They don’t have to defend themselves. They can just do it.

It’s Friday now, and I haven’t posted since Sunday. This is probably the longest I’ve gone without posting since the pandemic started. It’s been a busy week, including a day trip to visit relatives. A week this busy probably hasn’t happened since the pandemic started. However, some of my regular events will be resuming over the next couple weeks after a pandemic hiatus and my frequency of posting may go down. Since I haven’t posted in five days my browser tabs have propagated with things I want to mention. I’ll get to only a few tabs today. On to the big story of the moment. Five conservatives on the Supreme Court (this time not including John Roberts) effectively gutted abortion rights. Texas passed a law banning abortion (details in a moment). Pro choice advocates asked the Supremes to stop the law while the appeals process continued. These five justices refused to grant the stay, though they wrote they’ll still hear the case when it comes before them. Without the stay the law has become effective. And Roe v. Wade has not. Joan McCarter of Daily Kos reported on the law (before the Supremes did their thing). The law bans abortion after a heartbeat is detected. That happens around six weeks, before most women know they are pregnant. McCarter wrote:

But the people who understand how biology works—doctors—describe what is happening at six weeks as a vibration in growing fetal tissue. There is no heart. There is nothing in that collection of tissue that could exist outside the womb, a biological fact that has been the basis of previous court decisions protecting a woman's right to choose to have an abortion prior to viability.

Then McCarter gets to the really devious part. Government officials cannot sue abortion providers. The state leaves that up to citizens. A suit is permitted if anyone provides an abortion, or even “aids and abets” one. Yeah, that’s intentionally a bit vague. When a citizen sues and wins the state will pay court costs and awards a $10,000 bounty. When a women’s health clinic is sued and wins they have to pay their own court costs. The effect is providers have a harder time challenging the restrictions. It also means it encourages neighbor to turn against neighbor. Providers have stopped providing abortions, though continue to offer care for women. But does “aid and abet” mean a provider can’t list alternatives (you can go to this state and still get an abortion)? What about the friend who drives a woman to that other state? The refusal to grant a stay only listed the 5-4 vote and not how each justice voted (attempting to keep fingerprints off the document). A day later the conservatives issued a one paragraph explanation – without signatures – saying, yep, we are letting this law go into effect. Justices Sotomayor, Kagan, Breyer, and Robers wrote a dissent. Laura Clawson of Kos wrote about it.

The majority of justices claimed that they weren’t ruling on the constitutionality of the law—they could still block it at a later date. It’s just that for now, they want us to believe, they can’t quickly assess the issues in this novel new legal instrument, which allows anyone to enforce the law against people involved in abortions, so the court had better let it go into effect. Literally because of one of the law’s most abusive provisions, the majority said, the law couldn’t be put on hold. But the dissenting justices called bulls--- on that.

Sotomayor wrote:

The Court’s order is stunning. 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.

Kagan made the same type of point, then added:

The majority’s decision is emblematic of too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend.

Clawson wrote:

But when there are five votes on the court for any far-right priority, they don’t have to defend themselves. They can just do it. At least as long as Democrats won’t take real action to fix things.

Clawson then quoted a tweet by Imani Gandi:

i hope everyone understands that not a single piece of progressive legislation is getting past these 6 asshats. the rule of law doesn't matter anymore. it's just federalist society vibes now

In a separate post Clawson explained how cruel this law is. I mentioned some of it above. She concluded:

That Texas Republicans would do all this is horrifying but not surprising. The far bigger problem is that the Supreme Court let them.

Joan McCarter of Kos reported more of Justice Kagan’s dissent:

"Yet the majority has acted without any guidance from the Court of Appeals—which is right now considering the same issues. 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." That's a Supreme Court justice doing what would have been unthinkable in the days before Mitch McConnell and Donald Trump packed the court—sounding an alarm about the legitimacy of her own institution.

