Tag Archives: US Supreme Court

Undue Burdens?

In recent years, judicial opinions have gained a unique status in the headlines of national news. As the courts have gained new status as a battleground where judicial positions rehearse divides in our body politic, the new status of abortion rights as a strategically posed issue has distanced debate from public health–or access to better health care–but a return to “first precepts,” to guiding freedoms, that have an eery parallel to how full-throated opposition to mandates of mask-wearing, hand-washing, social distancing, or vaccines grew as a defense of “freedoms.” So it was no surprise, in many ways, that freedoms of the unborn emerged as the latest judicial strategy to circumscribe access to abortion rights, and indeed affirmed a logic to revisit the constitutional rights of access to abortion in which old arguments are put into leaky new bottles as if they are arguments that are newly watertight, not only in Texas, but in ways that revealed a passionate hostility to abortion eerily akin to an electoral map.

How did this come to be? The territorial divide into “red” and “blue” states is almost a shorthand for anger on the ground at the expansion of access to abortion that Roe v. Wade guaranteed for all women when it historically struck down Texas laws that criminalized and prohibited access to abortion in 1971. The fight in Texas was not only with a long memory of the striking down of statutes fifty years ago, but the reversal of a decision that has been instrumentally used to foment a fault-line of red and blue states around foundational principles, rather than health or women’s rights to access comprehensive health care. Only in 2020, the fault lines that would have guaranteed an electoral majority for the Presidency and future nomination of Supreme Court justices did not hold–if it almost did–as new bellwether states like Georgia, Virginia, Arizona and Wisconsin overcame an often dominant hostility for a greater good.

John Seago, legislative director of Texas Right to Life, was content to entrust Justice Alito to represent his organization’s interests, as he deferred to the judgement of the one Justice with false modesty, as if giving thanks for his his role as an intercessory advocate: “We are [just] hopeful that Justice Alito will examine why the [request to stop the law being enacted on constitutional grounds] should ultimately be dismissed,” having identified a like-minded member of the court to recognize Texas’ right to ban abortion for all practical purposes as a felony against the public good. Texas is at the vanguard of eroding rights for abortion today, but the eagerness with which Seago proclaimed Scalia as an intercessor of sorts for affirming the state’s legislators’ ability to restrict access to abortion fit in a general process and broad strategy framed by dissenters to Roe v. Wade to curtail constitutional rights of access to abortion as a form of reproductive health care, of chipping away at consensus on women’s rights to privacy. Since this constitutional right was effectively sanctioned in the 1992 verdict permitting local states to restrict women’s right to privacy through”hurdles” to regulate pregnancy and reproductive health local legislators have already eroded as the law of the land.

The convergence of an eager local resistance to include abortion within reproductive health care and an eager legal culture attentive to restrict abortion in Texas has gained an aggressive urgency in Texas. But Texas is hardly an outlier in the nation, or atypical in the terrifying restriction of reproductive rights–it is one of the more legally creative sites of resisting access to abortion, but hardly a national outlier if one of the more visible sites for extreme legal experimentation in taking local control of the law of the land.

As much as Roe v. Wade is settled “law of the land,” the dissonance and pitched battles over access to abortion are less based on values of “human empathy” to the rights of the unborn–a specious argument that seems dangerous terrain to enter–than the deeply compromised terrain of reproductive health that women face across America, where women’s rights to access to abortion has needed to be defended. If Texas was long a lynchpin of sorts in this battle, divided by access to clinics and sharply divided as to the place of abortion in reproductive health care, the divided politics and demographics of Texas may conceal how deeply the curtailment of women’s access to abortion underlies division into “red” and “blue” states, as much as other ideological lines of debate: while this is not prime, the deepest heartland of deep red states map surprisingly clearly onto the diminished reproductive rights in telling ways–

–as those states that protect rights to abortion through “viabilty” established in Roe, or even extend the access of women’s protected rights to abortion beyond that date are more solidly “blue” and dominated by democratic legislatures.

How did the state become such a vanguard of the erosion of abortion rights and attack on science? The prominent place of Texas as a vanguard and a lynchpin of the curtailment of access to abortion may be but the first in the sustained curtailment of rights to abortion, questioning what constitutes an “undue burden” on women with increased aggression and alacrity. Does this pressing urgency partly not derive from the deep enjambent of attitudes to abortion that distinguish the state, placing the issue of abortion as a hot button issue that demands attention as it seems to lie, locally, at the enter of the culture wars? The state has one of the sharpest discontinuities in rates of abortion per pregnancy in the nation–juxtaposing counties with rates cresting half of all pregnancies with the majority of counties showing rates about 10% or even half–in ways that may make the state one of the sharpest sites of dissonant practices where cultures felt invaded by a new culture of maternal health care in Houston, Dallas, San Antonio and El Paso, pockets of higher rates foreign to the surrounding state–unlike, say, Florida, Washington, or Massachusetts, but akin to some parts of western New York, Oregon or Maine.

Johnston’s Archive, 2011 (published 2019)

Percentate of Pregnancies Aborted in Texas, 2009-2-11, William Robert Johnston, Johnston’s Archive

This was combustable grounds for finding support to wage a battle against how Roe v. Wade had changed the law of the land, and to provoke outrage at the Supreme Court. The reiteration of heated ideological conflict has been refracted and recast in important rhetorical ways as technologies of determining the presence of a heartbeat on iPhones and handhelds has offered apparent proof of the need to redetermine the medical threshold of “viability” by which expert medical testimony had established. Although the verdict of Roe v. Wade set, as it has been contested as a threshold for access to abortion, the acceptance of local jurisdictions’ ability to place hurdles before women exploited acceptance of abortion among evangelical groups to seek to restore “balance” on what was painted as an extreme decision, offering autonomy to the pregnant woman to end her pregnancy. And as the widespread access to the ultrasound as an indicator of pregnancy, the claims cardiac activity have made to determine the “self” of the embryo has made everyone into an expert, and demoted the role of expertise in determining the medical explanations for access to abortion, recasting a historical question of medical ethics–raised as early as the Hippocratic Oath–by personal convictions and passionate intensity. The

In ways that have shifted the balance from the law of the land to public opinion–involving everyone from town councils to state legislators to take a stance on legal precedent–almost seems to have been enabled by how the televised hearings to confirm Supreme Court justices include an obligatory questioning of the status of Roe v. Wade as settled law have encouraged all television viewers and city councils to frame their own thresholds, as it has led many Republicans to develop abortion as a “wedge” ideological issue to divide the nation, encouraged not only by the accessibility of Apps to “detect & listen to your baby’s heartbeat,” exploiting the aural link of the unborn to a diffused technology, but mobilizing an openly authoritarian understanding of limiting access to abortion in early modern ways.

