The abortion pill, abortion bans and Republican policies that kill

Any abortion activist will tell you that banning abortion doesn’t stop abortions – it stops safe abortions. Thanks to the existence of medical abortion (also called the abortion pill), a lot of illegal abortions can be much safer than they were before Roe v. Wade.

We don’t need to resort to back alley abortions with rusty coat hangers, early term abortions (the vast majority of abortions) can be taken care of with two pills that can be obtained legally or illegally (the medication is currently approved for up to 10 weeks but is used later in pregnancy off label).

Unfortunately for conservatives, the abortion pill is thwarting a lot of their plans. So what are they doing? They are claiming the Food and Drug Administration shouldn’t have approved it in the first place.

READ MORE: The Supreme Court's war on the future: Robert Bork's revenge

Attacking the FDA

Twenty-two years ago the FDA approved the abortion pill, which has been shown to be safe and effective. This approval came a decade after the medication had been available in Europe and after a clinical testing phase in the US. There was significant data to show that the drug was safe.

While conservatives obviously objected to the FDA’s decision, there was little to suggest there was anything suspect about the process of the decision itself. It’s also worth noting that taking two pills is almost always a safer treatment than a surgical option, which requires anesthesia.

As a result of the pandemic, before Dobbs allowed state-level abortion bans to go into effect, the FDA changed its policy to allow the abortion pill to be mailed and be prescribed using telemedicine.

READ MORE: Republicans don’t serve their states. They immiserate them

Unfortunately, despite the common sense of such a policy, many states passed their own restrictions to bar telemedicine for abortion. Eighteen states have laws requiring in-person prescriptions of the abortion pill right now. (Obviously, doctors can’t prescribe the abortion pill in a state where abortion has been banned.)

It’s much easier and safer to have a self-managed abortion with the abortion pill than to track down a doctor willing to perform an illegal surgical abortion (or travel to another state for a surgical abortion).

Obviously, that means anti-abortion activists are really really annoyed that people are still accessing safe, if illegal, abortions. (An anti-abortion organization in Texas is actually planning to test the water for contaminants to see if people are taking the abortion pill.)

Republican lawmakers want to treat abortion pill sites like child pornography sites and actually require internet providers to censor them. Some anti-abortion activists want people charged with trafficking and jailed if they distribute the abortion pill in states which ban abortion.

And in the most dangerous attempt to limit access to the abortion pill, a conservative Christian organization, the Alliance for Defending Freedom, joined by three other anti-abortion groups, has brought a suit to challenge the legality of the abortion pill in all 50 states – not just through state-level bans. They claim that the FDA didn’t have the authority to approve the abortion pill 22 years ago.

They’re claiming an organization that literally exists to approve drugs doesn’t have the authority to approve a drug.

The suit challenges the safety of medication abortion, the process by which the FDA approved the drug, and the science behind the FDA’s decision. The suit claims that “the FDA failed America’s women and girls when it chose politics over science and approved chemical abortion drugs for use in the United States.”

The suit also bizarrely claims that the FDA never studied the safety of the two drugs (under the labeled conditions of use) and that they ignored the supposedly “substantial evidence” that medication abortion causes more complications than surgical abortions.

They even threw in a claim that medication abortion increases the abuse of sex trafficking victims, because the victims could theoretically be forced to take it.

Just as ridiculous

First of all, the abortion pill is incredibly safe. Data suggests it's safer than Viagra, penicillin and even some over-the-counter medications. The FDA had a clinical trial and a decade of European evidence when it approved the drug in 2000 and now has another 22 years to show that the safety of the drug is not in question.

There is nothing to suggest they ignored evidence of complications in 2000, and the data since 2000 does not support significant complications from taking medication abortion.

While this challenge is obviously ridiculous and should be immediately thrown out, we all know conservative judges are happy to entertain totally nonsense arguments if it means they can restrict access to abortion.

The only claim in the suit that could give a conservative judge cover is the language the FDA had to use to grant accelerated approval to the drug. The regulation allowing accelerated approval stated in 2000 that the FDA could approve “certain new drug products that have been studied for their safety and effectiveness in treating serious or life-threatening illnesses and that provide meaningful therapeutic benefit to patients over existing treatments.”

The suit claims that the FDA couldn’t approve the abortion pill under this regulation because pregnancy isn’t a “serious or life-threatening illness” and the abortion pill doesn’t “provide meaningful therapeutic benefit to patients over existing treatments.”

I have no desire to quibble over the term “illness” being applied to pregnancy but pregnancy is unquestionably a serious and life-threatening strain on the body. An abortion, specifically a medication abortion, is obviously a useful treatment of that serious threat to a person’s body and medication abortion provides a significant benefit over a surgical abortion.

Unfortunately, while this claim is just as ridiculous as the others in the suit, I can imagine an anti-abortion judge just salivating at the pedantic argument that pregnancy isn’t an “illness” so the FDA didn’t have the authority to approve the drug. (The suit was filed in Texas where they were sure to get a far-right Trump appointee.)

Killing many of us

However we may feel about applying the word “illness” to pregnancy, abortions save lives. An analysis from the Commonwealth Fund has found that there is a correlation between abortion restrictions and higher infant and maternal mortality. The numbers are staggering.

In states with abortion bans or significant restrictions, maternal death rates were 62 percent higher in 2020 than in states with abortion access. One has to wonder if that number is even higher since Roe was overturned and abortions to save the life of the mother have gotten even more difficult to access.

Obviously, not every death can be attributed to abortion restrictions. States without abortion access are also more likely to be “maternity care deserts.” The same states are also more likely to have worse healthcare outcomes across the board and more restrictions on Medicaid coverage as well as fewer OBGYNs.

However, despite these other factors, the lack of abortion access itself is likely contributing to maternal and infant deaths. Someone without access to good healthcare, financial resources, and prenatal care might decide abortion is the right decision for them before it becomes a life-or-death issue.

Abortion can be used to terminate a pregnancy that increases strain on the pregnant person’s body and can terminate a pregnancy likely to result in fetal abnormalities and infant death.

Finally, so-called “life of the mother” exceptions in abortion restrictions are confusing and often written vaguely to limit their use. Doctors are often put in the position of deciding if the pregnant person is in enough danger to warrant the legal risk of performing an abortion when it’s deemed legally necessary. Unfortunately, these are the cases that medication abortion can’t help with.

If this suit is successful it will upend access to abortion in all 50 states and make self-managed and illegal surgical abortions much more dangerous. People in states where abortion is legal will only have access to the surgical option and people in states with abortion restrictions will be in the same situation we were in before Roe.

Once again, conservatives want to enact policies that will result in killing many of us.

READ MORE: Virginia Republican files bill that defines a fertilized egg as a human

Ye's antisemitism: Nothing to do with the Black community, straight from the white supremacist playbook

Antisemitism dominates the news. But the media isn’t focused on rising hate crimes, a study on antisemitism in hiring or a presidential candidate and former president dining with a Holocaust denier.

Antisemitism is only dominating the news because Kanye West is saying blatantly antisemitic things over and over again. (Really he’s just saying the quiet part out loud for most Republicans).

Sure West, or Ye, is a celebrity being outrageous (though so is Mel Gibson) but the real reason his antisemitism gets more coverage than antisemitic violent incidents is that it can be used to fuel racism and divide the Black and Jewish communities (of course, also erasing the existence of Black Jews). This only serves white supremacy.

READ MORE: The midterms show once again that the biggest division between the parties is over matters of race

There is a narrative in the US that antisemitism is higher in the Black community than in the white. People often point to Louis Farrakhan and the National of Islam. The media sees Farrakhan as a prominent figure on the left but ignores that he doesn’t just peddle antisemitism but also homophobia, transphobia, sexism, and he criticized Barack Obama for being too close to the Jewish community. Farrakhan has appeared on Alex Jones. He has praised Donald Trump.

The media needs to stop pretending this is a liberal movement and demanding the left answer for Farrakhan and the Nation of Islam. Additionally, as John Blake of CNN explains, while Farrakhan has always been a controversial figure, what support he does have in the Black community is often in spite of his antisemitism – not because of it.

There was the controversy a few years ago about Women’s March members not condemning Farrakhan, but honestly, his homophobia and transphobia should be as appalling to someone wanting to be the leader of a feminist movement. The March did eventually replace these leaders (as well as the controversy dominating news coverage because it once involved Black people and WOC).

While Farrakhan’s antisemitism and false claims about Jews controlling the slave trade have permeated culture (Kyrie Irving recently shared an antisemitic movie on the subject), the popularity of the Nation of Islam has significantly waned in recent years.

READ MORE: Israel and the rise of Jewish fascism

Many prominent Black people have condemned him, such as US Rep. Barbara Lee and Muhammad Ali, and other Black Muslims denounced Farrakhan back in 1984. However, while I am very appreciative when Black people denounce antisemitism generally and Farrakhan specifically, demanding they do so reeks of racism.

Do you ask every white person about David Duke? Stop giving this man airtime and bringing his name up to use against Black people.

There’s some evidence that antisemitic sentiment is a little more common in the Black community than the white, though it has lessened since the 1990s. There is also evidence to suggest that Black people are significantly more likely to agree that Jewish people face discrimination. Based on my experience, some Black people might repeat an antisemitic trope not realizing that it’s harmful, but are much more open to learning than white people are. Many in the Black community have also spoken out against Kanye West, eager to stand with the Jewish community and show solidarity.

So is the Black community really more antisemitic or are these surveys not asking the right questions? Even worse, is the prevalence of some antisemitic tropes in the Black community in large part due to the outsized focus of the media on portraying Black people as antisemitic and encouraging rifts between our communities?