McCarter quoted a tweet by Steve Vladeck:

Put another way, this was all an obvious ploy to frustrate Roe without anyone having to actually vote to overrule it. The Justices in the majority *know that* this was such a ploy; they know that it is widely understood to be such a ploy, and they chose to reward it *anyway.*

Other Republican controlled states are ready to pile on, now that Texas and the Supremes have shown what to do. The Florida Senate will take up a similar bill in January. In another post McCarter quoted statements from Biden, Pelosi, Schumer, and other prominent Democrats on their support for a woman’s right to choose. For example, part of Biden’s statement was, “My administration is deeply committed to the constitutional right established in Roe v. Wade nearly five decades ago and will protect and defend that right.” McCarter, asking the same questions as many other Americans, wrote (emphasis in the original):

He'll defend a right that has literally just been taken away in Texas. How, President Biden? How are you going to stop Texas? How are you going to stop every single red state in the nation from passing that exact same bill and the Supreme Court allowing it? How?

Campaigning and fundraising off the issue isn’t going to cut it, as the Democratic Senatorial Campaign Committee has already suggested. McCarter wrote:

Here's a suggestion to the DSCC: Don't run on the promise to do something. DO IT and RUN ON WHAT YOU JUST DID.

The way out is to expand the Court. Legislation to do that has been introduced. It will require ending the filibuster. Not acting means Democrats will be reduced to minority status for a long time. Kerry Eleveld of Kos reported that Democrats are indeed already campaigning on Republicans wanting to end legal abortion. This may first make a difference in the California governor recall election later this month where Gavin Newsom is trying to stay in office for protecting his state against COVID. Walter Einenkel of Kos reported on what Biden, Pelosi, and the rest are doing. They are calling for Congress to write Roe v. Wade into law. That’s Biden’s preferred way to operate. And what will this Court do to that law? Einenkel quoted a tweet from Jamaal Bowman:

It's abortion rights. It's voting rights. It's workers' rights. It's civil rights. Expanding the Supreme Court is a matter of life and death.

In another post McCarter discussed an article Elie Mystal wrote for The Nation about what Democrats can do. Some of the ideas Mystal discussed are work arounds – pop up clinics or make providers federal officials with qualified immunity (that works for police). McCarter, quoting Mystel, wrote:

“No matter what fresh lawlessness Republicans commit, or what their legal enablers on the Supreme Court do to support that agenda, you can count on some Democrat or liberal-adjacent person saying, 'But what can the Democrats do?' Never mind that Democrats control both chambers of Congress and the entire Executive Branch. They walk around every day like a defeated minority unable to stop Republicans—who lost—from having their way with our country.” His solution—don't accept that “sad-sack attitude” and find the workarounds to the law. This means getting just as ruthless and creative as Republicans always are willing to be in taking away our civil rights and being willing to challenge "norms."

Aimee Registe and Jasminee Yunus of Kos Prism discuss the importance of abortion availability. The post’s title is “Abortion allows us to determine our own futures.” Chitown Kev, in his pundit roundup for Kos, quoted Michelle Goldberg of the New York Times. Goldberg listed: The GOP making a hero of a kid who killed two people during protests in Kenosha, Wisconsin. GOP praise for nasty guy supporters who swarmed around a Biden campaign bus. A GOP nominee for a county executive saying that he would go in “with 20 strong men” to school board meetings that impose mask mandates. GOP state laws that legalize intimidation and grant immunity to drivers who hit protesters.

The Texas law should be seen in this context. It deputizes abortion opponents to harass their enemies.

Texas Right to Life folks have already created a webpage to allow vigilantes to easily snitch on their neighbors and start a lawsuit. And, as Aysha Qamar of Kos reported, TikTok users have already started to troll it, create bots to overwhelm it to make it crash, and file frivolous reports. Commenter Vae said that the site’s owners will soon figure out how to filter that stuff. Better would be to create believable reports, such as targeting the wives of Republican lawmakers. Commenter Frank Pedraza added:

My entry today will be: “I’d like to report very serious abortions being committed in Texas by a very prominent official. Governor Greg Abbott is aborting many lives in Texas with his anti-mask and anti-vax policies. Please arrest him immediately before he aborts any more people!

Others suggest targeting prominent government or religious officials who likely have mistresses. Commenter thejeff reminded us the site owners can throw out all these fake tips. “They’ve got no obligation at all to handle this ethically.” All1 noted that on the site tips are anonymous – the tipster doesn’t get the $10,000 reward. Gee, I wonder who does...