The unprecedented ‘freedom’ of removing state policies from judicial review by entrusting their enforcement to citizens, rather than the state’s District Attorney, suggests an abdication of the responsibility for enforcing a law that Chief Justice Roberts, himself a Catholic, begged the Court to “consider whether a state can avoid responsibility for its laws in such a manner.” The rise of “heartbeat bans” now launchd in a number of states suggest more of a multi-front attack on the “undue burdens” that restrictions on a woman’s right to chose before viability, challenging the Supreme Court and public opinion to determine whether they place “undue burdens” on women.

\States Where “Heartbeat” Legislation Have Been Passed, 2021/Law Atlas

All were limited by state court actions, designed to exploit a roadblock placed between women and abortion rights. The restrictions on reproductive health recasts the procedure as compromising the “rights” of the unborn. The series of unprecedented legal rulings and state bills have served to restrict women’s rights to abortion, and curtail rights in favor of the unborn-effectively overturning the right to abort a pregnancy before “viability” outside the womb at twenty to twenty-two weeks. The struggle against the practice of abortion has become one against science and medicine, or medical expertise, in the Trump administration, as most American women of child-bearing age lived in states that had adopted restrictions in conflict with medical science, but the intensity of this opposition to scientific evidence increasingly became Texas, whose governor consolidated his popularity as he endorsed the hope of abolishing abortion outright in the state, banning doctors of pregnant women to “knowingly perform or induce an abortion” and then declaring the “aiding and abetting of abortion” to be a felony, while clarifying in false faith that those who undergo the procedure are not liable.

Ultrasound Showing Embryo at Six Weeks

The calling into question of what is an “undue burden” is a response to the new composition of the court which Alito is a pivotal figure, as a Catholic jurist. The confirmation since 1992 that government can create laws that restrict a woman’s right to abort before fetal viability have been distorted and expanded in the past thirty years, in order to permit the state to redefine public health access and deny women the most personal choice of whether they which to bear a child. The bevy of new cases that seem designed to put on the front burner state legislatures’ rights to erode fetal “viability” from twenty to twenty-five weeks–replacing that threshold with new standards from six weeks to fifteen weeks, or two months before viability-suggests dangerous elasticity of balancing a “burden” against state legislators’ ability,

The decision to allow the law to stand, both by the Supreme Court’s September 1 ruling, a decision issued without legal argument, a week before Mexico’s Supreme Court ruled criminalization of abortion to be unconstitutional across the border, and an Appeals Court allowed the Heartbeat Law Texas’ Governor signed to take effect. The “heartbeat” legislation that claims to detect the flutter of cardiac activity to warrant legal protections is both a compromising of women’s long recognized rights, and jeopardizes the well-being of pregnant women by placing the body–as revealed by a mandated ultrasound, before the heart’s chambers are even formed–above a rationality of the mind. The outsized discrepancy of using the visualization tools that allow an ultrasound to register cardiac activity when a woman might not even be conscious of pregnancy suggests an eery surveillance of the womb, even if it is presented as part of a discourse on unborn “rights,” as if these rights were entrusted to elected representatives, rather than the rights of the citizens they were entrusted to represent.

At least twelve states’ courts have imposed restrictions or requirements before women can obtain an abortion, judged not “burdens” but that effectively have weakened the “undue burdens” felt by women.

Long before the mother can sense the heartbeat–or the heartbeat can be sensed by the human ear–the ultrasound has provided a powerful new metric for anti-abortion activists to restrict access to abortion. In marginalizing or bracketing of medical science from the “legality” of an abortion, the reading of the “sacred rights” of the constitution as extending to every “person”–rather than to all citizens–given that these persons are “endowed by their Creator with certain unalienable rights, . . . among these . . . life.” Such “sacred rights” extend, in an oddly authoritarian reading of the law, in a modern misreading of a credo of the Enlightenment, to “life” such as it is within the womb, but registered by ultrasound. The law invites and rewards anyone not a state or government employee to sue anyone performing, inducing, aiding, or abetting an abortion after a heartbeat has been detected, treating “fetal endangerment” to a form of felony–seeing “life” as the first fits and hints of detected cardiac activity. The abandonment of medical judgement or ethics in such a new technology of good government that both aggressively and regressively remaps access to abortion in ways dangerous to our society and collective well-being.

New Texas law allows for civil lawsuits for abortions performed after  detected heartbeat
Governor Greg Abbott Celebrated the Signing of Fetal “Hearbeat” Bill with Texas Legislators/Capitol Ledger, June 1, 2021

The ability to reveal the very first firing of electronic signals from cardiac cells that occurs around six weeks from conception is taken as a proxy to push the limits of a “burden” on women back to an early date, using the first impulses that allow the heart to form to force women to carry children to full term, independent of whether they want or are in a proper emotional or financial position to bear a child–or in a position to provide the child a compassionate childhood or love.

