Texas Is About Much More Than Abortion

The angry blowback against Texas’ assault on reproductive rights is eminently justifiable–but as I explained previously, most of the criticism of the law misses the even more ominous threat it poses.

In her newsletter last Saturday, Heather Cox Richardson brought a historian’s perspective to that more ominous reality. She traced the nation’s legal trajectory after WW II, and the resistance to efforts by FDR to use government to regulate business and provide a basic social safety net. And as she reminded readers, racist Southern Democrats furiously fought government’s efforts to ensure racial equality. 

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.

The Supreme Court used  the Fourteenth Amendment to apply the Bill of Rights to state governments as well as to the federal government; among other things, that kept state and local government officials from denying certain individuals the same rights enjoyed by other citizens

From the beginning, there was a backlash against the New Deal government by businessmen who objected to the idea of federal regulation and the bureaucracy it would require. As early as 1937, they were demanding an end to the active government and a return to the world of the 1920s, where businessmen could do as they wished, families and churches managed social welfare, and private interests profited from infrastructure projects. They gained little traction. The vast majority of Americans liked the new system.

But the expansion of civil rights under the Warren Court was a whole new kettle of fish. Opponents of the new decisions insisted that the court was engaging in “judicial activism,” taking away from voters the right to make their own decisions about how society should work. That said that justices were “legislating from the bench.” They insisted that the Constitution is limited by the views of its framers and that the government can do nothing that is not explicitly written in that 1787 document.

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. If the government is as limited as they say, it cannot regulate business. It cannot provide a social safety net or promote infrastructure, both things that cost tax dollars and, in the case of infrastructure, take lucrative opportunities from private businesses.

It cannot protect the rights of minorities or women.

The Court’s refusal to enjoin the Texas law is a truly terrifying omen. If the law is ultimately upheld, the precedent would threaten far more than a woman’s right to control her own reproduction. As Richardson notes, such a result would “send authority for civil rights back to the states to wither or thrive as different legislatures see fit…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.”

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.

I am old enough to remember the billboards demanding “Impeach Earl Warren.” The rage of rightwing White Nationalists at decisions that they (correctly) believed would curtail their ability to deny equal rights to Blacks and other disfavored minorities hasn’t abated. Much of it went underground: into the establishment of “think tanks” devoted to justifications of “originalism”and rollbacks of federal regulations, the (now successful) effort to pack the federal courts with ideologues and capture the big prize: the Supreme Court.

Logically, under the last fifty years of legal precedent, Texas’ effort to “outsource” its abortion ban to vigilantes–its effort to avoid “state action”– should fail. The state’s legislature created the law. Enforcement of its punitive and dangerous scheme requires participation by the state’s judicial system. 

What too few of the people arguing for and against this assault seem to recognize is what is truly at stake right now: the entire edifice of current Constitutional law, which rests on the premise that the Bill of Rights applies to all levels of government–that it sets a civil liberties floor below which states may not go.

This fight is about more than Roe v. Wade.


  1. Oh, yes! The “fight” is much more than Roe v. Wade. It’s about institutionalized stupidity, church- driven assaults on women and minorities and a culture of false bravado left over from the days when “Texicans” won their “independence” from Mexico. History might recall that Texas BEGGED to become part of the United States then. Then, of course, they seceded in 1861.

    More simply, Texas Republicans have given in totally to their ancient “heritage” and give not a single whit about anything resembling democracy. Having watched, first hand, these really terrible and totally corrupt people being elected, then re-elected to the state legislature and being appointed to ALL the top state government jobs, nothing but totalitarianism could be expected. And here we are.

    Once again, Texas Republicans don’t give a damn about the Constitution… except when it can be used to drill for more oil, relieve polluters of penalties and otherwise benefit the big money that runs the state Republican party. They even want to alter the curriculums in public schools to reflect that tyranny of lies. The private schools already have a curriculum we outsiders wouldn’t recognize as anything but pure bullshit! My sister-in-law taught Texas history in public schools. I got a look at that curriculum. Reality? Not a chance.

    Yeah. It’s political tyranny in a very virulent form coming out of Texas. One has to begin this discussion with the understanding that Texas Republicans just don’t care what anybody thinks, they don’t give a damn about the law and they want total control of everything public.

