Thus far, it appears that President Joe Biden is going to be waiting for his court reform commission to weigh in before he thinks he needs to do anything about the conservative Supreme Court. He's maintained that position so far, while the conservative justices have been giving him the finger now for weeks, and when they actually just overturned five decades of established precedent to end the right to choose.
If he's not ready to use his bully pulpit to whip the Senate into ending the filibuster to codify the right to choose and to expand the Supreme Court so that it doesn't just strike down the new abortion rights law or everything else he tries (ending Remain in Mexico, extending the pandemic eviction moratorium) he needs to demonstrate just how far he's willing to go to protect our rights. In the statement released Thursday, he said he would "launch a whole-of-government effort to respond to this decision, looking specifically to the Department of Health and Human Services and the Department of Justice to see what steps the Federal Government can take to ensure that women in Texas have access to safe and legal abortions as protected by Roe, and what legal tools we have to insulate women and providers from the impact of Texas’ bizarre scheme of outsourced enforcement to private parties."
The invaluable Elie Mystal has some ideas for what exactly Biden and Democrats can do. Go read the whole thing for his commentary: "No matter what fresh lawlessness Republicans commit, or what their legal enablers on the Supreme Court do to support that agenda, you can count on some Democrat or liberal-adjacent person saying, 'But what can the Democrats do?' Never mind that Democrats control both chambers of Congress and the entire Executive Branch. They walk around every day like a defeated minority unable to stop Republicans—who lost—from having their way with our country."
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His solution—don't accept that "sad-sack attitude" and find the workarounds to the law. This means getting just as ruthless and creative as Republicans always are willing to be in taking away our civil rights and being willing to challenge "norms." The first thing will be getting around that part where private citizens will be turned into vigilantes to enforce the six-week ban, so it can't be challenged in court. Mystal says turn to the doctrine of qualified immunity. "Conservatives love to defend qualified immunity when a cop shoots a black person to death, or a CIA agent tortures a suspected terrorist," he says. So use it to make abortion providers federal officials who will have qualified immunity—operating under the federal government's authority.
That could be done through an executive order, creating a new class of federal officials, through either the Department of Justice or Health and Human Services, which Mystal suggests calling "privacy protectors." They could operate across the country, helping women obtain the abortion services they have a constitutional right to receive.
This idea is to have them operate in pop-up clinics, like the vaccine distribution centers the administration has created, providing counseling and other services. They could operate on federal property or be mobile, "making the vehicle itself federal property that the state government could not interfere with." Would that violate the Hyde Amendment, which prohibits federal funding of abortion? Make the actual provision of abortion free, paid for with private funding. There's one little thing Congress could do, too—not include the Hyde Amendment in appropriation bills for 2022 and force the Republicans to shut the government down if they have a problem with that.
Or just use private funding. "If Republicans can privatize everything from prisons to war to get around regulations and reporting requirements," Mystal writes, "Democrats shouldn't be afraid of a little public-private partnership to protect women's rights." Amen. If this is all too much for Democrats and Biden?
They "could expand the Supreme Court and the US Court of Appeals for the Fifth Circuit and stop the forced-birth madness Republicans now think they can get away with. […] If Democrats don't like the 'radical' solution of federal abortion trucks, then they could stop the courts from letting women and girls become the target of vigilantes looking for a cash grab."
Expanding the court—all the federal and district courts—is the ultimate solution. Codifying abortion rights won't work with the current Federalist Society-dominated courts. That means as well ending the filibuster because even for an abortion rights bill to make into law, right now, 60 votes would be necessary for the Senate. That's not going to happen. Not until the filibuster is gone. That is an action that Democrats have to take, and they have to drag Joe Manchin and Kyrsten Sinema along with them. If that means taking away committee chairs and plum assignments, well get to it, Majority Leader Schumer.
In the meantime, the people of Texas need help.
Daily Kos is raising funds to help that West Fund, Fund Texas Choice, Frontera Fund, The Bridge Collective, Clinic Access Support Network, Lilith Fund, Texas Equal Access Fund, Jane’s Due Process, and Support Your Sistah at the Afiya Center continue to ensure people can access the care they need—and protect their own staff and volunteers from legal threats. You can also contribute to these abortion funds providing financial assistance to people seeking abortion care in hostile states.