The reading of the “inalienable right” of “life”pinned heartbeat laws to a social media meme. The range of medical tools to abort the unborn fetus or embryo had been met by a panoply of legal restrictions pursued as a righteous cause that would foment much of the state against abortion, as if it were a defense of Texan liberties. The landscape of abortion rights had already, of course, been rather consistently challenged in Texas, as a campaign to curtail access to abortion within health care promised by public insurance plans: local law-makers had famously begun to curtail access to abortion almost a decade ago, by halving the clinics including abortion as part of health care services and shuttering clinics along the San Antonio-El Paso corridor–

–that marked a severe reduction in

Preventing access to abortion by local legislative action was vigorously pursued by a Republican majority and Attorney General with avidity as a purification of the state and reducing clinics in Dallas-Ft. Worth, reducing abortion providers in rather viciously strategic terms–had not the Supreme Court intervened and prevented abortion clinics from only being located in urban areas, to serve the 5.4 women of reproductive age who lived in the state in 2013. The law seemed a means to combat the spread of new technologies, as restrictions with no basis in science or medicine multiplied for many women across America, increasingly sending “abortion pills online Amazon” up 500% nationwide, as “how to have a miscarriage,” “home abortion,” and “self-induced abortion” jumped 75-100%, although “medical abortion” became distinguished as one of Google’s “breakout categories,” growing by more than 5000%. The terms were popular not in Texas alone, but in a broad landscape where abortion rights are threatened, and provoked intense online searching for taking abortion into one’s own hadn by women in Oklahoma, Mississippi, Louisiana, Idaho and Alabama living in fear that the Supreme Court would revisit Roe v. Wade became real real by 2019.

The nation may well be haunted by the fear of our entry into an era of DIY pregnancy health care. A curtain was terrifyingly lifted on that landscape in by skrocketing searches across the nation for “how to have a miscarriage,” spiking by over 95% in Arkansas, Oklahoma, and Indiana, and by over 75% in Alabama and Mississippi. (Half of such online searches turning to Google to inform themselves about self-abortions were made by women betwen 15 and 19; “home+terminate+pregnancy” is less common than “home+abortion” or “how+to+abortion,” but suggest a landscape demanding better knowledge and information about medically safe abortion practices, and suggest a looming landscape of health crisis, characterized by disinformation about terminating a pregnancy and the diffusion of half-truths about health care, removed from medical judgement.

The fear across Texas is palpable, with new legislation preventing medical personnel or doctors from providing abortificients to any women more than seven weeks pregnant. The reduction of access to abortion that the closure of clinics due to the law HB2 that the Court took up and reviewed already shifted the landscape of clinics, not likely ever to return to pre-HB 2 levels in the state as Obamacare became law. While the criminalization of abortion from six weeks of conception in “heartbeat bills” cloak the authoritarian curtailing of civil liberties in ethical garb, the hope to prevent abortion from occurring in any clinics borders on zealotry to end legal and safe abortion in Texas and effectively shutter all remaining clinics in the state. John Seago boasted Texas State Bill 8 was “written to succeed where eleven other states have failed [to restrict abortion]” before Greg Abbott boasted to his supporters “basically, we’ve outlawed abortion in Texas”–and is entertaining outlawing mail-order birth control.

While alleging it presents no burden on women, or prosecution of those seeking abortions, it encourages all citizens to remain vigilant about any abortion performed, promising large monetary rewards of a minimum of $10,000 excluding legal expanses for notifying the state of the crime by a logic that is modeled after malpractice. John Abbott told constituents that “basically, we’ve outlawed abortion in Texas”–a massive runaround of a right the Supreme Court relatively recently reaffirmed, and also moved to block abortion pills from arriving in Texas from out of state, and to prevent the most common and safe abortion procedures from being performed. The nation was increasingly confused, as “abortion law” jumped in Google Trends, from just before September 1, by about 100%, nationwide. The insecurity immediately generated by the Supreme Court’s readiness to refrain from any objects to Texas’ decision sets the stage for decisions of more states, and raises a chilling fear of the imbalance of the religious composition of the bench–no doubt a consequence of the difficulty of confirming justices who supported abortion rights openly, or defended the right to privacy or substantive due process. Yet the bench confused the nation about the legal understanding of abortion rights in unforgivable ways.

Google Trends, Abortion Law, 2021

Two-thirds of the current Supreme Court were raised in the Catholic faith. Catholics on the bench have been appointed by Republican Presidents, as conservative Catholic ideology invested terrifying new authority in strict constitutionalism that echoes the respect for a doctrine of patriarchal obedience that has become increasingly close to reverence for its authority as a scriptural lodestone, independent of all ethical considerations. In ways that have echoed the current authoritarian dynamics of the Republican party, the Catholic conservatives on the court–Alito, Coney Barrett, Gorsuch, and Thomas–have helped shape a reading of strict constructionism based on respect for doctrine. The respect for doctrine, without democratic examination, may well have led the Court to endorse the Texas law on which John Seago and others hoped Alito would guarantee, by an endorsement without hearing oral arguments or evidence. The reduction of abortion from a medical procedure to a felony, a “wrongful death” to be prosecuted akin to medical malpractice, removes medical judgement of viability and creates a concrete criteria out of the embryo’s cardiac activity–the “heartbeat”–that most evanescent of perceived signs.

The paradox of such an endorsement of strict constructionism as a basis for restricting rights to health care is of course at ends with an increasingly secular society; it is presented as a means to contain the fears of the damages that a secular society can create. Yet the results on the ground without consideration of actual implications are terrifying. The attack on including abortion in health care services in the state openly threatens women’s adequate health care–and physical as well as psychological well-being. The shrinking number of clinics providing abortion, feared to be reduced to seven clinics for over five million women, had generated a live “Texas Abortion Clinic Map” promising to provide assistance to pregnant women in need with travel expenses–gas; bus/plane tickets; hotel who call 1-844-900-8908. How did we get to such poor bearings to adequate maternal health care? In large part by tabling the question of ethics to try to contain the constitutional right to abortion in restrictive ways by legal maneuvers, in order to sever abortion providers from medical health care. Already, many women are flooding clinics in nearby states, seeking to find health services that SB8 has declared a felony.

