End of Roe? Texas law threatens abortion rights everywhere -- Sept. 9, 2021 column

By MARSHA MERCER

Texas Gov. Greg Abbott offered a bizarre defense of his state’s new, unconstitutional anti-abortion law.

Asked Tuesday why the state would force victims of rape or incest to carry pregnancies to term, he denied the law does that.

“Obviously, it provides at least six weeks for a person to be able to get an abortion,” Abbott said. No, it doesn’t.

The Texas state law known as Senate Bill 8 prohibits abortion after a fetal heartbeat is detected, which is usually four weeks after conception or two weeks after a missed menstrual period. That’s before most women even know they are pregnant, before the embryo becomes a fetus and months before fetal viability, generally at 24 weeks.

The law effectively prohibits about 85% of the abortions in the state and will force most abortion clinics to close, providers say.

The Republican governor also said: “Rape is a crime, and Texas will work tirelessly to make sure that we eliminate all rapists from the streets of Texas.”

Really? Eight in 10 rapes are committed by someone who knows the victim, often a family member or family friend, according to the anti-sexual violence group RAINN.

Critics said Abbott is ignorant, but it’s more likely the governor, a graduate of the University of Texas and Vanderbilt University Law School, knows the facts and is playing to his constituents.

About a dozen other states have passed anti-abortion “heartbeat” laws but courts have tossed them out, at least temporarily, as unconstitutional. What makes the Texas law different, and threatening to abortion rights nationwide, is its enforcement mechanism.

Unlike other states’ laws, Texas specifically blocks state or local officials from enforcing it and leaves enforcement to individuals. Any private citizen anywhere – not just in Texas -- can bring suit against anyone in Texas who performs an abortion or “aids and abets” one.

The patient may not be sued, but anyone who pays for an abortion, the doctor, nurses, abortion counselors, even someone who drives a patient to a clinic can be sued.

State courts are required to award the private citizen $10,000 for each abortion identified. The defendants – abortion providers -- cannot recover their court costs even if they win.

The Supreme Court last month ruled 5 to 4 to allow the Texas law to go into effect, although it did not rule on its merits. Chief Justice John Roberts joined the three liberal justices in dissent.

“The Court’s order is stunning,” Justice Sonia Sotomayor wrote in a blistering dissent. Calling the Texas law “flagrantly unconstitutional,” she said the majority of justices “have opted to bury their heads in the sand.”

The clever way the law was written has made combatting it difficult, but the Biden administration is preparing to sue Texas.

Democrats on the House Judiciary Committee wrote Attorney General Merrick Garland and the Justice Department urging them to prosecute “would-be vigilantes.”

“The Department of Justice cannot permit private individuals seeking to deprive women of the constitutional right to choose an abortion to escape scrutiny under existing federal law simply because they attempt to do so under the color of state law,” the letter said.

Bounty-hunting on healthcare workers is a novel twist on laws aimed at rewarding private citizens who are whistleblowers against fraud in government programs, such as Medicaid and Medicare, or defense contracts.

So-called “qui tam” statutes allow individuals to bring fraud cases and incentivize them with an award. Congress passed the False Claims law in 1863 to combat fraud by companies that sold shoddy supplies to the U.S. government during the Civil War.

 A law professor who clerked for the late conservative Justice Antonin Scalia reportedly helped Republican lawmakers craft the private-enforcement strategy. By empowering citizens to bring lawsuits against abortion providers, Texas has succeeded so far in circumventing a constitutional challenge.

Other Republican governors are already using Texas as a model for stricter anti-abortion laws.

Regardless of how you feel about abortion, stop and think about the precedent of a state using vigilantism to enforce laws.

It’s one thing for private citizens who observe fraud to be rewarded for coming forward, but Texas has enlisted residents of any state to enforce a social standard.

This is a slippery slope, and any state could incentivize individuals anywhere to enforce its pet social mores.

Conservatives are celebrating now, but liberals can turn out to be just as ingenious in using these laws.

©2021 Marsha Mercer. All rights reserved.

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Still learning from a Supreme Court justice -- June 22, 2017 column

By MARSHA MERCER

News that Supreme Court Justice Ruth Bader Ginsburg may become America’s next fitness star takes some getting used to.

Yes, she’s a lifelong champion of gender equality and civil rights.

She wrote the majority opinion in the landmark sex discrimination case United States v. Virginia. The ruling 21 years ago this week -- June 27, 1996 -- required Virginia Military Institute, after 150 years of male-only admissions, to accept women.

Yes, she’s a cultural icon and a hero to millennials, thanks to “Notorious R.B.G.,” a Tumblr blog that went viral in 2013.

A book by that title became a New York Times bestseller in 2015. Her picture is on T-shirts, mugs, shot glasses and hoodies. She’s been making a fashion statement with her signature fishnet gloves for nearly two decades.

Her consequential life is even the subject of a children’s picture book, “I Dissent: Ruth Bader Ginsburg Makes Her Mark.”

