On Wednesday evening, October 7, federal district judge Robert Pitman temporarily blocked Texas's near total ban on abortion that had been in enforcement since September 1 of this year. A mere 48 hours later, his decision was reversed by a higher court—the U.S. 5th Circuit Court of Appeals—and the law was fully back in effect.
It's worth noting that the judge who issued the injunction could have blocked the Texas law with just a few words, or a few pages. Instead he issued a 113-page decision which put a lot of argumentation into the record documenting both how the Texas law is actively depriving women of their constitutionally protected right to abortion and the ways in which the Texas law is undermining basic principles of the rule of law. It matters that this judge did this, but as this piece will indicate, it matters even more that this fight not be left in the hands of the courts or on the terms of this system.
While the future of this particular law is not yet fully settled, there are already a number of important lessons to draw from this fight as it is currently unfolding.
Vicious Misogyny, a Cornerstone of Fascism
First, Judge Pitman's extensive documentation of the many ways in which women's ability to decide for themselves when or whether to have a child is right now being drastically restricted (see accompanying box) underscores a point that Bob Avakian has been fighting for people to recognize for years: The Christian fascist movement which makes up a core and driving element within the overall move towards fascism in this country is deadly serious about ending abortion and this is bound up with the violent reassertion of the most vicious and open forms of male supremacy.
As Bob Avakian (BA) put it in a piece he wrote last July, PATRIARCHY AND PATRIOTISM—AGGRESSIVE MALE SUPREMACY AND AMERICAN SUPREMACY—THE DANGER AND THE IMMEDIATE CHALLENGE:
[T]he Christian fundamentalists give particular, focused attention to, and insistence upon, the parts of Christian tradition and scripture (in the Old Testament of the Bible especially, but also in the New Testament) that most blatantly and aggressively promote the submission and subordination of wives to their husbands, and in general the domination of women by men.
It is this which is behind their misogynist (woman-hating) drive to force women to have children against their will as part of their determination to reverse even the partial gains that women have made in asserting their right to control their lives and enter into public life on an equal footing with men.
A Fight Over the Rule of Law
Second, Judge Pitman's decision reveals a great deal about the degree to which the Texas Abortion Ban constitutes an attack on the rule of law as it has existed in this country for nearly 150 years.
Many have noted that the Texas Abortion Ban was constructed intentionally to evade judicial review. It did this by prohibiting the state from enforcing the ban and thereby attempting to prohibit the courts from blocking the state from enforcing the ban. Instead, the Texas law empowered private citizens to enforce the ban.
In contrast to the now fascist-majority Supreme Court, which used the peculiar way in which this law was constructed to abdicate their responsibility to block it, Pitman argues compellingly that this attempt by Texas to avoid judicial review makes it even more necessary and correct for the federal government and courts to intervene. As part of his argument that the Department of Justice and the federal courts have the right to block this law, he goes extensively into the 14th Amendment and its role during Reconstruction (the period which followed the Civil War in which some rights were not only granted to formerly enslaved people, but protected by the federal government, until this was reversed in 1877). Pitman shows how it was precisely the need to protect rights of Black people that the states were refusing to protect during this time that gave rise to the Department of Justice in the first place:
The history of Reconstruction is populated with instances of states failing to protect the constitutional rights of their citizens. See, e.g., McDonald v. City of Chi., Ill., 561 U.S. 742, 857 (2010) (Thomas, J., concurring) (chronicling the history of lynching of Black people following the Civil War); Briscoe v. LaHue, 460 U.S. 325, 337 (1983) (“[Ku Klux] Klan outrages—arson, robbery, whippings, shootings, murders, and other forms of violence and intimidation ... went unpunished ... because Klan members and sympathizers controlled or influenced the administration of state criminal justice.”); Strauder v. State of W. Va., 100 U.S. 303, 310 (1879) (“[T]he statute of West Virginia, discriminating in the selection of jurors, as it does, against negroes because of their color, amounts to a denial of the equal protection of the laws to a colored man when he is put upon trial for an alleged offence against the State ....”). This abdication of duty led to the ratification of the Fourteenth Amendment, an attempt to use federal power and affirmative federal enforcement to protect those abandoned, if not targeted, by the states. Indeed, the Department of Justice itself was created in this same period to serve these same ends. Thus, the power to sue to vindicate the constitutional rights of citizens against states that would infringe them strikes at the core of the mandate of the Department of Justice, and the essence of the Fourteenth Amendment.
Thousands marched October 2, 2021 for abortion rights in downtown Houston. Photo: The Texas Tribune
A Radical Resolution Is Coming—Will It Be Reactionary or Revolutionary?
In his piece THIS IS A RARE TIME WHEN REVOLUTION BECOMES POSSIBLE—WHY THAT IS SO, AND HOW TO SEIZE ON THIS RARE OPPORTUNITY, Bob Avakian writes:
These divisions among the ruling powers, and in the larger society, cannot be resolved within the framework that has existed, and has held things together, for nearly 150 years, since shortly after the end of the Civil War which led to the abolition of slavery—they cannot be resolved on the basis of the capitalist “democracy” that has been the “normal” means of capitalist rule (dictatorship) for so long.