This might be a way of bankrupting Texas, if it didn’t effectively close all abortion clinics in the state. Perhaps vigilante-style arrests fit the go-it-alone age skeptical of coronavirus vaccines–or even of infectious disease–before personal liberty; the framing of abortion as a criminal act that extended to all who “aided and abetted” its practice replaced norms with a laissez faire notion of law. Seago’s prideful boast “this is a bill written to succeed where eleven other states have failed” vaunted the shift of burdens from women semantically, by inviting anyone who had heard of the procurement of an abortion after cardiac activity is detected when women are enjoined to listen to the heartbeat in unborn they are bearing to take stock of “their” choice to abort was, indeed, a bid to deny choice in the nation.

Texans are already required to they are far less about medical ethics and not an aggressively preemptive strike to the extension of reproductive health care within public insurance plans. If anti-abortion jurists like Antonin Scalia and Byron White have long argued that int heir “extravagant use of judicial power” jurists had “concocted” a “right to abortion,” lawyers have framed the detection of a “fetal heartbeat” in the embryo to concoct a basis for fetal personhood six weeks from conception. This far more dangerous fiction of mapping the start of personhood is a steep erosion of women’s rights that manipulates the role expert medical opinion played in Roe v. Wade as a basis to affirm access to legal and safe abortions before fetal viability to a landscape of legal restriction that limits access to abortion by barriers to health care, money, and the nature of the health insurance policy you have–deep ethically problematic obstructions–from preventing abortion from being funded by Medicaid to requiring medical screenings or procedures without therapeutic benefit–to remove access to abortion from economically disadvantaged populations while it is available to those with different health care policies.

Rather than allowing abortion to be recognized as a part of health care, in a battle between states’ rights and reproductive rights, targeting the constitutional right of pregnant women’s liberty to choose an abortion in the United States, on ideological grounds, by exploiting our current fractured political map.

Guttemacher Institute

The rather “dark map” of restrictions on abortion that state legislators have attempted to pass or passed to overturn what was once settled law of the land suggest a local legal activism with stunning parallels to secession from the Union or what was judicial consensus since 1972. Comparisons to the 1857 denial of citizenship on the basis of race (Dred Scott) or the war crimes of Nazi Germany (anti-abortion activists regularlytie Margaret Sanger, founder of the Birth Control Review, and Planned Parenthood, to Nazi doctors or the KKK) attempt to reclaim high moral ground in public opinion that “heartbeat laws” offer a popuilar visual on placards, social media, and right-wing mass media to bypass federal law–by introducing or adopting laws advertising restrictive abortion laws in multiple states, laws openly crafted to strike fear into doctors, who are no longer entrusted to follow ethical standards in their own work.

Alabama latest in series of states passing restrictive abortion laws | Fox  News
FOX News

The map is of course misleading, but suggests the scale and concerted nature of legislators’ attempts to block or constrain access to abortion on local jurisdictions by 2019-21, independent of the burden they posed on pregnant women.

The optic of ethics in which abortion is debated since the Hippocratic Oath featured a vow never to provide “abortive remedy,” or give any “deadly drug,” lest doing so contravene the sacred relation of doctor to patient, is essentially replaced by the broadly restrictive nature of laws that forbid abortion even in cases of incest or rape, in many states. The agenda is rooted in taboo. Even if the heightened restrictions on abortion in Texas were unprecedented, and unimagined by anti-abortion activists until recent years, supporters felt confident the restrictions to abortion were sufficiently cloaked from courts to be a done deal. Activist groups smirked with full confidence in a turning of the cultural tides, “it all comes down to Alito,” entrusting the Justice to restrict women’s access to abortion or pry abortion from pregnant women’s constitutional rights. Justice Alito, the same Justice who as circuit justice would entertain the appeal from Texas Rep. Louie Gohmert to pose a 12th Amendment challenge to seating of state electors on January 6, 2021, to delay certification of the electors vote before gaining an injunction to invalidate Joe Biden’s massive electoral victory, was hoped to radically curtail access to abortion of women of childbearing age never issued the injunction to stop the certification of electors. He however summoned enough votes from the bench to decline to interfere in the implementation of Texas’ restrictive laws, rather than rebuffing it himself.

The new medical construction of “fetal heartbeats” provided leverage, even if the cardiac activity called a “heartbeat” is slight and difficult to detect. Embryonic cardiac activity is far harder to perceive than the thum-TUM of a health sinus wave. Yet calls to protect them flooded social media and offered a flag for the movement to create a dramatic a shift in the landscape of abortion. In the name of “protecting the unborn” of whom they cast themselves as the advocates and lawyers, anti-abortion activists have introduced a spate of “heartbeat laws” that stand to remove abortion from medical care in ways that will stand up to judicial review–to win support from courts that grant legislators’ abilities to frame local laws, rather than address ethics at all. The actual remove of such laws and debates about cardiac activity of the unborn from ethics–and their roots in the fractured and fragmented ideological landscape of the United States–is evident in a map of the distances women were obliged to travel to get abortions; if the band of blue mirrors the Rockies, the red expanse in the header to this post tells a sad story. Overturning Roe would within a year increase the average distance of child-bearing women about 250 miles from the closest abortion clinic, and decrease abortions by just under a third–or 32.8%. Indeed, Texas clinics that provide abortion services report about 90% performed after the first six weeks from conception.

While fought on social media as about “heartbeats,” the fight is for a new national geography of health care, even if it is fought now in the Texan legislature and Texan courts.

Predicted changes in abortion access and incidence in a post-Roe world -  Contraception
Predicted Changes in Travel Distances to Clinics providing Abortion Nationwide/Contraception 100: 5, Nov. 2019

The rise of “trigger bans” that would go into effect if the law is overturned in eight states provide low-hanging fruit for changing the geography of abortion access, and thirteen additional states are likely to follow suit, immediately growing the distance of 40% women between 15 and 44 from abortion clinics.

