Welcome to RJ Court Watch, a legal podcast produced by Rewire and hosted by senior legal analysts Imani Gandy and Jessica Mason Pieklo. This episode, we take a look at the simultaneous fight for abortion access and voting rights taking place in Texas with Rewire’s own Andrea Grimes. Andrea, thank you so much for joining us.
Andrea Grimes: It’s a pleasure, thank you so much.
Jessica Mason Pieklo: So Texas is basically putting on a reproductive justice clinic right now and Andrea as a Texan who has not only done some phenomenal reporting on these issues but also an activist I’m just going to kinda throw this out there and ask for your thoughts for the overlap right now in the fight for abortion access and voting rights in the wake of these two big Supreme Court we had.
AG: Yeah, so the State of Texas wants to make it as hard as possible to be anyone besides a cis white dude. To that end they have gutted abortion rights here in the state. We have some of the strictest TRAP (targeted restrictions on abortion providers) legislation in the country. At the same time we have what one federal judge straight up called racist and unconstitutional voter ID requirements that prevents people from being able to get out to the polls and cast their votes. And these two things together kind of ensure that power stays with the powerful. That’s what we’re seeing right now here.
JMP: I think it is is really important that we talk about, and I love that you framed it that way right out of the gates, both voting rights and abortion access involve fundamental rights. And in theory fundamental rights are fundamental. They are things that we all hold but really what we’re talking about is access to power. So when we place restrictions on those rights we make it harder to exercise them which makes it harder to effectively engage our civic power. Yet for some reason that has been a concept that has as a movement the reproductive rights folks have really still grappled with. So one of the things I’m excited about is to see Texans talk about that broader.
AG: Yeah, and lots of people are. In Texas, there is no such thing as being a one-issue activist here. The threats to our freedoms—that seems like a weird and hyperbolic thing to say, but that’s actually, our freedoms are actually under threat—they are coming from all over. So Texans can’t afford to only care about reproductive rights, or only care about voting rights. When you look at the kinds of issues social justice orgs are working on here, everybody has their finger in five different freedom pies.
Imani Gandy: Well I think what’s really great about what we are seeing in Texas is that it is exactly the opposite of what happened in Mississippi. I guess it was four years ago, back in 2011 when Mississippi voters defeated personhood legislation but because activists in Mississippi, and primarily reproductive rights groups in Mississippi, weren’t willing or weren’t able or just didn’t work with reproductive justice activists in order to defeat the voter ID law that was passed that year. So it’s really good to see that three or four years later Texas has ably merged the two fights so that as you said people understand that it is a fight for power.
JMP: One of the things that I thought was great, Andrea, was you put together this video footage that really captured the time and distance that a Texas has to travel to access an abortion in the Rio Grande Valley. And what was interesting to me, when we think about this in compare and contrast, what are the things that a Texan now has to go through to vote, and in particular with the election going on kind of as we’re recording this. There seems to be some good parallels and Imani I know those were some thoughts that you had as well regarding distances and burdens, because I think as we flesh that out it brings to life the idea that abortion rights and voting rights are related beyond just the idea of abstract concepts of power and freedom.
AG: Yeah, I mean in Texas you’ve got to have a photo ID to vote and it is not for a lot of people as easy as popping down to the local DMV. Some places are really far from them. Some people live really far from places where you can get a photo ID. It can be costly to get there in the first place. Some folks can’t physically go. The parallels, which I bet Imani can talk about in a smarter way than I can, are pretty clear, I think, between the voter ID burden and the abortion access burden.
JMP: And Imani gave us that beautiful GIFsplanation too.
