit rule that Senate Bill 8 is constitutional, the Supreme Court, with a 6-to-3 conservative majority, could decline to hear the case.
On Wednesday night, clinics expressed uncertainty about the future.
“While we are relieved that a court has finally blocked this unconstitutional law, today’s court order is only temporary,” said Ms. Northup, of the Center for Reproductive Rights. “This is not the end.”
Yes, now it’s time to decide what parts of the federal Constitution just don’t apply at all in Texas. In fact, Texas may be the new America. That’s what Steven Pedigo argues here:
California is “America on fast-forward,” it is often said. Liberals quote the maxim with pride, pointing to the state’s diversity and its outsize share of economic output, technological innovation, venture capital and growth. Conservatives put scare quotes around it, warning about the dystopia that awaits if America becomes any more like California, with its high taxes and housing costs, challenged schools, dwindling water supply, devastating wildfires and permanent Democratic majority.
But if you’re really looking for a bellwether state that offers a glimpse into the country’s economic future and engines of growth as well as its political fault lines in the long run, it’s not California. It’s Texas.
Simply look at the data:
That’s what the 2020 census tells us, along with the last 20 years of economic and demographic data. Many Americans are moving to cities; Texas is urbanizing even faster than California. And we hear a lot of talk about what will happen to our politics when the United States becomes a majority-minority country, but like California, Texas has already reached that demographic horizon
And that’s our future:
Its present brand of politics may offer clues to the future of struggles across the country between a grasping after mythology and the shifting demographics of America.
And mythology wins:
I understand that the very idea that Texas could be a herald of the national future is terrifying for many liberals and moderates, given the Texas GOP’s assaults on voting rights and reproductive liberty, the state’s new open carry laws and our governor’s hostility to mask and vaccine mandates.
But given the changes in Texas’s demography, economy and urban geography, it’s fair to say that its conservative lawmakers are even more frightened of what the future may hold for themselves. They are so scared, in fact, that they are throwing sand into that growth engine’s gears.
So, expect decades of that. Pedigo sees this:
In my experience, Texas has a much more diverse, broader group of community and policy stakeholders than you’d find in California, where city, state and county officials and metropolitan planning organizations are hugely powerful. Texas is no longer just about big oil and cattle; we have one of the most diversified economies in the country. Texas’s creative class – professionals, techies, scientists, educators and cultural types – has grown nearly 30 percent since 2010.
Yet Gov. Greg Abbott and the Republican Party have embraced a top-down policy agenda that is backward-looking, excludes huge swaths of Texas’s citizenry and runs against the grain of many of its new stakeholders’ values. They are looking to shore it up by a combination of gerrymandering, voter suppression and relentless cultural warfare. As long as Texas continues to grow, they see no downside to it. But it seems to me and many other Texans that they are making a fatal miscalculation.
In short, they don’t understand the rest of the nation:
Most of the people and companies that have been drawn to Texas aren’t conservative pilgrims in search of endless culture-war strife. Many of them – Republican soccer moms and Democratic software engineers, Hispanic building contractors and Black attorneys – are appalled by the GOP’s divisive agenda. Results from the August 2021 University of Texas/Texas Politics Project poll bear this out. Fifty-two percent say Texas is headed in the wrong direction – the worst wrong-track number we’ve seen since the project began.
But this is the real problem:
Many worry, about their mounting health care costs: Almost two in 10 Texans have no health insurance, and the governor and Legislature have refused to expand Medicaid funding. Covid has taken the lives of almost 65,000 Texans, and the state’s low vaccination rate makes it likely there will be many more. The high-technology companies that have been driving so much of Houston’s and Austin’s growth don’t have to stay in Texas, and they won’t if it becomes harder for them to recruit top people to move here.
Trouble is coming, Frank Bruni sees this:
There are states worse than Texas – states even more regressive, states even more oppressive, redder states and madder states and states without its complicated charisma and pockets of charm.
But is there a state more meanspirited these days? A state prouder of its divisiveness? A state more committed to vilifying an enormous share of its citizens and to making sure they have no say?
That’s possible. But so is this:
When I say “Texas,” I’m obviously referring not to all or even a majority of its citizens but to those with a domineering grip on political power, by which I mean Texas’ Republican leaders.
Not a week goes by when I don’t smack up against – or get smacked down by – fresh news of their gratuitous mockery of President Biden, their excessive provocation of Democrats and their unapologetic suppression of democracy. The national crackup you keep reading and hearing about? Its fault lines are as wide and deep and vivid in Texas as anywhere else.
No one can fix that:
Our country’s second most populous state, Texas has become a provocative theater of performative defiance and a laboratory for imposing the will of the minority on the majority.
The state has much physical beauty. It has even more political ugliness.
