The right is using the end of Roe to abort democracy
Edited by Sam Thielman
It stands to reason, given the horror stories that have followed the repeal of Roe v. Wade — a Texas hospital refusing to treat an ectopic pregnancy until it ruptured; another waiting until the patient lost “liters of blood” and was put on a breathing machine; a raped 10-year-old forced to flee Ohio to save her tiny body from permanent, perhaps fatal damage — that anyone who called themselves “pro-life” would welcome measures to ensure that, as a last resort, emergency rooms can offer the life-saving care the most desperate patients needed.
I kid, of course: When the Biden administration told hospitals that federal law says doctors must give any patient “experiencing an emergency medical condition” an abortion if that is “the stabilizing treatment necessary to resolve that condition,” conservatives lost their minds. Texas Attorney General Ken Paxton (who has somehow managed to avoid being tried for securities fraud for seven years and several elections) immediately sued the Department of Health and Human Services, as well as Medicare and Medicaid.1
The Texas brief is as short as it is histrionic. (It opens with a reference to “the terrible regime of Roe v. Wade” and somehow gets worse from there.) But the thing that really stands out from a legal standpoint pops up on page 12. There, the Texas Republicans cite a Supreme Court decision even more recent than Dobbs v. Jackson Women’s Health, and which has — hopefully — nothing to do with abortion: West Virginia v. Environmental Protection Agency. That opinion was just fourteen days old when Paxton’s office filed its complaint — meaning that if it was a fetus, it could still be terminated under current Texas law.
West Virginia v. EPA was yet another batshit decision from the court’s wanton 2021-2022 term. To get into the details, I’d recommend the latest edition of the excellent 5-4 podcast, which was where I learned about the citation. In short, SCOTUS used a moot lawsuit about an outdated EPA rule about power-plant emissions to create a framework for ignoring any executive branch regulation that conservatives don’t like. All they have to do is decide that an issue involves a “major question” (which presumably can refer to anything), and, boom, it’s out of the executive branch’s hands and passed on to Congress.
The Texas AG’s office wrote:
Further, whether Defendants possess the political and constitutional authority they claim is a major question of “deep economic and political significance” that Courts will not assume that Congress has assigned to the Executive Branch. See King v. Burwell, 576 U.S. 473, 486 (2015); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000). “We presume that Congress intends to make major policy decisions itself, not leave those decisions to agencies.” West Virginia v. Env’t Prot. Agency, 142 S. Ct. 2587, 2609 (2022) (internal quotations omitted). As the President has acknowledged, and as the Supreme Court has held, the question of abortion is now properly up to the people’s elected representatives—not unelected bureaucrats.2
The trick here is obvious. The “elected representatives” in Congress are unlikely to do anything, thanks to the inherently undemocratic makeup and procedures of the Senate, combined with gerrymandering and voter suppression designed to favor Republicans.3 It doesn’t matter that 73 percent of Americans polled in March said that abortion should be legal if “the pregnancy threatens the life or health of the pregnant woman,” or that 69 percent said the same if the pregnancy was a result of rape, or that just 8 percent of Americans think abortion should be illegal in all circumstances.4
Republicans simply do not care: Most post-Roe abortion bans in Republican states, as Mark Joseph Stern recently wrote in Slate, “contain no exception for rape or incest, and only an extremely vague, narrow exception to protect the life of the mother. These laws are crafted to outlaw abortion in all but the most dire circumstances, when the patient is actively dying because of pregnancy—and even then, the bans are so ambiguous that doctors fear liability if they terminate.”
Enshrining life-saving protections at a federal level would require Joe Manchin and Kyrsten Sinema voting to get rid of the filibuster and then passing a bill containing them (fat chance), or Democrats winning a larger Senate majority in the fall — an equally low likelihood, especially given the right-wing voter suppression that Manchin, Sinema, and their Republican allies are just allowing to go forward unchecked.
And even if that is all pulled off, somehow, this law will then almost certainly get challenged on “state sovereignty” grounds and end up before the same said Supreme Court, whose three Trump, two Dubya, and one very old and crotchety Bush Sr. Republican justices will then inevitably come up with some other contradictory excuse to overturn it. (Just look at how this SCOTUS in the same term championed state’s rights on abortion while dismantling them on gun control, or how Neil Gorsuch just straight-up lied in another recent case as he lay the groundwork for the dismantling of the First Amendment’s Establishment Clause.)
What I’m trying to show here is that the people who think raped 10-year-olds should be forced to experience “the benefit of having the child,” and that it’s better for everyone to literally starve to death or die of heat stroke than to see a fossil-fuel company sacrifice a dime, have a comprehensive, self-reinforcing plan for getting their way on everything. Not only does it not matter what the public wants, the right is showing their cards: practically declaring that they will keep doing unpopular, deadly things against the will of the majority of Americans, precisely because they know their opposition is too hidebound to stop them. Until someone can come up with an equally bold and comprehensive plan to counter and eventually stop them, they are just going to keep dismembering what passes for our democracy, one institution at a time.
Before you go, a reminder I can only do this work with your help. Your subscription keeps The Racket going. Sign up below and choose the plan that best suits you.
Penalties for violating the federal Emergency Medical Treatment and Active Labor Act include losing Medicare funds that make up a quarter of hospital budgets.
As the 5-4’s Peter Shamshiri points out, you can make a good argument that the “unelected bureaucrats” are, at the very least, more accountable to the public than the Supreme Court, given that federal agencies offer periods for public comment, whereas the leak of the Supreme Court draft in Dobbs was treated as a major national scandal.