Thursday Reads: SCOTUS=American Taliban

210902_gma_scott_0714_1_hpMain_16x9_992

American Taliban

Good Day, Sky Dancers.

As far as I’m concerned, the most important story today is that the corrupt U.S. Supreme Court is signaling the approaching death of reproductive rights for American women. I was so angry that I couldn’t sleep last night, and I’m not thinking too clearly this morning. As I’m sure you know, the Court allowed the insane Texas abortion ban to take effect around midnight on Tuesday, without explanation or comment. Late Wednesday night, the court released the justices’ opinions. The New York Times summarized all of them: Supreme Court, Breaking Silence, Won’t Block Texas Abortion Law.

The vote was 5 to 4, with Chief Justice John G. Roberts Jr. joining the court’s three liberal members in dissent.

The majority opinion was unsigned and consisted of a single long paragraph. It said the abortion providers who had challenged the law in an emergency application to the court had not made their case in the face of “complex and novel” procedural questions. The majority stressed that it was not ruling on the constitutionality of the Texas law and did not mean to limit “procedurally proper challenges” to it.

But the ruling was certain to fuel the hopes of abortion opponents and fears of abortion rights advocates as the court takes up a separate case in its new term this fall to decide whether Roe v. Wade, the landmark 1973 decision establishing a constitutional right to the procedure, should be overruled. It also left Texas abortion providers turning away patients as they scrambled to comply with the law, which prohibits abortions after roughly six weeks.

The “conservatives” were too cowardly to explain their votes, but the other four justices filed dissenting opinions

“The court’s order is stunning,” Justice Sonia Sotomayor wrote in her dissent. “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.”

“The court has rewarded the state’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the court’s precedents, through procedural entanglements of the state’s own creation,” Justice Sotomayor wrote. “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.”

Chief Justice Roberts wrote that he would have blocked the law while appeals moved forward.

54c8b036fb764f80403fcfd33e35bd8bec-texas-abortion-ban.rsquare.w1200“The statutory scheme before the court is not only unusual, but unprecedented,” he wrote. “The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime.”

The chief justice underscored the tentative nature of the majority’s ruling. “Although the court denies the applicants’ request for emergency relief today,” he wrote, “the court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue.”

Justice Elena Kagan criticized the court’s practice of deciding important issues in rushed decisions without full briefing or oral argument — on what Supreme Court specialists call its “shadow docket.”

“Today’s ruling illustrates just how far the court’s ‘shadow-docket’ decisions may depart from the usual principles of appellate process,” she wrote. “That ruling, as everyone must agree, is of great consequence.”

“Yet the majority has acted without any guidance from the court of appeals — which is right now considering the same issues,” she wrote. “It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion — that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail.”

“In all these ways,” Justice Kagan wrote, “the majority’s decision is emblematic of too much of this court’s shadow-docket decision making — which every day becomes more unreasoned, inconsistent and impossible to defend.”

“Today’s ruling illustrates just how far the court’s ‘shadow-docket’ decisions may depart from the usual principles of appellate process,” she wrote. “That ruling, as everyone must agree, is of great consequence.”

“Yet the majority has acted without any guidance from the court of appeals — which is right now considering the same issues,” she wrote. “It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion — that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail.”

“In all these ways,” Justice Kagan wrote, “the majority’s decision is emblematic of too much of this court’s shadow-docket decision making — which every day becomes more unreasoned, inconsistent and impossible to defend.”

d9d58583-0b79-4b7c-a049-b373e5393510-RBB_Texas_rally_for_life_65707Justices Breyer and Kagan joined Roberts’ dissent, and Breyer also wrote his own dissent. Zoe Tillman at Buzzfeed News: 

Breyer — who has spent the past year fending off calls from the left to step aside and let President Joe Biden appoint a successor while he has a Democratic majority in the Senate — wrote that it was true that the lawsuit raised difficult threshold questions about how this type of case could be handled by the courts. But he wrote that there had to be a way for courts to deal with an imminent violation of a party’s legal rights.

