Did the Right Just Shoot Itself in the Foot?

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.

12 thoughts on “Did the Right Just Shoot Itself in the Foot?

  1. That "rare" always bothered me. 

    You need it when you need it. 

    And if you don't, then no one will just give you an abortion if you ask for one, anyway!  There has to be a medical need.  Not just you woke up and had some spare time today, so you'll go to the neighborhood abortion provider and go through one just for the practice.

    "Rare."  Like you have to limit your body's reproductive capability 'cause you got just 3 chances – like "3 strikes and YOU'RE OUT!"


  2. This law is so bizarre that I found myself looking up terms like "champerty" and  "barratry". But I suspect Texas has been too cute by half.

    Boycotts are inevitable. Corporations must step up. Texas has been using bribery to draw businesses to the state, hoping that people will overlook its horrendous racial history and the fact that most of the state is uninhabitable in the summer and physically ugly. But Texas is Texas no matter the boom town gloss it promotes. Now all those transplants who moved there for the tax environment and the employment opportunities have to ask themselves if it's worth the cost.

    This is the darkness the Right has given them. This is what happens when the will of the people is treated as irrelevant. This is the face of an ignorantocracy, a Republic of Boobs.

    Yes, they have gone much too far. In a horrible way, the Supreme Court's decision will move the fight from the courts to the boardroom and the ballot box.

    Bring it on.


    • I live in Orange County CA, a conservative tech bubble that places like Texas like to poach talent from. My sense of this mentality: yes some educated people will leave Texas, but a large pool – especially men – simply won't care. In fact, they may like the whole idea of being in control.

      I doubt that this ruling or the failure of the power grid will matter to those who are hypnotized by the right's idea of "freedom".

      Now, what I think will happen is that this ruling will deter some newcomers from settling in Texas. It will draw some and repel others.  It's just one example of how the country's polarization is sorting out people geographically.

    • The "tax environment" only benefits the wealthy, most of the middle and lower classes experience higher taxes in Texas, then, say, California.

  3. Maha's observation that the left is "squishy" is correct, but neither has the mainstream GOP (before Trumpism) ben eager to make it a flagship issue. IMO, they were eager to move the discussion from COVID because the vaccines work and over 50% vaccinated translates to a higher number because they still haven't cleared the vaccines for kids. 

    The vaccine refusers are overwhelmingly Republican Trumpsters and they are a distinct minority. The perception of these idiots being the reason the pandemic is being prolonged continues. So COVID is a winning issue for Biden and a loser for the GOP. 

    What strategic decision do they make? The reverse Roe v Wade (effectively) and that's gonna be even LESS popular than spreading a deadly disease in the name of freedom. My guess is that the southern states will go ape shit trying to be even more draconian than TX.  The base will love it.

    The majority will be put off by it, until they come into contact with the fetus people who think they just won the Kentucky Derby. The pure glee of the pain they will inflict on the Dems will closely resemble a 7.2 orgasm on the Richter scale. And pleasure over creating hardship won’t sell well.

    And we're only seeing the beginning of a surge in violence. That will seal the deal for everyone who isn't completely fascist. And that's a strong majority. There can be no pivot to the center for anyone running for election in the GOP. 

    This will be brutal as a root canal without novocaine. But the agony may drive people to vote. I hope.

    • Whenever such a grand design on the part of Republicans is suggested, I remember Deep Throat's line from All the President's Men, "These are not very bright guys, and things got out of hand." (This is true in other arenas, too. They don't  understand the science of life, they don't understand law enforcement, they don't even know what's in the Constitution. None of this bothers them.)

      So I don't think there is a puppet master saying, "COVID's killing us, let's gin up the Roe people!" The Texas law was waiting for the magic moment that Amy Coney Barrett, or someone very much like her, took the oath.

      They can't possibly know how this will play out. But being rather dense opportunists, they launched this turkey because that's what they've been salivating over for decades, and the Protestant Right is one of the few reliable pillars of their support. Now the question is whether Frum is right? Is the party now the dog that caught the car? Because this could destroy them.


  4. I've been reading Rosalind Miles'  "Who Cooked The Last Supper? –  the women's history of the world."  It's an excellent chronical of man's inhumanity to woman, our seemingly endless destiny.

    Aren't these people old enough to remember the times of the Roe decision – the women dying because of their pregnancies?  I am and I've had enough.

  5. Remember:  "The cruelty IS the point"

    Even John Roberts was too embarrassed by this TexASS "law" to sign his name to it.


  6. A proposal to the texas taliban legislature: All texas "Men" who impregnate a woman and force her to carry the pregnancy to term must begin paying child support at week 5 of the pregnancy.


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