    I can’t tell you how happy we are to be the hell out of that political shit hole.

  2. You and Heather are correct about the Oligarchs wanting to roll back all progress made toward a democracy where “we the people are all equal” is a reality. That was the ideal when our Founders formed the original document, but we were far from equal citizens under the law or in reality.

    Now, we have corporations with personhood who have more equal rights than women or people of color.

    The problem is a few educated people understand what the oligarchy is doing and how they are doing it and why they are doing it. The masses do not have that comprehension. They are being ripped apart by propaganda through our media which is not focusing on truth-telling. Instead, they are focused on propaganda – some more blatant while others more subtle.

    Here’s the problem: we are in an age of highly sophisticated technology, causing society to speed up, or progress is being made more rapidly. We need to be united to work with other countries on a global front as long as propaganda is being used to divide versus truth-telling to unite us. Our wars were built on lies. Our economy is built on lies. Our differences are built on lies. If our oligarchy was so wise and had our best interests as a nation at heart, why do they operate in darkness? Why have they neutered and censored the free press? Why do they want the US society to be ruled by 200+-year-old documents?

  3. Texas and other southern states, including the northernmost southern state of Indiana, are using their bastardized version of Amendment XIV, Section 1 of the Constitution, to enact laws to override laws protecting all citizens of their civil rights without repealing the existing laws providing that protection. The slim majority hold by Democrats at the federal level cannot override the Republican religious majority now held by the Judicial branch in the Supreme Court and many state and federal courts. Trump’s three placements have forsaken their Oath of Office and backed out of their promises during Senate hearings not to overturn the Supreme Court decision as being the deciding Rule of Law in Roe vs. Wade. Prior to the current hundreds of anti-abortion and voter suppression laws being rushed through states, we may have often disagreed with SCOTUS rulings; not we cannot trust those sitting on the highest court of the land. Paul K. Ogden recently objected to SCOTUS being expected to rule on those laws, stating the state and federal courts were the proper place. Being a Republican himself, he should remember that McConnell refused to hold Constitutional required hearings on President Obama’s nominations to those courts, leaving hundreds of courts without a leader. Under Trump’s ruling hand, McConnell filled those vacancies as quickly as possible to assure Republican control of state and federal courts.

    Regarding suppression of voting rights, they are violating Amendment XV, Black Suffrage, and Amendment XIX, Women’s Suffrage. Section 2 of both Amendments states, “The Congress shall have the power to enforce this article by appropriate legislation.”, neither Amendment has been repealed…YET! But that is the action being taken.

    “This fight is about more than Roe v. Wade.”

  4. Roe vs Wade was a ruling allowing for abortion in the first trimester? States have taken up laws to expand on that in various ways. Some have pushed for full term abortion which seems appalling to some but there are exceptions in regard to the those laws. Republicans have generally the ones to fight more more civil rights while the Democrats fought for segregation and Wrote Jim Crow laws.
    Most conservatives dont see this law standing up to all the legal challenges

  5. John S. Your comments about what Republicans and Democrats did about legislation pertain largely to pre-1960s, after which, President Johnson managed to get the Civil Rights laws passed. At that time, the Democrats in the South bolted to the Republican party and the attitudes about civil rights flipped. Since then, the Republicans have been opposed to any extension of civil rights.

  6. Whoever is alive at the end of the coming race and economic wars has to remind the world that the overriding principle has to be one person, one vote.

  7. Todd Smekens: “Our wars were built on lies. Our economy is built on lies. Our differences are built on lies. If our oligarchy was so wise and had our best interests as a nation at heart, why do they operate in darkness?”

    That is truly the cornerstone of our now completely focused on personal comfort society. There is a race on to settle who is the least comfortable. Republicans complain that they have to work too hard and scrimp and save to become wealthy. The poor complain that there’s nothing harder than poverty, the sick that there’s nothing harder than disease, the handicapped shout, “you all think that you have it hard!”, while the minorities protest that being discriminated against is the hardest life.

    What can politicians do in such an environment except complain how hard their career is and lie to everyone while accomplishing nothing?

    Civilization was always all about making life suck less. Government was always about helping society become more civilized by empowering solutions to problems and knocking down obstacles to them. Choices have to be made to focus government on progress that is possible and effective. Every step raises issues about why not me? Or, why can’t I use my resources to elevate only me?