This is not to mention the fact, and I cannot stress this enough, there are Black Jews. We aren’t truly separate communities. To that end, Jewish spaces need to ensure they’re welcoming to Black Jews and Jews of color. White Jews also need to make sure they never-ever ask a Black Jew to condemn Farrakhan or West. These men hurt Black Jews, too.

West repeats antisemitic tropes common among so-called Black Hebrew Israelites (they are a radical fringe group not to be confused with Black Jews), Farrakhan and run-of-the-mill white supremacists.

There’s a lot of crossover in how these groups talk about Jews. It's hard to tease out sometimes. While antisemitic tropes about Jews and the slave trade, or Jews controlling Hollywood, might exist in the Black community and historical Black movements, Holocaust denial and praise of Hitler are common only in white supremacist movements.

In the past few years Kanye West has spent time with Trump, Alex Jones and Nick Fuentes, a white nationalist Holocaust denier. West’s antisemitism has nothing to do with the Black community. It’s straight from the white supremacist playbook.

While many Black people condemn West, radical white nationalists embrace him. West perpetuates ideology and politics that are just as harmful to Black people as they are to Jews. It makes no sense for the media to hold him up as a representative of the Black community.

Many of the statements West made are vile and harmful. But if people really cared about antisemitism, they would be more concerned about men traveling to New York to attack synagogues.

A recently published survey, showing that one in four hiring managers exhibit antisemitism in their hiring practices, would have gotten much more attention. Supersessionist Christian cooptation of Jewish holidays would be a big news story. The GOP’s constant invocation of dual loyalty tropes against American Jews would be rightfully reported as antisemitism.

But no.

A rapper’s antisemitic rantings get the most attention.

I could talk about the history of cooperation between Black people and Jews in the US, but that history isn’t really the point.

White Jews must face racism in their communities just as Black people must fight strains of antisemitism in theirs.

Whatever our shared history, good and bad, we must see that it serves white supremacy to divide us and encourage tension.

Jewish liberation will never come through racism. We cannot fight antisemitism by allowing the media to throw Black people away.

The threat is rising white nationalism.

We must fight that threat together.

READ MORE: James Carville: Right-wing ire over Brittney Griner is because she 'is not white and is not straight'

The Supreme Court is dirty. Time to clean it up

The recent story about leaked Supreme Court drafts isn’t about SCOTUS opinions getting leaked. It’s not even that the court is political. The story should be that the court’s right wing is blatantly corrupt and basically exists outside of oversight or accountability.

When the draft of Dobbs, the case overturning Roe, was leaked, way too many people were more focused on the erosion of norms than the horrific content of the draft. Did leaking the draft serve the right-wing agenda of the right wing of the Supreme Court? Probably.

Why else leak it?

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But the focus on the leak was what served their agenda, as it offered a distraction from the fact that the court was overturning important precedent by waving around some nonsense ahistorical argument that abortion wasn’t deeply embedded in the nation’s history.

There was concern that the leaked draft would dampen outrage on the left but, as recent midterm results show, that hasn’t happened. If anything, some Democrat politicians used the leaked draft as an opportunity to protect abortion rights before the ruling’s release.

A report by the Times suggests that Dobbs wasn’t the first opinion to leak. Anti-abortion activist Rob Schenck said he received information about the Hobby Lobby case, in which the Supreme Court ruled that private companies didn’t have to provide insurance coverage for contraception. Schenck said he heard from conservative donors to his group Faith and Action after they had dinner with Justice Samuel Alito.

This is a much more troubling leak, as it was done privately and in a clearly corrupt way. Schenck has previously asserted that his nonprofit engaged in overt attempts to influence conservative justices through dinners and vacations with wealthy donors to his nonprofit. The strategy was to use casual social occasions to influence rulings and gain access to information on pending cases.

READ MORE: 'Denied': Supreme Court rejects Donald Trump's request to hide his tax returns from Congress

While a sitting Supreme Court justice shouldn’t leak information about cases to donors or participate in obviously political events, they technically don’t break any rules when they do so. Supreme Court justices have no ethical code of conduct they must adhere to and pretty much entirely self-police. There is a Code of Conduct for federal judges published by the Judicial Conference of the United States, which is presided over by Chief Justice Roberts, but it’s not binding for Supreme Court justices. It’s worth noting that the last time a liberal justice got in trouble for political action, conservatives were mad that Ruth Bader Ginsburg publicly expressed dislike of Trump – not really as bad as political dinners with donors.

Supreme Court justices need to exhibit “good behavior” and technically can be impeached for “treason, bribery, or other high crimes and misdemeanors.” The only justice to be impeached was Samuel Chase in 1805 for clearly political motives as Chase was a staunch Federalist who was pissing off Thomas Jefferson.

The House voted to impeach, but Chase was acquitted by the Senate, therefore not removed from the bench. Oddly enough, the majority of impeachment trials have been for federal judges and all eight people convicted of impeachment and removed were federal judges.

A bill has been proposed to require justices to write and adopt a formal code of ethics. The Supreme Court Ethics, Recusal, and Transparency Act outlines requirements for recusal and disqualification. It does not offer specifics for what would be in a code of conduct. It only requires that one be adopted through the Judicial Conference. The bill already passed the Senate, so we can hope for a lame-duck adoption by the House.

We absolutely need more oversight for sitting justices but the obstacles to impeaching them show why we need to take confirmation hearings more seriously.

Brett Kavanaugh likely lied under oath during his confirmation hearing but people treated moderate questioning of a serious accusation like a witch hunt. Clarence Thomas called a similarly respectful hearing about his history of sexual harassment a high-tech lynching. These are serious job interviews, our last chance to vet nominees.

While we might not have recourse once they’re on the bench, senators need to take their roles in confirming these justices more seriously than a rubber stamp for the president’s political nominee.

While Congress has little oversight outside impeachment, it can hold hearings and call justices to testify. Though unlikely to remove a justice, it would show that Congress is taking the corruption seriously and force the justices to speak publicly about their actions.

While Justice Alito has likely leaked information about at least two Supreme Court cases, Justices Thomas and Kavanaugh have probably committed impeachable offenses.

Clarence Thomas’ wife, Ginni Thomas, has been called in front of the January 6 committee for her possible (likely) involvement in the attempted coup. We know she sent text messages to Mark Meadows urging Trump not to concede and that she attended the “Stop the Steal” rally on January 6. She claims her husband knew nothing of these political activities but that strains believability. Thomas also hasn’t recused himself from any of the cases concerning January 6.

As for Kavanaugh, his theoretically possible impeachable offenses occurred before he took the bench but lying before the Congress – committing perjury – is an impeachable offense. Sexual assault should be one too, but we all know how seriously that’s taken.

We need court reform.

We should expand the court to 13 to match the number of federal courts and more realistically pass a bill requiring a code of conduct.

While it's only been done once, there’s no reason we can’t impeach one or more of the current justices for their blatant corruption.

And as many of my articles are going to end – all this will be easier if we manage to elect Reverend Warnock in the runoff in Georgia.

READ MORE: Why we have the right-wing majority of the US Supreme Court to thank for GOP’s House takeover

Thanksgiving food for thought: Immigrants are not 'invading' the United States

White Christian men are really scared of immigrants. Or at least they’re scared of immigrants who are “undesirable.”

They’re just terrified that new people are going to come into their country and make them eat weird food or hear weird languages.

They’re so fragile they have to cast poor people and children just trying to survive as “invading.” Texas Governor Greg Abbott is now so scared he’s begging President Biden to invoke the invasion clause of the US Constitution to protect Texans from refugees and migrant workers.

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The US has a decidedly weird relationship with immigration. It’s unique in its need for immigrants to “settle” the country (indigenous Native Americans don’t count). So immigration and naturalization have an outsized importance in the nation’s history. However, despite this need, nativism sprang up with a vengeance as soon as “undesirable” immigrants began arriving in the 19th century.

The narrative that immigrants were an “invading” force began with Samuel Morse’s Foreign Conspiracy Against the Liberties of the United States published in 1836. He said every American citizen who values his birthright should attempt to repel “this insidious invasion of the country” of “illiterate” Catholic immigrants. Chinese immigration was cast as an invasion in the 1870s in such a way that directly led to the Chinese Exclusion Act. Such rhetoric, and comparisons to an invasion of locusts, was applied to immigrants from Eastern Europe. The “invasion” moved on to Mexican immigrants in the 1920s and has remained focused on immigrants from South and Central America, even sometimes being described as a “Wetback Invasion.”

Immigrants are not invading the US.

They are not trying to conquer us, or take land, or forcibly convert us, or steal resources, or do anything else that invading armies have done (or that Americans have historically done to indigenous people).

READ MORE: The good priest who called greed 'venomous'

Current immigrants are coming to the US for the same reasons immigrants came historically. Undocumented immigrants are coming for the same reason documented immigrants are. Everyone just wants safety and economic opportunities. But casting immigrants as “invading” is a purposeful conscious choice to make vulnerable people doing no harm seem threatening and violent.

And now Abbot isn’t just accusing immigrants of invading rhetorically. He’s actually trying to get the president to treat poor people without weapons or power as a military invasion!

On November 16, a day after tweeting it publicly, Abbot wrote a letter to President Biden informing him that he has not lived up to the promise of Article IV, § 4, that the federal government “shall protect each of them against Invasion.”

Since, according to Abbott, the federal government isn’t treating poor immigrants like an invading army, Abbott will now invoke Article I, § 10, Clause 3 of the US Constitution, which allows states to “engage in War” when they are “actually invaded, or in such imminent Danger as will not admit of delay.”

Oh, and just to make it extra scary, Abbot specifies that the invasion is by “Mexican drug cartels.” You’d think we would have heard about drug cartels invading large swaths of Texas.

