The Supreme Court’s decision to let an extreme Texas anti-abortion law stand has touched off yet another round of outraged tweets, press releases, and declarations insinuating that while the situation is awful and while the court needs to be overhauled, there is nothing that can be done right now to halt America’s inexorable lurch toward the Republic of Gilead.
This is, in a word, garbage — and it is garbage with a pernicious purpose.
Yes, America needs presidents who appoint more sane Supreme Court justices over the next few decades. And yes, the initiatives to expand the court and time-limit judicial terms are important over the long haul. But as Texas empowers anti-abortion activists to become bounty hunters, something can be done in the here and now.
Democrats in Washington control Congress and the White House, two branches of government that have the power to preempt not only the Texas law, but also stop any copycat anti-abortion laws that other Republican states now race to pass.
This is something Democratic lawmakers can do today — this very minute — to protect women’s health. They don’t have to wait eighteen more days until their summer vacation is over, as House Speaker Nancy Pelosi, D-CA, suggested Thursday. They can do it right now.
And if they once again opt to cite filibuster rules they have the power to change or if they manufacture some other fake reason for inaction — then they are willfully choosing to take the side of the anti-abortion extremists.
I suspect we’re going to look back at this moment, where a Democratic majority won’t end the filibuster and expand the court to protect voting rights and reproductive freedom, as the last window there was to hold this democracy thing together
— Joe Rospars (@rospars) September 2, 2021
“No Matter Where She Lives”
The reason the Democrats have the power to invalidate the Texas law goes back to the underpinnings of Roe v. Wade. That case legalizing abortion became the law of the land through court precedent — an inherently fragile state of affairs that has now allowed five unelected extremists on the Supreme Court to wake up one day and decide to ignore it. They can do so because Roe’s precedent has never been explicitly legislated as a federal statutory protection.
Yes, you read that right: Since the Roe decision in 1973, Democrats in Washington have never bothered to codify the precedent as a federal law, even when they have held both houses of Congress and the presidency. (Though some Democratic states have passed their own abortion protections.)
The same story has now unfolded during the first seven months of the Biden presidency, allowing Texas Republicans and Supreme Court extremists to take advantage of the negligence.
Of course, Biden campaigned on a promise to pass such a federal law — and the good news is that he and his Democratic colleagues in Congress remain in a position to actually make that happen. There is already legislation introduced in Congress to do this. It is called the Women’s Health Protection Act, it already has 48 sponsors in the Senate, and its core precepts are wildly popular according to survey data.
“[The bill] creates federal protections against state restrictions that fail to protect women’s health and intrude upon personal decision-making,” notes a description from the bill’s sponsor, Sen. Richard Blumenthal, D-Conn. “It promotes and protects a woman’s individual constitutional rights, no matter where she lives.”
This legislation would use federal authority to invalidate anti-abortion state laws. It makes clear no “state government shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law that conflicts with any provision of this act.”
And yet as Republican legislators in states across the country have been passing laws to try to restrict abortion, Democrats didn’t even introduce the latest version of this bill until June, even though there have been versions of it going back to at least 2013. And then, after Democrats finally introduced it again, the legislation has been languishing in a committee — all while Democrats have been raising money off their promises to protect a woman’s right to choose.
This bill doesn’t have to sit in a committee. Democrats can pass it — not next week, not next month, but today. Right now. And they could seek help from Republican senators Lisa Murkowski of Alaska and Susan Collins of Maine, who have both said they support Roe and who have both humiliated themselves by previously insisting that the Republican Supreme Court nominees they’ve approved would not overturn Roe.
The arguments against passing the Women’s Health Protection Act are pathetic.
Biden promised it, and forty-eight Senate Democrats are sponsors of the legislation. Avoiding this confrontation in order to appease two Democratic holdouts — Senators Joe Manchin of West Virginia and Bob Casey of Pennsylvania — is unacceptable.
Likewise, citing arcane filibuster rules as reason for Democrats to not even have this fight is equally ridiculous.
At a time when Republican legislators and judges are laying waste to the rules protecting women’s health, a change in Senate rules is the absolute least that can be done. Citing the filibuster as some sort of undebatable law of nature or immovable object is as absurd and insulting as pretending an unelected, fireable parliamentary adviser is the reason America can’t get a $15 minimum wage. You have to be either a #TeamBlue zombie, a pundit on the take, or a gullible moron to accept such obvious bullshit.
Now sure, codifying Roe in federal law may not be a permanent solution. A new statute could be challenged in the courts and ultimately be overturned by the same Supreme Court that just allowed the Texas law. Similarly, if Republicans win back Congress and the White House, they could repeal it. One galaxy brain pundit today seemed to argue that this future possibility is reason enough for Democrats to do nothing today.
But this circular logic is a form of learned helplessness that depicts anything Democrats could do as futile just because GOP extremists might later try to dismantle it. This is not merely dumb, it is deliberate dishonesty designed to let Democrats continue raising money and running campaigns on promises to protect abortion rights while they’re not actually doing anything to deliver on those promises. It lets Democrats pretend that the only things they can do are just over the horizon — after you give them your volunteer time and your money to help them win the next election and keep their cushy jobs in Washington.
You can try to come up with inane, unsubstantiated Rube-Goldberg-machine theories blaming Ralph Nader or Susan Sarandon or Bernie Sanders or Jill Stein or anyone else for Democrats losing winnable presidential races, which then led to the Republican Supreme Court appointees who allowed a Texas law to stand.
This kind of fever dream may make Democratic partisans feel good about themselves and shirk responsibility, but here’s the thing: the Democratic Party already won the elections necessary to take control of the governmental bodies that make laws and then deliver on their legislative promises. They have the power to enact a law protecting a woman’s right to choose — and if they still refuse to do that in the face of the Texas insanity, then they are complicit in the Gilead-ification of America.