FILE - In this Feb. 14, 2012, file photo, Janet Folger Porter, president and founder of Faith 2 Action, posts signs during a news conference at the Ohio Statehouse in Columbus, Ohio. Bans pegged to the “fetal heartbeat” concept have been signed into law in 12 states, but all have either been struck down or temporarily blocked by the courts and none has taken effect. Porter urged supporters to “take heart” when faced with obstacles — and beseeched lawmakers to “have a heart” and vote “yes" despite their constitutional concerns. (Brooke LaValley/The Columbus Dispatch via AP, File)
Faith2 Action Founder Janet Folger Porter Posts Signs in Ohio Statehouse, February 14, 2012/ Brook LaValley, Columbus Dispatch/AP

The legal fight in Texas over SB 13 is an attempt to provoke this new geography that pushes abortion outside health care, and indeed outside prenatal care, but has flooded social media and protest placards with the symbolic image of a red heart, ever since Faith2Action founder Janet Fletcher posted on Valentines Day, 2012, the primal emoticon of the heartbeat as a manifesto and cri de coeur in Ohio, in an attempt to persuade local legislators to curb women’s constitution rights to health care for humanity, that has migrated to nation-wide circulation, and was morbidly contrasted to flat-lining at the Right to Life marches in Washington, DC during the Trump Presidency. Is the call to circumscribe the geography of rights not a “grassoots” effort of political involvement by the Republican Party for some time?

Pro-life sign at 2019 annual March for Life rally in Washington, DC Tyler Orsburn/CNS)
Fetal heartbeat' in U.S. abortion laws taps emotion, not science | CTV News
Columbia, South Carolina Sept. 10, 2019. (Jeffrey Collins / AP)

There is of course no similar sinus wave in a six-month embryo, whose cardiac activity is a reflection or response to the heartbeat of the mother who is bearing it in her uterus, but this is a casebook example of how the diffusion of only a little knowledge can go so far to cause untold pain, by transposing the now omnipresent tool of hospitals to register the likelihood that an unborn come to term–“fetal wellness”–to a way to restrict abortion rights for women and assert claims on authoritarian terrain of “fetal rights.” Proving that a little knowledge can be instrumentalized to cause great harm, the “Smart Fetal Heart Monitor” now widely available has helped envoice the embryo by a device shaped like a feeding bottle, promising the ability to “listen to your baby’s heartbeat,” even before the “baby” is born.

Babytone DIY Fetal Heart Monitor, $59.00 USD on Amazon

The Texas law promoted by the “heartbeat” icon has made the figure of a heartbeat, foreign to the embryo until its chambers form, and even then not registering the flow of oxygenated blood in cardiac chambers, into an alternative flag able to catalyze a social movement that helped legitimize a legal logic being devised in quite strategic ways for the court’s ears. But the adoption of the law fit the gerrymandering of political space in Texas, where the intensified opposition between political parties have exploited abortion policies as a divisive issue, behind the rallying heartbeat flag.

The flag long served to chastise state legislators for their failure to defend the rights of the unborn. While the very notion that state legislators to contravene settled constitutional law boggles the mind enough to generate much head-scratching, and some states to assign funds to provide money for abortion access, and the city of Austin to reject Texas’ ban on abortions beyond six weeks, rejecting the conscription of Texas citizens to make citizen’s arrests for performing abortions–affirming a blue opening, as it were, in a deep red state. As Donalds v. Jackson is being heard by the US Supreme Court to address the fifteen-week limit on abortion in Mississippi as a chance to revisit precedent, the Texas law gave rocket fuel to states’ rights to restrict abortion across the mediascape, energizing the anti-abortion activists at the hopes of realizing a landscape where preventing access to abortion was no longer an “undue burden” on women. Even as federal judges in Texas are weighing the Dept. of Justice’s intervention against allowing private citizens to sue those assisting in an abortion beyond six weeks from conception, the intensity of a fight on legal grounds is bound to continue, far removed from questions of ethics or medical ethics at all. It is, rather, disturbing evidence of the fragmentation of political space, where the rights of young mothers and indeed the health of infants’ actively beating hearts is sacrificed on an altar of intensely oppositional politics of gerrymandering and redistricting designed to shore up Republican seats, in a landscape of ever more pronounced political division–

Gerrymadering of Texas Districts Proposed by Republican State Senators, September 2021 TIGER/Line and Texas Legislative Council/Washington Post

–lines which echo the elimination of access to abortion in pockets of Democrat-voting cities in a local landscape that would offer no access to pregnant women to terminate pregnancies.

1. The fear of curbing of women’s health care options that were amplified in Texas–as if by extension of the vigilante style expansion of self-styled Border Patrol policy was a curtailing of civil rights akin to the restriction of citizenship for migrants, central to the authoritarian appeal of Donald Trump’s Presidency in which antiabortion activism had expanded with increased force. One can map Texas as a microcosm of a divide in the difficulty of access to abortion and the heart of a divide between Americas with diametrically different concepts of access to abortion as a right to pregnant women’s health care.

Rather than having to do with medical “ethics,” the battle for enshrining an authoritarian restriction of abortion to a window of the first six weeks after fertilization seems a gambit from antiabortion activists, while the Supreme Court seems balanced in their favor, who have been plotting to rejigger the law of the land to impose well-crafted legislation on the nation. Governor Greg Abbott’s celebration of the enforcement last monght of Texas State Bill 8–“SB8”–only followed longterm agitation by antiabortion activists, eager to shift the status quo of health care prompted fears of a shifting landscape of legal rights and fears of a landscape of reproductive health and access to health care where rights to abortion were severely curtailed. Fears of emerging divides access to health rights is a terrifying inheritance of the strategy of Republicans in the Trump era, turbo-charged by members of the Federalist Society who find no constitutional right to abortion to exist.

While “rights” are assumed in the Constitution to extend across the land, the increasingly sharpened ideological divides of the nation that are now refracted in our electoral landscape. The different state laws that have prevented or curtailed abortion as a right of pregnant women before the viability of the fetus or embryo they bear have been eroded nationally, so that the national landscape is less defined by “rights” or health care–or medical science–but as subject to local convention that have re-interpreted the standard of “viability” in small but critical ways, undermining national consensus about health care: some 43 states restrict abortion in some way after a point in women’s pregnancies that is determined by local government; 47 states have introduced over 600 abortion restrictions that erode legal consensus in an attempt to force the Supreme Court to review Roe v. Wade.

