Texas’s tough new abortion law is a victory for Donald Trump

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This article was published 02/09/2021 (1212 days ago), so information in it may no longer be current.

WASHINGTON—This is what progressives warned would happen when Ruth Bader Ginsburg died. And it is clearly what former president Donald Trump expected to happen when he rushed in before last fall’s election to fill her Supreme Court seat with an anti-abortion judge. The effect on human lives, and American politics, will be immediate and far-reaching.

Most abortions are now illegal in Texas, and soon could be in many other states. The issue of reproductive choice has leapt to the very top of the already-packed U.S. political agenda.

The law that went into effect in Texas Wednesday bans abortion after about six weeks of pregnancy — a time when many women are not yet aware they are even pregnant. It was carefully written to exploit loopholes in current constitutional precedent protecting abortion, and so includes weirdo provisions that encourage private citizens to sue anyone they suspect might have provided an abortion or “aided and abetted” one, granting them a minimum $10,000 reward plus legal fees if they win. According to Planned Parenthood, 85 to 90 per cent of abortions in Texas have been performed sometime after six weeks of pregnancy. There is no exception for cases of rape or incest.

This is the latest and possibly most impactful example of the Texas state legislature Trumping things up in extreme ways. Legislators have banned COVID mask mandates in schools and a ban on teaching critical race theory in schools came into effect this week; they this month passed what may be the most extreme new restrictions on voting rights in the country and on Wednesday the legislature passed a border law that allocates $1 billion to continue building Trump’s wall.

But the abortion law delivers on the promise of what might be one of Trump’s most consistent and effective political projects: stacking the courts with conservative justices in an attempt to overturn abortion rights. This was a years-long process that came to a head when Ginsburg died weeks before the election, and Trump and Senate Republican Leader Mitch McConnell rushed to fill the seat — over Ginsburg’s dying wish — with Amy Coney Barrett, making a 6-3 conservative majority on the court.

That supermajority was pivotal in the Texas law’s implementation. The Supreme Court didn’t overturn the 1973 Roe v. Wade decision that made abortion legal — though another case coming before the court this fall will give the court an opportunity — but it did provide a handbook showing how to circumvent it.

In a decision issued in the middle of the night, from the court’s “shadow docket” where it has increasingly, and shadily in the opinion of Justice Elena Kagan and others, been making law without first hearing arguments, a 5-4 majority of the court allowed the law to come into effect. (Normally conservative Chief Justice John Roberts dissented alongside the court’s liberals.) While allowing that it could hear cases on the same law in the future, the court’s majority decided not to grant an emergency injunction postponing the Texas law pending court challenges, on the basis that its convoluted workarounds — including effectively offering a bounty for vigilante enforcement — were so new they hadn’t yet been tested by the courts.

The broader significance is that 12 other states have passed laws that ban abortion at early stages of pregnancy, but those are all on hold as constitutional challenges to them work their way through the courts. Now the Supreme Court has provided those states with a workaround that comes certified injunction-proof.

Which means it is a national issue. While the vocal and persistent anti-abortion lobby in the U.S. celebrates a victory they’ve worked toward with the Republican party for decades, Democrats have responded. House Speaker Nancy Pelosi promised Thursday that there would be a quick vote to codify the Roe v. Wade abortion decision in legislation. President Joe Biden promised a “whole of government effort” to oppose the Texas law that Vice-President Kamala Harris said would force women “to travel out of state or carry their pregnancy to term against their will.”

Some say that while this is an immediate disaster for reproductive rights, it could be a political boon to Democrats. Former Republican political official Ron Filipkowski wrote on Twitter Thursday, “TX Republicans just put abortion rights on the ballot for every state and federal race in the country for 2022,” noting that while Republican strategists have long liked to fundraise from the pro-life movement, they’ve feared a day like this. “This will cost them seats all over the country. Pro-choice Republican women, and there are plenty, already uneasy after the insurrection and COVID policies, will cross over in 2022.”

According to Gallup, Americans, by a majority of 58-32 per cent, oppose overturning the Roe v. Wade abortion rights decision. That the right to choose has consistently been upheld by the courts has kept it from being an issue in the minds of many pro-choice voters, while providing fuel to those voters who want to outlaw abortion. The Supreme Court allowing Texas’s ban to come into effect could radically shift the electoral impact of the issue.

Whatever the political fallout, the immediate concern of millions of women and reproductive choice advocates is the immediate impact on people’s lives. “We are devastated,” Amy Hagstrom Miller of Whole Women’s Health said in a statement Thursday. “Our patients are scared and confused and desperately trying to figure out what they can do to get an abortion. We don’t know what will happen next. Our staff and providers are so afraid.”

Edward Keenan is the Star’s Washington Bureau chief. He covers U.S. politics and current affairs. Reach him via email: ekeenan@thestar.ca