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.