September 2, 2021

Elie Mystal brought exactly the kind of energy Democrats need to the fight to preserve abortion rights last night on Chris Hayes' show. Hayes discussed the ins and outs of the "Shadow Docket" with Dahlia Lithwick, and how cowardly and perverse it is to rule on such things without a word and in the dark of night. Mystal, however, was more focused on what the Democrats can DO in order to preserve the Constitutional right of women in Texas RIGHT NOW to have access to safe abortions.

After reminding everyone how many different Republicans promised, PLEDGED to outlaw abortion over the last, hell, 10 years at least, he dove into specifics.

"You want something that Democrats can do? I will tell you what the Democrats can do. Joe Biden, tonight, can issue an executive order, establishing a 'Privacy Commission,'" he began.

Gee, Elie, what's a "Privacy Commission?"

"Federal officials to go down to Texas under armed guard, if necessary, to provide and protect Constitutional rights that have been stripped away by Texas," he explained. "That quirk of the Texas law that. like, only private citizens can enforce it by suing? Well, guess what? Federal officials? Qualified immunity. Didn't see that one coming, did you?"

Mystal explains in greater detail here, in his article for the Nation:

Qualified immunity protects government employees from private lawsuits arising out of the performance of their jobs. Conservatives love to defend qualified immunity when a cop shoots a black person to death or a CIA agent tortures a suspected terrorist. So here’s an idea: If abortion providers were made federal officials—call them “privacy protectors”—who were deemed to be operating under the authority of the government, they would be protected from the private civil actions Texas now authorizes.

To do this, Biden would need to set up, through executive order, some kind of “President’s Commission on Privacy,” either through the Department of Health and Human Services or the Department of Justice. This commission could then hire the aforementioned “privacy protectors,” who would be empowered to go across the country, counseling women on their constitutional rights and providing other services attendant to those rights.

Mystal goes into some detail about the Hyde amendment, and how funding could easily be provided so that it doesn't violate that particular remnant of legislative misogyny, and the overarching and imminently compelling conclusion is that yes, indeed, Pres. Joe Biden can take action to protect people's right to access safe abortions immediately. Ya know, apart from COURT REFORM...

He concludes on Hayes' show, "Look, I do not care anymore what the excuses are. Inaction is not an option, failure is not an option. Joe Biden took an oath to defend the Constitution from all enemies, foreign and Texan, and it's time that he does it, now, tonight, today, this weekend. Now."

THIS is the urgency I was looking for yesterday from Pres. Biden, and felt was sorely lacking, both in his initial statement on the Texas law, and on the Supreme Court's inaction as the midnight, Sept. 1st deadline passed. Mind you, this clip is from before SCOTUS opened its mouth to deliver an actual ruling, with a 5-4 decision to refuse to intervene, effectively overturning Roe v. Wade, which happened a few hours later in the wee hours of Wednesday morning, September 2nd.

As Mark Joseph Stern excoriated the ruling, in Slate magazine,

It was predictable that the Supreme Court would abandon Roe after Barrett replaced Ginsburg. But it is still “stunning,” as Sotomayor put it, that it would do so at midnight on a Wednesday in a shadow docket order with a few slapdash sentences of opaque reasoning. It is stunning, too, that the court would issue this order nearly a full day after it silently allowed Texas’ law to take effect. The majority’s decision reflects flagrant contempt for the right to abortion and a cynical tolerance for Republican politicians’ endless schemes to abolish it. The majority did not have the patience to wait until its coming term, when it will have the opportunity to overturn Roe the normal way, with full briefing, oral arguments, and a signed opinion. Nor did it have the courage to cop to its real view—that there is no constitutional right to abortion. Instead, the ultraconservative majority upended Roe under the cover of a procedural punt.

Now that the proverbial SCOTUS silence has been broken, let's hope Democrats get creative, and take action. Speaker Nancy Pelosi's pledge to bring the Women's Health Protection Act up for a vote when Congress reconvenes is a good move, for sure. While the Women's Health Protection Act will likely pass in the House, we know what it faces in the Senate. In the meantime, there are people in Texas who need access to abortions, and now 90% of them don't have it.

Have you called your Senator, lately?

Can you help us out?

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