    Calm down people, it has worked, is working, and will continue to and on average people have never had it as good as they have had under an effective problem-solving government.

    Think of living in the absence of whining and complaining and lying. What a world it would be. But then government would have no way of knowing what to fix next.

  8. What is at stake is democracy vs. authoritarian control exercised by corporations and their stockholders in the interest of increasing their wealth and power.

  9. What is so disturbing to me about this Texas law is that it sets up a precedent allowing citizens to spy on citizens. This reminds me of what happened in the Soviet Union under Stalin. It’s sending chills down my spine.

    Texas is trying to avoid the precedent of Roe V Wade by letting the citizens act to bring those breaking this law to court instead of the state. I hope it does not fly. Our nation is already suffering from its political divisiveness. We don’t need a law that exacerbates the divide. We don’t need a nation that encourages citizens to spy on one another.

    This law will not end abortions. Some women will be able to get an abortion in another state. Some will do so with help. Those who can’t will turn to unsafe abortion procedures. I wish we could hang a coat hanger with knitting needles attached over the neck of every Texas state rep./ Senator who voted for this insane law. I wish we could send them all the mothers who already had children who would have died had they not terminated a pregnancy. I wish we could show them the faces of all the girls who have gotten pregnant by incest. I could go on and on. The women who voted for this law have committed a heinous act against their sisters.

  10. People are making way too much of the SCT decision to not stop the Texas law. I’m reviewing the decision as we speak. The emergency petition was dismissed for a lack of standing. The Supreme Court said that while it had the authority to stop the enforcement of the law, the defendants brought before the Court had not indicated they would enforce the law (the governmental defendants could not enforce the law and the private party had not made an attempt to do so. Until that happens there is no “case or controversy” which is required by the Constitution for the federal court to take action. Thus, no standing.

    One of the Sunday shows had former Senator Heidi Heittkamp, former Democratic Senator from North Dakota. Heitkamp who is an attorney and former Attorney General of North Dakota agreed with former New Jersey Governor Chris Christie, himself also an attorney and a former U.S. Attorney, that the Supreme Court followed the law in dismissing the emergency appeal.

    The notion we should first thing run off to the United States Supreme Court for an injunction whenever a state passes a law which may be unconstitutional is not how our system should operate. There are lower federal courts and state courts that can issue injunctions. Unlike federal courts, Texas courts don’t have a “case or controversy” limitation and a Texas judge has already restrained enforcement of the law against Planned Parenthood pending a hearing on a temporary injunction.

    The Supreme Court did not make a ruling on the merits of the Texas law and I don’t know of many legal analysts who thinks it will be upheld. The private enforcement mechanism of the law is unique and is horrible can of worms that conservatives won’t like if courts allow it.

    A strong majority of Americans say they support Roe v. Wade. But a strong majority of Americans don’t support second trimester abortions, which Roe explicitly requires that states allow. It’s pretty obvious that while Americans say they support Roe, they don’t know exactly what the holding in the case (or its progeny) is.

    Even Justice Ginsburg at one time said that 1973 Roe decision was premature…that the political system was working out the contentious issue of when abortions should be permitted and Roe v. Wade short circuited that process. In Roe, the Court had made a political/policy decision about where to draw the line and chose viability which at that time was around the six month mark of pregnancy.

    Viability – the point at which a fetus can live outside the womb with or without assistance – is one of many points in the pregnancy that a line could be drawn. It was really arbitrary for the court to pick viability, a line which actually changes depending on medical technology. Couple that with the advances in sonograms which did not exist in 1973, people are even more uncomfortable with second trimester abortions.

    But because Roe wasn’t a law that could be easily changed it wasn’t. The Court did though in 1992 hand down Planned Parenthood v. Casey which upheld Roe, but adopted an “undue burden” standard for reviewing abortion regulations and moved away from the strict trimester approach used by Roe, primarily because medical advances had made viability earlier than six months.

    I do agree that Roe v. Wade is likely to be overturned. I don’t agree the world will end if it is overturned. If Roe is overturned, the issue may go back to the states and they will draw their own lines. In most states, I believe that line will be drawn at about 3 months, i.e. the end of the first trimester. 90% of abortions take place in the first trimester. About 10% take place in the second, and less than 1% in the third.