As far as I can tell the Invasion Clause has rarely been invoked in US history. The one example I could find was in 1914 when the Colorado governor asked Woodrow Wilson to invoke the clause during the Colorado Coalfield War, a bloody labor dispute, not an invasion.

Abbot’s strategy has been regularly rejected by the courts. In New Jersey v. United States, the Third Circuit Court of Appeals rejected New Jersey’s claim that the US had violated its obligation to protect states from invasion by not controlling immigration through international borders better.

In Chiles v. Florida, the plaintiffs, Florida, claimed that the "government breaches its duty when its failure to protect against invasion of illegal aliens imposes coercive pressure on the state and local political processes.” The Southern District of Florida rejected this argument and said the plaintiffs were making a political argument, not a legal one.

Abbott seems to be trying to enforce war powers which, along with immigration enforcement, is the purview of the federal government.

Therefore, he’s clearly trying to unlawfully invoke the threat of invasion to justify rounding up asylum seekers. Last year, Texas passed Operation Lone Star, which already further militarizes the border by giving Abbot authority to deploy the national guard.

Of course, this was also justified through complaining that President Biden wasn’t doing his job. This latest ploy invoking invasion is likely in response to a Texas court ruling that the arrests under Operation Lone Star violated established law that immigration enforcement was the sole purview of the federal government.

For Article I Section 10 to be invoked, invasions must be armed invasions that are “too formidable for the civil power to overcome.”

New Jersey v. US, as well as Padavan v. US and State of California v. US in the 1990s all confirm this definition. Asylum seekers and poor immigrants are not armed and they are certainly not too formidable for civil powers to deal with. Even if we include the threat of cartels who might be armed, there is nothing to suggest that threat amounts to a formidable invasion.

Like previous courts have said, invoking the Invasion Clause is a political ploy not a legal strategy.

We never know how courts will react anymore but it’s likely Abbott’s actions would be rejected if he did take steps to further militarize immigration enforcement and take jurisdiction away from the federal government.

Unfortunately, harm can be done in the meantime, and immigrants can be unlawfully arrested. Not to mention the political narrative itself is insidious and harmful to any reasonable response to immigration. Asylum seekers are often traumatized. They don’t need to be met with a response as if they are trying to invade.

It might be something we all want to think about the week of Thanksgiving.

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How the Supreme Court controlled the midterms

Midterms are (almost) over and we (almost) have the results. While we don’t know which party will win the House yet, Democrats have retained 50-50 control and have a chance to make it to 51 seats.

While there is still a lot up in the air, two things are clear. One, the Democrats outperformed expectations around the country against enormous odds. The other thing that’s clear is that elections are being determined by Supreme Court

Abortion was the second most important issue for people in midterms according to exit polls, only a few points behind inflation. It was also the most important issue in Pennsylvania and Michigan where Democrats made great strides. Maggie Hassan, an incumbent Democratic senator from New Hampshire, managed to hold on to her seat by highlighting abortion in her reelection campaign.

READ MORE: New Hampshire State House seat flips by one vote from Republican to Democrat following a recount

Abortion should have been the most important issue in 2016, 2018 and 2020 to prevent Roe from being overturned but unfortunately many politicians ignored it and most voters didn’t prioritize it.

Hillary Clinton centered abortion rights in 2016. Kirsten Gillibrand and Kamala Harris focused in 2020 on reproductive justice issues. But the larger party and Democratic voters failed to see the import of following their lead. Unfortunately, it took the Supreme Court decision in Dobbs v. Jackson to force people to pay attention.

And pay attention they did! Even before midterms, it was clear many votes were mobilized to protect abortion. In August, Kansas voters rejected an anti-abortion ballot measure by an 18-point margin.

There is also significant evidence that the Dobbs decision drove voter registration in the months preceding the midterm election with higher numbers among young voters and women.

READ MORE: Nikki Haley: 'We need to make sure we deport' Democratic Senator Raphael Warnock

In every state where abortion was on a ballot measure, abortion rights won. A California amendment passed stating that the state Constitution cannot interfere with someone’s reproductive freedom.

Like Kansas’ earlier abortion vote, Kentucky voters rejected a ballot measure to declare there is no right to abortion in the state constitution. Michigan voters passed a ballot measure to ensure their constitution protects a right to reproductive freedom. Montana voters rejected an attempt to criminalize healthcare providers. Vermont voters passed an initiative to amend the state constitution to ensure a right to “personal reproductive autonomy.”

Another Supreme Court decision, New York State Rifle & Pistol Association v. Bruen, got less attention but should probably have been highlighted by the Democrats in the way abortion was.

Gun regulation was in the top five issues most important to voters this election, but few politicians focused on it. Last year, the Supreme Court overturned a New York gun regulation that allowed more discretion for issuing gun permits with a “may issue” law rather than a “shall issue” law. The court ruled that carrying a gun, not just owning one, was a constitutional right. I’m not aware of any politicians who tried to use the case to rally voters.

The case was decided a month after the Uvalde massacre. School shootings have become common and Uvalde did little to move public opinion, though it did start an important conversation about a police officer’s “duty to act.” Many of the parents of the Uvalde victims rallied behind Beto O’Rourke, trying to unseat Greg Abbott as governor of Texas. O’Rourke was one of the few politicians to prioritize gun reform and the Uvalde shooting as part of his campaign. Unfortunately, Democrats couldn’t overcome the voter suppression and gerrymandering enabled by the Supreme Court.

In one of the most devastating decisions for fighting partisan gerrymandering, the court ruled in Rucho v. Common Cause that partisan gerrymandering issues are not the purview of the federal court system, so a major avenue of redress was removed.

While we’re awaiting a ruling on Merrill v. Milligan, and Ardoin v. Robinson after oral arguments this term, last term the court allowed the racist gerrymandered map in Alabama to go in effect.

The court is likely to sustain the racist map, and the Louisiana map in Ardoin v. Robinson, which they also temporarily sustained, will severely weaken section 2 of the Voting Rights Act and allow Black voter dilution. Gerrymandering is only going to get worse.

The decision to allow the Alabama map to go into effect in February likely influenced gerrymandered maps all over the country for the midterms. A judge declined to block a racially gerrymandered map in Georgia. A Texas court dismissed multiple claims against their gerrymandered map that targeted Latino representation.

In Florida, Ron DeSantis demanded a more extreme gerrymander than what Republicans initially proposed in the state, which the Florida Supreme Court reinstated after a lower court struck it down.

Even a New York court rejected the initial congressional map and forced a map less favorable to Democrats (no surprise Democrats lost 4 congressional seats in New York). Ohio’s map also showed extreme Republican bias going into election day.

And no conversation about elections and the Supreme Court can ignore the effect of Shelby v. Holder. It struck down a key element of the Voting Rights Act. The effect of Shelby was that states with histories of voting discrimination would no longer need federal preclearance to pass new voting laws. It’s likely that the increase in voter suppression laws after 2013 influenced the passage of more voter suppression in states without historical discrimination. Twenty states faced new voter restrictions since the 2020 election.

The 2022 midterms saw a rash of new voter suppression laws in response to the myths about fraudulent elections perpetrated by Donald Trump after losing in 2020. Over two years, there has been a significant increase in laws that criminalize election behavior and ultimately amount to voter intimidation through the involvement of law enforcement in the name of election security. Since 2020, 132 bills have been introduced across 42 states to increase police involvement in elections. Twenty-eight passed in 20 states.

The Supreme Court is controlling our elections.

It is driving the political issues we have to focus on.

It is dictating our access to the ballot box.

There’s not much we can do about the Supreme Court (that is, until Samuel Alito or Clarence Thomas need to be replaced) without reform, like expanding the court to 13, but federal judges across the country are working to fight back against the court’s fascism.

Our best hope is to nominate more federal judges, which means we must ensure that Senator Raphael Warnock wins his runoff.

READ MORE: 'Insecure small people': McConnell, Rick Scott allies point fingers over scope of GOP Senate failure

Slavery was race conscious — but critics of affirmative action want you to believe that laws meant to protect Black people weren’t meant to

Originalist arguments will always be silly to me, but if you’re going to apply them at least get the history right. Reconstruction legislation and subsequent case law are all race conscious. They validate the acknowledgment of race when seeking remedy to racial harm.

Conservatives are so obsessed with the concept of originalism they continue to twist history in order to pretend their nonsense legal agendas are in line with what the “founders” of the country or the Fourteenth Amendment actually wanted. The latest historical victim of ahistorical legal ramblings is the entirety of Reconstruction legislation in order to claim affirmative action is unconstitutional.

The Supreme Court heard oral arguments in the latest attack on affirmative action in Students for Fair Admissions v. Harvard during which attorney Cameron Norris, for Students for Fair Admissions, the group challenging Harvard’s policy, argued that the legislation passed following the Civil War to address the harms of slavery was not about race and that none of the legislation passed was race conscious (as opposed to race neutral). Buckle in for an angry history lesson to understand just how bizarre that claim truly is.

The Civil War was explicitly about slavery and the US had worked very hard to ensure slavery and Blackness had a strong correlation.

Legally, one could not be enslaved in the US if one was not of African descent. Indigenous people initially could be enslaved, but by the early 1800s, Native Americans were deemed legally free.

Even free Black people were often presumed to be enslaved if they could not prove they were free. Enslavement was not race neutral. Legislation to address slavery was very much not race neutral.

After the Civil War the Thirteenth, Fourteenth, and Fifteenth Amendments were passed not only to ensure the end of slavery but to move toward a racially integrated society with at least nominal guarantees of racial equality.

We have decades of jurisprudence showing the intent of the Fourteenth Amendment was specifically to address the racist harm of slavery, which I’ll get to in a minute.

