Roe On Life Support

[ Posted Thursday, September 2nd, 2021 – 15:50 UTC ]

The anti-abortion movement finally got what it wanted all along: a pliant Supreme Court that would overturn Roe v. Wade. It took them a long time and a lot of effort to accomplish this -- this movement truly started in the Reagan years with the self-titled "Moral Majority," after all -- but they've finally reached the end of the road. Maybe this will finally get Democrats to pay a little more attention to the importance of Supreme Court picks when voting in presidential races, because the rightwingers have known this for decades now. And it has finally paid off for them.

We all kind of knew this was coming, after Mitch McConnell blatantly stole away a Supreme Court pick from Barack Obama. We knew it was imminent when Ruth Bader Ginsburg died while a Republican was president and McConnell was still Senate majority leader. And now, here we are.

To be sure, Roe is not technically gone yet. But it's on life support at best. What the court just ruled on was an emergency request for a stay, which would have prevented a new (and Draconian) Texas law from taking effect, until the courtroom legal battles were all over with. This was first turned down without comment, then literally in the dead of the night last night they released a 5-4 decision which allowed the law to be fully implemented without issuing a stay.

Stays are usually issued to preserve the status quo ante and to avoid causing harm or great changes while the courts decide on questions of constitutionality. A stay would have been perfectly appropriate here, because the lower courts are still considering the new law. Allowing this case to continue -- even with appeals, all the way up to the Supreme Court -- while implementation of the law was put on hold would have been the prudent thing to do. It would have even been the conservative thing to do, in a much older sense of the word.

The underlying legal case will still continue, and will assumably wind up before the court. But at this point it's pretty easy to see what the outcome will be: another 5-4 decision, with Chief Justice John Roberts voting with the liberals, but all five of the other conservatives voting together. That's the safe bet, at this point. It may even be an anticlimactic outcome when it comes, because there is another case (from Mississippi) challenging Roe on similar grounds (but nowhere near as Draconian as the Texas law) which will be heard first, in October. This decision could be the one which either totally eviscerates all the precedents previously set under Roe, or could even completely toss Roe out altogether. So it's not over yet, but as I said Roe really does appear to be on life support, at best. So much for all that stare decisis Supreme Court nominees love to express their support for in their hearings, I suppose.

Condemnation of the ruling was swift, starting with the dissent written by Justice Sonia Sotomayor (from an official PDF of all the dissents in the case, presented here with case citation notes removed).

The Court's order is stunning. 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. Last night, the Court silently acquiesced in a State's enactment of a law that flouts nearly 50 years of federal precedents.

That's how Sotomayor began. Later, after pointing out that the Texas law clearly infringes on the precedent of women having a constitutional right to have an abortion before viability (for the whole first trimester, at the very least) which has been upheld in numerous rulings, she pointed out the legal trickery they used in an attempt to avoid the federal courts altogether:

The Texas Legislature was well aware of this binding precedent. To circumvent it, the Legislature took the extraordinary step of enlisting private citizens to do what the State could not. The Act authorizes any private citizen to file a lawsuit against any person who provides an abortion in violation of the Act, "aids or abets" such an abortion (including by paying for it) regardless of whether they know the abortion is prohibited under the Act, or even intends to engage in such conduct. Courts are required to enjoin the defendant from engaging in these actions in the future and to award the private-citizen plaintiff at least $10,000 in "statutory damages" for each forbidden abortion performed or aided by the defendant. In effect, the Texas Legislature has deputized the State's citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors' medical procedures.

The Legislature fashioned this scheme because federal constitutional challenges to state laws ordinarily are brought against state officers who are in charge of enforcing the law. By prohibiting state officers from enforcing the Act directly and relying instead on citizen bounty hunters, the Legislature sought to make it more complicated for federal courts to enjoin the Act on a statewide basis. Taken together, the Act is a breathtaking act of defiance -- of the Constitution, of this Court's precedents, and of the rights of women seeking abortions throughout Texas. But over six weeks after the applicants filed suit to prevent the Act from taking effect, a Fifth Circuit panel abruptly stayed all proceedings before the District Court and vacated a preliminary injunction hearing that was scheduled to begin on Monday. The applicants requested emergency relief from this Court, but the Court said nothing. The Act took effect at midnight last night.

. . .

Today, the Court finally tells the Nation that it declined to act because, in short, the State's gambit worked. The structure of the State's scheme, the Court reasons, raises "complex and novel antecedent procedural questions" that counsel against granting the application, just as the State intended. This is untenable. It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.

. . .

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.

I dissent.

At this point, with Roe on life support, Democrats are finally going to attempt something which really should have been done decades ago -- enacting the right to have an abortion into federal law. This way, Congress would signal its clear intent, instead of having the Supreme Court shift the meaning of their original Roe decision over time. This is going to be a politically fraught thing to even attempt, as even today there are anti-abortion Democrats (both voters and politicians).