The divided landscape that pregnant women face place new stresses on prenatal health care workers, but closely reflects our toxically divided political landscape as it has become a push-button issue to generate poltical support and ideological rigidity. As the fight for abortion rights has moved from medical grounds to legal prescriptions, areas affirming abortion rights have shrunk, under an onslaught from more “conservative” Americans increasingly attracted to authoritarian politics and politicians.

thomhave_map1.png
Risks of Reduced Reproductive Rights/American Prospect, January 2019

The fears of placing about two-fifths of women between fifteen and forty-four at increased travel distance to clinics offering abortion–by two hundred and fifty miles average, for women in states who failed to enact local protections.

Predicted changes in abortion access and incidence in a post-Roe world -  Contraception
Contraception, 2019

The March, 2020 Executive Order in Texas to delayed or postponed all medical procedures not necessary to preserve a patient’s life be postponed in the current pandemic would limit access to abortion–removing it from comprehensive health care–that already seemed to create a landscape of reduced access to abortion that seems to have gained a cartographic logic to revise notions of health care by placing women of child-bearing age at a striking geographic distance from abortion providers–deferring the demand for care to nearby states when possible. The dramatic shift in driving distance within Texas that the curtailment offered in just a few decade suggested a chess-board like strategy of narrowing the health options of child-bearing women, or restricting practical choices for the poor.

Right to Life groups trusted Alito’s willingness to allow the Texas Heartbeat Act, content that a legal architecture had been devised to shift attention from the burden on pregnant women to the moral good. They had long been eager to catapult their efforts to tip national law to national attention, in an era when several states–here shown in aqua–had enacted preventive guarantees on access to abortion.

The new blocks of “red” states may not be dense with population, but suggest real geographical obstacles for poorer women to access abortion in a huge number of areas below the Mason-Dixon line. As if remembering the support that Donald Trump gave to Right to Life organizations, antiabortion activists felt increasingly secure they had obviated legal objections to the ‘undue burdens’ placed on women seeking abortion–even if they had guaranteed effective closure of abortion clinics and access to abortion across the state. For they had crafted a way to restrict access not as a prohibition, but rather as a “right” impervious to judicial review of the sort that had threatened past state legislation.

The national landscape is certainly hard to process. If the 2013 restriction of abortion and abortifacients and the restriction of abortion clinics to meet the standards of surgical facilities closed about half of the forty one clinics in Texas, in practice all clinics were shuttered as of September 1, 2021. If facilities offering abortion in licensed clinics have been diminishing since before 2016, when this map dates, their decline has been matched by the rise of “Crisis Pregnancy Centers” offering women the promise of free services, images of aborted fetuses that are designed to shame them for their choice, and misinformation about abortion and its alleged emotional and physical risks of abortion, as well as moral chastisement and religious beseeching, if not outright moral berating, designed to replace the medical care or reproductive health settings with sites of reflection, centers that now far out-number abortion clinics three to one in the nation–and not only in “red” states alone.

These centers are largely run by religious women as ministries, but if they receive state funding in fourteen states, most deceive the poorer clients they seek to attract by emulating medical clinics, by including rooms for ultrasounds and staff in scrubs, and pregnancy tests, \without professional training beyond evangelical ministry and a commitment shepherd women toward Christ. Tax-payers foot the bill in Iowa, South Dakota, Pennsylvania (for ninety-eight CPC’s), Arkansas (forty CPC’s), and Mississippi (forty CPC’s), abetted by Texas tech billionaire Farris Wilks’ “Online for Life” non-profit has helped Crisis Pregnancy centers better market themselves to low-income audiences of color online.

Blackbird Flim, 2016

Right to Life organizations had long awaited the tipping of the scales of justice that the Trump administration had set into motion–not only on the Supreme Court, but misinformation about abortion on a near-global scale: the global organization of “Heartbeat International,” which after securing tax-payer funding for “Crisis pregnancy” centers in the United States before the ruling on Roe v. Wade, advancing anti-abortion interests in eighteen countries globally, describing the negative effects of abortion–from cancer to risks of mental illness to medical complications–and providing ultrasounds. The growth of pro-life centers as National Institute of Family Life Advocates, boasting 1,200 of its 1,600 pro-life Pregnancy Centers to be licensed medical clinics, aims to help “vulnerable women and families choose life for their unborn children” across the nation, providing “legal guidelines” to protect pro-life “pregnancy centers” fulfill their mission by protecting “centers from legal pitfalls.”

The growth of “Heartbeat International” and its global natalist crusade had developed before Roe framed abortion rights in the context of viability of the fetus outside the womb, at twenty-four to twenty-eight weeks or of gestation, but the state of Texas became a battleground for overturning protections on access to reproductive health might well be placed in the deceptive disinformation about the risks abortion exposes women–from mental illness to cancer to marital relations–lies that the Ohio-based Catholic non-profit has spread in 2,500-4,000 “crisis pregnancy centers” across the United States and at least eighteen different nations, actively conducting a global war on abortion by medical misinformation.

The successful introduction of the “fetal heartbeat” law as a new threshold for access to abortion used the rather illusory cardiac impulses visible on a sonogram introduced in prenatal care as a means to reassure pregnant women of the viability of pregnancy as a means to impose penitent reflection. In Texas, the notorious anti-abortion group in Texas had readily identified Alito as an advocate to staunch a tide of judicial review of restricting access to abortion in Texas and other states, from banning the safest and most widespread abortion procedure after the first trimester or prohibiting abortion beyond seventeen weeks from conception. While the right to abortion is constitutional, local legislators have even passed bills threatening to suspend physicians’ licenses for practicing abortions beyond six weeks since conception–based on the fiction of a recognizable heartbeat can be detected and registered by mandated sonograms–which anti-abortion activists made central to Texas State Bill 8–“S.B. 8”–to re-recognize abortion beyond six weeks gestation a crime against the common good that merited a reward of over $10,000 for identifying all who “aided or abetted” such a crime.

