I hope you're all sitting down, because I'm about to write a post about a Jen Psaki press conference, and I've got nothing good to say about her handling of the questions about which I cared the most. Those of you who know me know I'm talking about the fact that the U.S. Supreme Court killed Roe v. Wade without writing a word or issuing an opinion. They simply did nothing to stop Texas' bill, SB8, from becoming law at midnight September 1st.
First, some background. Starting at 12:00 a.m. on September 1st, not only was abortion outlawed in Texas if fetal cardiac tones are detected (usually around 6 weeks,) there are no exceptions in cases of rape or incest. Not only that - it relies on civilians to enforce the law, encouraging them to report anyone who enables, assists, or provides an abortion with the potential bounty of $10,000 should the report be found to be true.
So vigilante forced-birthers all over Texas are free to sue abortion providers, cab drivers, clinic escorts, clinic secretaries, etc, literally without limit. There are no limits to the geography. A person on one end of Texas can sue a provider in the opposite corner, and the provider cannot get the case moved to a court venue near them. They must travel to the county in which they are being sued.
There are no limits to who can sue, with the exception of state officials, because, of course, technically, Roe is still law of the land. But forced-birthers need not have any relationship whatsoever to the patient seeking an abortion, nor the provider/enabler they are suing in order to go through with the lawsuit and win that sweet, sweet cash money.
There are no limits to the number of times a provider can be sued — even for the same abortion procedure. That's right, even if in one lawsuit a court that Abortion A was legal, and performed under the impossibly narrow strictures allowed in SB8, the provider can be sued AGAIN for that same Abortion A by another person, in another county, and this can go on ad infinitum.
Adding to their financial burdens, even if the provider/helper being sued prevails in court, there is no way for them to recover their legal costs. Their only solace is that they don't have to pay $10,000 to the person suing them that time. YAY.
A motion was filed with the Supreme Court to try to prevent the bill from becoming law, but SCOTUS twiddled their misogynistic thumbs and let the deadline pass without a word.* So, has Roe v. Wade been technically overturned itself at the Supreme Court level? No. Has it been effectively overturned, in that now every single state, if it chooses, knows it may pass similar laws killing access to safe abortion? Yes. Completely.
Let's not also forget how many people who seek abortions are Black people and people of color, not to mention low-income folks who have the right and desperate need to control the sizes of their families. According to the Washington Post,
People of color will bear an outsized share of S.B. 8’s burdens, just as they already bear the brunt of Texas’s preexisting web of medically unnecessary abortion restrictions. Because of racialized income disparities, inequitable access to medical care and other facets of structural racism, people of color are more likely to need abortion care; are less likely to be able to afford out-of-state travel to obtain that care; and will suffer a greater threat of maternal mortality if forced to continue pregnancies against their wishes. People living in rural areas, young people (who already face delays under Texas’s parental consent law), and Texans with lower incomes will likewise face disproportionate harm.
I go into this exhausting, likely irritating detail because while we all understand Pres. Joe Biden has a lot on his plate, one would hope he and his press secretary would come out with something a little more fiery than this milquetoast, obvious, and thoroughly uninspiring statement:
Today, Texas law SB8 went into effect. This extreme Texas law blatantly violates the constitutional right established under Roe v. Wade and upheld as precedent for nearly half a century.
The Texas law will significantly impair women’s access to the health care they need, particularly for communities of color and individuals with low incomes. And, outrageously, it deputizes private citizens to bring lawsuits against anyone who they believe has helped another person get an abortion, which might even include family members, health care workers, front desk staff at a health care clinic, or strangers with no connection to the individual.
My administration is deeply committed to the constitutional right established in Roe v. Wade nearly five decades ago and will protect and defend that right.
To the first two paragraphs, I say, "No shit."
To the third paragraph, I say, "Oh, really? Exactly how, Sparky? Because you haven't done jack-sh*t to prioritize this."
This was evidenced by Psaki's answers to the few people who managed to put Afghanibashing aside long enough to notice that women in their own country were now under legal reproductive siege.
It was a full 23 minutes into the briefing before a reporter, Mike Memoli, brought up a question about the new Texas ban. He asked what the "concern level" was at the White House that the law would lead to a similar laws across the nation, and what's "the recourse for the White House at the federal level?" Her response:
"Well, the step that can be taken is the codification of Roe, something the president and the vice president have called for, and would require Congress to act on." So, Biden's recourse is to rely on Congress to make a federal law codifying Roe. Saying this is not the first threat we've seen to Roe over the years, she acknowledged it's of "great concern" because of how extreme it is, but she couldn't finish her answer fast enough to get to the next reporter.
Another reporter asked about a bill in Congress, the "Women's Health Protection Act," which would protect abortion access from state laws like this new Texas law, and if Biden supports it. Psaki HAD NO ANSWER. She just said she'd have to look more closely at the specifics of the law, but she didn't know what Biden thought about it.
So, let me get this straight. This extreme abortion restriction is "of great concern" to this administration. They're relying on Congress to codify Roe into law. There is a bill in Congress that effectively codifies Roe, and yet they don't even know about it or the specifics of what it says?
That is unconscionable.
A third reporter noted that Biden's statement had no specific agenda or plans to counteract Texas' law, and asked if there were any. Psaki repeated that Biden was "committed to codifying Roe v. Wade as the law of the land, a thing that Congress can do, and a thing that he will continue to push them to do, and that is a specific course of action that can be taken to help protect against these lawsuits in the future."
That's not specific. The reporter prodded, "Is there anything else beyond that?"
"I can't speak to any actions at the Department of Justice, they're independent, but I don't have anything to preview on that front."
I understand Psaki is representing Biden, here, but while everyone is slamming his administration for getting caught flat-footed in Afghanistan (HE WASN'T), he clearly has been caught flat-footed here. I mean, how, HOW could he not know, and by extension, how could Psaki not prepare him, push him for answers to this looming crisis here in his own country?
Finally, a fourth reporter asked her about lifting restrictions on what he called "the abortion pill" in light of the reproductive crisis facing Texas women, and likely hundreds of thousands of others in states led by Republicans. She, correctly, I suppose, responded that that's an FDA issue, so I'll give her that one. It would have been nice if she had known enough to clarify that it's referred to as a "medication abortion" or a "medical abortion," and that it is different from emergency contraception (Plan B, for example) but I don't want to be too picky.
But then this reporter zeroed in on the true problem that comes with relying on Congress to codify safe and legal abortion access.
IT'S THE COURTS, STUPID.
He mentioned that many Democrats have been calling for the Supreme Court to be reshaped, and asked if Biden has changed his position on that.
She answered, "As you know there is an ongoing Court Reform Committee that has been meeting, it's a diverse group that is considering a range of issues and topics, including what the future of the court will look like. I think the president will wait for that process to complete before making any evaluation."
In other words, the answer is NO.
As Elie Mystal has been writing, essentially forever, no federal law protecting marginalized people IN ANY WAY will survive a challenge in a conservative Supreme Court. The Court must be expanded, and QUICKLY. Congress could pass a law mandating abortions be available at all drive-thru CVSes nationwide, but unless that law could survive a Supreme Court challenge, it's meaningless.
Here's the man himself, on the latest Texas travesty, and why Court reform is the answer.
Frankly, as long as conservatives control the courts, there is no way to stop Texas, Mississippi, or other states inclined to follow their lead. Moderates like to suggest that expanding the courts threatens both the legitimacy of the courts and the rule of law, but this is the kind of unconstitutional vigilantism that conservatives allow when they control the judicial branch.
If you want to protect a woman’s right to choose, the only solution is to expand the Supreme Court. That has been the only solution since reluctant abortion-allower Anthony Kennedy retired and ceded his seat to alleged attempted rapist Brett Kavanaugh. How many more rights, in how many more states, must be taken away before Democrats do the only thing they can do to stop these people?
Can someone please spoonfeed a little of that energy into Biden and Psaki to gas them up for the people of this nation who need abortion access and want to provide it to them? I know they're super busy and really, honestly good people, but how about including reproductive freedom on that list of priorities, hmmm?
* Late Wednesday night, the Supreme Court ruled 5-4 to deny the injunction, offering a lot of excuses about process. The dissents were scathing, but it nevertheless had 5 justices willing to let Roe die — and women too. - Eds.