    I think though the more likely outcome of Roe being overturned is that the Court will make another policy decision and replace with viability line with another one earlier in the pregnancy. The Mississippi 15 week ban pending before the Court is the perfect vehicle to overturn Roe/Planned Parenthood v. Casey and draw a new line which requires states allow first trimester abortion and lets states ban them afterward. The Court may also require states to allow later term abortions for things like threats to the mother, rape, incest, etc. Of course, this would merely be the floor – states could always allow abortion later in the pregnancy if they want, including second and third term abortions.

    A 15 week line written into our Constitution would enrage pro-lifers and pro-choicers alike. But that is where public opinion is. I think you would finally see the abortion issue fade as a political force in American politics. Republicans are unlikely to get much traction trying to get the Court decision overturned to ban first trimester abortions. And while Democrats could get states to allow via legislation abortion in the second trimester (and third if they so choose), they’ll probably only be successful in the bluest of states. There will be some fighting over ancillary issues – do we pass laws which allow abortions in later pregnancy if genetic testing reveals serious health problems? There is nothing wrong with the political process, and not our courts, resolving these issues.

    After nearly 50 years, I’m optimistic we’re going to at the end of the day be in a position where the legal issues regarding abortion can finally be resolved in a way that the country can finally heal. Then again, I could be wrong.

  11. GoDaddy will no longer host a site set up by the Texas Right to Life to collect anonymous tips about when the state’s new law banning almost all abortions was being violated.

    The website promoted itself as a way to “help enforce the Texas Heartbeat Act,” since the Texas law allows private citizens to sue anyone who performs or assists in an abortion after six weeks of pregnancy, before many women even know they are pregnant.

    I have already read that hackers are flooding with bogus messages to some Texas Right to Life groups that want to spy on and report on the fellow citizens. In recent days, the tip line has been inundated with fake reports from TikTok and Reddit users who sought to overwhelm and crash the site with prank messages.

    Some software developers helped further fuel the push to flood the tip line with spam by developing tools to make it easy.

    Portland, Ore.-based computer programmer Jonathan Díaz created an app, Pro-Life Buster, to generate fabricated stories that would be submitted at random times to the site. More than 1,000 made-up stories had been shared by users.

    I warms my heart to read about people fighting back any way they can to oppose this Texas Law.

    I suppose the next action by the Texas Legislature will be to make it crime to send false reports to these Right Life Web Sites.

  12. Hey Monotonous Languor ~
    It wasn’t just Reddit and TikTokers who sent in bogus tips to TRL. I myself had some fun doing it. When I went back to the site to do another I was informed that my email had been blocked. When I went back a third time, the whole site was down!
    If these groups think that they can seriously get away with having “anonymous” tips they are delusional (well they’re that anyway). The system is ripe for revenge tips, insanity tips, etc. They will never get this to work in the present form. The courts would be clogged up for years with this stupid idea!
    But then, Texas legislators don’t seem to be the brightest bulbs in the chandler!

  13. Paul Ogden, I have had friends tell me this is not a big deal. There was basically almost no message from the court as to why it was dismissed. Yours is the first that tell me it was dismissed for lack of standing. I don’t know if you have something from the court to that effect, or somebody has implied or assumed this.

    With the mechanisms of the shadow docket providing no public hearings or even explanations from the court, there are two ominous conclusions, and Sheila has named them both, either Roe v Wade is gone, or we will have states run-amok and we really will revert back to the days of that enabled things like the robber barons and Jim Crow.

    Speaking of Robber Barons, I saw an interesting article in the NY Times about the economics of near zero interest rates. It has always been assumed that these low rates fuel income inequality, but there is some new credence that income inequality and the huge amount of savings and wealth that have built by the upper middle class baby boomers is fueling the record low interest rates.

  14. What a shame that white men are so afraid of women and minorities. They apparently tremble in their shoes that they might lose their “power.” How sad that the rights of all Americans are treated so badly by these terrified white men. I am truly tired of their blustering in the name of progress…progress for them alone. And they should stop preaching in the name of God and/or Jesus as they are truly not lily white and free and above transgressions. No one person is perfect!

