No matter what fresh lawlessness Republicans commit, or what their legal enablers on the Supreme Court do to support that agenda, you can count on some Democrat or liberal-adjacent person saying, “But what can the Democrats do?” Never mind that Democrats control both chambers of Congress and the entire Executive Branch. They walk around every day like a defeated minority unable to stop Republicans—who lost—from having their way with our country.
There are countless examples of this sad-sack attitude from the last six months. (See: Republican congresspeople giving aid and comfort to white domestic terrorists, and Democrats doing nothing. See also: the GOP passing laws to suppress the right to vote, and Democrats doing nothing.) But let’s pause for a moment to consider the most recent example. This week, a Republican-backed law went into effect in Texas that overturned Roe v. Wade, replacing the constitutional rights of women and pregnant people with a cash bounty system empowering private citizens to deny them those rights. Given the seriousness of this new reality, one would think Democrats might mount some kind of defense. But once again, they claim there is nothing they can do.
But there is something Democrats can do. They can work around the Texas anti-abortion law. To do this, however, they will need to get creative to protect reproductive rights. They will need to be willing to challenge “norms.” They will need to act like Republicans.
Conservatives think they’ve been very clever with the Texas ban, because the enforcement of that ban is not done by the state. Instead, private citizens do the dirty work. The law empowers them to sue abortion providers, or those suspected of “aiding and abetting” the provision of abortion services to women who are more than six weeks pregnant, and to then cash in for $10,000. Because of this, conservatives argue that the law is not a “state” restriction on abortion, and it cannot be challenged as a violation of Roe in federal court.
The Democrats can be clever too, however. Consider the doctrine of qualified immunity. 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 pregnant people on their constitutional rights and providing other services attendant to those rights.
The format would be similar to the pop-up vaccine distribution centers the Biden administration has organized. The privacy protectors could even perform the consultations on federal property, like army bases or certain parks or courthouses, just to make sure that no state gets its eminent domain feelings hurt. Or perhaps the agents could be mobile, operating out of vans or trucks, making the vehicle itself federal property that the state government could not interfere with.
Now, the Hyde Amendment specifically prohibits taxpayer dollars from being used for abortion services. So abortions would have to be free, of course. I personally think that solves the Hyde Amendment issue, though some people would probably argue that any scenario in which the government pays doctors who perform abortions would violate the amendment. Therefore, for maximum caution, the privacy protectors would have to be paid only for their consultation services. Any procedures they do would have to be funded out of their own pockets—or through private funding. (I’d gladly throw a few dollars into the pot.)
I know this would work, because using private funding to get around state regulations is what Republicans do all the time. If Republicans can privatize everything from prisons to war to get around regulations and reporting requirements, Democrats shouldn’t be afraid of a little public-private partnership to protect reproductive rights.
The right to an abortion is constitutionally protected, and the executive branch has a duty to enforce and defend the constitution. Federal abortion services might be untried, and provocative, but since Texas has gotten cute with its attempt to evade constitutional review, the Biden administration must be willing to try new things to defend women’s rights.
Or… Biden and the Democrats could expand the Supreme Court and the US Court of Appeals for the Fifth Circuit and stop the forced-birth madness Republicans now think they can get away with. That’s also an option. If Democrats don’t like the “radical” solution of federal abortion trucks, then they could stop the courts from letting women and pregnant people become the target of vigilantes looking for a cash grab.
Yes, Congress is broken and Manchurian Democrats Joe Manchin and Kyrsten Sinema are willing to allow women who don’t want to carry a pregnancy to term to be treated as unruly wombs that don’t know their place. But if Democrats are not willing to enforce the kind of consequences that will inspire their colleagues to end the filibuster and allow democratic self-government to take place, then Biden must do what is necessary to defend the Constitution from all threats, foreign and Texan.
Either way, Democrats must do something. They can’t throw up their hands and say, “The Republicans, who have lost the popular vote in seven of the last eight presidential elections, are too powerful, so we must accept bounty hunting of abortion providers. Blue Wave 2022!” They can’t allow a couple of fifth-column Democratic senators to thwart the expressed will of the rest of the party.
I don’t care if Biden has to move to Texas and perform abortions himself (and then make use of the presidential immunity afforded to Trump during his various schemes to bribe foreign governments and obstruct justice). This is an attack on the constitutional rights of women, Biden’s constituents, and he and his administration must act.
So don’t ask me what the Democrats can do, because they can do a lot. The only question is what the Democrats are willing to do. What they are prepared to do. What they are ready to risk doing to uphold and defend their principles.
The answer better not be “nothing.”