Yes, she’s an author. “My Own Words,” her book published last October, has brought her $204,000 in royalties, she reported in a recent financial disclosure.

But a gym rat – at the age of 84? Yes, that too.  

Ginsburg has been working out with personal trainer Bryant Johnson since 1999, after treatment for colon cancer left her weak and frail. She went back to the gym after surgery for pancreatic cancer in 2009.

 

Johnson’s pushup-and-tell book is coming out in October: “The RBG Workout: How She Stays Strong . . . and You Can Too!”

It’s a sign of how much American has changed that an accomplished jurist and “little old lady in tennis shoes” can also be a model for pumping iron.

Not everyone will rush out to buy Johnson’s book. The court’s most reliable liberal excites foes as well as fans.  

Last summer, she candidly criticized then-presidential candidate Donald Trump. “I can’t imagine what the country would be – with Donald Trump as our president,” she told The New York Times.

Trump responded with a tweet: “Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot—resign!”

Ginsburg doubled down. “He’s a faker,” she told journalist Joan Biskupic. “He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego . . .”

After a firestorm of criticism, Ginsburg said in a statement she regretted the remarks – and both sides retreated to their corners.

It didn’t have to be that way. In 1987, Justice Thurgood Marshall ripped President Ronald Reagan on civil rights, saying Reagan was at “the bottom” among presidents.

Instead of blasting Marshall, Reagan invited him to the White House and told him his life story. “That night, I think I made a friend,” Reagan wrote.

Friendship seems a quaint notion in Washington these days, but Ginsberg’s close friendship with the late Justice Antonin Scalia, with whom she amicably disagreed on almost every legal issue, is legendary, literally the inspiration for an opera.

Ginsburg tells an enlightening story about their collegiality. While she was writing the majority opinion in the VMI case, Scalia, the sole dissenter, dropped off a draft of his stinging dissent.

“It absolutely ruined my weekend,” she said in an interview at the Aspen Institute last month but added she was glad to have the extra days to answer his points.

Asked about the current rancor in Congress, she recalled the Senate used to be called a gentlemen’s club. In 1986, that less combative Senate confirmed Scalia, whose conservative views were well known, with no negative votes. In 1993, it confirmed Ginsburg 96 to 3. 

    

Many think had Hillary Clinton been elected president, Ginsburg might have retired. Now, though, she shows no sign of giving President Trump another court pick.

“I will do this job as long as I can do it full steam,” she said at George Washington University in February. “When I can’t, that will be the time I will step down.”

Her regimen of pumping iron means her critics may have to wait a long time for that moment.

 ©2017 Marsha Mercer. All rights reserved.

Don't burn the flag or First Amendment -- Dec. 1, 2016 column

By MARSHA MERCER

My guess is that few demonstrators who burned American flags to protest the election of Donald J. Trump have attended a funeral at Arlington National Cemetery.

Had they watched honor guards in white gloves neatly fold and present to the next of kin the flag that covered the coffin of a fallen service member, they would see the flag as personal.

A powerful and poignant symbol of sacrifice and honor, the American flag should never be torched to make a political point. The very idea is repugnant. 

This is not to say, though, that someone who burns the flag in protest should be jailed for a year or stripped of citizenship, as Trump suggested.

“Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail,” the president-elect tweeted at 6:55 on Tuesday morning.

The tweet seemed to come out of the blue, but Fox News reportedly had just aired a segment about a dispute at private Hampshire College in Massachusetts, where a flag was burned in an anti-Trump protest.

“Flag burning should be illegal – end of story,” Jason Miller, Trump transition spokesman, insisted later that day on CNN. “The president-elect is a very strong supporter of the First Amendment, but there’s a big difference between that and burning the American flag.”

No, actually, there’s not.

The Supreme Court ruled in Texas v. Johnson in 1989 that flag burning was “symbolic speech” protected by the First Amendment and invalidated laws against flag burning in 48 states. 

“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” the court ruled in a 5-to-4 decision.

Among those in the majority was Justice Antonin Scalia.

“If I were king, I would not allow people to go about burning the American flag,” Scalia later told a TV interviewer. “However, we have a First Amendment, which says that in particular to speech . . . burning the flag is a form of expression.”

That likely would surprise Trump, who has joined the ranks of politicians who periodically fulminate against flag burning. By doing so, they draw attention to an exceedingly rare act that ought to be tolerated -- and ignored.

Perhaps no First Amendment issue is thornier. The American Legion applauded Trump’s tweet and urged Congress to prohibit flag desecration, something Congress has tried to do repeatedly over the years.

  

Everybody should take a deep breath and remember the wisdom of the late Sen. Daniel Inouye, Democrat of Hawaii, who received the Medal of Honor for his service in World War II, even as fellow Americans of Japanese descent were incarcerated in U.S. prison camps.