  15. The first things that occurred to me after reading that the Supreme Court was not going with an injunction pending hearing on the merits were standing and the second case or controversy. I note that case or controversy is in the disjunctive, and I do think there is a controversy involved in the matter the court ignored. So as to standing, where are we? Must we await a lawsuit or other action by the defendants before we can define standing? What about the numerous women who are terrified now by the state-sponsored lawsuits and are effectively having their decisions made for themselves by the state even though as written this bill purports to transfer the power to a deputized citizenry in order to avoid judicial scrutiny? Standing in my book means that someone must be hurt or their interests adversely affected by the action of defendant(s).

    As to other particulars, I suppose the driver of a Greyhound bus who takes poor women across the state line for abortions could be jailed and suffer a ten grand loss per woman as well, but since none of this is at the supposed instance of the state, the Ten Amendments are powerless to restrain the state from exercising such dictatorial control of women so long as it has deputized its citizenry to carry out the legislative intent. In such connection, and this is a rarity for me, I think the chief justice’s dissent was best in this “controversy.”

    I will be interested in the language Marc Elias employs in his promised lawsuit against Texas when Abbott signs this bill, which I just now understand he has signed. I don’t usually agree with the chief justice’s opinion, but to repeat I think his dissent was the best of all the opinions.

    As to today’s topic, Professor Kennedy is right; this is much more than Roe v. Wade. The real hot button issues of the day are arguably not about money, taxes, budgets, abortion etc. They are at bottom about power, as in “Who’s the boss?” We can expect more of such constitutional dodges as this one via a deputized citizenry in other areas currently under dispute, all of which may depend upon whether the judiciary allows such tomfoolery in this ongoing dispute.

    Overall, I’m optimistic, since it seems to me that a principal (Texas) may not delegate an unconstitutional power to any other agent or entity because it cannot delegate a power it does not have, especially from an evidentiary viewpoint, since it was plainly written to avoid judicial scrutiny, thus rendering any such attempt a nullity. Time will tell. . .

  16. More, “Yes, Robin!”
    Todd, what’s happening here, I am agreeing with you, more and more!
    I believe that Roe/Wade was never about abortion, but about the fight for the separation of church and state. Abortion has just been, unfortunately, the issue that was staked out for that fight.
    Susan, yes, it is terrible that so many white men are thusly terrified. Some of them are terrified of loosing power, and those that do not have power, white men, and women, who are really powerless in our society, are afraid of being on the bottom rung of society, with no one below them to look down upon.
    I am also old enough, sheila, to remember the “Impeach Earl Warren” signs, and the screams about legislating from the bench. But, today’s conservatives/right-wingers, religiously, or not, are far from being above using exactly that process when it suits their purposes. They see the ends justifying the means, whether those ends are “God’s Shining City on a Hill,” or simply greed…or both together.

  17. If, by the logic expressed in the above article, the originalists prevail then what does that say about the Department of Defense? If one reads the preamble to the constitution, much of its justification for creating a government is for the benefit of the people. The constitution itself, originally, prohibited a standing army. So, if we remove those laws that promote the general welfare, should we not also remove those laws that support a standing army, as well? To wit:
    “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

  18. “What a shame that white men are so afraid of women and minorities. ” Susan Methfessel, you said it all there is one simple sentence. WORMs…translation white, old, republican men…hypochristian…another of my favorite descriptions of the whiners across our country, just cannot fathom being the minority. They will do anything they can to take us backwards, not forward, as far as the laws in this land. It was never Make America Great Again, it was Make America Go Autocratic.

  19. In 1973 we did not have the science for us to determine what is life or not. Like Paul Ogden stated many want abortion to be legal but with restrictions and couple that with what we are learning thru science. Legislatures must abide by rulings handed down by a court 50 years ago while the framers of the constitution 200 years ago didnt or couldnt possibly have created a national constitutional law we can all abide by.
    In many ways we deserve the distrust when laws that pass are only valid if we personally agree with them?
    All in all, how does one have the right to judge or shame another. So many times the courts have bern used to take away freedoms to force people into social norms. We should not allow this in any case. Including this Texas law. Vigilantism is set in play as Shiela Kennedy has stated. But we have seen tjis begore in way too many instances where the courts decidd how we ate supposed to act.

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