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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Real world beckons after `second one,' but . . . --March 4, 2021 column

By MARSHA MERCER

“Well, I’m glad you got your second one,” the woman wearing a mask and walking on the sidewalk said to the maskless man smoking a cigarette on his front porch.

In years past, this snippet of conversation would have been mysterious. What “second one” did the man get and why was the woman glad?

Now, anyone overhearing such an exchange, as I did on a walk in Alexandria Wednesday, knows exactly the subject. He’d received his second COVID-19 vaccination.

“But we’re still going to wear masks and socially distance,” she said. “Right?”

“Oh, yeah,” he said. “This is my big thing: I stand on the porch and smoke a cigarette and feel like I’m in the real world.” Then he chuckled and stubbed out his prize smoke.

Leave aside the irony of someone getting fully vaccinated against COVID while continuing to indulge in a nasty, health-defying habit. More Americans these days are sharing the joy of the jab and new-found optimism.

I had gotten my “second one” earlier that day. The sun was shining, it was early March and no snow or ice was in the forecast. What’s not to like?

We all feel the urge to return to the “real world,” however we define it. We yearn to see friends, go to dinner and concerts, shop and travel without worrying that these simple activities could literally cost us, our family members or loved ones our lives.

Ironically, some governors who are going the full-open may make it less appealing, not more, to visit their states.

Texas Gov. Greg Abbott, a Republican, announced that as of this coming week schools and all businesses of any kind in the Lone Star State could fully reopen at 100% capacity, and masks would no longer be required.

COVID has not gone away, but the time for state mandates has, he said. Businesses can still require or ask customers to wear masks, but the message from the governor is clear: Be there, be bare or be square.

We’ve seen how well de-regulation worked for the Texas power grid during the winter storm disaster, which is to say not at all. Many residents there are still without potable water.

So now the state, where fewer than 2 million of its 29 million residents are fully inoculated against COVID, is de-regulating the pandemic. Mississippi’s governor and others are making the same decision.

“We cannot have an endless shutdown,” said Mississippi Gov. Tate Reeves, a Republican.

Public health experts say fully reopening as if life is back to normal is risky at best. They are pleading with residents to stay masked, keep social distance and wash their hands. 

President Joe Biden blasted the decisions to reopen in uncharacteristically harsh terms.

“The last thing – the last thing – we need is the Neanderthal thinking that in the meantime, everything’s fine, take off your mask. Forget it. It still matters,” Biden told reporters.

Everyone is sick and tired of being home. Millions of Americans are suffering economically, and we all want to get out into the real world.

But even being fully vaccinated is not a Get Out of Jail Free card. You can still get sick, though likely not as sick; it’s uncertain whether you can spread the virus.

Americans must choose for themselves whether to follow the guidance of the Centers for Disease Control to stay safe or throw caution to the winds in pursuit of the almighty dollar.

Governors believe opening their states will juice the economy. But moving too far too fast could have the opposite effect. It could discourage tourism and usher in a third wave of the deadly virus.

I was born in Texas and enjoyed visiting the spectacular Big Bend National Park four years ago. Since well before the pandemic, I’ve wanted to visit my late mother’s tiny hometown in Northeast Texas. I didn’t get around to it, and the pandemic stopped everything. I thought this summer might be a good opportunity.

But now is not the time for me to be a tourist in any state that’s tempting fate. I’ll   wait, thank you.

©Marsha Mercer 2021. All rights reserved.

Government shouldn't shun our generosity -- June 27, 2019 column

By MARSHA MERCER

The Independence Day fireworks display on the National Mall will last about 35 minutes this year, twice the length of the typical show.

The bigger and better display is thanks to donations by two private fireworks companies of equipment and personnel worth $750,000 to the National Park Service.

“We wanted to do this as a gift to America,” the president of one of the companies told The Washington Post.

It probably didn’t hurt that President Donald Trump is personally orchestrating 4^th of July festivities, and the fireworks industry wants an exemption from the next round of 

Trump tariffs on Chinese goods, which includes fireworks.

Be that as it may, it’s baffling the government can accept donations of fireworks but not of diapers.

As the administration planned the July 4^th  extravaganza, we learned hundreds of migrant children were being held in dirty, overcrowded conditions at a Customs and Border Protection facility in Clint, Texas.

“`There Is a Stench'” The New York Times headline read on a June 21 story that detailed how attorneys who visited Clint said babies lacked diapers and children of various ages had inadequate food and water and no access to baths, soap, toothbrushes or toothpaste.

The facility built for about 100 adults temporarily had been stretched to house hundreds more children for weeks.

Then we saw the heart-breaking photo of the young father and daughter who drowned trying to cross the Rio Grande for a better life.  

The administration says it has been overwhelmed by an influx of migrants at the border. The Border Patrol transferred some of the children at Clint out and then back as other facilities became overcrowded.

The White House and Congress couldn’t get their act together to provide humanitarian relief -- so Texans did.  

Last Sunday, Austin Savage and five friends went to a Target in El Paso and spent $340 on diapers, wipes, soap and toys, the Texas Tribune reported. But when they tried to deliver the goods, the detention center lobby was closed and no one would come to the door.

Border Patrol agents in the parking lot saw, but ignored, them, Savage said.