“There may be other not-very-new procedural bottles that can also adequately hold what is, in essence, very old and very important legal wine: The ability to ask the Judiciary to protect an individual from the invasion of a constitutional right — an invasion that threatens immediate and serious injury,” Breyer wrote.

Amber Phillips at The Washington Post: What to know about the Texas abortion law.

The law, which was passed in May and went into effect Wednesday, says that any pregnancy in which a heartbeat is detected cannot be aborted. That effectively means if you’re six weeks pregnant, you cannot have an abortion in the state of Texas, because that is around when most fetal cardiac activity can be detected. (Doctors opposed to this legislation say that is misleading language, and that the fluttering detected isn’t always necessarily a heartbeat so early in a pregnancy.)

The law makes no exceptions for rape, sexual abuse or incest.

The law does something else novel: It effectively incentivizes the public to police abortions. It allows people — anyone living in the state of Texas — to sue an abortion provider or anyone else they suspect is “aiding and abetting” abortions after that six-week mark. And the law sets a $10,000 award for any successful lawsuit to stop an abortion.

Taken together, those decisions allowed Texas lawmakers to essentially end abortions in their state, abortion rights activists say.

210831-MJF-texas-abortion-tase_jigpixOn the SCOTUS decision:

The court announced that a five-person conservative majority had decided to let the ban stand. The court’s most conservative justices, including the three President Donald Trump nominated, such as Amy Coney Barrett, decided to let the law stand. In a one-paragraph statement, these justices said there are “serious questions regarding the constitutionality of the Texas law,” but indicated that the way the law was set up, the court is unsure how to stop if from going into effect.

The three liberal justices, joined by Chief Justice John G. Roberts Jr., dissented. Roberts said he would stop the law from going into effect because it is so novel and far-reaching.

The justices didn’t say anything about whether the statute is constitutional. They just said it will stay in place while that question is litigated.

That was an unexpected move that could signal the court is ready to strike down Supreme Court precedent created nearly 50 years ago in Roe v. Wade that guarantees a woman access to abortion services in the first half of her pregnancy before the fetus would be viable outside the womb,said Lisa Soronen, executive director of the State and Local Legal Center, which supports municipalities in cases before the Supreme Court.

“The justices know that this Texas law violates Roe v. Wade. They all know that,” she said. To keep the law in place, “that still doesn’t overturn Roe v. Wade, it just makes a really big statement about what they think of it.”

Phillips notes that other Republican-controlled states are likely to quickly pass similar laws effectively banning abortion. Read about it at the WaPo link.

Joan Biscupic at CNN: In the shadows: Why the Supreme Court’s lack of transparency may cost it in the long run.

Supreme Court justices tout judicial integrity and the importance of public confidence in their decisions, but the court’s midnight silence Tuesday while letting a Texas law that curtails abortion rights take effect — followed by a midnight order Wednesday — offers the latest and most compelling example of its lack of transparency and the cost.

The justices’ secretive patterns have gained new attention as confidence in all government institutions has waned. Witnesses before a bipartisan commission set up by President Joe Biden to consider court revisions — most visibly, the options of term limits and the addition of more seats — have targeted the justices’ secrecy and how it contributes to public distrust of the high court, along with the lopsided advantage the court gives to some litigants.

Such lack of transparency is only part of the context behind the Supreme Court’s silence in the closely watched Texas case. The emboldened conservative majority already is poised to reverse or at least undercut Roe v. Wade, the 1973 landmark ruling that declared women’s constitutional right to end a pregnancy. The court announced last spring that it would take up in the 2021-22 session a dispute over Mississippi’s ban on abortions after 15 weeks. The Texas law goes much further, making it illegal to terminate a pregnancy when a fetal heartbeat is detected, which may be typically around six weeks.

Both laws sharply conflict with Roe v. Wade, which forbade states from interfering with a woman’s abortion decision before the fetus would be viable, that is, able to live outside the womb, at about 22-24 weeks.

The justices have made plain their concerns regarding public mistrust and misunderstanding of the Supreme Court. Chief Justice John Roberts regularly declares that judges differ from elected lawmakers, and Justice Stephen Breyer protested in a speech at Harvard last spring that they should not be regarded as “junior-varsity politicians.” Breyer cited the court’s long-standing preservation of abortion rights as evidence of its nonpartisan, nonideological character.

Separately last spring, Justices Sonia Sotomayor and Neil Gorsuch emphasized in a joint appearance, advocating civics education, the deep reasoning that underlies their opinions. They criticized those who would look only for a bottom-line judgment.

Yet no judgment — or word of any sort — came late Tuesday night, with the clock ticking, anxiety rising among both sides in Texas and a national audience watching.

Read the rest at CNN.

More opinions:

Gail Collins at The New York Times: Texas Is Trying to Overturn Roe v. Wade All by Itself.

Mark Joseph Stern at Slate: The Supreme Court Overturned Roe v. Wade in the Most Cowardly Manner Imaginable.

Dana Millbank at The Washington Post: Opinion: Texas shows us what post-democracy America would look like.

Michelle Goldberg at The New York Times: Republicans Are Giving Abortion Opponents Power Over the Rest of Us.

Any man who expresses “concerns” about women in Afghanistan needs to explain why they aren’t concerned about women in Texas and ultimately the entire U.S. Or they need to STFU!

Hang in there Sky Dancers!!


Thursday Reads: Women’s Bodies, Women’s Lives

Peonies, by Claude Monet

Good Morning!!

Even as we worry about Trump and Bolton starting a war with Iran and about the Democrats refusing to follow the Impeachment road map provided by Robert Mueller, American women must face the fact that our very personhood is being attacked.

Personally, I have decided that I will not vote for any man for president. The right of women to make decisions about our own bodies is too important.

Here’s the latest on the War on Women:

NBC News: Missouri Senate passes bill to outlaw abortion at 8 weeks.

Missouri’s Senate has passed what its authors call one of the nation’s most stringent anti-abortion bills, which would outlaw nearly all abortions at eight weeks of pregnancy.

The Republican-led Senate passed the bill, dubbed Missouri Stands With The Unborn, by a margin of 24 to 10 early Thursday morning….

Missouri’s move comes hours after Alabama Gov. Kay Ivey signed a bill that would introduce a near-total abortion ban in that state. Kentucky, Mississippi, Ohio and Georgia have approved bans on abortion once a fetal heartbeat is detected, which can occur in about the sixth week of pregnancy.

Louisiana is following suit with its own “heartbeat” abortion ban, which was approved unopposed by the Louisiana House Health and Welfare Committee on Wednesday.

Abortion right activists are mobilizing in Alabama. The Washington Post: Governor signs Alabama abortion ban, which has galvanized support on both sides, setting up a lengthy fight.

MONTGOMERY, Ala. — As a crop duster with a banner saying “Abortion is okay” hummed above the capitol, circling back and forth around the governor’s mansion, a group of women below let out a cheer.

Amaryllis by Piet Mondrian (1910)

“Just another day in Alabama,” said Mia Raven, director of People Organizing for Women’s Empowerment and Rights (POWER) House. “We knew this would pass and we got ready.”

Amanda Reyes, who works with an abortion fund, was wearing an “I’m on the pill” T-shirt, complete with instructions printed on the back detailing how to get a medical abortion. She also looked skyward: “Here it comes again! That’s just the coolest thing.”

Hours after the Alabama Senate voted late Tuesday to ban abortions in almost all circumstances — including in cases of rape and incest — women’s rights activists and abortion rights advocates said the decision to approve the nation’s strictest abortion measure has energized them. Knowing that the bill was designed to challenge Roe v. Wade, they are gearing up for the fight.

The Washington Post: Louisiana ‘heartbeat’ abortion ban nearing final passage.

BATON ROUGE, La. — A proposal to ban abortions in Louisiana as early as the sixth week of pregnancy continued to speed through the state legislature Wednesday, the same day Alabama’s governor signed the nation’s most restrictive law against the procedure.

