A conversation with Indivisible's Meagan Hatcher-Mays on the Supreme Court, Abortion Rights, and democracy
She says, it's time to eliminate the filibuster and codify Roe v. Wade.
After what appears to be a right-wing leak of the Supreme Court draft decision overturning ROE, I had the chance to talk with attorney and Indivisible’s is Director of Democracy Policy, Megan Hatcher-Mays on WCPT-820AM. Here is an edited transcript of that conversation.
HATCHER-MAYS: Whether you've been paying attention for the last eight months or the last 50 years knew the Republicans have not really made secret of the fact that they wanted to take over the judiciary with conservative judges who would act as kind of like a supermajority for conservative policies on the court. They wanted to defend against progressive laws being implemented and also protect very, very conservative and extreme laws from being overturned.
What we saw this week was really the culmination of that fight to overturn Roe v Wade and to quote-unquote ‘let the states decide’ whether or not abortion should be illegal. This is a 50-year project. So, it's one thing to know that it's coming and then it's quite another to see the draft opinion written by Samuel Alito- it was a lot more bold than I expected. It was mean and dismissive, very caustic in its language about abortion both as a constitutional right and as a critical health care opportunity. It felt very difficult even though we all knew that it was going to happen given the makeup of the court.
We talked about the implications of the language in the draft Opinion.
HATCHER-MAYS: There were a few ways that the court could have overturned or significantly gutted Roe v. Wade. One way would have been death by 1000 cuts. In that version, little by little they allow more and more state restrictions on access to abortion care. They could have just upheld this 15 week ban and Mississippi, which is, by the way, full stop, a ban on abortion. But that way, it may have been a little bit easier for them to say that they didn't really overturn Roe v Wade. Instead, they decided to embrace a full-fledged and absolute overturning, not just of Roe v. Wade, but the case following it (Casey) that reiterated the constitutional right to an abortion. They are saying that the underpinnings of Roe that led to the decision in Roe are not valid. That’s an attack on all the other cases that were decided based on that same rationale. What they have decided to do is to go beyond overturning abortion rights, which is bad enough, but now they're attacking other constitutional rights as well.
Alito took pains to say he is that they are not doing this. But there's no reason why anyone should believe that he's telling the truth. He took pains to say that they are not attacking gay marriage. They're not attacking interracial marriage, and they're not attacking access to contraception. But that just simply isn't true. What the Republicans have already told us that's what they want to do next. Weakening the principles that support abortion cases, makes it easier for them to attack our other constitutional rights, which includes access to contraception, marriage equality and frankly, to criminalize any interpersonal sexual relationships that the government deems immoral. So, Lawrence v. Texas, which overturned state laws that criminalized sodomy- that’s back on the table.
We talked about cruelty and contempt, as now a part of the GOP Brand.
HATCHER-MAYS: If there’s one thing that serves as the governing umbrella that orients the Republican Party, it's to “own the Libs.” It is to make people feel bad. I think that liberals still have a lot of cultural power. And that is the thing that really bothers the right. The right doesn't have a lot of cultural power. There are not a lot of TV shows about how great Republicans are. They have a diminished status in our society's culture, but they have a lot of political power. So, they're using that political power to make people who make them feel bad, feel bad. They think that what they're doing is bullying their bullies. But really there’s nobody's bullying them.
Immediately after this decision over half the states will ban abortions. People may think they can still get to places like Illinois to have an abortion. But many states are trying to find figure out ways to prevent that from happening and we really don't know how the Supreme Court is going to rule on a situation where a state tries to limit interstate travel for this purpose. It's a very scary thought. The goal on the right is to send these oppressive, misogynistic laws into all four quarters of this country. This well-oiled machine on the right is going to stop at this. This is this is not the end.