But the plain text of the Fifteenth Amendment addresses race explicitly by ensuring that no one’s vote shall be denied or abridged on “account of race, color, or previous condition of servitude.”

While the language in the Fourteenth Amendment doesn’t mention race specifically, the earlier Civil Rights Act of 1866 does.

It states that all citizens should have the same rights as “enjoyed by white citizens.” Not only does such a statement clearly mention race, but it also acknowledges that race has been a determining factor in a hierarchy of access to citizenship rights until 1866.

The act excludes “Indians” from birthright citizenship, supposedly because they don’t pay taxes, but again, it includes racial distinctions.

Finally, the act specifies that everyone, “of every race and color,” born in the US, except “Indians,” has birthright citizenship.

The language seems pretty race conscious to me.

Even Andrew Johnson said that he vetoed the act (Congress overrode his veto) because the protections in it supposedly “establish for the security of the colored race safeguards which go infinitely beyond any that the General Government has ever provided for the white race. In fact, the distinction of race and color is by the bill made to operate in favor of the colored and against the white race.” (emphasis mine)

I think his claims that the act pits races against each other or provides special protection to Black people is nonsense. Point is, at the time no one thought this legislation was race neutral.

In 1872, the purview and intent of the Fourteenth Amendment was tested in the Slaughterhouse Cases. In the Slaughterhouse Cases, butchers of New Orleans were mad at laws passed that created a monopoly on slaughterhouses in order to protect the water supply from contamination. Butchers of the city sued under the Fourteenth Amendment claiming that their civil rights were violated. The Supreme Court rejected this claim and in the majority opinion Justice Miller wrote that the Reconstruction Amendments were meant to protect the “the freedom of the slave race … and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.”

During oral arguments Cameron Norris, for Students for Fair Admissions, the group challenging Harvard’s policy, made the argument that Reconstruction legislation was meant to address harm based on status of former slaves – not based on race.

Not only is this argument historically incoherent as race and the status of slavery were deeply intertwined, but it ignores that Reconstruction legislation also addressed previous discrimination against free Black people.

Before the Civil War, plenty of free states had racially discriminatory laws that barred free Black people from voting, testifying in court against a white person or even having the freedom to exist without needing to constantly prove they were free.

Such discrimination was explicitly based on race, not slave status.

Norris also claimed the Fourteenth Amendment was originally intended as a ban on all racial classifications, somehow ignoring the legality of segregation and anti-miscegenation laws.

He does describe Plessy v. Ferguson as the Supreme Court “going off the rails,” but it’s not clear what he means by that.

He asserts that another case, Strauder v. West Virginia, banned all racial classification concerning jury selection, but he completely misstates the opinion. Strauder ruled that one could not be denied jury service based on race, but it argued that doing so would violate the rights of a possible Black defendant by denying him a jury of his peers – explicitly acknowledging the relevance of race.

Additionally, the court said that the purpose of the Equal Protection Clause was "to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons.”

Originalist arguments will always be silly to me, but if you’re going to apply them at least get the history right. Reconstruction legislation and subsequent case law are all race conscious. They validate the acknowledgment of race when seeking remedy to racial harm.

The Supreme Court ignores its rulings to keep executions going

The Supreme Court seems determined to execute as many people as possible. Ineffective counsel? Clear evidence of racial animus among jurors? Violation of habeas corpus rights? According to the current Supreme Court, none of these are obstacles to executing someone.

Last week’s Thomas v. Lumpkin involved an ineffectual defense, racial bias and a mentally ill defendant. The court ignored its own precedent to keep a man on death row without hearing his appeal.

In 2004, Andre Lee Thomas, a 21-year-old Black man with a history of mental health issues, murdered his white ex-wife, their 4-year-old son and her 1-year-old daughter (both children were mixed race).

READ MORE: Unequal justice: Donald Trump’s war on the First Amendment will one day reach the Supreme Court

He also stabbed himself three times.

When he didn’t die, he left the house and turned himself into the police. He confessed to the murders but said he killed them because God wanted him to and there were demons inside his body.

While awaiting trial, Thomas removed his own eye with his own hands and was diagnosed with schizophrenia. He was declared incompetent to stand trial for 47 days. Despite the diagnosis, a psychiatrist, Dr. Joseph Black, wrote a letter to the judge and said Thomas was now competent and his diagnosis was a drug-induced psychosis.

Dr. Black went so far as to say Thomas could be exaggerating his symptoms to “avoid consequences.” The defense attorney later admitted it was a mistake not to challenge the letter’s findings. Prior to the murders, Thomas had attempted suicide at least twice before seeking help multiple times in the weeks right before the murders.

READ MORE: How Clarence Thomas’ conservative activism defies 'a fundamental principle' of US democracy: political scholar

Thomas was tried and convicted for the murder of Leyha Marie Hughes in 2005 by an all-white jury. Four jurors had openly expressed opposition to interracial relationships in their jury questionnaires and were sat without objection. Thomas’s defense was that he was insane at the time of the killings and not responsible, but the state argued that since Thomas voluntarily drank and took drugs in the days leading up to the murder those actions negated an insanity defense.

The prosecutor invoked historical fears of interracial sex and the myth of the Black rapist. During the sentencing phase, the prosecutor asked the jury, “Are you going to take the risk of him asking your daughter out or your granddaughter out?”

The trial was held in Sherman, Texas, in the shadow of a 1930 lynching of a Black man accused of raping a white woman. The prosecutor’s question about future risk was important. To impose a death sentence the jury had to answer “yes” to Thomas being a future danger.

Jurors also had to answer “no” to mitigating factors, which they did, because the defense presented little in the way of mitigation, despite Thomas’s history of abuse, mental illness violence and neglect.

Thomas has been on death row since 2005, during which time his mental illness has intensified. He is now completely blind, as he gouged out his remaining eye and ate it. In 2020, the Fifth Circuit heard Thomas’ appeal on the basis that the jury was racially biased and his defense ineffectual. This case should have been easily overturned based on a number of existing precedents.

But the Fifth Circuit is determined to ignore every precedent if it stands in the way of its conservative agenda. The Supreme Court is either supporting it or disinterested in getting in its way.

In 1986, in Ford v. Wainwright, the Supreme Court ruled it was unconstitutional to execute an “insane” person under the Eighth Amendment and that the principle dated back to common law.

Unfortunately, there is no clear standard on who is too mentally incompetent to be executed. It is left up to individual courts to make that determination. The standard was somewhat clarified in 2007 in Panetti v. Quarterman, which held that a defendant couldn’t be executed if they did not understand the reason for their execution but that hardly seems like an exhaustive definition.

Even if a defendant is ruled incompetent to be executed they are often left on death row. It’s hard to look at Thomas’ history of mental illness and argue that he is mentally competent for execution.

In 2017, in Pena-Rodriguez v. Colorado, the Supreme Court ruled that clear statements of racial bias by jury members are an exception to the “no impeachment rule,” which prohibits jurors from testifying about their deliberations to discredit a verdict.

In her dissent in Thomas v. Lumpkin, Justice Sonia Sotomayor quoted this case in saying that, “It is ultimately the duty of the courts ‘to confront racial animus in the justice system’ … That responsibility requires courts, including this one, vigilantly to safeguard the fairness of criminal trials by ensuring that jurors do not harbor, or at the very least could put aside, racially biased sentiments.”

Last year the Supreme Court ignored its own precedent in the same case to allow Texas to execute someone. In 2020’s Andrus v. Texas, the court held that Texas could not execute Andrus because of inadequate counsel at trial and ordered the lower court to reevaluate.

But when reevaluating, the lower court simply agreed with its original determination that the “mitigating evidence is not particularly compelling.” Similarly, in 2017, the Supreme Court decided that Bobby Moore couldn’t be executed because he was intellectually disabled, but the lower court reinstated his death sentence and the Supreme Court once again had to overturn it in 2019. The Supreme Court declined to intervene in June 2022 after the Texas court ignored their ruling in Andrus and his execution will continue.

Neither Terence Andrus nor Andre Lee Thomas should be on death row. Both have ample reason to challenge their sentences but the Supreme Court is ignoring its own recent precedent to allow racially biased executions to continue in Texas.

This term, the court is hearing another argument challenging a death sentence from Texas, this time based on claims of innocence, from Rodney Reed. Last week, the Supreme Court heard arguments to determine if Reed could seek DNA testing to prove his innocence or if he waited too long to seek the remedy.

We can hope the court will allow the DNA testing but unfortunately it seems determined to let executions continue while ignoring claims of racial bias, ineffectual counsel, insanity and even innocence.

READ MORE: Experts warn Supreme Court supporting this 'dangerous' GOP legal theory could destroy US democracy


Joe Biden's cannabis pardons matter — but the war on drugs' racist legacy lingers

Last week President Biden announced he would pardon people convicted of simple marijuana possession. This mass pardon could help over 6,000 people but it’s still a drop in the bucket in our fight to end the criminalization of marijuana use and the outsized harm to Black and brown communities from that criminalization.

This mass pardon doesn’t free one person from prison, because there are currently no federal prisoners in jail for simple possession.

However, the pardons aren’t meaningless.

READ MORE: 'Legalize it': Advocates cheer presidential pardons of federal cannabis convictions

People who have felony convictions on their records face obstacles in finding jobs, getting housing, receiving loans, voting or serving on juries. Despite the conviction being from a federal charge, many of these rights are dependent on state law. In some states, a federal felony conviction is an obstacle to voting while in others, it isn’t.

Prison time isn’t the only harmful consequence to a felony conviction (state or federal). In states that have legalized marijuana, you can only sell it legally or open a dispensary if you don’t have a previous felony marijuana conviction. Even without jail time, felony convictions can have disastrous effects on people’s lives. Pardoning over 6,000 people will remove major obstacles to those people fully participating in society.