Something radically different is going to replace the framework that has existed for all this time—and as the “Declaration and Call” sharply points out:
the crisis and deep divisions in society now can only be resolved through radical means, of one kind or another—either radically reactionary, murderously oppressive and destructive means or radically emancipating revolutionary means.
The current battle in the courts over the fate of the Texas Abortion Ban (SB8), which includes an open fight over whether basic principles of the rule of law established in the wake of the Civil War will still apply, is one significant manifestation of this.
That a law that so flagrantly violates the most fundamental rights of half of humanity and does such violence to foundational aspects of the rule of law got passed in the first place... that this law was allowed by the Supreme Court to go into effect... and that all this new argumentation from Judge Pitman has, thus far, been tossed aside by the higher courts only underlines the seriousness of the fascist remaking of society, and underscores another powerful truth pointed to by BA:
If this battle remains on the terms of this system, not only will there be horrific consequences overall, but this could very likely lead to a triumph for the Republican fascists, which would accentuate and accelerate the looming disaster, for humanity as a whole.
As I wrote previously, two things are urgently needed:
The outrage of millions must be called forth and mobilized to STOP this assault on abortion rights and everything it concentrates. A line must be drawn. Artists, academics, writers, doctors, and everyone with a public platform should be using it to not only decry this assault on the lives of half of humanity, but to call on people to get out in the streets to make “good trouble.” Everyone who remembers the dark days before Roe should be speaking and warning of what it meant. Students and young people need to be filling the streets, along with others of all ages, relentlessly (not just once, symbolically) refusing to let this go down.
At the same time, and even more importantly, people from every walk of life who are being jolted by this and the other shocks pulsing throughout society need to dig seriously into why a revolution is needed, what this revolution involves, and what kind of society it is aiming for. Thousands now, and millions soon, need to lift their sights to and get actively organized into the revolution that is needed, and very much possible especially as society is being increasingly ripped apart, to move humanity to a far better epoch, to a world that truly is free of white supremacy, patriarchy, and exploitation of every kind
The following excerpts from abortion providers cited and deemed credible in Judge Robert Pitman's decision to block SB8 (the Texas Abortion Ban) reveal the extent to which women are currently being deprived of their most fundamental right to control their own reproduction or be forced to go to extreme and burdensome lengths to access this right:
** “One Texas patient had planned her pregnancy but recently learned that the fetus had an anomaly incompatible with life. She was told by her doctor in Texas that there is no exception under S.B. 8 for her circumstances, and that her only options were either to carry to term with the fetus dying after birth, or to leave the state to receive the needed care to terminate the pregnancy. Understandably, she was stricken with grief in dealing with this added burden. Our patient does not want to incur the trauma of being forced to carry the pregnancy to term, and is hoping to move past this loss to continuing planning her family. Faced with this heartbreaking 'option,' she decided to make the long trip to Colorado to seek care out of state.”
** “On average, the Texas patients we have seen since S.B. 8 went into effect have traveled approximately 650 miles (one way) to access abortion out of state." Moreover, “for patients who are experiencing intimate partner violence, seeking an out-of-state abortion poses numerous challenges. For example, one patient told us that she is discreetly attempting to leave Texas without her husband finding out because he is abusive and she does not want to carry this pregnancy to term. She has told our staff that she is desperate, and is going to extraordinary lengths to scrape together the funds (including selling personal items) to be able to make the additional expenses of an out-of-state trip, but is very worried that her husband will find out given all the logistical planning that she is doing.”
** “I also treated a patient from Texas who found someone to give her a ride to Tulsa, Oklahoma for her appointment, but the trip took longer than expected and they arrived too late for her to get an abortion that day. We managed to accommodate her on the Oklahoma City schedule for the next day, but she had to scramble to find a hotel in Oklahoma for the night and get assistance to be able to pay for the hotel. Unfortunately, her ride could not spend the night in Oklahoma so she had to also find help to get to Oklahoma City from Tulsa, and then we had to help her with a bus ticket to get back to Texas. There was only one bus that she could take, so we had to get her in and out of the abortion clinic with enough time to make it to the bus station.... And while we are going to extraordinary measures to accommodate patients due to S.B. 8, this is not a sustainable way to operate our health centers.”
** “I also know that we are seeing only a fraction of the people in Texas who are seeking to have an abortion, with some finding care in other states and others who simply cannot travel out of state or are afraid to do so. I fear that many people, especially those with the fewest resources, will not be able to obtain safe abortion care at all and will either seek to terminate their pregnancies themselves outside the medical system, or be forced to carry unwanted pregnancies to term. Abortion is one of the safest medical procedures, but by forcing patients to travel long distances and likely delay their procedures, Texas is endangering its citizens. Not only is there no medical basis for this ban, but it is already inflicting serious hardship and trauma on patients who are making very personal decisions that are right for them and their families.”