IG: Yeah, well I think. You know, as I was working on that, and it was a monster, and it was fantastic I read, you know, 400-500 pages worth of voter ID opinions, and it sort of coalesced in my mind that when we are talking about undue burden with respect to abortion restrictions and undue burden with respect to voter ID, they are very similar. So, for example, Judge Ramos says in her lower court opinion, which you know then the Fifth Circuit puts the kaibosh, which then the Supreme Court said no, Fifth Circuit, go and suck it. Judge Ramos says, “the cost of traveling to a DPS office to obtain ID is a particular burden in Texas because of its expansive terrain. Of the 254 counties in Texas, 78 do not have a permanent DPS office.” So I think it’s really interesting when we start talking about the number of mileage, she goes on to say, “for some communities along the Mexican border the nearest permanent DPS office is between 100 and 125 miles away.” Now as Andrea jokingingly said to me on Twitter a couple of weeks ago, “well, are those uncongested flat miles,” which is what the Fifth Circuit sort of said, or sort of poo-pooed the idea that it was an undue burden for women to travel 300, 400 miles to an abortion clinic because “oh well the highways are particularly flat and particularly uncongested.” I mean, that is just a ludicrous notion. And one thing I wanted to add, which I was really surprised to find out, is that it is very, very hard to get a birth certificate. I knew that it was very very hard to get a birth certificate, but I found out when reading these opinions just how hard it is. For example, did you guys know that in Puerto Rico, if you were born in Puerto Rico, your birth certificate automatically expired in 2010. Just automatically.
JMP: What?! So what does that mean?
IG: So that means that if you are a Puerto Rican living in Texas and you need to get your birth certificate, you need to figure out a way to go, and you have to call up the people in Puerto Rico, whatever office or government office that supplies birth certificates. Now, in order to get your birth certificate in Puerto Rico, you need to have photo ID. But how can you get photo ID if you don’t have your birth certificate? So it’s this circular problem you know, round and round we go, and it is very, very strange. It is just very, very strange.
JMP: Well I think too that shows just how politicized the federal courts have become because in both the voter ID and the ambulatory surgical center (ASC) provision cases, we had the Fifth Circuit coming in and you know, basically just in a sneeze overturning a lower court ruling that these laws were both blatantly unconstitutional with a boatload of evidence and findings of fact to back that up. And, when we talk about the impact of that, I’m kind of a romantic and so I know that that’s a little cheesy, but it creates a lack of faith in the justice system to the extent any was existing or remaining, but it also creates chaos. I mean there is a real sense of ‘what are our rights? We don’t know what they are. They are in this constant state of flux as the courts battle over them.
AG: A thing that comes to mind for me in all of this is the idea that we lose faith in the justice system and in the idea that thinking we have recourse. But because the wheels of justice turn slowly, we also acclimate to having fewer rights. We get used to having a photo ID to vote. We get used to having to drive 250 miles to get to an abortion clinic. We get used to having to have a mandatory transvaginal ultrasound, and so when these things become status quo, as time goes on it becomes more and more difficult to get riled up about things, to get people mad, because we are so good I think at accommodating and adapting because we are humans, that it can, you know, these things that are really draconian and really egregious can come to seem normal or can come to seem even acceptable, especially in light of the fact that there always seems to be something worse coming down the line.
JMP: And it shows too, I think, the meaningless of the undue burden standard. I mean, really at this point, when you’ve got layer upon layer of restriction, how is it not an undue burden? And if we have a judge in one case saying it’s an undue burden to drive 150 miles to vote but another judge in another case saying its not an undue burden to drive 300, 400 miles to access an abortion clinic, you know, I think you are exactly right then that those ideas become just not if not accepted then at least no longer fought against.
IG: Right. And I also think that it becomes an issue of state borderlines. I mean, for example, the Fifth Circuit ruled, what was it, Mississippi’s admitting privilege law to be unconstitutional because some of the people would have had to cross the border into another state. So now is that what we are going to focus on? Not the mileage per se, but whether or not you have to cross the border into another state to get relief. I mean, I just find the Fifth Circuit so problematic. Any ruling coming out of Texas, any positive ruling coming out of Texas, you sort of see this collective sigh of relief followed by this collective groan of dread because everybody knows where the next step is and that next step is the Fifth Circuit. And frankly, I don’t think that there is, especially when it comes to Texas, I am not convinced that the Fifth Circuit will rule in any way except to reduce rights, whether it is voting rights, abortion rights, whathaveyou. I just think the Fifth Circuit, I don’t know what’s going on there, but there is something going on with the Fifth Circuit because they are so rabidly conservative and so conservative to a point that some of the things they say don’t even make logical sense.