So it's very clear the mass pardon is positive no matter how you look at it – but it’s nowhere near enough. Pardoning 6,500 people helps those 6,500 people, but without additional steps, these pardons mean nothing to the larger issue. The executive order was clear that it didn’t apply to future charges and certainly doesn’t address the longstanding harm to Black and brown communities from the decades-long criminalization of marijuana.

In order to address future charges, marijuana needs to be reclassified. Biden ordered HHS Secretary Becerra and Attorney General Garland to speed up their review of marijuana classification but it's a complicated process and could still take a significant amount of time. Even reclassifying marijuana as a schedule 2 narcotic (a substance that’s harmful but with medicinal purposes) could still result in significant criminalization particularly for marginalized communities without access to legitimate medicalized use.

READ MORE: 'Reefer madness': Fox News freaks out after Joe Biden pardons thousands of federal cannabis convictions

Rescheduling marijuana as a schedule 2 narcotic would open up avenues for research and likely provide the option for prescribed marijuana, but that does not go nearly far enough in actually decriminalizing the substance.

While the majority of marijuana felony convictions are at the state level, federal charges disproportionately target indigenous people who live on reservations. Arrest for marijuana possession in the District of Columbia, a majority Black city, can also result in federal charges.

Undocumented immigrants are also more likely to face federal charges for marijuana possession. Unfortunately, the pardon does not address marijuana convictions for undocumented immigrants. Why would a non-citizen face punishment for something that citizens aren’t punished for?

If the pardon is supposed to be a first step in decriminalization (which I think it clearly is) then there must be significant movement to pardon people not only of simple possession but also of possession with intent to distribute.

States across the country are legalizing marijuana distribution but rhetoric often focuses solely on the criminalization of possession. White people with resources are beginning to open dispensaries while Black people remain in jail for the same actions. Charging someone with intent to distribute is often based on the quantity of marijuana one has. Intent is assumed if one possesses too much.

Our focus cannot solely be on decriminalizing marijuana but also on actually repairing the significant harm done to Brown and black communities. The war on drugs and mass incarceration were policies that came directly out of the civil rights movement as a backlash to ending segregation and Jim Crow. Before the civil rights movement, Black people were criminalized with blatantly racist laws criminalizing loitering or not having a job. After, criminalization had to become race neutral in the law and only racist in the application.

The answer was the war on drugs and the extreme disparate treatment of Black and white drug users.

During Jim Crow, criminalization of Black people was used to deny voting rights, jobs, jury participation and fulfill labor needs after the end of slavery. The war on drugs similarly has denied voting rights, jury participation, jobs, government benefits and more to those with felony drug convictions. Arguably prisoners are still fulfilling labor needs through prison labor programs.

To address this harm, we need to do a lot more than pardon those with felony possession charges. People with possession or possession with intent to distribute must all be pardoned.

Marijuana must be reclassified in such a way that it is not deemed harmful and so it is legal. Those who have been convicted of possession must have access to licenses for dispensaries.

US Senator Cory Booker of New Jersey has been working on this issue for years and has proposed expunging the records of non-violent marijuana offenses (presumably including those convicted of intent to distribute). His proposal also includes “a fund to reinvest in the communities that were hurt by the war on drugs and provide restorative justice to communities of color.”

President Biden’s pardon will materially affect people’s lives for the better. A major obstacle to voting, employment, housing, government benefits and more will be removed. However, unless it is followed by continued action on decriminalization and redress to harmed communities it will only help those 6,500 people.

The language of Biden’s executive order suggests this is meant as a first step so we have reason to hope he will address the larger issues.

We can only hope he follows through.

READ MORE: Legalizing cannabis is a great way to 'defund the police'

The Supreme Court’s dangerous abuse of religious exemptions

Another week, another totally bonkers ruling out of a federal court in Texas. Earlier this month, Judge Reed O’Connor (the same judge who tried overturning the entire Affordable Care Act in 2018 before being overruled by the US Supreme Court) decided that employers do not have to offer insurance plans that cover PrEP (drugs that prevent the spread of HIV) if they have religious objections.

Apparently providing healthcare to the poor, the sick and the vulnerable can be anti-Christian. Who knew? Kidding – those of us who need reproductive healthcare have known for a while.

Republicans have been trying to dismantle Obamacare since 2010 with all kinds of bogus challenges. They have failed in Congress multiple times. The Supreme Court upheld its constitutionality (obviously that could change with the current court, but Roberts sided with the liberal wing to uphold the ACA in 2012). Unfortunately Republicans keep chugging like the evil engine that could and the ACA has been challenged almost 2,000 times through litigation.

READ MORE: Religious university shutters all student clubs rather than recognize one LGBTQ group – despite Supreme Court order

After the Supreme Court upholding, Republicans changed tactics.

In 2014, the Supreme Court ruled that privately held companies could be exempted from the mandate to provide no-cost birth control, in accordance with the Religious Freedom Restoration Act.

Churches had already been exempted from the birth control mandate. Hobby Lobby expanded these exemptions. However, since the ruling only expanded the kinds of organizations exempted, it did not rule that the mandate itself was unconstitutional. It required that privately held companies submit a form to be exempted.

In 2017, the Trump administration issued new guidelines about the birth control mandate. All churches – and pretty much any “morally objecting” nonprofit organization or privately held company – were exempted. These new rules were of course upheld by the Supreme Court in 2020 in Little Sisters of the Poor v. Pennsylvania.

READ MORE: LGBTQ students in civil rights case against religious university chalk up Supreme Court win

While birth control and abortion incite a special kind of fury in Republicans, they were not going to stop there. Once the door was opened to exempting any medical care based on moral objections, there’s no telling what bizarre justifications Republicans could think of for refusing mandated coverage. The latest – and totally not surprising – target is PrEP because it helps stop the spread of HIV.

The recent Braidwood decision gets at the bizarre treatment of preventative care by insurance companies, public health policy and moralizing Republicans. Federal entities have included about 80 healthcare measures on the list of preventative care that health insurers must cover under the ACA. This includes birth control, pap smears, cancer and STD screenings, prenatal care, immunizations (including HPV) and pre-exposure prophylaxis, or PrEP.

In the Cornell Law Review, Doron Dorfman offers three examples: PrEP, mental health and Naloxone, a drug that rapidly reverses opioid overdose. Two examples are clearly linked to behaviors many object to. Fully covering PrEP and supporting increased access to Naloxone would not only save countless lives but also likely a lot of money. Yet both are demonized for their association with drug use and sex.

The plaintiffs in this case objected to being forced to cover preventative care on the basis of their religious beliefs. (They claim there are non-religious reasons as well but then the list would probably include something unrelated to sexual activity).

The plaintiffs specifically object to being forced to cover birth control, the HPV vaccine, PrEP and STD screenings. (You probably could have guessed the list of things they objected to.) Multiple plaintiffs don’t want to pay for care that they are sure their family members don’t need. (There are so many jokes I could make here about STDs and Republicans but I’m going to control myself).

While the plaintiffs are citing religious objections to covering PrEP (the main focus of the litigation), the opinion mostly deals with the regulatory power of federal entities. The Supreme Court has been signaling their interest in limiting the power of the administrative state. It’s possible they will find Judge O’Connor’s opinion persuasive.

However, Judge O’Connor also validates the religious objections to covering PrEP on the supposed grounds that it encourages premarital sex and homosexual behavior. (Married heterosexual couples can also spread HIV, but I guess plaintiffs and Judge O’Connor need a sex-ed class). Judge O’Connor also questions the compelling government interest in preventing the spread of an infectious disease (HIV) because they framed their interest too broadly … or something. It’s honestly hard to say.

The decision only applies to PrEP drugs, but the ramifications could extend much further. The HPV vaccine has long been controversial for supposedly encouraging risky sexual behavior even though it’s given to teenagers before many engage in sexual activity.

The HPV vaccine also prevents cervical cancer in women that can result from the STD HPV. If the government’s interest isn’t compelling enough to overcome a religious objection to insurance coverage to prevent HIV, is it more compelling to prevent cancer?

In this case the list of objected treatments all concerned sexual activity in some form but we’ve already seen people try to use religious beliefs to avoid the covid vaccine.

Will employers try to use religion as a reason not to cover covid vaccines and tests? Anti-vaxxers are growing in numbers. Could they argue against covering all immunizations? What about lung cancer screenings? Cirrhosis treatment? Will people argue against screenings for people who are considered overweight?

While no one should be forced to undergo medical treatment they disagree with, moralizing the funding of medical treatment for others is abhorrent and extremely dangerous. Behavior should be irrelevant to access to medical treatment – and that includes anyone who argues anti-vaxxers shouldn’t get treatment for covid.

READ MORE: Experts warn Supreme Court supporting this 'dangerous' GOP legal theory could destroy US democracy

Why does the GOP keep proving it's 'semi-fascist'?

After years and years of birtherism, calls to “lock her up,” antisemitic dogwhistles, delegitimizing everything the broad left does as “communism,” refusing to accept election results, stealing elections and plain-old racism and sexism – after all this, it seems that a line has been crossed and respectful discourse is no longer possible.

What was the final straw?

Not racism, sexism, armed revolt or treason.

READ MORE: Why the midterms may become a referendum on Republican 'extremism': columnists

What destroyed common decency is … “semi-fascism.”

You read that right. Despite explicit racism, sexism, support for white supremacy, Christian nationalism, armed revolt and treason, Republicans say that calling a few of them “semi-fascists,” as Joe Biden did at a political rally, is the worst thing a president can do.

Proving Biden’s point

They could have conceded that delegitimizing elections, supporting armed revolt and stealing government secrets are bad. They could have distanced themselves from Donald Trump in order to be excluded from ranks of “semi-fascists.” They could have ignored it all.