Without objection, the Louisiana House Health and Welfare Committee backed legislation to prohibit abortions when a fetal heartbeat is detected, similar to laws passed in several conservative states that are aimed at challenging the U.S. Supreme Court’s 1973 decision that legalized abortion. Louisiana’s ban, however, only would take effect if a federal appeals court upholds a similar law in Mississippi.

Louisiana’s so-called fetal “heartbeat bill” is sponsored by state Sen. John Milkovich, one of several measures that lawmakers are advancing to add new restrictions on abortion. Senators already have supported the bill, which will next receive full House consideration, one step from final passage. Democratic Gov. John Bel Edwards has indicated he will sign the measure if it reaches his desk.

The New York Times sums up the current abortion landscape: ‘The Time Is Now’: States Are Rushing to Restrict Abortion, or to Protect It.

Alex Katz, Tulips 4, 2013

States across the country are passing some of the most restrictive abortion legislation in decades, deepening the growing divide between liberal and conservative states and setting up momentous court battles that could profoundly reshape abortion access in America….

The national race to pass new legislation began last fall, after President Trump chose Brett M. Kavanaugh to replace Justice Anthony M. Kennedy on the Supreme Court, adding what some predicted would be a fifth vote to uphold new limits on abortion. Red states rushed to pass more restrictions and blue states to pass protections.

Now, as state legislative sessions draw to a close in many places, experts count about 30 abortion laws that have passed so far.

That is not necessarily more than in past years, said Elizabeth Nash, a legal expert at the Guttmacher Institute, which supports abortion rights.

What’s different is the laws themselves, which have gone further than ever to frontally challenge Roe v. Wade, the Supreme Court’s 1973 ruling that established federal protections for abortion.

Read the rest at the NYT.

Interestingly, these extreme laws could be interfering with right wing plans to overturn Roe v. Wade.

Flowers in a Glass Vase by John Constable (c. 1814)

Even Pat Robertson thinks the Alabama law is too “extreme.” The Washington Post: Televangelist Pat Robertson: Alabama’s abortion ban is ‘extreme’ and has ‘gone too far.’

Longtime televangelist Pat Robertson decried Alabama’s new abortion ban as “extreme,” saying on his show on Wednesday that the state legislature has “gone too far.”

Alabama’s law, which has been passed by the legislature and signed by the governor, includes a penalty of up to 99 years in prison for doctors who perform abortions and has no exceptions for rape or incest, Robertson noted on his show.

“They want to challenge Roe vs. Wade, but my humble view is I don’t think that’s the case I’d want to bring to the Supreme Court because I think this one will lose,” Robertson told viewers of CBN’s “The 700 Club” on Wednesday.

David G. Savage at The Los Angeles Times: Supreme Court is not eager to overturn Roe vs. Wade — at least not soon.

The Supreme Court justices will meet behind closed doors Thursday morning and are expected to debate and discuss — for the 14th time — Indiana’s appeal of court rulings that have blocked a law to prohibit certain abortions.

The high court’s action — or so far, nonaction — in Indiana’s case gives one clue as to how the court’s conservative majority will decide the fate of abortion bans recently passed by lawmakers in Alabama and Georgia. Republican Gov. Kay Ivey of Alabama signed her state’s ban into law on Wednesday.

Pot of Geraniums, Henri Matisse

Lawmakers in those states have said they approved the bans in an effort to force the high court to reconsider Roe vs. Wade, the 1973 decision that legalized abortion nationwide.

The justices have many ways to avoid such a sweeping ruling, however. And Chief Justice John G. Roberts Jr., in his 14 years on the high court, has typically resisted moving quickly to decide major controversies or to announce abrupt, far-reaching changes in the law.

Roberts’ history, along with the court’s handling of abortion cases in recent years, suggests he will not move to overturn the right to abortion soon, or all at once, and is particularly unlikely to do so in the next year or two with a presidential election pending.

At Slate, Dahlia Lithwick makes a similar argument: Alabama’s Extremist Abortion Bill Ruins John Roberts’ Roe Plan.

