Daily Archives: September 2, 2021

Did the Right Just Shoot Itself in the Foot?

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The most encouraging thing I’ve seen today is that centrist squish Terry McAuliffe, of all people, is elevating abortion rights in his campaign for governor of Virginia.

“The stakes are huge. … For years, we’ve said, abortion could be outlawed. Well, it happened today,” McAuliffe told ABC News in an interview. “I vetoed every bill that would have stood in the way of women making their own decisions. And, you know, I’ve vetoed bills that would have defunded Planned Parenthood. I stopped all their nonsense. But it’s a battle here in Virginia. We’re not going back.”

There was a time when conventional wisdom said Democratic candidates should just keep their mouths shut about abortion, and not just in southern elections. If they were forced to say something, they said “safe, legal, and rare.” But many on the Left are done with the moral ambivalence of “rare.” No more apologies, no more stigmas.

Indeed, a consensus is quickly forming that the Right may have just shot itself in the foot.  Former Republican David Frum:

Pre-Texas, opposition to abortion offered Republican politicians a lucrative, no-risk political option. They could use pro-life rhetoric to win support from socially conservative voters who disliked Republican economic policy, and pay little price for it with less socially conservative voters who counted on the courts to protect abortion rights for them. …

… Today, accountability has suddenly arrived. Texas Republicans have just elevated abortion rights to perhaps the state’s supreme ballot issue in 2022. Perhaps they have calculated correctly. Perhaps a Texas voting majority really wants to see the reproductive lives of Texas women restrained by random passersby. If that’s the case, that’s an important political fact, and one that will reshape the politics of the country in 2024….

… This is a new reality, and one that opens a way for the prolonged U.S. abortion-rights debate to be resolved. If the Texas Republicans prosper politically, then abortion-rights advocates must accept that the country truly is much more conservative on abortion than they appreciated and adjust their goals accordingly. But if not, and I’m guessing that the answer is not, anti-abortion-rights politicians are about to feel the shock of their political lives. For the first time since the 1970s, they will have to reckon with mobilized opposition that also regards abortion as issue No. 1 in state and local politics.

Although individual minds don’t seem to have changed much since Roe was decided in 1973, Younger voters are more strongly pro-choice than older voters, according to Pew.

The only demographic groups identified by Pew that favor criminalization are Republicans and evangelicals. With everyone else, including Catholics, a majority favor keeping abortion legal.

I take it Democrats were worried that voter enthusiasm on the Left would wane without Donald Trump in the White House. Texas could light some fires, especially when other Republican states pass their own Handmaid’s Tale laws.

Meanwhile, Nancy Pelosi promises the House will pass a bill that codifies the Roe v. Wade provisions into law. “Upon our return, the House will bring up Congresswoman Judy Chu’s Women’s Health Protection Act to enshrine into law reproductive health care for all women across America,” she said in a statement. That could raise some interesting dynamics when it goes to the Senate.

We now have more details about what went on in the Supreme Court regarding the Texas bill. Texas abortion providers made a last-ditch effort to stop the bill from going into effect by seeking emergency relief from the Supreme Court on Monday night. Amy Howe writes at SCOTUSblog about what happened next:

In a one-paragraph, unsigned order issued just before midnight on Wednesday, the court acknowledged that the providers had “raised serious questions regarding the constitutionality of the Texas law.” But that was not enough to stop the law from going into effect, the court explained, because of the way the law operates. Specifically, the court observed, it wasn’t clear whether the state officials – a judge and court clerk – and the anti-abortion activist whom the abortion providers had named as defendants “can or will seek to enforce the Texas law” against the providers in a way that would allow the court to get involved in the dispute at this stage.

It was five to four — Alito, Barrett, Gorsuch, Kavanaugh, and Thomas refused to act. Roberts sided with Breyer, Kagan, and Sotomayor in opposition.

In his dissent, which was joined by Breyer and Kagan, Roberts described the Texas scheme as “unprecedented.” By deputizing private citizens to enforce the law, Roberts stressed, the law “insulate[s] the State from responsibility.” He wrote that because of the novelty and significance of the question, he would stop the law from going into effect to preserve the status quo and allow courts to consider “whether a state can avoid responsibility for its laws in such a manner.”

Breyer wrote his own dissent, which was joined by Kagan and Sotomayor, in which he acknowledged the procedural challenges posed by the Texas law but expressed skepticism as to “why that fact should make a critical legal difference” when “the invasion of a constitutional right” is at issue.

Sotomayor, joined by Breyer and Kagan, described the court’s order as “stunning.” “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny,” she wrote, “a majority of the Justices have opted to bury their heads in the sand.”

Both Breyer and Sotomayor also noted that, within the first day that the Texas was in effect, clinics in the state began turning away most or all abortion patients.

Kagan’s dissent, joined by Breyer and Sotomayor, focused largely on the process by which the court reached its ruling on Wednesday night. She complained that, “[w]ithout full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions.” The result, she concluded, “is emblematic of too much of this Court’s shadow-docket decisionmaking — which every day becomes more unreasoned, inconsistent, and impossible to defend.”

The four justices in the minority seem alarmed.

There may be other kinds of fallout in store for Texas. See Lurch to Right May Imperil Texas’s Attraction for Employers at Bloomberg.

Companies including Apple Inc., Toyota Motor Corp. and Tesla Inc. have moved operations and college-educated, creative-class workers to Texas in recent years; enclaves like Austin and Houston’s Montrose neighborhood felt a little like San Francisco with withering humidity. Now, those workers find themselves in a state taking far-right stances in a culture war with national ramifications for women’s autonomy and presidential politics.

“Other states are competing for people,” said Tammi Wallace, chief executive officer of the Greater Houston LGBT Chamber of Commerce. “If you look at what our state is doing, and then you see another state where they’re not doing some of those things, you might say, ‘Well, the money’s good, but where do I want to raise my family?’”

Texas’s infamously stupid power grid may be a consideration also. What will big business do?

Elon Musk is being a squish. But there are several “Silicon Valley” companies that have moved into Texas in recent years.

I agree with Becca Andrews at Mother Jones that the Texas law is just a beginning. Criminalization fanatics are not going to rest until more states have passed similar laws. We don’t yet know what the fallout will be or how messy the vigilantism will get. Watch this space.