READ MORE: With minority rule, the GOP forgets how to win democratically

Instead, they jumped at a chance to say how insulted they are!

Why insulted?

Biden was careful not to say all Republicans, so why are the Republicans so eager to include themselves with “semi-fascists”? It’s almost like Republicans can’t stop themselves from explicitly supporting actual fascism long enough to let a news cycle pass.

A few said Thursday’s prime-time speech was overly partisan. They drew attention to Biden's promise of unity. This response still doesn’t make sense given that it's impossible to unite with anti-democratic Christian nationalists. But at least it’s within normal political bounds.

Others criticized Biden’s speech by focusing on supposed policy failures that are hurting the country. Still not the best response given that this administration’s policies are demonstrably better than Trump’s. Still, this isn’t out of the ordinary in political partisanship.

But many Republicans traded these totally normal responses for extremely unhinged accusations that basically confirmed their “semi-fascist” inclinations. As Jason Stanley pointed out, fascist propaganda often inverts accusations. So if Biden points out the GOP’s fascist elements, they’ll say Biden is the one who’s fascist.

“The real fascist”

That’s when we witnessed the “memeification” of Biden – endless Hitler comparisons that got #PedoHitler trending on Twitter.

Tucker Carlson said Biden stood in front of a “blood-red Nazi background.” Marjorie Taylor Greene layered a Hitler video over the speech to create a “deep fake” of Biden looking like Hitler.

Texas state representative Briscoe Cain gave a subtler Hitler reference by saying he couldn’t understand Biden’s speech, because it was in German. Others just called Biden satanic or lunatic.

Robert Paxton described five stages of fascism in an article published in 1998 (he wrote an op-ed calling Trump a fascist in 2021).

These include:

  • Group primacy over individual rights.
  • Group purity.
  • Group victimhood justifying attacks on enemies.
  • Fear of “cosmopolitan liberalism.”
  • Faith in authority of “natural male leaders.”

Jason Stanley writes of three essential features of fascism. They include “conjuring a mythic past” that the enemy has somehow destroyed, sowing division and attacking the truth with propaganda. This propaganda is usually particularly anti-intellectual.

Does any of this sound familiar?

White conservative Christian victims?

From the Maga Republicans, we have seen the “in-group” of white, Christian, “traditional,” patriarchal, cishet and “truly American” people set against the evil lefties, who include feminists, immigrants, Black and brown people, Jews, Muslims and LGBT-plus people.

Lefties have destroyed the “mythic past” of 1950s white Christian America. They have victimized white conservative Christians with their elite coastal liberal intellectual ways. In response to Biden’s speech, many Republicans accused Democrats of being the “real fascists” because inclusive policies supported by the government are supposedly anti-freedom. Republicans want to be left alone but the left keeps victimizing them and trying to take away their freedom.

It’s galling that a group of antisemitic, racist and transphobic politicians are accusing the rest of us of being Nazis. Most Republicans have refused to condemn the political violence on J6, which was clearly supported by Trump and Maga Republicans. White conservative Christians are mostly left alone in America. Inclusive Democratic policies do little to harm them outside increasing representation and using their tax money in ways they don't like.

Alternatively, Republican policies continue to target women, disabled people, trans and gay people, immigrants, non-Christians and Black and brown people. Nazism was built on an idea of a perfect aryan race without “polluting” aspects like people with disabilities, “deviant” sexual and gender identities, or Jews, Roma and Black people. Nazism doesn’t target white Christian conservatives no matter how much the group pretends to be a victim.

Don’t ignore the memes

Some may be inclined to dismiss the “memeification” of Biden. Truth is, most Republicans currently support fascism and fascist tactics. We might think ignoring them is the right thing to do but there is a lot of rightwing media that will continue to spread these messages.

Fascist propaganda is ridiculous, but it works.

Ignoring the fascist propaganda won’t stop people from listening to it. We must continue fighting fascist forces and treating Maga Republicans as a threat. As Biden explained, “They’re a threat to our very democracy. They refuse to accept the will of the people. They embrace political violence. They don’t believe in democracy.”

READ MORE: A Democratic president who does not back down changes everything

Breonna Taylor and the Justice Department's original mandate

On March 13, 2020, police officers used a fraudulently obtained no-knock warrant to break into Breonna Taylor’s home in Louisville, Kentucky and fire 32 rounds, killing her while she slept.

While there was immediate outrage, there has been little in the way of legal accountability for the Louisville metro police officers who shot her or the ones involved in obtaining the warrant.

But last week, the US Department of Justice finally announced federal charges against four cops involved with the shooting.

READ MORE: Merrick Garland announces bombshell indictments in Breonna Taylor case

Prosecuting white power

Justice was initially formed to protect the rights of African Americans after the Civil War. While it has mostly abdicated responsibility of its original purpose, prosecuting Breonna Taylor’s murderers and other similar cases could fulfill the promise of early civil rights litigation.

The Justice Department was created by a bill signed by President Grant on June 22, 1870. The first full-time attorney general appointed to lead this new “law department” was Amos T. Ackerman.

The first mandate of this newly formed federal department, according to Grant, was to preserve civil rights and prosecute those fighting against the 13th, 14th, and 15th Amendments.

READ MORE: White liberals are not free – but they are protected by white power

The organization posing the greatest risk to civil rights and freed Black people was the Ku Klux Klan. Congress passed the Ku Klux Klan Act, or the Enforcement Acts, to empower the government to target and subdue the Klan through legal and even violent means.

Section 1983 of the KKK Act provided a civil cause of action to recover damages for the deprivation of civil rights. Section 242 of 18 U.S.C., passed with the Civil Rights Act of 1866, made it a federal criminal offense to willfully deprive someone of their constitutional rights.

By the end of 1871, under Ackerman’s leadership with Grant’s support, there were over 3,000 indictments and 600 convictions of Klansmen.

The newly formed Department of Justice was so successful in its mission it subdued the Klan in two years. Unfortunately, Grant fired Ackerman after his 1871 successes and undermined the supposed mandate of the Department of Justice to enforce civil rights.

One Grant biographer argued that Grant listened to the country’s commitment to white supremacy. “Men from the North as well as the South came to recognize, uneasily, that if he was not halted, his concept of equality before the law was likely to lead to total equality.”

It is obvious that the mission of the Department of Justice was originally meant to protect the civil rights of Black people but the 150-year history of the department has mostly shown disinterest. Between Reconstruction and the civil rights movement in the 20th century, Grant’s initial mandate seemed completely forgotten.

Retreating from white power

When the FBI was formed in 1908, then called the Bureau of Investigation, it was in large part in response to the 1901 assassination of President McKinley, which served the myth that immigrant anarchists were attacking the United States.

The first major task of the BOI was to research prostitution in order to enforce the imminent congressional passage of the Mann Act, or the “White Slavery Act.” Rather than supporting Civil Rights, the Mann Act was mostly used to police interracial relationships.

By the 1950s, the FBI was explicitly hostile to civil rights, even surveilling Martin Luther King, believing the movement to be full of communists. They offered little help against the Klan this time.

In the 1950s, US Attorney General Herbert Brownell convinced Eisenhower to federalize the National Guard to help desegregate schools. Brownell was a principle architect of the Civil Rights Act of 1957 that created the DOJ’s Civil Rights Division, but stepped down because he was more supportive of civil rights than Eisenhower.

The DOJ had a mixed record on civil rights during the Kennedy presidency (and Robert Kennedy’s tenure as AG). Behind the scenes Robert Kennedy intervened to support the safety of the Freedom Riders and other desegregation efforts, but he also approved FBI surveillance of King and would not risk alienating white southerners.

Embracing its original mandate

It wasn’t until 1964 that the FBI did anything meaningful to support the original civil rights mission of the Department of Justice.

That summer, three civil rights workers (James Chaney, Andrew Goodman, and Michael Schwerner) disappeared in Mississippi. Two of the three civil rights workers were white and from New York so the incident garnered national attention and outrage, though the Klan targeted the group because they were Black and Jewish.

After civil rights leader Medgar Evans had been killed the previous year in Mississippi, the FBI was nowhere to be found. Finally, in response to President Johnson’s urging, Hoover responded to the widespread southern terrorism against civil rights workers and opened a field office is Jackson, Mississippi.

The FBI investigated the murders but the state declined to prosecute. In 1967, the Department of Justice charged 18 people with civil rights violations related to the murders under Sections 1983 and 242. Seven were convicted but received relatively minor sentences. This wasn’t the only federal prosecution in response to southern racist terrorism but they were few and far between.

A path forward

Breonna Taylor’s killers are now being charged under Section 242 for criminal civil rights violations. Three of the police officers are accused of participating in falsifying an affidavit to get a search warrant. The fourth has been indicted for shooting into Breonna Taylor’s home through a covered window and covered glass door.

These officers allegedly deprived Taylor of her constitutional rights when they presented a false affidavit to obtain a search warrant for Taylor’s home and when unconstitutionally excessive force was used.

Section 242 was also used to successfully charge two officers involved in the 1991 beating of Rodney King. The Brennan Center’s Hernandez D. Stroud says that with a few tweaks, Section 242 could be the path for police accountability and federal intervention.

It is time for Justice to embrace its original mandate.

We are facing increased political violence, a rising climate of hate crimes and empowered white nationalists. People are frustrated with local authorities' inaction and seemingly immune vigilante police.

Justice has the tools to protect our civil rights through litigation whether the Congress strengthens existing criminal laws.

This prosecution of Breonna Taylor’s killers is an important step.

I hope we see many more.