Then the friends realized they weren’t the first to try to help. A plastic bag near the lobby door held toothpaste and soap and a note: “I heard y’all need soap + toothpaste for kids.”

Savage returned on Monday to deliver the items and again was ignored, NPR reported.

State Rep. Terry Canales, a Democrat from South Texas, asked the government for a list of acceptable donations. “They do not accept donations,” he tweeted. “How ridiculous is this?”

Why no donations? One weak, but possible explanation cited is the Antideficiency Act of 1870, which says the government can’t spend beyond the funds Congress appropriates and cannot accept donations of personal services that have not been approved by Congress.

When I took a look at the law, though, I found no references to goods, just to services.

And a 2008 Department of Homeland Security directive says: “DHS may accept gifts to carry out program functions regardless of whether or not appropriated funds are available for that purpose, provided such expenditures are not barred by law or regulation.”

Companies and wealthy individuals have long opened their wallets to help the government. People have donated millions of dollars to the Treasury to help pay down the national debt.

After an earthquake shook the Washington Monument in 2012, billionaire philanthropist David Rubenstein donated $7.5 million to match the federal funds Congress had allocated for repairs.

Rubenstein has also donated $4.5 million to the National Zoo for the giant panda program and $13.5 million to the National Archives, among other projects.

Few can make such grand gifts, but ordinary Americans are generous, too.

The good news is conditions in Clint reportedly have improved. Journalists who visited Wednesday said monitors were watching the kids, and officials say they have enough supplies. They’re studying whether they can legally accept donations.

That our government would have a double standard allowing it to accept donations of fireworks and not of diapers is absurd. Worse, it’s obscene.

The policy must change quickly.

©2019 Marsha Mercer. All rights reserved.

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A boy in full -- seeing George W. Bush in a new light -- March 23, 2017 column

By MARSHA MERCER 

One of the year’s biggest surprises so far is former President George W. Bush’s success as a portrait painter.

His “Portraits of Courage: A Commander in Chief’s Tribute to America’s Warriors” tops this week’s New York Times nonfiction bestseller lists. The book contains 66 oil paintings and a four-panel mural of veterans as well as their stories, written by Bush.

Unpopular when he left office, Bush has gained stature in retirement by keeping a low profile and devoting himself to his art and humanitarian causes. The book’s proceeds benefit Bush’s foundation that helps wounded veterans.

Even former first lady Laura Bush was surprised by her husband’s picking up paint brushes at age 66, four years ago. Had someone told her when they married that one day she would write a foreword to a book containing her husband’s paintings, Laura Bush writes, “I would have said, No way.”

But long before he started painting and before he left Texas for prep school and the Ivy League, Bush was a boy of 1950s America.

Just as “Portraits” presents the 43^rd president as a compassionate artist, the George W. Bush Childhood Home in Midland, Texas, opens a window on a nostalgic view of American life and values in the post-war era.  

Docent Kay Manley, a retired oil and gas accountant, gave me a tour earlier this month. As a girl, she attended the same Methodist church and took piano and dancing classes with Laura Bush, a Midland native.

“Most people don’t realize the Bushes were such ordinary people,” Manley said. “Barbara Bush made her own curtains.”

The modest house – a 1,400-square-foot bungalow with blue-gray wood siding, three bedrooms, one bath and no central air -- was home to “two presidents, two governors and one first lady,” Manley said. “No other house can say that.”

Besides “W,” she was referring to former President George H.W. Bush, first lady Barbara Bush and former Florida Gov. Jeb Bush, whose nursery was in the sun room. Neil Bush was also born while the family lived in the house. Two other children came along later. 

The house has been meticulously restored to the way it looked when the Bushes lived there from 1951 to 1954. Georgie, as he was called, did his homework on a small desk in his knotty pine-paneled bedroom, rode his bike, played catcher on the Midland Cubs Little League team (his dad was manager), was a Cub Scout (his mom was den mother) and went to the Presbyterian church on Sundays.

Asked while running for president his fondest childhood memory, Bush said: “Little League baseball in Midland.”

The home avoids mentioning Bush’s policies and politics – topics best left to the presidential libraries and museums, said Paul St. Hilaire, director of the childhood home. Bush’s library and museum are in Dallas.

“We’re a cultural and historic site,” he said.

Papa Bush was on his way up in the oil business, and his young family was on the move. Young George, born in Connecticut while his dad was in college, lived in at least 14 different homes in three states and eight cities in his first 18 years, according to a National Park Service survey of the home for inclusion in the park system.

He lived longest on Ohio Avenue, and Bush often refers to the values he learned there. His childhood was also a time of sadness. His sister Robin died at age 4 of leukemia while the family lived in the house. 

The home is on the National Register of Historic Places, one of the first 1950s residential restorations. The attention to detail is remarkable – not just the turquoise fridge and TV with rabbit ears, vintage wallpaper and black dial phone but also period door hinges. More than 70,000 people have visited since it opened in 2006.

History buffs Lynn Hassler, 62, a retired teacher from Pennsylvania, and her husband Randy stopped by while visiting their son and grandchildren. She didn’t vote for W nor did she vote for Donald Trump. But Trump’s election has caused Hassler to reassess Bush.

“He’s looking a lot better,” she said.

©2017 Marsha Mercer. All rights reserved.

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