Dobbs Is Just The Beginning

The assault on abortion rights is only part of a larger project to change the relationship between the American people and its government. Hard work is ahead of us if we wish to preserve our democracy.

It was a weird Fourth of July for someone who deeply loves his country and thinks it is on the wrong track – not just the momentary, seasonal wrong track (e.g., gas prices), but the deep, structurally permanent wrong track (e.g., end of democracy).

I am not alone in my pessimism. A stunning 85% of Americans think the country is on the wrong track, according to a poll conducted June 23-27 by the AP and the National Opinion Research Center. This is the highest “wrong track” reading ever recorded.

My experience confirms the national data. As I look out over the purple mountains and fruited plains of my country, I see multiple Baby Ruths in the swimming pool, just a couple of which I will discuss this week. Take this however you want: there are a lot of Baby Ruths in the swimming pools of America, and I intend to look at them all carefully!

1.    Dobbs v. Jackson Health Organization

This was a punch where it counts to 165 million American women – and many others. Some of my best friends refused to even celebrate Independence Day, coming ten days after the Supreme Court overruled Roe v. Wade. They grieved it instead, lamenting a nation in which constitutional rights they’d enjoyed for most, if not all, of their lives were suddenly taken away – with the specter of more rights on the chopping block.

An old Texas adage goes, “Pigs get fat and hogs get slaughtered,” but it’s clear that most anti-abortion politicians and advocates around the country are unfamiliar with such wisdom. Their gleeful overreaction, cackling with delight as they use Dobbs as a pretext to roll back rights generally, is frankly embarrassing. Texas anticipated the rush with its “fetal heartbeat/bounty hunter” bill last year. After SCOTUS declined to stay its enforcement, other states leapt to follow the lead. With Dobbs now decided, anti-abortion activists are foaming at the mouth to otherwise attack women’s access to abortion:

Trigger bills. Twenty-six states, over half the country, have passed trigger laws, designed to eliminate a woman’s right of choice as soon as Roe was overruled.

Then there’s Texas. Ahhh, Texas. Molly Ivins called it the “national laboratory for bad government.” The Lege passed a bill last year (in addition to the fetal heartbeat bill) that would criminalize abortion, to take effect 30 days after Roe was overturned. Thus, Texas had TWO laws ready to go should the Supreme Court majority do what they’d been secretly promising to do for 30 years, the hapless Susan Collins being the only person fooled. But, never one to miss an opportunity to punch down on the people he was elected to serve, indicted Attorney General Ken Paxton insisted on immediate enforcement of a 1925 law thought to have been overruled by Roe. The Texas Supreme Court agreed, giving overzealous prosecutors a one-month head start on punishing abortion providers.

Criminal sanctions for interstate travel. Can a state criminalize its residents for traveling to another state to have an abortion? The Interstate Commerce Clause and the 14th Amendment’s Privileges and Immunities Clause would seem to argue for an expansive right to travel in this country, but count on right-wing lawmakers to try to roll back those privileges.

In the wake of Roe’s demise, some employers have offered to pay travel and other expenses for employees forced to seek an abortion in another state. Leave it to Texas lawmakers to now threaten those companies with civil and even criminal penalties for providing such assistance:

State lawmakers in Texas have already threatened Citigroup Inc. and Lyft, which had earlier announced travel reimbursement policies, with legal repercussions. A group of Republican lawmakers in a letter last month to Lyft Chief Executive Logan Green said Texas "will take swift and decisive action" if the ride-hailing company implements the policy.

The legislators also outlined a series of abortion-related proposals, including a bill that would bar companies from doing business in Texas if they pay for residents of the state to receive abortions elsewhere.

Such viciousness is common among Texas GOP legislators, who safeguard their comfortable political lives by throwing increasingly bloody chunks of red meat at the party’s deranged base, but the affliction will certainly spread to other states as well.

Bans on IUDs and Plan B. Anti-abortion advocates claim that the use of IUDs and Plan B is abortion and should be covered under the Dobbs decision, allowing states to ban those procedures.

These specific issues should be seen as part of a larger effort to limit women’s reproductive freedoms.

2. The Larger War on Reproductive Freedom

In the spring of 2003, I was working as the chief of staff to the brilliant State Senator Rodney Ellis (D-Houston). It was a turbulent session. For the first time since Reconstruction, the GOP held a majority in the Texas House, and they were determined to use their control of both chambers to ram through their policy priorities: school vouchers, voter ID, tuition deregulation at colleges and universities, insurance deregulation, medical malpractice “reform,” and so on. They topped it off with “mid-decade redistricting,” which wasn’t even a thing until then and which drove Democrats in both chambers to flee the state in order to deny a quorum.

One day, Rodney relayed a comment from a GOP colleague about why the Republicans were charging forward on so many fronts. The GOP member said, “We know time and history are not on our side. We’re getting as much done as we can while we still have the power.”[1]

That urgency reminds me of the current crusade to eliminate virtually all reproductive freedoms while the wreckage of Roe v. Wade is still smoldering. Having eviscerated the right to a safe abortion, the modern-day Puritans are trying to limit the availability of any contraception as well. They point to Justice Clarence Thomas’s concurring opinion in Dobbs (joined by none of his colleagues) suggesting that Griswold v. Connecticut – a 1967 case establishing the right to the use of contraception – should be re-visited. Reversing Griswold would affect much more than IUDs and Plan B, so watch for legislatures to pass laws prohibiting contraception just to get the issue in front of SCOTUS.

Emboldened by an activist Supreme Court and encouraged by GOP control of both chambers of 30 state legislatures (in 23 of which the Governor is Republican, too), anti-abortion activists are hoping to run the table, especially if the fall 2022 elections sustain or improve the GOP’s margins.

This is political hardball, driven by the most reactionary members of the GOP base in the states they control and assisted by a vast network of advocacy groups, donors and political consultants.

But there’s a kicker: most Americans do not agree with them. The Dobbs decision overturning Roe is opposed by comfortable majorities of Americans. A CBS News/You Gov poll conducted right after the decision found that 59% of Americans opposed overturning Roe, with 52% saying it “represents a step backward for America.” An NPR/PBS NewsHour/Marist poll taken at the same time found 56% of Americans opposing Roe’s demise.

Additionally, Americans think the Dobbs decision indicates it is more likely the Supreme Court would roll back the right to contraception and same-sex marriage, with 57% of Americans in the CBS News/You Gov poll agreeing and 56% in the NPR/PBS NewsHour/Marist poll agreeing.

The Marist poll also indicates a stunning collapse in public confidence in the Supreme Court since the draft Dobbs opinion was leaked.

These opinions will harden as time goes on and the practical difficulties of providing reproductive care to poor women (the rich will still get it) become more evident. How the issue will affect the 2022 elections is still unkown, but this much is likely: the Supreme Court’s loss of legitimacy will spread to legislators and executives (state and federal) who try to pile on after Dobbs.

As I suggested in my last post, our collective swimming pool seems to be filling up with Baby Ruths – all while Texas is turning into a climatological as well as political hellscape. Please stay cool and tune in often!