One could feel sorry for Chief Justice John Roberts. He is, after all, caught in an unsightly squeeze play between anti-abortion zealots in Alabama, and slightly less wild-eyed anti-abortion zealots in Georgia, Ohio, Tennessee, and Indiana (the court seems unable to make a decision on whether to grant the Indiana petition it has been sitting on for months now). There’s finally a five-justice majority within striking distance of a decades-long dream to overturn Roe v. Wade, and the anti-choice activists are getting ahead of themselves like slurring drunks at a frat party and making everything more transparently nasty than it need be.

Hibiscus by Hiroshige (c. 1845)

There are easy and near invisible ways for the high court to end Roe. That has always been, and remains, the logical trajectory. As Mark Joseph Stern has shown, when Brett Kavanaugh came onto the court, with his dog whistles and signaling around reproductive rights, it became clear that he would guide the court to simply allow states to erect more and more barriers to abortion access (dolphin-skin window coverings on every clinic!). The five justices in the majority would do it all while finding ways to say that such regulations were not an “undue burden” on a woman’s right to choose. The courts and state legislatures could continue their lilting love songs to the need for the states to protect maternal health and to help confused mommies make good choices, and nobody need dirty their hands by acknowledging that the real goal of three decades’ worth of cumbersome clinic regulations and admitting privileges laws were just pretexts for closing clinics and ending abortion altogether.

Read the rest at Slate.

(Mostly) male legislators are ignoring the realities of actual women’s lives.

When Senator Clyde Chambliss, a Republican, for example, was asked if the law would allow for incest victims to obtain abortions, he responded: “Yes, until she knows she’s pregnant.”

He did not elaborate on how someone would have an abortion before she knows she’s pregnant, outside of claiming, “It takes time for all the chromosomes to come together.”

Flower Garden by Gustav Klimt, 1905

Women’s bodies, lives, and futures are quite literally in the hands of men who seemingly couldn’t pass a high school health class. That’s part of what’s so hard about watching these debates: It’s not just that women’s rights and autonomy are being legislated away, but that it’s being done by complete morons.

This lack of remedial understanding of women’s bodies is not limited to Alabama. Representative John Becker of Ohio, a Republican, for example, sponsored a bill to limit insurance coverage for abortions, but claimed that it would have an exception for ectopic pregnancies, when the fertilized egg implants outside the uterus. “That treatment would be removing the embryo from the fallopian tube and reinserting it in the uterus,” he said, explaining a procedure that doesn’t exist and isn’t medically possible.

There is also Texas state Representative Dan Flynn, a Republican, who believes abortion requires cutting into a woman’s uterus, or Vito Barbieri, the Idaho state Representative, a Republican, who thought you could give a woman a remote gynecological exam by having her swallow a tiny camera.

Shannon Dingle at USA Today: I was 12 years old and pregnant. Alabama’s abortion ban bill would punish girls like me.

Roses and Lillies by Henri Fantin-Latour (1888)

I was that 11-year-old pregnant by rape in Ohio, except I had just turned 12 and lived in Florida….She is 11. She has experienced and is experiencing violating trauma. Maybe someday she will tell her story, but today is not that day.

I can tell my story, though. I was newly 12. I lived in a suburb of Tampa. I had gotten my period a couple years before, and it came regularly once it started. I knew to expect it every 32 days.

It was July, the summer between sixth and seventh grade, when days 33, 34, 35 and more passed with no period. I had read in one of my sister’s Seventeen magazines that periods aren’t always regular, so I figured this was my first one of those.

It wasn’t….I never chose to have sex at such a young age, but abusers in my family chose to rape me. I had lost count of the number of times by then. With a dad high ranking in the county sheriff’s office, I didn’t trust going to the police. I had tried to tell teachers and church volunteers, but that never went anywhere, either.

Please go read the rest if you haven’t already.

Women and girls in the U.S. are in real danger. For me this is the number one issue for women in the upcoming presidential election.

As always, this is an open thread.