Texas has just become the most powerful state in the United States. The two most potent threats to two of arguably the most important constitutional rights – a woman’s right to choose whether or not to bear a child, and the rights of all citizens to vote – are coming from Texas. And what’s happening in Texas is on the brink of sweeping across the country.
Both issues are at the heart of the political culture of the Democratic Party and its supporters. The right to choose and the right to vote are bedrock beliefs to Democratic voters and Democrats elected to Congress. They also have wide appeal to independent swing voters, especially in America’s suburbs.
And both issues are hitting a brick wall in the United States Senate.
The constitutional right to an abortion was established by the Supreme Court in Roe v Wade in 1973. The Court held in Roe and subsequent cases that a woman has a right to terminate a pregnancy without undue burdens imposed by the state until the fetus is viable, which is generally placed at 24-28 weeks. The right to vote without discrimination on the basis of race, colour or previous servitude was enshrined after the Civil War, and further protected by landmark voting rights legislation in the 1960s.
Over the past fortnight, Texas has taken double-barrel aim at both.
On abortion, the new Texas law forbids abortions when cardiac activity is detected, which medical experts say is at about six weeks of pregnancy, with no exception for pregnancy resulting from rape or incest. It also provides, in the enforcement of the abortion ban, that any citizen, anywhere in the United States, can sue any abortion provider in Texas, or anyone who assists or facilitates the provision of an illegal abortion. (And a bonus: if your anti-abortion lawsuit is successful, you are awarded a bounty of US$10,000.)
It is this Texas law that the Supreme Court, in a 5-4 decision last week – reflecting former President Trump’s success in ensuring a solid anti-abortion majority on the court – refused to set aside by issuing an emergency stay to provide an orderly argument in the lower courts on whether this new law is constitutional under Roe. As a result, this law is now in effect in Texas. Women needing an abortion will have to go to another state where it is legal – if they can.
On voting rights, the Texas legislature joined 14 other US states that have already enacted 30 bills this year to restrict voting further. It severely limits absentee voting and places severe impediments on early voting and mail-in voting. The genesis of all this legislation is Trump’s call for the states to prevent the “stealing” of his election – which did not happen – from ever “happening” again. The key tactic is to make it harder than ever for poorer, less educated, less affluent voters, and especially voters of colour, from casting their votes.
Trump won Texas handily in November 2020, but that clean win wasn’t good enough for Texas Republicans to future proof Texas against dramatically changing demographics. Texas is a majority-minority state, with the white population at 40 per cent. Trump won 52 per cent of the vote in Texas last year. Republicans hold 55 per cent of the state legislature’s assembly seats and 63 per cent of their US House of Representatives congressional delegation. No matter: time to protect Republicans even more in a state where they are politically dominant.
What’s happening in Texas – the rawest exercise of conservatism – may well stick for much of the country. The highest institutions of government in the United States are on the verge of failing to protect these fundamental constitutional rights:
- The Supreme Court will hear and rule on a Mississippi law – which has been stayed pending Texas’ case being heard – that bans abortion after 15 weeks of pregnancy. This case will decide the fate of much of the new Texas statute. The five justices who refused to temporarily halt the extreme Texas law must be seen as likely to overturn Roe and allow states to be ever more restrictive on abortion. Fourteen states with Republican legislatures and governors have already enacted new abortion restrictions and Florida is poised to join them. This will mean that the 35 per cent of American women who live in these states will not have the same access to abortion as other American women.
- Congress will not be able to resolve these issues. On abortion, House Speaker Pelosi has announced the House will vote on legislation to codify Roe and make access to abortion available on equal terms across the country. While this is politically popular – polling regularly shows that over 60 per cent of the country supports legal access to abortion – there are no Republicans in the House who will vote for abortion. Similarly, the House has passed massive voting rights legislation, but the Senate’s filibuster, which requires a supermajority of 60 votes to pass it – or 10 Republicans to cross the floor – killed it. The same fate awaits any abortion rights bill that passes the House.
These are severe outcomes, with no easy remedy. Texans are fond of saying, “Don’t mess with Texas.” But Texas is messing with America’s democracy and plunging the country into a political and constitutional crisis.