Gus Bova/The Texas Observer

Jane Crow

The South has risen again, which means anything that involves substantive due process and privacy is done and gone.


Gus Bova/The Texas Observer

The overturning of Roe v. Wade by the Republicans’ right-wing Supreme Court majority marks a massive and most likely irreversible victory for a party long bent on returning the United States to the policies and hierarchies of the antebellum South for political gain. GOP strategists have, for over half a century, knowingly harnessed white fears of a Black planet to nostalgic fantasies of an Edenic pre-Civil War era. A time when putatively straight, white, Christian men ruled with impunity, commandeering the bodies, lives, and labor of all those around them—women, children, workers, slaves—without anyone challenging their dominance or, crucially, making them feel bad.

The so-called “Southern Strategy,” which used coded language to galvanize white voters’ racism into support for presidential candidates who richly rewarded wealthy supporters at the expense of the middle class and any semblance of workers’ rights, or a social safety net, has worked like a charm. Former President Richard Nixon’s evocation of “the silent majority” and his calls for “law and order.” Former President Ronald Reagan’s conjuring of “welfare queens” and “young Black bucks” and his stoking of a “war on drugs” that flooded U.S. prisons with non-violent, first-time drug offenders of color, then privatized them, awarding huge contracts to Republican supporters and donors. 

One might say that the Southern Strategy reached its full potential thanks to former President Donald Trump. He gifted his party with the realization that you can and should abandon even the pretense of dog-whistling in favor of saying the quiet part aloud—the better to summon the hounds. 

“What this all means is that anything that involves substantive due process and/or privacy is done and gone.”

And now the South has risen again, notwithstanding Associate Supreme Court Justice Samuel Alito’s nonsense on pages 60-62 of the leaked opinion. That’s where he pretends that the majority’s striking down of 50 years of settled law on the grounds that no real right to privacy or bodily self-determination exists in the Constitution’s 14th Amendment is a) legit and b) won’t “cast doubt on precedents that do not concern abortion.” Justice Alito does his darndest to convince us that this Supreme Court considers abortion rights to be different from “past decisions involving matters such as intimate sexual relations, contraception, and marriage [because] abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life.’”

But Michele Goodwin, chancellor’s professor of law at the University of California at Irvine isn’t buying it. 

“What this all means is that anything that involves substantive due process and/or privacy is done and gone,” she told me. Anything having to do with sex, contraception, sex, gender, or sex education. Anything having to do with the configuration of our most personal relationships, including interracial marriage, marriage for LGBTQ+ people, or the treatment of LGBTQ+ parents, children, and families. 

The evidence is in the way that red states are lining up now to pass new vote-getting, reputation-polishing, resentment-stoking laws under the winking eye of a Supreme Court that may claim that it never intended its decision to be read this way but has already signaled that it won’t interfere. No one knows this better than Texans, whose GOP political leaders are relishing the role they staked out with Senate Bill 8, which banned abortion after six weeks in direct and purposeful violation of Roe’s guarantee of abortion until the second trimester. The Supreme Court’s decision to let it stand this winter—to, in effect, do nothing to stop it—was the equivalent of waving the flag before a bunch of racecar drivers at the starting line. 

Just this past February, Texas state officials declared some gender reassignment therapies “child abuse” under state law and declared that parents who allowed them could lose custody of their children under a directive from Texas’ very ambitious governor, Greg Abbott.  (In March, a judge stopped this craziness, but hope springs eternal, Texas Attorney General Ken Paxton has pledged to take this case to the state Supreme Court, and hey, who knows, given the current climate, how long those pesky judges will be allowed to decide things like … law.)

What Justice Alito and his merry band are gifting to the red states, and especially those with politicians looking to vault themselves into the national spotlight ahead of the mid-term and presidential elections, like Texas’ Abbott and Florida’s governor, Ron DeSantis, is a fabulous Trojan Horse of an opinion. It’s tricked out in the trappings of a reproductive issue. It wraps itself in the mantle of states’ rights and claims allegiance to better representing the will of the people via their elected officials—not those nasty, old, unelected judges. 

So, to think that all this ruling does is return decisions around reproduction to the states while gutting virtually any form of legal abortion in the 13 states with trigger laws on the books is to miss the larger point. This ruling contains within it all that is needed for the completion of the GOP’s longer-term project: the undermining of democracy and the rule of law using every legal victory concerning bodily self-determination to stoke the Republican resentment machine every election for decades to come, using the Roe playbook as a template.

“The playbook comes straight from Jim Crow—and always has.”

Texas’ role is to keep competing with Florida for who can create the most outrageous restrictions and the most retrograde legislation on every topic touched by the liberty clause of the 14th amendment—and beyond. Clearly cheered by signs that this Supreme Court isn’t perturbed by, say, settled law, Governor Abbot said last Thursday that he would seek to overturn a 1982 court decision that obligated public schools to educate all children, including undocumented immigrants.” Meanwhile, this Supreme Court’s role is to pretend that turning these decisions back to the states is a constitutional advancement of state’s rights as well as a more perfect representation of the will of the people. 

“The playbook comes straight from Jim Crow—and always has,” Goodwin said. “This is the era of the new Jane Crow as well as the latest stop on a long, carefully mapped route to undermining democracy and the rule of law. Specific to matters of reproduction we’ll see the calling on of a blue book that will mirror Jim Crow and reflect the same prurient state efforts to derail civil liberties and civil rights for women. And just like Jim Crow and slavery, people will seek freedom in other states.” 

We got here because a Conservative Supreme Court brought us 2013’s disastrous Shelby v. Holder ruling, which tore the heart out of the 1965 Voting Rights Act that previously helped to ensure that voters would have an equal and unimpeded right to cast a ballot, particularly in states with track records of discriminating against voters of color. Eight years of aggressive anti-voter legislation later, some 2,000 polling places have closed, including in formerly covered states like Georgia and Arizona, where the 2020 election results were decided by fewer than 15,000 votes each.

But we also got here thanks to a Democratic leadership whose passivity, cluelessness, incompetence, and, frankly, comfort with the status quo, has ensured the GOP’s success every step of the way. President Joseph Biden alleged “outrage” over Justice Alito’s draft while being absolutely unwilling to take any kind of effective action against the final gutting of Roe, least of all jettisoning the filibuster. The party leadership that won on the backs of hundreds of thousands of new voters lured by the promise of change now doing nothing but wringing its hands and then trying to fundraise off a situation created by its own impotence and uselessness. 

The official Supreme Court ruling due out in June will, in every way, be about political expedience. No one should expect this court to undermine every human and civil rights gain of the past two hundred years all at once. Instead, this Supreme Court will return questions around abortion access and all the many issues related to privacy and due process to the states, having already clearly signaled to them that they can go ahead with any kind of outrage without fear of interference from the highest court in the land. Get ready to watch red states stoke their outrage machines for decades if not centuries, timed to election cycles and using Roe as their template.