On Wednesday morning, Americans woke up to the news that Texas had effectively banned abortions. A bill that prohibits abortions after six weeks—in flagrant violation of existing legal precedent—went into effect at midnight after the Supreme Court, which still nominally recognizes the constitutional right to an abortion, refused to intervene.
The court could still block the law (there is an emergency appeal asking it to do just that), but the moment the conservative movement has been anticipating for decades is finally here. The Supreme Court did not see a bill that bans abortions long before many people know they are pregnant, and offers $10,000 to private citizens if they snitch on their fellow Texans who defy the ban in some way, as worthy of alarm. The message is clear: this is a court that is prepared to let Roe v. Wade die, either explicitly or in all but name. (Update: the court declined to block the law; scroll down for the latest.)
It is hard to imagine a more alarming prospect, or one that requires more urgent action. (If you want to donate to Texas abortion funds you can click here.) So what is the Democratic Party, which controls the White House and Congress, going to do about it?
I’m sure you don’t need me to tell you the answer. The concrete political solutions to this crisis have been staring us all in the face for years. The Supreme Court can be expanded so that its far-right supermajority no longer holds the rest of the country hostage. The filibuster can be eliminated, and Congress can pass legislation that enshrines abortion rights protections into federal law. (Joe Biden promised that one when he was running, as a matter of fact.) These are things Democrats can do, right now.
But Democrats don’t want to do those things. They don’t show any particular urgency about getting rid of the filibuster—and no, it is not just Joe Manchin who is blocking that particular solution—which means that you can kiss any abortion rights legislation goodbye. And even if they did manage to pass an abortion rights law, they would be dealing with a Supreme Court that grows more unaccountable and power-mad by the minute. The chances of such a law being allowed to stand with the current court in place are grim.
But Democrats don’t want to do anything about that either. This morning, Nancy Pelosi vowed to fight the Texas ban with everything she had:
But this is the same Nancy Pelosi who publicly dismissed a bill that would expand the Supreme Court and thus allow the fight she is promising to be won. Instead, Pelosi punted the issue to the ludicrous judicial commission Biden has set up—a commission which was practically designed to block major reform. As of this writing, Joe Biden has not made any public comment on the Texas ban, but there is no reason to think that he feels any differently about these fundamental issues than Pelosi does. Their stance, then, is clear.
Without overhauling the court, the women whom Pelosi is pledging to support will not be spared from the “catastrophe” she has condemned so forcefully. The same will go for women across America if, as seems so likely, the Supreme Court kills Roe entirely. If that happens, it could be decades before the court reversed its decision.
In the wake of the Texas ban, some liberals began castigating voters who failed to back Hillary Clinton in 2016, blaming them for the Trump presidency that led to the current Supreme Court. But Democrats are in power right now. They can stop this far-right assault right now. If they don’t, it should be seen as a far greater betrayal than anything that happened five years ago.
Update, 4:42 p.m. ET: As expected, Joe Biden issued his own statement harshly criticizing the Texas ban. You can read that statement here. It contains Biden’s assurance that “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.” It does not contain any practical details about how he intends to do that.
Update, 8:00 a.m. ET, 9/2/21: In an unsigned 5-4 decision issued around midnight on Thursday, the Supreme Court declined to block the Texas abortion ban. All of the court’s conservatives except for Chief Justice John Roberts voted to let the law stand, ensuring that, for now, there can be virtually no legal abortions in Texas. Roe v. Wade is, for all intents and purposes, dead in any jurisdiction that seeks to kill it.
The signal the court is sending could not be more obvious. A majority of justices do not see blatant, deliberate violations of settled constitutional law as a problem when those laws concern the right to get an abortion. It is not difficult to contemplate how those same justices will rule on a formal challenge to Roe in the court’s upcoming term. This is all really happening.
The solutions to this emergency are the same today as they were yesterday. The Supreme Court is not actually God. Its power can be challenged. Its composition, its functions, and its authority can be changed. Laws can be passed to mitigate the damage it causes.
If Democrats don’t move to do these things now, in what is likely their last chance in a generation, they will have implicitly sent the message that they consider the reactionary traditions of the Supreme Court and the United States Senate to be more important than the right of women to control their own lives.