War on civil rights
Heather Cox Richardson on Texas and the Supreme Court and civil rights:
The new anti-abortion law in Texas is not just about abortion; it is about undermining civil rights decisions made by the Supreme Court during the 1950s, 1960s, and 1970s. The Supreme Court declined to stop a state law that violates a constitutional right.
Since World War II, the Supreme Court has defended civil rights from state laws that threaten them. During the Great Depression, Democrats under President Franklin Delano Roosevelt began to use the government to regulate business, provide a basic social safety net—this is when we got Social Security—and promote infrastructure. But racist Democrats from the South balked at racial equality under this new government.
After World War II, under Chief Justice Earl Warren, a Republican appointed by President Dwight Eisenhower, and Chief Justice Warren Burger, a Republican appointed by Richard Nixon, the Supreme Court set out to make all Americans equal before the law. They tried to end segregation through the 1954 Brown v. Board of Education of Topeka, Kansas, decision prohibiting racial segregation in public schools. They protected the right of married couples to use contraception in 1965. They legalized interracial marriage in 1967. In 1973, with the Roe v. Wade decision, they tried to give women control over their own reproduction by legalizing abortion.
They based their decisions on the due process and the equal protection clauses of the Fourteenth Amendment, passed by Congress in 1866 and ratified in 1868 in the wake of the Civil War. Congress developed this amendment after legislatures in former Confederate states passed “Black Codes” that severely limited the rights and protections for formerly enslaved people. Congress intended for the powers in the Fourteenth to enable the federal government to guarantee that African Americans had the same rights as white Americans, even in states whose legislatures intended to keep them in a form of quasi-slavery.
Justices in the Warren and Burger courts argued that the Fourteenth Amendment required that the Bill of Rights apply to state governments as well as to the federal government. This is known as the “incorporation doctrine,” but the name matters less than the concept: states cannot abridge an individual’s rights, any more than the federal government can. This doctrine dramatically expanded civil rights.
Those who don’t like this expansion call it “judicial activism” and “legislating from the bench.”
This is the foundation for today’s “originalists” on the court. They are trying to erase the era of legislation and legal decisions that constructed our modern nation.
An obstacle to that project is decades of Supreme Court precedent. The Texas law gets around that by making private citizens the enforcers rather than the state.
A state has undermined the power of the federal government to protect civil rights. It has given individuals who disagree with one particular right the power to take it away from their neighbors. But make no mistake: there is no reason that this mechanism couldn’t be used to undermine much of the civil rights legislation of the post–World War II years.
On September 4, 1957, three years after the Brown v. Board of Education decision, a crowd of angry white people barred nine Black students from entering Central High School in Little Rock, Arkansas. The white protesters chanted: “Two, four, six, eight, we ain’t gonna integrate.”
In 1957, Republican President Dwight Eisenhower used the federal government to protect the constitutional rights of the Little Rock Nine from the white vigilantes who wanted to keep them second-class citizens. In 2021, the Supreme Court has handed power back to the vigilantes.
It’s a nightmare.
It’s an easy way to make money, too, just accuse a bunch of women of having an abortion in court whether you know they have or not. Then they will be forced to defend the charge, and if they prevail, it’s their legal costs and not yours. And any woman who won’t “wheesht” can be threatened with an abortion claim and if they can’t afford to pay the legal costs will be silenced.
This law, like the accusations of witchcraft, could be used politically against any woman in Texas.
Motherfuckers.
Now that the precedent is set, it seems to me that it’s unlikely such a weapon can never be turned on the ones wielding it. Surely there is some issue near and dear to the conservative heart which can, in due time, receive the same or similar treatment — if not in Texas, then in a blue state. This sort of thing could easily set off an arms race resulting, we can hope, in a mutually assured destruction pact for ceasefire.
Maybe we could go after home schooling.
Some have suggested using it to ban handguns in a state such as California, although I think that a vigilante enforcer may face some danger.
I’d be all for going after home schooling, or teaching creationism in private schools, or to make it even more obvious wearing red trucker hats.
Sarah Ditum has pointed out that it’s even worse than we thought.
https://archive.is/yErwc
‘This law effectively institutes a surveillance state for all women of reproductive age. The definition of “aiding and abetting” in the legislation covers doctors, nurses and other clinic employees, as well as insurers, but it’s drawn so widely that it could also include drivers who take women to appointments, counsellors who talk them through their options or friends who help pregnant women to scratch together the funds they need.
‘In short, every encounter anybody has with a woman who could possibly be pregnant becomes a liability. Would you lend a female friend a few hundred knowing that,if she spends it on getting an abortion, you might end up defending yourself against a $10,000 legal bill? If you drove a taxi, would you be happy dropping a woman off at a Planned Parenthood clinic, with the risk that she could be seeking a termination? What if she says she’s having a miscarriage, but there’s an outside chance she somehow induced it? Would you help her?
‘Perhaps you would. But not everyone will. Associating with a plausibly fertile woman is suddenly a dangerous activity. For women, this is invidious: if you think you might be pregnant, and you think you might want an abortion, there is no one you can talk to without implicating them. For everyone, it institutes a cruel silence regarding reproductive life. Knowledge is dangerous. Better to cultivate ignorance all round. Though some, of course, will be perfectly amenable to a system that makes women into objects of suspicion. This kind of law always has the advantage of a certain baseline misogyny to work with.
‘It’s not only personal relationships that are exposed. Tech companies hold huge amounts of information that could be very valuable to anyone trying to access that $10,000 bounty, from private messages to period tracking. Much of that data is protected by law, but there’s nothing to stop hopeful plaintiffs from trying their luck. Whether they succeed or not will be in the gift of the corporations, who can choose whether or not to comply with subpoenas. Women who could once live in the world with the same ease as men now have to negotiate an extra layer of justified paranoia.’
It sounds like anyone accused should use their 2nd amendment rights to ‘stand their ground’ & shoot the accuser.
My tongue is only partly in cheek.