The spread of mandated ultrasounds has rather disturbingly grown across the United States as a type of non-medical intervention since 2013. Their effect remains unclear on health care. Even as they have led women seeking abortions to be forced to view and have described to them–whether they desire or not–in states of Texas, Oklahoma, Louisiana, North Carolina and Wisconsin, as an odd interruption of medical care. It is less conclusive relation to women’s change of heart to proceed with an elected procedure. What was imagined as an exercise of biomedical introspection was held up in local courts. Yet the image-making technology able to confirm viability of a pregnancy has now been quite alarmingly high-jacked in Texas as a way to remap the start of personhood in the embryo, in hopes to curtail access to health care in ways that would remap women’s access to reproductive care.

Baby on heart concept linear design vector. Heart beat graph of a pregnant woman.
Ban Abortion from the Very First Heartbeat, Online Petition

The onslaught from legislators of restrictive curbs on access to abortion, long in coming, stands to bloom post-Trump, invited by the new stamp Trump put on the United States Supreme Court, increasingly receptive to how the late Justice Antonin Scalia in dissenting to abortion rights–rights he claimed invented and absent from the Constitution–should be recast by local legislators and local votes in order to shift the law of the land. The shift in tide has been long coming, having simmered under the threat of the expanded individual mandate. But it was nourished within a media ecosystem of Fake News and attacks on expertise, on websites designed for “navigating modern complexities” (Mercator.net), or the Population Research Institute,–dedicated to exposing abuses of human rights in population control and the myth of overpopulation. The 2018 consolidation of a conservative majority on the bench of the nation’s highest court prompted “testimony” of an unborn nine week “baby”–an in utero embryo–via sonogram before state legislatures like Ohio, as women at the start of their pregnancies had ultrasound before state legislators’ Heath Committee hearings, as they entertained the restriction of abortion after the first detectable heartbeat in testimony for the first hearing of “heartbeat” legislation in Ohio in 2011, before similar statutes were adopted in Arkansas (2013), North Dakota (2013), Iowa (2018), Kentucky (2019), and Mississippi (2019), “to protect our fellow human beings with heartbeats.” The rationale offered that the embryonic “heartbeat” is an indication of 95%-98% chance of the birth of the unborn child, but plays in an odd game of futures to restrict women’s access to abortion, requiring all doctors to compel the pregnant mother to listen to the heartbeat before an abortion procedure, to tug on her heartstrings just in case.

The Fake News ecosystem swung into full swing around the right in a pushback on an insurance mandate or universal health care, fearful of the expansion of health care to pregnant women, foresaking the unborn. Janet Porter, the self described “Heartbeat Bill Architect,” founded a Faith2Action nonprofit to promote the six week ban, leading her to be helped during the Obama presidency by southerners Mike Huckabee, Michelle Bachman, Steve King, and Roy Moore, and, since 2017, Mike Pence, as the nonprofit which now identifies itself as “birthplace of the Heartbeat bill” has exercised its online muscle by offering a template to draft legislation limiting abortion impervious to law suits and litigation to redraw the map of health care in America. In using the apparently objective registration of “fetal health” in a sonogram administered in hospital clinics, they seek to introduce scientific criteria to “pierce the heart of Roe v. Wade,” by ensuring that “God-ideas get multiplied in state and local legislatures across the nation,” apart from constitutional rights.

Mercatornet, Heartbeat Legislation, 2019

However, false precision of identification of the fetal heartbeat as a sign of personhood and life has become a rallying cry for the new legal strategy long evident in local legislative trends as sixteen state legislatures considered legal bans on women’s access to abortion. The false objectivity of the promise to “ban abortion from the moment in pregnancy that a heartbeat can be detected” shifts the threshold for legal abortions in many states, claiming to reflect on the “best methods of standard medical practice” to detect “embryonic heartbeat[s] . . . very early in pregnancy, typically by 6-10 weeks gestation.” If transabdominal ultrasounds detect these “heartbeats” by 7-12 weeks, detection of a heartbeat “even earlier than six weeks”–even three weeks from the last menstruation!–seems a revelation of the divine power of creation, and an eery celebration of the proto-human form as alive, in the sense that it seems to have a crude arterial and venous network, and a partitioning into atria and ventricles in a proto-heart, with defined aortic arch arteries, as well as a ventral and dorsal aorta, completed by an often preceptible flutter of cardiac activity, though far from a steady rhythm. But the argument that even the slightest beat is a sign of humanity, led to the crusading call that “to ignore that indicator, the heartbeat is heartless” has put the antiabortion activism on new terrain.

The Heartbeat laws are among the strongest pro-life laws ever adopted in a state known for curbing access to abortion. But the legislation is national, and not limited to Texas. The rise of “fetal heartbeat” bills strategcially curtailed access to abortion both in Texas, Georgia (HB481), Florida, Kentucky, Mississippi, and Oklahoma, and many other states, in an attempt to shift the rights of access to abortion and erode the Supreme Court’s definition of constitutionality of access to abortion as defined in 1973 landmark ruling Roe v. Wade. The spread of “heartbeat” laws attempt to reduce the threshold adopted in many states in the last year of Donald J. Trump’s Presidency, in an attempt to compel the Court to revisit the issue with the benefit of its changed composition and pro-Life tilt.

Map identifies states with time-based restrictions on abortions as of January 2019. (Henry J. Kaiser Family Foundation/AP)

The registration of fetal “heartbeats,” a cardiac flutter that is one index of healthy development of an embryo, has become a basis to restrict women’s access to reproductive health, that has accelerated local legislation across the nation restricting abortion rights. Since the powerful figure of the heartbeat was focussed on–rather than fetal viability, or even the transformation of embryo to fetus–what has become a rite of passage for the medical observation of pregnancy has become a determining factor to redraw the burdens of restricting reproductive health. And if many of the local laws were blocked by judges as imposing undue burdens on pregnant women–as the 2017 restriction on abortions beyond fifteen weeks, or banning of Dilation and Extraction–the August, 2021 reversal of the illegality of banning the safe practice of “Dilation and Extraction” followed the decision to criminalize abortion beyond six weeks from conception, effective September 1, 2021–re-writing women’s access to reproductive health; Texas had already in 2013, in the early years of the extension of health care, to ban abortions beyond the twenty months from conception, as well as restricted abortions to be performed in sites with the standards of ambulatory surgical centers and by doctors with admitting procedures to nearby hospitals, allegedly for the health of the formerly pregnant woman.