AG: Yeah, I mean y’all are the lawyers, but I when I read the most recent abortion related ruling the Fifth Circuit came out with, this business you know of “it’s not our job to basically evaluate the law.” I mean, the intellectual lengths you have to go to, to disengage with the matter at hand in order to hand down a conservative ruling is incredible to me.
IG: Right. Right. And that is exactly what it is. The right always likes to talk about activist judges, but what we’ve got in the Fifth Circuit are a group of extremely activist judges who are willing to twist and contort the law whatever way they have to in order to come down with a conservative ruling.
JMP: And the Texas legislature knows this. I mean we saw this in the push for passage of HB 2 which Imani you chronicled and which Andrea you did such great reporting on the fight on the capitol floor. But just the number of times and attempts to get that bill in because they knew that they could get the Fifth Circuit to support it.
AG: It’s like they’ve got their big brother, the senior in high school, who they know is going to take care of any pesky bullies in the federal courts in any kind of lower court and they know that they can get the Fifth Circuit to do whatever they want to do, and maybe the Supreme Court as well.
IG: One can only hope. I mean, at this point if the Supreme Court does not rule that HB 2 is an undue burden then the undue burden standard means nothing. Then Planned Parenthood v. Casey means nothing. And that is just. I mean, I know we are in a place where we are facing a court that has gutted voting rights in Shelby v. Holder, and I’m nervous about the Roberts Court. But I have to believe, I fundamentally have to believe that they are going to look at this and say “okay Fifth Circuit you’re being ridiculous.” Because they are, as Andrea said, they are completely disengaged from the matter at hand. They did not want to consider the law, and I just have to hope that the Supreme Court is going to look at that and smack them down. I hope. I hope against hope.
JMP: Well, and in the Fifth Circuit’s last opinion, too, on the ambulatory surgical center provisions they basically said “look we’re the Fifth Circuit and we’re going to do things how we want na na na na na na to the rest of you.” Which to me, is an opinion written specifically to get the Roberts Court to take them up.
IG: Well I think the Fifth Circuit knows, and it’s the Fifth and I think the Tenth Circuits that are the only circuits that seem to be capable of or seem to have the ability to cause circuit splits. So whether or not the individual justices believe the crap they are writing, but I think their entire purpose is to force circuit splits and to get the Supreme Court to take this up. And you have people like Edith Jones, the former chief justice, who was just absolved of any wrongdoing of any charges that she was racist or abelist based on those comments she made at the University of Pennsylvania where she said basically Black people and Mexican people are more prone to violence and that mentally handicapped people should be executed because, you know, who cares about mentally handicapped people. I mean these are the people that are sitting on that court. And she has explicitly said that she wants the Court to take another look at Roe v. Wade. She has explicitly said that she wants Roe v. Wade overturned. And she is a known bully on the court. I mean she bullies her fellow justices. That’s what we are dealing with when it comes to the Fifth Circuit, and they are going to force a split, and I hope the Supreme Court goes with the rest of the country, the other 12 circuits, who have said, “umm.. admitting privileges laws have no medical benefit whatsoever, maybe we should lay off this voter ID nonsense because it is disenfranchising Black and Latino people.”
JMP: Well Andrea I have a question for you. One of the theories I’ve heard, and I tend to agree with it in part, is that a big part of the explanation for the push at such an aggressive restriction on abortion rights and voting rights is that this is in effect a last gasp from conservatives in the area given changing demographics and voting shifts. So that in reality it is really bad right now but Texas will be its own version of California in ten years and then liberals, progressives, will really have the last laugh. How do you feel about that as an actual Texan?
AG: Right. Well, I hope that it is true. The issue, my concern with that. I mean, I 100% think that the Texas legislature passing these kinds of laws is a direct fear-based reaction of a Texas that looks different than it did 50 years ago. It is browner than it was 50 years ago. I absolutely think that our lawmakers and their constituents are afraid of that. Now, the fact on the ground is that yes, we are, Texas is becoming a purpler, bluer state. Our big cities are all blue. Even down in the Valley, which has problems with poverty and that kind of thing, it is a very blue area. So I think that is why you see our lawmakers trying so desperately to silence what they see as dissenting, un-American, un-Texan voices. It would be great if in eight or ten years Texas is a big blue dot at the bottom of the United States map. That would be great. My concern is what happens in that interim period. What happens in the next ten years. How many Texans will lose faith in their ability to vote, to elect officials who can represent them? How many Texans will die from self-induced illegal abortions? How many Texans will be forced to carry unwanted pregnancies to term because they don’t have any other recourse? I mean, it is a lovely thought to think that in 10 or 15 years it will be blue, but we have to think of the damage that is happening right now. So, as a Texan my interest in it is not intellectual. I am deeply concerned about my neighbors, and that is something that makes it difficult and frustrating to write about the politics of this state because I feel like there is a lot of collateral damage and it can be difficult and overwhelming to try and cover that.
