Back in 2012, Republicans were on one of their tears against women's rights, thinking that it was the ticket to win the election and oust President Barack Obama from office. They decided to attack contraception, confirming once again that their alleged love for the fetus was really all about restricting reproductive freedom.
The U.S. House Committee on Oversight and Government Reform held committee hearings and insulted the women who testified about the medical need for contraception. Rush Limbaugh grossly derided one of them on his national radio show, calling a woman named Sandra Fluke a "slut" who is "having so much sex she [couldn't] afford her own birth control pills ... having so much sex, it's amazing she can still walk." Ever the classy fellow, Limbaugh added, "If we are going to pay for your contraceptives, and thus pay for you to have sex, we want something for it, and I'll tell you what it is. We want you to post the videos online so we can all watch." (And that was just for starters.) One of their top donors, Foster Freiss, went on television and claimed that in his day, a woman just used aspirin for birth control — by putting it between her knees. Haha! And perhaps the most famous quote of that entire campaign season came from a GOP Senate candidate from Missouri named Todd Akin who was asked about his stance that rape and incest survivors should be forced to bear the child of their rapist and said this:
Well you know, people always want to try to make that as one of those things, well how do you, how do you slice this particularly tough sort of ethical question. First of all, from what I understand from doctors, that's really rare. If it's a legitimate rape, the female body has ways to try to shut that whole thing down.
He later walked back the biologically illiterate comment (and then walked back the walk-back two years later) but it was too late. The Republican "War on Women" was a decisive factor in Obama's re-election and the Democrats gained seats in both the Senate and the House that year.
Republicans famously performed an electoral "autopsy" after that election in which, among other things, they acknowledged that their reputation as witless misogynists was hurting the party's image. But the party completely ignored that analysis and went on to elect Donald Trump, a man credibly accused of numerous sexual assaults who was even caught on tape crudely bragging about it.
And as you have no doubt heard, despite their losses in the last two elections, they are at it again.
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Aided by the Trump Supreme Court majority of far-right conservative Catholic justices, the state of Texas passed a law banning abortion after six weeks with no exception for rape or incest. And the governor of Texas decided to emulate the great examples of Akin, Limbaugh and Freiss by demonstrating his ignorance of human biology, saying that rape victims will have "at least" six weeks to get an abortion (not true, and absurd on its face) and then issuing this fatuous declaration he apparently believed would be reassuring to assault victims:
Let's make something very clear, rape is a crime, and Texas will work tirelessly to make sure that we eliminate all rapists from the streets of Texas by aggressively going out and arresting them and prosecuting them and getting them off the streets. So, goal No. 1 in the state of Texas is to eliminate rape, so that no woman, no person, will be a victim of rape.
What a great solution. I wonder why they didn't think of this before?
This time the party has gotten very creative with this new law, which turns private citizens into vigilantes and bounty hunters in order to circumvent federal jurisdiction, And you can expect this clever gambit to become law in many Republican-led states. South Dakota Gov. Kristi Noem is considering a similar law and went a step further by issuing an executive order restricting telemedicine abortions and abortion medication. Florida Gov. Ron DeSantis said he's going to take a look at it and the state legislature is already moving on it.
The Wall Street Journal profiled the Machiavellian legal thinker who came up with the idea to enforce the abortion ban through the civil courts by enlisting the public to file suit. His name is Jonathan F. Mitchell, a former clerk for Justice Antonin Scalia who worked for former Texas Gov. Rick Perry and was tapped for a position with the Trump administration, although his nomination never came up for a vote. He is also, of course, heavily involved with the Federalist Society. According to the Journal:
In 2018, Mr. Mitchell drafted "The Writ-of-Erasure Fallacy," a Virginia Law Review article that articulated the legal theories that would eventually find their way into the Texas abortion law. The article was a deep dive into the subject of judicial review and raised the idea that when a court rules a statute unconstitutional, the law isn't erased from the books and could be modified to allow for "private enforcement." He described how laws could be constructed to "enable private litigants to enforce a statute even after a federal district court has enjoined the executive from enforcing it," without going in-depth about the applicability to abortion laws.
Ed Kilgore at New York magazine reports that Mitchell worked with an anti-abortion extremist pastor in east Texas named Mark Lee Dickson who promoted the idea of towns calling themselves "sanctuaries for the unborn" and giving citizens the power to legally harass providers, including pharmacies that sell Plan B contraceptives. Mitchell and Dickson did a trial run of this legal strategy in Lubbock, Texas, where a federal judge ruled that he had no power to enjoin private citizens. That success laid the groundwork for the state law that the Supreme Court majority washed its hands of last week.
None of this really all that unprecedented, as Kilgore noted:
The idea is reminiscent of the White Citizens' Council model of fighting desegregation during the Civil Rights era: Once defeated in the courts, white supremacists switched to nonofficial harassment of civil rights workers, threats of terrorism, and essentially (white) community-based civil disobedience.
Unfortunately, this time the Supreme Court is on the wrong side of history and the state governments are using this legal end run to, as Chief Justice John Roberts wrote in his dissent, "avoid responsibility for its laws." It's a neat trick but one that could end up being too clever by half if Republicans continue to repeat their mistake in believing that everyone in America is as primitively misogynist as they are. One gets the sense that some of them, at least, understand this.
The silence from most national GOP officials has been deafening. Unfortunately, there's not much they can do about it. By empowering fanatics in the states to go their own way, they've completely lost control of the issue.