READ MORE: White-power violence inevitably comes for 'respectable' white people

Abortion as self-defense in the coming age of 'personhood'

Abortion is self-defense. Self-defense should be a defense to the criminalization of abortion. If a pregnant person is arrested for having an abortion, they should be able to claim self-defense.

Obviously, this is currently not an accepted legal defense. But in this new post-Roe era – with the possible codification of personhood and the increased criminalization of pregnant people – activists should start embracing self-defense as a legitimate legal strategy.

Deeply rooted history

READ MORE: West Virginia Senator says child rape victims 'romanticize' their attackers as their 'boyfriends'

It’s long been an accepted legal principle that you are allowed to commit violence, or even murder, in defense of yourself or others. Every state and the District of Columbia have self-defense laws. There are a few shared principles that date back to common law.

You can claim self-defense if you use a proportional amount of violence in response to an imminent threat of unprovoked violence. The imminent threat is determined based on the “reasonable man” standard – is your fear of imminent violence reasonable?

Common law and most state laws say you have a “duty to retreat” unless you are in your own home. This means it is incumbent on you to try to leave, rather than commit violence, but you are not required to leave your own home. (So-called “stand your ground laws” have expanded self-defense so you never have a duty to retreat.) In order to claim that an abortion is an act of self-defense, you need to prove that you have a reasonable fear that your pregnancy could imminently cause you bodily harm and that an abortion is a proportional response to such an imminent threat.

Pregnancy is never “uncomplicated”

READ MORE: West Virginia Republican wants to ban child support to prevent abortions

Even the most successful and uncomplicated pregnancy enacts bodily harm on the pregnant person. Common side effects include incontinence, throwing up multiple times a day, bleeding gums, anemia, exhaustion and urinary tract infections.

'Full-term pregnancies end after hours of searing pain – with major abdominal surgery or a pretty significant assault on your vagina. A labor isn’t even considered “prolonged” until it hits 20 hours. So 12 hours of pain without being able to eat or drink is considered the “uncomplicated” version. The average blood loss during labor (not considered excessive) is 500-1,000 ml. During labor, the pregnant person can break their tailbone, need an episiotomy or experience vaginal tearing. Everyone typically needs six weeks to recover.

Pregnancy causes harm

Eight percent of pregnancies are so complicated they result in serious harm, or death, to the pregnant person or the fetus.

Preeclampsia – a hypertension disorder that can result in maternal and infant mortality – occurs in up to 8 percent of pregnancies.

Gestational diabetes similarly occurs in up to 8 percent of pregnancies and can lead to high blood pressure, a difficult birth and Type 2 diabetes for both the mother and child later in life.

Two percent of pregnancies are ectopic. The fertilized egg didn’t implant in the uterus. That’s deadly if not treated with an abortion.

About 26 percent miscarry. Half of those miscarriages need a D&C (an abortion procedure) to treat them. Without proper medical care, miscarriages can lead to bleeding, infection and sepsis.

My own mother had “uncomplicated” pregnancies with me and my brother. But she had serious complications during labor. I had the umbilical cord wrapped around my neck (malposition). My brother got stuck after his head was delivered (shoulder dystocia).

Without proper treatment these complications could have resulted in death for us or our mother. Maternal mortality rates in the US are the highest of any developed nation. When you see the actual numbers, it might seem like a small risk, but with abortions banned it could lead to a 21 percent increase in pregnancy-related deaths.

I hope we all agree. Pregnancy causes bodily harm.

Self-defense against the harms of pregnancy

Let’s take one of the most common side effects – morning sickness.

I was laughed at when I suggested recently that it was reasonable to get an abortion in self-defense against morning sickness.

But let’s think this through.

Imagine someone has poisoned you, causing you to vomit a few times a day for weeks. You have a chance to stop from poisoning you again – maybe by shooting them (you are weak from puking after all).

Most courts would let you make a self-defense claim.

Once you’re pregnant, the harm is clearly imminent and the only way to stop the harm is an abortion. (Proportionality is handled as well).

In the face of personhood claims

Some worry that a self-defense argument would cede ground to the personhood argument. After all, you can’t claim self-defense if the fetus isn’t a person. Unfortunately, it's increasingly clear that we need a legal argument for abortion in the face of personhood claims.

You might wonder what the point of such a legal argument is. After all, if the Republicans manage to get national personhood passed, it's not like they’re going to be swayed by a compelling legal claim.

Truth is, we know abortions will happen, legal or not. So we need a defense for when pregnant people are ultimately criminalized. Many judges and juries will be looking for reasons to acquit people criminalized for abortions no matter what the law says. Self-defense could provide that successful defense.

We also need legal arguments for people who had abortions to save their own lives. A self-defense claim is made for that. Edward Volokh argues that abortion as a self-defense claim has already been accepted when used to save the life of the mother in later-term pregnancies.

Up until now we were right to use the phrase “bodily autonomy” instead of “self-defense” but the legal landscape has changed.

“Self-defense” is the same as bodily autonomy in practical terms. If we can’t defend ourselves from harm, what autonomy do we have?

Even if you think the fetus is “alive” and a “person,” self-defense clearly justifies using deadly violence. An unwanted “person” in your body that is an imminent threat of harm justifies self-defense.

Use every tool

The Supreme Court's right-wing supermajority struck down Roe because it was not “deeply rooted” in history. But, as Anita Bernstein has argued, abortion protections date back to common law in the form of self-defense. We must embrace this strategy, because we need every tool we can get to fight personhood and criminalization.

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Haunted by the ghosts of settled law

Last week the House passed bills to protect federal recognition of interracial and same-sex marriage as well as birth control. If you didn’t read the 200-page opinion in Dobbs v. Jackson, you might be confused about why the House is passing bills to protect rights that are already settled law. Well, the reason is it’s not settled law.

The rightwing supermajority of the Supreme Court has given us a road map for how interracial marriage, birth control, private sexual behavior, same-sex marriage and abortion are linked. Sure, Justice Alito gave some assurances that despite connecting all these cases the opinion was only meant to apply to abortion. I wouldn’t trust such an assurance any more than I would trust these justices’ assurances that Roe was settled law in their confirmation hearings.

Liberty required privacy

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Roe protected the right to an abortion in the due process clause of the 14th Amendment under the theory that a fundamental right to privacy is central to personal liberty. Roe, and later Casey, relied on precedent to support this claim, including Loving v. Virginia (interracial marriage), Griswold v. Connecticut and Eisenstadt v. Baird (birth control) and Skinner v. Oklahoma (forced sterilization).

The opinion also links post-Casey cases, including Lawrence v. Texas (private sexual behavior, specifically sodomy) and Obergefell v. Hodges. Alito promised the opinion only threatens abortion for two reasons: that the 14th Amendment is meant to protect rights “deeply rooted in history” and that none of the other decisions deal with the “critical moral question posed by abortion” or “potential life.”

Alito shouldn’t be trusted, but he’s undermined by Justice Thomas’ dissent, which says all substantive due process decisions should be reconsidered, including Griswold, Lawrence and Obergefell.

Deeply rooted

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Why is Alito’s assurance unconvincing?

Let’s start with the bizarre claim that the 14th Amendment is not meant to protect rights that are not “deeply rooted in history.”

That’s obvious nonsense. There’s nothing to suggest that ratifiers of the 14th Amendment felt this way, especially since the whole point of the amendment was to confer rights on people who had been enslaved for most of our history and had no “deeply rooted” rights.

(NOTE: The 14th was also a more aggressive enshrinement of the first civil right act. Nothing to do with deeply rooted history unless that means our history of treating Black people like property.)

It also isn’t comforting for the other cases discussed here since none of those rights are “deeply rooted” in our history. Interracial sex was first prohibited in 1662. Birth control was ignored, just as abortion was, until it was criminalized in the late 19th century, and there were no legal protections for gay people until the 1960s.

As for the second distinction, that only abortion deals with such a critical moral question or “potential life,” certain types of birth control are already being targeted by anti-abortion laws.

Furthermore, who is to say what conservative justices will consider a “critical moral question.” With Christian fascism gaining power, I think we can imagine sliding these into a critical moral question.

No such thing as settled law

While conservatives and moderates try to gaslight us into trusting that the rest of our rights are safe, congressional Democrats are fortunately taking seriously the threat posed by the Dobbs opinions.

In response, the House passed the Right to Contraception Act to protect contraception and the Respect for Marriage Act. The latter would formally repeal DOMA (the Defense of Marriage Act), which was moot after Obergefell, but technically on the books. It would also guarantee federal recognition for interracial and same-sex marriage.

Both had wide GOP opposition but the Republicans have assured us that that’s just because the bills were “unnecessary,” considering the case law, not because they opposed protecting such rights.

This is a particularly ironic justification since the Defense of Marriage Act (federally declaring marriage between a man and a woman) was also unnecessary since gay marriage was illegal.

These bills are unlikely to pass the Senate. Moreover, we are likely to see legal challenges to such rights in the coming years. Arguably, some forms of birth control are already implicated in anti-abortion laws, especially if such laws confer personhood at fertilization.

We have Alito’s doublespeak and Thomas’ explicit attack against these rights but Republicans are also blatantly telling us that they’re coming for gay marriage, birth control, and interracial marriage.

There is no such thing as settled law anymore.

Legislating race

I think it would be much harder to revive anti-miscegenation laws than to take away other rights. Since race is a social construct and does not make sense, laws legislating race also don’t make sense.

After slavery ended, courts across the country struggled for 100 years to try and construct some consistent legal framework for adjudicating race. They failed miserably.

Most miscegenation cases were brought by husbands trying to annul their marriages or estate challenging a wife’s inheritance.

In one case, a judge relied on testimony about the shape of a woman’s calves to determine that she was one-eighth Black.