JMP: I think you hit on something really important though which is the idea that these laws can create chaos, but also the idea that disenfranchising can be taking away, almost through attrition, too, the ability to access your rights where you are so beat down, you are so frustrated, or you are so angry that screw it who needs the headache to try, and the terrifying thing is as you mentioned in the meantime there are real actual Texans lives on the line.
IG: I was just going to say, yeah, the notion that people get discouraged was actually born out in the evidence that was introduced at trial on SB 14, which is Texas’ voter ID law. They had experts talking about how, with every additional barrier you put toward voting people are less inclined to do it, because you know there are a lot of people who feel voting doesn’t really matter or they have other things to do, they can’t take the time off of work, they have to pick up the kids. So if you force them to pay $80 to get a birth certificate, or if you force them to stand for two and a half hours at the DMV, and if they don’t have a car they have to get a relative to drive them. All of these barriers just make it easier for people to say “I’m just not going to bother.” And those are the people that need to be voting the most. Those are the people that, as Andrea said, lawmakers and the majority now are afraid of because, the brown menace is coming. And so what do you do? You gerrymander all the brown people out so that they can’t ever form a coalition and gather power and elect people that look like them, that will represent their interests into power. And then you just get white dudes who are just hanging out, lording over all these brown people, taking away their rights and reducing their reproductive freedom, and it is just a cluster…mess.
JMP: It is a clustermess. The Roberts Court probably won’t make it any better when it takes up the issue of racial gerrymandering this term either because this is a post-racial society after all, thank you Chief Justice John Roberts. So Andrea, for our listeners who want to help, what can they do?
AG: Well, they have a couple of pretty good options. So one of the great things that has come out of this really disturbing attack on reproductive rights here in Texas is that our reproductive justice organizations and our reproductive rights organizations are stronger than ever. The spotlight has helped them grow and become a little more prominent. Which, I mean it is not the greatest outcome in the world, but it is nice, I suppose. So, the best thing on a practical level is to donate to an abortion fund. An abortion fund is a nonprofit that literally gives people money so that they can have abortions, or they give people gas cards or bus tickets so that they can travel to places where they can get abortions. So, there’s the Lilith Fund, there is the Texas Equal Access Fund, there’s Fund Texas Choice, there’s Bridge Collective, there’s Cicada Collective, there’s West Fund. There’s lots and lots of really good abortion funds here, and so that is one really cool, practical thing. And it is so cool to make a donation and get an email that’s like “Thanks! You just funded a tenth of someone’s abortion.” So it is a really kind of visceral happy-making feeling, which is nice because we don’t get a lot of that in Texas these days. The other thing, we have some really good political outreach groups. We have a really strong up-and-coming progressive social justice network, groups like the Texas Civil Rights Project. Groups like CPPP that do a lot of really great research. Donating to those groups, volunteering with those groups, volunteering with groups like the Texas Freedom Network, which challenges some of the, well, the Texas educational system is a whole other conversation.
JMP: We’ll have you back to talk about that.
AG: But the Texas Freedom Network does great work around comprehensive sex ed in schools and stuff like that. So, you know, it sucks that we are in the situation that we are in, but our social justice orgs here are really great.
JMP: Andrea, thank you so much for taking time out of all your reporting to join us. I will tell you the thing that gives me the most hope for Texas is all of that great social justice work going on, and the fact that there are advocates on the ground doing the real work and not just folks pontificating about it from the sidelines.
AG: It is an exciting time, an interesting time, to be a Texan.
Thank you for listening to RJ Court Watch. Be sure to catch all of our reporting and analysis on reproductive health and justice issues at www.rhrealitycheck.org.