Nothing Is Going To Save Kentucky And Indiana From Texas-style Anti-abortion Laws

By now, everyone has heard the news of the Supreme Court’s refusal to block Texas’s SB8, a law which includes a process for putting a bounty on the heads of anyone even remotely involved in an abortion. Lawmakers in Indiana, Kentucky and other deep-red states are busy redrawing districts to ensure GOP domination for the next decade, but you can bet they’re taking notes on this major christofascist victory in Texas and drawing up battle plans accordingly. We are perhaps months away from having to smuggle people seeking abortion care across the Illinois border. 

I like to brand myself an optimist, but we need to have a clear-eyed, stone-sober, ice-on-your-spine conversation about who or what is going to save us red-state types from more bills like SB8. I’ll skip to the end: No one. Nothing. 

First, let’s dispel the “lone savior” myth. Since a smattering of narrow victories by southern Democrats in 2020, I’ve heard a lot about how our own version of Stacey Abrams will spring forth, fully formed, from the head of some unknown deity, and with a mighty trumpet blast call an extra 100,000 hitherto-undiscovered voters out of their hiding places so we can finally wrest power from Mitch McConnell and all the forces of Hell itself. This cheerfully indolent strategy has a possibility of working in the deep South, where hitherto-ignored minority groups exist in large enough numbers to swing an election. Even Texas might get a dose of antivenin if their demographic shift outpaces the GOP’s aggressive voter suppression and redistricting efforts. Here in the ivory-white Midwest? Not anytime soon.  

“Ah, but the children!” you say. “The children will save us!” Let’s put that idea out of its misery too. When I ran for Congress in 2018, I thought Democrats had a real shot in Indiana. My primary opponent and I registered thousands of students to vote in bright-blue Bloomington. But not nearly enough of them voted, and we got crushed by a rich-guy Congressman who has never tried to hide the fact that he was elected to Congress to do rich-guy stuff. And that was in the midterm of a President who was shamelessly hostile to everything not-himself. Even some metropolitan areas can’t seem to floss themselves out of the teeth of reactionaries. Cincinnati has been represented since 2013 by two (two!) Republicans who, while apparently not MTG-level insane, still consistently voted for the worst of Trump’s agenda. Voters didn’t oust them in 2018 or 2020, and it’s hard to see why they would in 2022. Lexington is a comparatively forward-thinking college town that once elected an openly gay mayor, but persists in sending a pandering potatohead to the House of Representatives; one who knows better, but can’t stop himself from yammering on about “radical abortion agendas” and “Bidenflation.” He’s not going anywhere either. 

There is no phantom army of Greta Thunbergs lurking in Appalachia, no Parkland kids tucked away in the suburbs of the heartland, no sleeping community of third-generation Black Panthers waiting in the bushes for the right moment to strike. If there is, they’re more likely to be saving up money to move to blue states than fretting over electoral politics in hopelessly red counties. Unless there is a sudden influx of critical thinkers into states that have made it quite clear that they have no place for critical thinkers, the most airheaded of democratic-idealists must concede that our only hope is for thousands of listless, disaffected white non-voters to suddenly become energized, get off their asses, jump the hurdles du jour to get to the polls, and tick a box next to whatever mayonnaise-chugging moderate the DNC has deemed worthy of appearing on a ballot. Anything I can imagine that would create that kind of motivation is a creature worse than Trump, so I don’t want to imagine it.

It seems equally unlikely that we red-state Gen-Xers and millennials are going to band together and save ourselves with collective action. We swore if Roe were ever overturned that there would be hell to pay, that we’d be in the streets until we melted into the asphalt, that we’d shut it all down somehow. That idea, too, seems to have been a product of toxic optimism. SB8 went into effect with a whimper, not a bang. Here I am at my PC, there you are reading an alt-weekly. I’ll continue to write thinkpieces and put up my feet and drink my coffee in the morning and wave politely to my MAGA-hat-wearing neighbors, and so will you, because we have been relatively comfortable for so long.  

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But if any news can finally make us uncomfortable enough to act, the knife twist of SB8, and the Supreme Court’s disinterested side-glance at the resulting wound, should be it. Now we can plainly see that the courts, the flimsiest of bridges under our aching feet, have finally collapsed. The nonstop wave of conservative judges since Reagan made things bad enough before 2016. Then we watched for four years as Trump installed hundreds of Ayn Rand acolytes, tax-evading sovereign citizens and psychotic bloggers into lifetime positions on the federal courts. Those lower court judges are now openly calling on the SCOTUS to overturn Roe, they are dismantling unions, they are whittling civil rights down to an impotent nub. They will give red-state legislators everything they want. Given our situation, a much more interesting question than “Who is coming to save us?” is “Where is the bottom?”

The threat of having some abjectly cruel law overturned by the courts was often all that kept that law from passing. With that threat removed, what will become of us as Republican politicians race each other to the middle ages? Off the top of my head: At a bare minimum, any remaining restrictions on guns will be gone. Trans kids will be run out of schools. Schools themselves may shutter entirely, as many state lawmakers are no longer shy about criticizing public education as a failed experiment in socialist indoctrination. Previously unsuccessful attempts to legalize murder-by-car of protesters will become a reality. Christian clerks won’t have to issue marriage licenses, Christian schools will be able to reject students on the basis of their race, and Christian employers will be able to force women to grow their hair and their skirts till they both hit the floor. And, of course, it will become a lot harder to vote, especially for city folk.  

I want to end this piece on a hopeful note, but I can’t find one. It’s clear that we have to act, but I don’t know what to do, how to do it or whether it will work. All I know for sure is that no one is going to do it for us.

Dan Canon is a civil rights lawyer and law professor. His book “Pleading Out: How Plea Bargaining Creates a Permanent Criminal Class” is available for preorder wherever you get your books.

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