At one point I asked about the recent comments of Justice Clarence Thomas, who said that Americans simply had to accept the court’s decisions
HATCHER-MAYS: I saw that headline and I just about lost that. I mean, it's not funny, but I couldn't help but just cackle out loud at the irony of Clarence Thomas of all people to give us a lecture on respecting the decisions of our institutions. It's funny, it's also deeply offensive. You're allowed to bully the legislative branch, apparently, if the outcome of an election is not to your liking- with bear spray and feces and urine and all that, and that's fine, but you're not allowed to complain if the Supreme Court wants to subject you to second class citizenship to carry a child to term. The Supreme Court has erected military grade fencing around the entire building. So now you can't even engage in First Amendment activity outside of the Supreme Court. If you complain that’s bullying, but if Donald Trump loses an election, I guess that's fair game on Congress.
We discussed the Court’s lack of legitimacy, and the problems that poses for the rule of law and for the workings of democracy.
HATCHER-MAYS: I've been thinking about that a lot. These things are linked- this idea of the court undermining our ability to participate in democracy and the courts now, decision to gut reproductive health care choices. Abortion is very popular. We should be able to protect it. But we can't do that because the court has already eliminated our ability to redress the political problems we're having with our elected officials. They gutted the Voting Rights Act in 2013, and they gutted it again just last year. In fact, the person who wrote that opinion was Samuel Alito. And now here we are, Samuel Alito, that same guy gutting abortion rights, knowing full well that he's already eliminated one avenue for redress. So, these things are connected.
This institution the Supreme Court is no longer one that we can rely on to protect our rights or to expand access to constitutional rights. All they want to do now is restrict down who has constitutional rights to a narrow group of people. I think we can all guess what those people are. So, we need to recalibrate about the institutions, the democratic institutions in this country, and how we want them to work. The people that we elect need to be able to play hardball just the way Mitch McConnell has done, to fix what he has broken.
I worried that we might be heading backwards to the Lochner era. She did not make me feel better.
HATCHER-MAYS: I think we all take for granted that Congress has the authority to pass laws that generally affect the common good in this country, that they can set a minimum wage, that they can pass laws that affect how different states work together or do commerce together. But that wasn't always the case. The Supreme Court used to say that Congress cannot set a minimum wage because the power of the contract between two individuals is more important than the Commerce Clause, which basically is what Congress uses to set the minimum wage. There was a ton of regulatory work that Congress was trying to do in the early 20th century that was getting regularly overturned by the Supreme Court who insisted that private contracts are more important than minimum safety regulations. There were bakers working 20 hours a day and getting lung disease from inhaling all this flour, but the Supreme Court was preventing Congress and local governments from passing minimum safety standards for the workplace, let a minimum wage or laws protecting child safety. It wasn't until about 80 years ago that the Supreme Court agreed that Congress does have the authority to set minimum standards and minimum wages, that they can ban child labor.
That is the scheme that we've been operating under for the last 80 years. Now we've got a Supreme Court that I'm not so sure agrees with that assessment. And there's a very real possibility, maybe even a likelihood that we find ourselves back in this Lochner era where Congress is completely prohibited from being able to pass any sort of minimum safety standards for the workplace or any other place, let alone set a minimum wage at just $15 or any other. Yeah, so that's really something to be worried about.
This week Eric Erickson, a GOP operative, said we should repeal the 19th Amendment. Hatcher-Mays laughed.
HATCHER-MAYS: Everyone is being so hysterical and histrionic about abortioeing banned that, basically, we should get rid of the 19th amendment that allows women to vote! By the way, Eric Erickson is so histrionic that he once pulled out a gun and shot the front page of The New York Times because they had reported on a gun violence epidemic. But okay, we're being histrionic about abortion.
We ended by talking about where all this leaves us.
HATCHER-MAYS: They've been very open about what they want to do. They want to ban abortion. They want to ban abortion in all 50 states. They want to revoke your access to contraception, and they want to criminalize anybody who tries to go against that doctrine. It is very scary people need to be prepared.
From the beginning, our side has been playing this game on a field built by the right. That that was a mistake. Their movement is not “pro-life.” Many of them who claim to be pro-life, have literally murdered abortion providers. We should have framed this as a debate about power and control: Neither the government or a church should not have power and control over your life and your choices.
Honestly, the best thing that we can be doing, just like you said, Edwin, is to fight for good candidates who are going to do what we need them to do, and to eliminate the filibuster and codify Roe v. Wade, and then repair the courts because we can't just keep giving them opportunities to send us back backward in time.