Bruni doesn’t care:
Last weekend The Times published an article by Nick Corasaniti, Ella Koeze and Denise Lu about how Texas Republicans, who control both chambers of the Legislature and the governor’s office, plan to gerrymander the state’s congressional districts beyond even the currently ridiculous map, which has created an imbalance – 23 Republicans and just 13 Democrats represent Texas in the House – unreflective of the state’s narrower partisan split.
The new district lines that Republicans have proposed are meant to “lock in the party’s advantage in Washington over the next decade” and “offset recent population growth spurred by communities of color,” the Times journalists wrote. With similar goals in mind, Republican leaders in Texas have also moved to restrict ballot access.
Well, this is over. And that leaves this:
Democratic governors certainly went out of their way to thumb their noses at Biden’s predecessor in the White House, hewing to a new norm of outright contempt for leaders of the rival party. But they had more cause, and Abbott has less tact.
A looser grip on reality, too. Shortly before he issued an executive order forbidding any “governmental entity” and “any public agencies or private entities receiving public funds” to require proof of Covid vaccination, his spokesperson put out a statement saying, “Texans and Americans alike have learned and mastered the safe practices to protect themselves and their loved ones from Covid, and do not need the government to tell them how to do so.”
Mastered? That’s one part hype, one part hooey and hilarious through and through.
But that’s the situation now:
Intent on humiliating Biden during the latest border crisis, Abbott didn’t merely pledge the deployment of the Texas National Guard; he said he would park vehicles end to end for miles and miles to create a “steel barrier” to hold migrants back.
Intent on turning Texas citizens against one another, he signed a horribly restrictive abortion law, being challenged by the Biden administration, that encourages vigilantism by abortion opponents.
This is much of Republican politics now – simultaneously seething with rage and siring it – and deep in the toxic heart of Texas, it thrives.
And Jennifer Rubin adds this:
Democratic hopes that demography would deliver Texas have not been wrong, but perhaps just premature. The 2020 congressional races suggested that while the fight for Hispanic votes remains competitive, the sprawling suburbs around major Texas cities are increasingly moderate.
But Republicans now seem poised to accomplish what Democrats have not been able to do: The GOP has alienated sufficient numbers of voters outside their hardcore base to put the state in play in 2022 in gubernatorial and congressional contests and beyond.
A new Quinnipiac poll suggests Republicans’ radicalism has put them at odds with a majority of Texas voters. In the wake of the Texas law offering bounties to “turn in” those seeking an abortion after six weeks of pregnancy, with no exceptions for rape or incest, the poll reports that 77 percent of state residents say abortion should be legal in cases of rape or incest, including 66 percent of Republicans. Some 72 percent of Texans do not want the law enforced, and 60 percent want to keep Roe v. Wade in place.
Even on a quintessentially Texan issue such as guns, voters are not in sync with MAGA politicians. The pollsters found: “Roughly two-thirds (67 percent) of voters, including 58 percent of gun owners, say allowing anyone 21 years of age or older to carry handguns without a license or training makes Texas less safe, while 26 percent say it makes Texas safer. Half of voters (50 percent) say it’s too easy to carry a handgun in Texas, while 44 percent say it’s about right, and 4 percent say it’s too difficult.”
The polling shows this:
Adults in Texas think 47-38 percent that Governor Abbott is hurting rather than helping efforts to slow the spread of COVID-19 in Texas, with 15 percent not offering an opinion.
More than 6 in 10 Texans (64-26 percent) think the recent rise in COVID-19 deaths in Texas was preventable. A majority of Texans (63-29 percent) think it’s a bad idea that Texas Attorney General Ken Paxton is suing school districts that are requiring masks for students
A majority of Texans say 60-35 percent that they support requiring students, teachers, and staff to wear masks in schools.
About two-thirds of Texans (64 percent) think local officials should be able to require masks in indoor public spaces if they believe it’s necessary, while 31 percent do not.
More than half of Texans (53-41 percent) support requiring everyone to wear masks while in indoor public spaces.
A majority of Texans (60 percent) say they consider the issue of wearing masks to be primarily about public health, while 33 percent say they consider the issue of wearing masks to be about personal freedom.
This is odd:
Like the rest of Americans, most Texans support vaccine mandates for health-care workers (57 percent to 36 percent) and for teachers (54 percent to 40 percent). When it comes to businesses requiring a vaccine (without a testing alternative), opinion is evenly divided, with 45 percent in favor and 47 percent opposed (a statistical tie).
Abbott’s polling numbers have crashed in the aftermath of his attempt to blame migrants crossing the border illegally for the rise in covid-19 infections, passage of the abortion bounty law and his signature attempt to impose new barriers to voting.
So that’s the future of America, if Texas is the future of America, imposing the will of the minority on the majority. Is that the future?