Speaker of the House Nancy Pelosi has promised to bring up a bill to codify Roe when the House returns from their extended summer vacation. She can't lose more than three Democrats, though, so even this may not succeed. If the House does manage to pass such a bill, then it will surely die in the Senate, since there are only two Republican senators (both women) who would even consider voting for such a law. With the legislative filibuster still intact, that would be the death of the bill.

There are only three political ways to fix this. None will be easy. The first is to jettison the filibuster once and for all and pass the House's bill. This would require getting Senators Kyrsten Sinema and Joe Manchin on board, which is a pretty heavy lift. But this is, in fact, the easiest of the three routes. The next would be to also jettison the filibuster and then pack the Supreme Court with four more liberal members. This would (just ask Franklin D. Roosevelt) be incredibly tough, politically, to pull off. But the third is even more farfetched: pass the right to an abortion as a constitutional amendment. This has to be seen as an absolute impossibility, since a whole lot of Republican state legislatures would have to ratify it.

There's no easy way out of this mess, really. Roe v. Wade isn't gone quite yet -- but it is on life support and the prognosis is not good at all. Women upset by this new reality who live in either Arizona or West Virginia should be strongly urged to contact their senators, in support of eliminating the filibuster. At this point, getting Sinema and Manchin to change their minds is really Roe's last hope.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


25 Comments on “Roe On Life Support”

  1. [1] 
    Elizabeth Miller wrote:

    What has been the general stance of the Democrats in their defense of Roe v. Wade and of the reproductive rights of women? I mean, how do they sell their position on this to voters? What's their general pitch, in other words?

  2. [2] 
    Elizabeth Miller wrote:

    I ask because Democratic messaging on this issue could be a lot better and persuade more people and garner more votes and seats. If it's not already too late, that is.

  3. [3] 
    John M from Ct. wrote:

    I've been enjoying another commentary site's suggestion that some blue states should pass laws deputizing citizens to sue gun-owners for $10,000 for failure to adhere to gun safety or possession laws. Or, even more interestingly, for failure to provide proof they are sworn members of state-sponsored and trained militias. As one commented noted on the site, wait -- the Court has ruled that the militia membership thing is not needed for private gun possession. And the site's authors replied, sure. Sure. And the Court has ruled that abortions are legal until viability, too.

    Another fun response would be for some large-pocketed Democrats to authorize random $10,000 lawsuits against Texas legislators, private anti-abortion citizens, and the like, claiming they have abetted abortions, whether they have or not - with the goal of flooding the Texas courts with thousands of lawsuits that must be heard and dismissed.

    Along with the actual anti-abortion content of this law, this novel idea of deputizing citizens to enforce the laws must be nipped in the bud. It can only be done if conservatives quickly see that it is inherently self-defeating.

  4. [4] 
    MtnCaddy wrote:

    [1] I'm sure it varies from Democrat to Democrat, so I'll take a stab at it:

    Freedom of religion is meaningless without freedom from other people's religion.

    Forcing one's religious views on those who disagree is completely contrary to the Founding Father's intent in writing our Constitution, even if a majority of Americans want to do so. And for the record a majority of Americans do NOT want abortion rights criminalized. One cannot be against "Big Government" yet approve of the Government supervising women's uteruses.

    Besides that, abortion is not mentioned in any Christian Scripture -- to quote the poet,"Jesus ain't say that."

  5. [5] 
    MtnCaddy wrote:


    Along with the actual anti-abortion content of this law, this novel idea of deputizing citizens to enforce the laws must be nipped in the bud. It can only be done if conservatives quickly see that it is inherently self-defeating.

    One would think, but the GOP is no longer Conservative. It is a cult of personality period, full stop.

    It has no principles beyond staying in power no matter what.

  6. [6] 
    MtnCaddy wrote:


    A truly brave Democrat might point out,

    I get it that you don't think anyone should be able to get an abortion. But the Republicans are playing you.

    Back in the day they said,

    "You can boss the n*ggers
    And we'll boss the money."

    Nowadays its,

    "You can boss women's uteruses
    And we'll boss the money."

  7. [7] 
    andygaus wrote:

    The only good news it that the website that was set up to allow neighbors to snitch on each other:
    has been so overwhelmed with spam that when I visited it, it was no longer offering forms for people to fill out.
    I was disappointed. I wanted to tell them about Farmer MacDonald preventing his hen's eggs from hatching and slaughtering his calves and then seizing the milk the cow produced to feed its murdered offspring. Not to even speak of what he's done to his oxen.

  8. [8] 
    Elizabeth Miller wrote:


    That's what I thought. The Democrats need a new message around the issue of abortion rights.

  9. [9] 
    Elizabeth Miller wrote:

    Safe. Legal. And, RARE.

    I never hear Democrats talk about that last bit.