For more direct and immediate gratification, go:
If he's not ready to use his bully pulpit to whip the Senate into ending the filibuster to codify the right to choose and to expand the Supreme Court so that it doesn't just strike down the new abortion rights law or everything else he tries (ending Remain in Mexico, extending the pandemic eviction moratorium) he needs to demonstrate just how far he's willing to go to protect our rights. In the statement released Thursday, he said he would "launch a whole-of-government effort to respond to this decision, looking specifically to the Department of Health and Human Services and the Department of Justice to see what steps the Federal Government can take to ensure that women in Texas have access to safe and legal abortions as protected by Roe, and what legal tools we have to insulate women and providers from the impact of Texas’ bizarre scheme of outsourced enforcement to private parties."
The invaluable Elie Mystal has some ideas for what exactly Biden and Democrats can do. Go read the whole thing for his commentary: "No matter what fresh lawlessness Republicans commit, or what their legal enablers on the Supreme Court do to support that agenda, you can count on some Democrat or liberal-adjacent person saying, 'But what can the Democrats do?' Never mind that Democrats control both chambers of Congress and the entire Executive Branch. They walk around every day like a defeated minority unable to stop Republicans—who lost—from having their way with our country."
Campaign Action
His solution—don't accept that "sad-sack attitude" and find the workarounds to the law. This means getting just as ruthless and creative as Republicans always are willing to be in taking away our civil rights and being willing to challenge "norms." The first thing will be getting around that part where private citizens will be turned into vigilantes to enforce the six-week ban, so it can't be challenged in court. Mystal says turn to the doctrine of qualified immunity. "Conservatives love to defend qualified immunity when a cop shoots a black person to death, or a CIA agent tortures a suspected terrorist," he says. So use it to make abortion providers federal officials who will have qualified immunity—operating under the federal government's authority.
That could be done through an executive order, creating a new class of federal officials, through either the Department of Justice or Health and Human Services, which Mystal suggests calling "privacy protectors." They could operate across the country, helping women obtain the abortion services they have a constitutional right to receive.
This idea is to have them operate in pop-up clinics, like the vaccine distribution centers the administration has created, providing counseling and other services. They could operate on federal property or be mobile, "making the vehicle itself federal property that the state government could not interfere with." Would that violate the Hyde Amendment, which prohibits federal funding of abortion? Make the actual provision of abortion free, paid for with private funding. There's one little thing Congress could do, too—not include the Hyde Amendment in appropriation bills for 2022 and force the Republicans to shut the government down if they have a problem with that.
Or just use private funding. "If Republicans can privatize everything from prisons to war to get around regulations and reporting requirements," Mystal writes, "Democrats shouldn't be afraid of a little public-private partnership to protect women's rights." Amen. If this is all too much for Democrats and Biden?
They "could expand the Supreme Court and the US Court of Appeals for the Fifth Circuit and stop the forced-birth madness Republicans now think they can get away with. […] If Democrats don't like the 'radical' solution of federal abortion trucks, then they could stop the courts from letting women and girls become the target of vigilantes looking for a cash grab."
Expanding the court—all the federal and district courts—is the ultimate solution. Codifying abortion rights won't work with the current Federalist Society-dominated courts. That means as well ending the filibuster because even for an abortion rights bill to make into law, right now, 60 votes would be necessary for the Senate. That's not going to happen. Not until the filibuster is gone. That is an action that Democrats have to take, and they have to drag Joe Manchin and Kyrsten Sinema along with them. If that means taking away committee chairs and plum assignments, well get to it, Majority Leader Schumer.
In the meantime, the people of Texas need help.
Daily Kos is raising funds to help that West Fund, Fund Texas Choice, Frontera Fund, The Bridge Collective, Clinic Access Support Network, Lilith Fund, Texas Equal Access Fund, Jane’s Due Process, and Support Your Sistah at the Afiya Center continue to ensure people can access the care they need—and protect their own staff and volunteers from legal threats. You can also contribute to these abortion funds providing financial assistance to people seeking abortion care in hostile states.
For more direct and immediate gratification, go: