Attorney General Garland is clearly not a politician, or he never would have advanced a statement that included a weak sounding warning that the State of Texas is “not to go too far “ in relation to the new draconian Texas anti-abortion law.
That said, it is clear that the Democrats and Biden do not really have a viable Senate majority, and are severely limited legislatively by Democratic Senators Joe Manchin and Krysten Sinema in this regard. They are not without options, however.
Standing Issues: Guaranteed to Win in Court?
I’m not a lawyer. But Garland has one option in addition to using the Face Act to counterattack, about which he opined that it prohibits the use or threat of force and physical obstruction that injures, intimidates, or interferes with a person seeking to obtain or provide reproductive health services. There appears to be another argument that the anti-abortion law is also a violation of established law by granting legal standing to sue to obviously disinterested parties. Based on what I admit to being my meager understanding of legal issues, the Texas law includes language giving any citizen of Texas the right to sue any clinic or doctor that performs an abortion after six weeks, or any individual other than the woman herself that advocates an abortion after six weeks. This seems to make it patently illegal. I won’t go into all the misogynist, false and medically uninformed reasoning that went into formulating and passing this law in this particular article, but suffice it to say that it is a violent, Talibanistic and repressive act aimed at women by backward, ignorant and unprincipled male politicians.
Standing as I understand it, to be valid, must be able to show some kind of personal damages or harm to the individual suing, monetary or physical. There is of course no case for damages apparent in such cases, and no legal action can proceed off this law. It’s purpose seems to be to tie up abortion providers with frivolous law suits.
Challenging on Standing Grounds Now May Not be Wise
If I’m right about standing, a fair question is why is this not being mentioned by the Justice Department? I suspect that Biden himself might see this as being an issue he’d like to prolong and be before voters for the mid-terms. Many Democratic politicians also seem to think it can become a major campaign issue in 2022. What the Texas Republicans would do now if challenged before lesser Federal Courts on the standing aspect of the law would be to simply amend that part out of it if necessary.
On the other hand, Biden and the Democrats are looking increasingly on defense, and combined with the Afghan fallout, are in danger of losing some of their own supporters due to lowering morale. Voters, even progressive ones, have short memories. Biden is obviously focused on his stimulus package at present. He’s lost the shine on his Cov19 efforts, with the Republicans creating circumstances that have helped sabotage his Cov19 strategy and precluding efforts to reach herd immunity even if it will mean many more deaths.
All this points to a weakness in Biden’s strategy: it does not rely for the most part on the forms of struggle that have brought progressive change to America in the past, it depends too much on elected officials. Which under more normal times when not confronted by a fascist party, is arguably a legitimate way to proceed. But times are not normal, and what will likely happen is that mass demonstrations will eventually erupt if the Republicans succeed in blocking his progressive legislation. If they erupt in this super polarized situation, the Republicans will see to it they get their armed fanatics out on the street as well. It is they that benefit from division and chaos, they are after all fascistic. And are expert at using any means necessary to arouse their voters, constantly dangling red meat emotional, gun and racial issues before them.
Appointing Two Additional Justices to the Supremes
One more idea I’d like to toss out. Allowing the Texas anti-abortion law to be enacted has established the right to sue without standing. It is completely at odds with long established law as I understand it. It’s a perfect justification to pack the Supreme Court and document publicly that it has gone rogue. With the Supreme Court allowing a law to be passed that so clearly violates this standing principal, when the time is right Biden should attack the extreme politicization and abuses concerning appointments to the Court. And argue that he is obligated to correct past injustices and appoint two additional justices to counteract both the Republican’s prior refusal to give Obama’s appointment even a hearing, and for violating their own reasons for blocking Obama’s nomination by allowing Trump with less than two months left to his term to appoint another justice. The consequences of this are of course high stakes and risky. But it should at least be floated before the public and seriously threatened. Very interested to hear feedback, whether positive or negative, in the comment’s box.