  10. [10] 
    MtnCaddy wrote:


    I believe that's a Democratic talking point going back to the Clinton administration.

    The Christofacists (aka the American Taliban) never bought into it.

    This reminds me of a quote from Mark Twain,

    Religion is a good thing -- in moderation.

  11. [11] 
    MtnCaddy wrote:


    Religion is a fine thing -- in moderation.

  12. [12] 
    BashiBazouk wrote:

    Found on Reddit:

    In Texas the virus has reproduction rights but the women do not.

  13. [13] 
    MtnCaddy wrote:


    I really enjoyed these ideas!

    Especially the spamming of the Texas judicial system. High grades for payback, a lesson to these people and... snarkiness -- woot!

    Yep, we're definitely evolving as a planet.

  14. [14] 
    MtnCaddy wrote:

    Oooo, we are smoking tonight down here in Weigentia, aka the comments section.

    Alright alright! All together now,

    Sooomebody -- stop me!

    - THE MASK

  15. [15] 
    ListenWhenYouHear wrote:

    So maybe the citizens of Texas should turn this on the politicians by getting a referendum on the ballot that allows citizens to sue any politician that lies to their constituents. If citizens can sue the politician for spreading misinformation and be awarded up to $10,000 in damages, then maybe politicians will shape up. We know that the politicians would never pass this, but I hope that Texas has referendum laws that will bypass both the Governor and the Legislature,

  16. [16] 
    MtnCaddy wrote:

    ...and it's officially o-dark thirty here on the Left Coast. We're live and, as always, giving the people the truth, Comrades!

    ...Caller lines are open...

  17. [17] 
    MtnCaddy wrote:


    Nope. I looked it up.

  18. [18] 
    MtnCaddy wrote:

    Texas cannot recall their Governor, either.

  19. [19] 
    MtnCaddy wrote:


    So Elizabeth. Do you like any of these talking points?

    I swear. I don't seem to get much feedback for my pronouncements. I'm looking for someone to point out the flaws in my thinking. Which improves me with the added bonus of a little kumbaya vibe. Heal our Nation and stuff.

    Where I won't go is being obnoxious in order to get attention. Michale, need I say more? He was more clever than monotonous Deathodon what's his name,so he was more annoying. I remember a 400+ comment thread sparked by one of his outrages. Yeah, The Artist of Snark known as Kick along with the usual suspected gave it right back good, my God! What a waste of our time over the poor bastard.

    Anyways, I'm a relative newbie here but here's a shout out to all of of you who are kindred spirits.


    and I need a hug...

  20. [20] 
    Mezzomamma wrote:

    There are too many examples from Central and South America (if not elsewhere) of how this kind of vigilante system can be abused.

    I do like the idea of deputizing citizens to sue gun owners, and would include suing retailers and private sellers. You'd think that 'pro-life' would include protecting actual children from being shot after birth, but it doesn't seem to. FWIW, I grew up in a place where game hunting was the norm, but so was careful firearm safety.

    In my darkest moments, I wonder if all those 'rescued' fetuses are really meant to become little more than target practice for aggrieved white males.

  21. [21] 
    Elizabeth Miller wrote:

    I think this Texas law may have the exact opposite outcome than that which was intended by the lawmakers.

    Women are going to be on top of this and find out right away if they're pregnant and take what action they feel is necessary within the new time period prescribed.

    Shocking. Positively shocking.

  22. [22] 
    MtnCaddy wrote:


    In my darkest moments, I wonder if all those 'rescued' fetuses are really meant to become little more than target practice for aggrieved white males.

    Man, that's just brutal. Powerful.

    Do you mind if I use it myself? Imitation being the highest form of flattery, amirite?

  23. [23] 
    ListenWhenYouHear wrote:

    How can anyone sue for assisting with an illegal abortion without proof that the abortion actually took place? Who can obtain a woman’s medical records without her consent?

    And why can’t women sue the politicians who voted for this for violating their Roe vs. Wade’s precedent? Yes, I know that there is precedent that prevents citizens from suing politicians for damages resulting from their carrying out the functions of their jobs, but isn’t this entire law about saying precedents no longer matter in our legal systems?

  24. [24] 
    TheStig wrote:

    Texas Republicans are encouraging their junkyard dogs to run free. If this strategy succeeds, it will replicated in other Republican states. Some pushback is needed.

    There are well over 100 major corporations headquartered in Texas…
    and these corporations have investors and customers from all the States It would be a pity if something were to happen to these many corporations that call Texas home. Boycotts. Coordinated internet visits just say “hi.” Basically, Things That Disrupt Cash Flow.. Make Texas stink like a giant, fresh cow pie.

    If the top 2% cares enough, they will do the right thing. Some may even feel good about it.

  25. [25] 
    Kick wrote:

    All | MtnCaddy

    Y'all are all correct; Texas sucks (at the present time).

    and I need a hug...

    Invoke my name two more times. ;)

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