“This objectionable expression is obscene, it is painful, it is unpatriotic,” Inouye once said. “But I believe Americans gave their lives in many wars to make certain all Americans have a right to express themselves, even those who harbor hateful thoughts.”

Then-Sen. Hillary Clinton of New York co-sponsored a bill in 2005 that would have punished flag burning by a fine up to $100,000 or a year in prison, or both. Her idea was to find common ground between veterans groups and free speech advocates.

“Senator Clinton, in Pander Mode,” The New York Times opined in an editorial 11 years ago this week, saying flag burnings had largely disappeared since the Vietnam War.

“Flag-burning hasn’t been in fashion since college students used slide rules in math class and went to pay phones at the student union to call their friends. Even then, it was a rarity that certainly never put the nation’s security in peril,” the editors trenchantly observed.

It’s still true that flag burning is rare and has never imperiled national security. Criminalizing flag burning might be politically popular, but the last thing we need is to make martyrs of publicity seekers with lighters who want their 15 minutes of fame.

Trump soon will fill the court vacancy caused by Scalia’s death. He has promised to name a justice who thinks like Scalia, and he should -- on flag burning and the First Amendment.

© 2016 Marsha Mercer. All rights reserved. 30

For the court: `someone smart' -- Feb. 18, 2016 column

By MARSHA MERCER

Nearly everybody has advice for President Barack Obama about the Supreme Court vacancy caused by the sudden death of Justice Antonin Scalia, even Scalia himself.

Scalia, although a Harvard Law grad, was a fierce critic of the Harvard-Yale axis on the court and the narrow range of background and experience of the justices whose opinions shape American life.

This court “consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School.” Four are natives of New York City, eight grew up in east- and west-coast states, he wrote last June in a dissent in the same-sex marriage case.

“Only one hails from the vast expanse in between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination,” said Scalia.

All the justices are either Jewish or Roman Catholic. Justice Clarence Thomas, a former Baptist who’s now a Catholic, joined Scalia, also Catholic, in the dissent.

Scalia’s astringent dissents – he was often in the minority – won him many fans in law schools, where he loved to lecture, debate and counsel students. Known for his wit and intellect, he was a popular professor at the University of Virginia from 1967 to 1974. 

He had hired six U. Va. law grads as his clerks in the last 10 years, helping build a path for a new generation to the highest court. A Supreme Court clerkship is often a stepping stone to becoming a federal judge and even a Supreme Court justice.

Obama says he will nominate someone with “an outstanding legal mind” to replace Scalia. The president likely will remember Scalia’s advice after Justice David Souter announced his retirement in 2009. 

   

“I hope he sends us someone smart,” Scalia told David Axelrod, then Obama’s senior adviser, at the White House Correspondents Dinner.

Surprised by Scalia’s overture, Axelrod replied that he was sure the president would do so, he recalled this week in a commentary he wrote for cnn.com. But Scalia persisted.

“`Let me put a finer point on it,’ the justice said, in a lower, purposeful tone of voice, his eyes fixed on mine. `I hope he sends us Elena Kagan,’” Axelrod wrote.

Axelrod was shocked that the court’s leading conservative would propose a liberal for the court. But Kagan and Scalia shared “intellectual rigor and a robust sense of humor,” Axelrod explained, “And if Scalia could not have a philosophical ally in the next court appointee, he had hoped, at least, for one with the heft to give him a good honest fight.”

That time, Obama chose Sonia Sotomayor, the first Hispanic justice. The next year, though, when Justice John Paul Stevens retired, the president did choose Kagan.

To expand the court’s horizons this time, Obama may nominate someone whose name is unfamiliar to many Americans: Sri Srinivasan (SREE SREE-nee-vah-sun), a federal appeals court judge.

Srinivasan, 48, is known for his outstanding legal mind, his collegiality and his open-mindedness. He was born in India, emigrated to the United States as a young child and grew up in Kansas.

A graduate of Stanford University with three degrees, he clerked for 4^th U.S. Circuit Court of Appeals Judge J. Harvie Wilkinson III in Richmond, Va., and Supreme Court Justice Sandra Day O’Connor. Wilkinson, a Reagan appointee, has called him “lightning smart.”

The Senate unanimously confirmed Srinivasan to the D.C. Circuit in 2013. He won  kudos from Republicans and Democrats, although he drew liberal opposition for representing Exxon Mobil and Enron CEO Jeffrey Skilling.

As a law clerk in Richmond, Srinivasan and fellow law clerk Ted Cruz, became friends. Senator Cruz praised and voted to confirm Srinivasan in 2013 but said Wednesday that if Obama nominates him for the nation’s highest court, he will not vote for him.

Cruz wants the election to be a referendum on the court. That’s politics.

Srinivasan would be the first justice from South Asia, the first Hindu on the Supreme Court and the first justice born outside the United States since Felix Frankfurter served from 1939 to 1962.

Yes, Mister President, send “someone smart.”

©2016 Marsha Mercer. All rights reserved.

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