In another case when the state challenged the marriage of a Black man and an Italian woman, the judge ruled that the marriage was valid because really who knows what race those Sicilians are?

Some statutes were even written in such a way as to prohibit mixed-race people from marrying anyone since they are technically both white and Black. The California anti-miscegenation statute was successfully struck down using a freedom of religion argument in Perez v. Sharp, because a couple wanted to marry in the Catholic Church that permitted interracial marriage.

I don’t trust Republican lawmakers to care about interracial marriage, but I do question their ability to write laws that require the adjudication of race that actually makes sense.

Popular and fundamental

The freedom to marry who we want and engage in private sexual behavior using birth control are fundamental to liberty and privacy.

The state supposedly has an interest in protecting marriage unions but that interest must apply to all marriages for every citizen.

We cannot trust the Republicans to see these rights safe.

Do not let them vote against these bills by claiming that they’re “unnecessary.” Any Republican who votes against birth control – and gay and interracial marriage – must be forced to answer for it.

These popular fundamental rights must be vigorously fought for the way we wish abortion had been protected when we had the chance.

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Updated July 27, 2022 to correct some language.

Defeating 'fetal personhood' by taking it to extremes will fail

Since the Supreme Court issued its opinion overturning Roe, the current state of healthcare for women, girls, trans men and nonbinary people across the country has been thrown into chaos.

Abortion is fully banned in seven states. It’s unclear or inaccessible in nine others. Court cases are blocking trigger bans in even more.

Additionally, there is confusion around healthcare for people with the capacity to get pregnant. Pharmacies are refusing to fill prescriptions for common medications that could potentially cause miscarriages as a side effect. Access to cancer treatment for pregnant people is unclear as well. We are facing the next legal challenge from anti-abortionists to enforce personhood for fetuses.

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Federal guidelines currently state that an abortion must be performed to save the life of the mother even in states without such an exemption. However, if personhood is enshrined into law the pregnant person will no longer have such legal protection.

While fetal personhood is not yet a law, some laws and some doctors have treated fetuses as if they had rights separate from their mothers’, especially after the point of viability.

“Maternal-fetal conflict”

The conflict between the interests of a fetus and the interests of a pregnant person is described as the “maternal-fetal conflict.”

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According to Dorothy Roberts, "The relationship between Black women and their unborn children created by slavery is the first example of maternal-fetal conflict in American history."

Enslaved pregnant women were whipped while lying with their stomachs in a hole to protect the fetus while punishing the mother for example. Dating back to the middle ages, women could “plead the belly” to delay their executions until their babies were born.

During slavery, enslaved women were forced to carry their pregnancies to term before being executed. In one famous case, an enslaved woman murdered her rapist but was forced to give birth to a child resulting from that rape before she was executed.

“Fetal homicide”

Rebecca Kluchin discussed more contemporary examples of state intervention in the maternal-fetal conflict to protect the fetus over the mother’s objections even after Roe was federal law.

Courts have ordered c-sections on women who don’t want such a surgical intervention to protect fetuses. However, such surgical interventions are not always in the best interest. In one case the c-section over the woman’s objections resulted in both dying.

Such interventions were disproportionately applied to brown and Black women. “Fetal homicide laws” – laws intended for domestic abusers who cause miscarriages – criminalize pregnant people.

They also serve as a backdoor to fetal personhood laws.

If killing a fetus is a homicide, the fetus must legally be a person.

Even more common are laws that charge pregnant people with child abuse if they take drugs or engage in risky behavior while pregnant, therefore treating the fetus legally as a “child” with separate rights.

“Fetal personhood”

Fetal personhood laws have been introduced in six states. Last week, a federal court struck down one in Arizona for being too vague.

Fetal personhood laws could have extreme and far-reaching consequences. They define life as beginning at fertilization and theoretically would create a new citizenship class deserving of the full rights, privileges and immunities of the US Constitution.

Laws that define life as beginning at fertilization could similarly endanger pregnant people without necessarily creating a new citizenship class. Any law that defines life as beginning at fertilization could put certain types of birth control at risk, imperil IVF treatment, and limit prescriptions that cause miscarriages.

Such laws will likely increase the control of pregnant people and make it illegal to engage in all sorts of activities while pregnant.

Previously mentioned child abuse laws apply to drug use while pregnant. But they could be expanded to apply to drinking alcohol, eating sushi, taking certain medications or being in risky situations.

Three years ago, a woman was charged with manslaughter after she suffered a miscarriage as a result of being shot in the stomach. Charges were dropped, but a grand jury indicted her under the theory that she started the fight and was therefore responsible.

Such criminalization will increase with fetal personhood laws.

HOV lanes?

It’s tempting to expose the absurd implications of fetal personhood by making outlandish claims using personhood. A week after the Dobbs ruling, a story of a woman claiming her fetus was a person for the purposes of a carpool lane gained national attention.

Many rallied around the story and encouraged pregnant people to protest fetal personhood by making such claims. Though personhood is nonsensical and legally incoherent, this is not a winning strategy.

We don’t have a constitutional right to HOV lanes. As some judges have observed, the point of such lanes is to fill empty car seats. Republicans would never choose the sanctity of a carpool lane over personhood and anti-abortion laws. One Republican lawmaker even said he would introduce a bill to consider a fetus a “passenger” for the purposes of driving (so we can probably add speeding to the list of things pregnant people will be criminalized for).

While Republicans were never going to care about HOV lanes, it seems they’re willing to provide healthcare to undocumented pregnant people to support personhood. Currently, 17 states provide healthcare to undocumented pregnant people using an “Unborn Child” Option for CHIP insurance programs.

States can extend CHIP coverage to undocumented pregnant people by classifying the fetus as a citizen eligible for benefits.

Reject the premise

We might be tempted to use this theory of personhood to increase benefits for undocumented pregnant people, but it will only strengthen the legal justification of personhood, which will cause more harm than good.

There is a better avenue for providing healthcare to undocumented pregnant people. New York, New Jersey and DC provide Medicaid pregnancy coverage to undocumented immigrants by eliminating citizenship as a requirement for such healthcare coverage.

This option not only provides healthcare without classifying a fetus as an “unborn child.” It offers much better healthcare for the pregnant person by covering care not directly related to the fetus.

While the second option is significantly better for many reasons, more states have opted for the first because the “unborn child” classification qualifies them for federal funds while expanding Medicaid must be funded entirely by the state.

When faced with an absurd legal claim that has far-reaching implications, it is tempting to challenge that legal justification with extreme cases. Personhood strains credulity. How can we classify something that is inside another person a citizen with rights?

Republicans like extremes?

Republicans are willing to support most of those extreme cases if it helps them strengthen personhood claims.

Senate Republicans even introduced a bill to require child support payments starting at conception. Unfortunately, we will only cause more harm if we bring challenges to personhood with unintended consequences.

Republicans will not be scared of classifying fetuses as people with a few traffic tickets or even protections for undocumented immigrants. The implications of personhood are also far too dangerous to give any legitimacy.

We must instead challenge every one of these laws by arguing against personhood, not absurdly supporting it.

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AG Todd Rikita who threatened to go after abortion doctor hit with formal complaint www.youtube.com

Even if Griswold stands, states are likely to ban contraception

The demise of Roe threatens access to emergency contraception, IUDs and even the birth-control pill. Access is threatened even if Griswold v. Connecticut, which safeguards our right to birth control, remains the law.

By refusing to recognize a right to abortion at any stage of a pregnancy, the rightwing supermajority on the Supreme Court has created a free-for-all.

State legislators can disregard medical consensus and redefine pregnancy and abortion according to whim. Effective female-controlled methods of birth control could be banned even without overturning Griswold.

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Five states already prohibit abortion from conception onward. These states have decrees that pregnancy begins at the moment of fertilization.

However dramatic a sperm’s entrance may be, fertilization does not guarantee a pregnancy. Medically speaking, pregnancy begins at implantation. Half of fertilized eggs fail without birth control. That means unprotected sex dooms more fertilized eggs than any birth control does

In any case, preventing a fertilized egg from implanting is contraception, not abortion. Even the notorious Hyde Amendment allows the federal government to fund contraceptives that prevent implantation.

State legislators will probably get away with their capricious redefining of key medical concepts like “pregnancy” and “abortion,” because the Supreme Court usually defers to their views on socially contested concepts.

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A major health care system in Missouri, which now bans abortion at all stages, briefly stopped providing emergency contraception after Dobbs. It feared its staff would be prosecuted under the state’s abortion ban.

It was a reasonable concern. The state’s governor dodged questions about whether the new law would apply to contraception. The network only went back to providing Plan B after Missouri’s attorney general confirmed that the law does not apply to emergency contraception.

Emergency contraception, also known as Plan B, works the same way as regular birth control pills, mainly by preventing ovulation. Experts used to think that IUDs worked primarily by preventing fertilized eggs from implanting, but we now know that the vast majority of pregnancies prevented by IUDs are headed off before fertilization.

Anti-choicers have been fighting to redefine contraceptives as abortion for years. They rallied behind pharmacists who put their religious beliefs ahead of their obligations when refusing to dispense Plan B. In 2014, the Supreme Court ruled that companies can deny employees comprehensive health care insurance based on their specious belief that birth control is abortion.

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Last year, a group of Republican state legislators in Missouri tried unsuccessfully to stop the state’s Medicaid program from covering contraception methods that they falsely claim cause abortions.

“The bottom line is there is only one time something definitively happens and that’s the moment of conception,” Missouri state Sen. Paul Wieland said at the time, expressing a typically sperm-centric view of the situation, “Once that happens, anything that happens should not be state funded.”

Republican legislators in Idaho said they will consider using their supermajority to ban emergency contraception in the next session.

So never mind about Griswold.

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The right to contraception under threat even if it stands.