The “heartbeat” threshold of six weeks was broadly adopted across southern states, before the Supreme Court allowed the Texas law to stand and refused to block its Sept. 1 enforcement.

Local Legislatures who Passed Fetal Heartbeat Laws in United States–Blocked v In Effect/Nice4What
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Chief Justice Roberts Mismaps Voting Rights in America

When Chief Justice John Roberts, Jr. effectively released nine southern states from the oversight of voting procures and practices in a decision overturning the Voting Rights Act of 1965, withdrawing the federal protection of populations against whom there was past discrimination and effectively judging it to no longer warrant federal review.  The decision was to cease to continue such provisions of oversight–the “preclearance” of any changes in voting laws–that interfered unjustly in how states conducted their elections.  Roberts most strongly objected to using maps to guide such active federal oversight of voter suppression.  By rather castigating the U.S. Congress for relying continuously on historical precedent in repeated re-approval of the Voting Rights Act–or “VRA”–the five Supreme Court justices collectively complained that any continuation of policies mandating which states and local jurisdictions must “preclear” with the Justice Department when changing voting laws, suggesting that failures to “update” the “coverage formula” that was repeatedly reviewed and reinstated since 1965 no longer reflected “current conditions,” even though it had been affirmed four separate occasions by previous supreme courts.

What the nature of such “conditions” were was never specified.  For the actual objection of the Court seems to have lain in the unfair distribution of federal authority that the process of review of changing in voting policy created–and the degree to which it distinguished the relation of specific states to the federal government in ways that Roberts claimed he found issue.  The map of those states subject to review constituted undue federal interference, it must be supposed, with state practices.  Ignoring that the map mandating “preclearance” for any changes to voting laws in states had reflected the evolution of voting conditions on a county-by-county basis after having sustained a series of “incident-free” elections where no complaints were registered or found, the Roberts court seems to have treated the map as the problem in its untoward decision–viewing it not reflecting ‘current conditions’ and unfair in its isolation of said counties and states.  They were less able to see a problem as lying in long-running discriminatory histories; such histories were effectively washed from the books.  For the existence of such a policy, despite whatever its benefits might be, ran against the “equal sovereignty” of southern states as part of the union, despite whatever precedents of voter suppression one might find to support its continuation.  Indeed, despite being broadly upheld as constitutional ad as effective on no fewer than four separate occasions by previous Supreme Courts since 1965.

How timely was the 2013 decision?  In scolding the US Congress and federal government for their over-reliance on history, the court may well be accepting and instituting a blind spot in the discriminatory practices that exist in the United States, and are regularly re-inscribed in election laws–and to do so just in time for the Presidential elections of 2016.

 

 

 

2016 electoin.png

 

While the Court invited Congress to take time to “draft another formula” which better reflected the “current conditions” in the country, the five justices who supported the removal of protections from the Voting Rights Act, a pillar of national voting practices, seem to have ignored the problem at hand, or its depth.  For they rather petulantly subscribed to a notion of accurate mapping–the need for rendering an accurate record in a map that remained faithful to social conditions–rather than ascertain its benefits.  The argument may have rested on the belief that current cartographical skills vastly outdated those of previous generations, or the belief that history is bunk.

The dangers of the 2013 decision were that they dismissed the effective value of continuing oversight where demonstrable histories of voter discrimination existed–as well as discounted he work that went into rendering a map–or what trying to ascertain what would be the lines of the new map to reflect cases of voter suppression.  Perhaps they imagined that the new map could be drafted in less time than the verbal arguments were presented to the court, and that consensus would be able to be easily arrived at as to its parameters–or that any map would entail similar objections, prima facie.  Although FOX news commentators ridiculed the existence of any practices of disenfranchisement in the states where oversight existed–“nobody is seriously claiming today…that there is systematic efforts on the part of the government in the south to keep people of color from voting,” stated the senior Legal Affairs analyst at Fox News, Andrew Napolitano, ignoring its value in protecting voters from facing discrimination–current restrictions on eligibility for voting in multiple states seem to have multiplied across the country like mushrooms in multiple states, preventing any serious possibility to ascertain their constitutionality in any way, and encouraging the possibility that further policies curtailing voting rights be enacted.

 

vra

 

In  a sense, the decision affirmed a strong belief in states rights, but it did so for all the wrong reasons, and in a particularly wrong-headed way.  Chief Justice Robert’s longstanding reliance on constitutional written precedent encouraged him to construe the map of states requiring pre clearance in potentially quite damaging ways–and to change election laws as a stipulation that was no longer historical relevant in ways that could increase disenfranchisement and unease in electoral laws.  Roberts imagined oversight as a vestige of federal interference with states rights, in need of evacuation not only since it had lost its relevance, but since vacating its authority fails struck a blow in defense of the local jurisdiction against federal interference, but he also must have known he was driving a thorn into the side of the Obama administration.  While the repeal of the VRA was hailed by the alt-right as a victory of continued discrimination of whites, as if it was coextensive with Affirmative Action or insinuated the existence of undefined prejudices to what seemed a quarter to a third of the country, the fact that such preclearance reflected actual histories of voter suppression or mythical “voter fraud” in danger of recurring.

Justice Roberts did not only fail to recognize the deeply serious divides in race-based justice across the land, as has been made increasingly evident in the years since, from Ferguson MO to the nation-wide growth of Black Lives Matter; the verdict demeaned the value of protecting voters’ rights or individual access to the ballot.  For Roberts objected to poorly mapping the relation of the Department of Justice to individual regions of the United States–despite their demonstrable history of discriminatory disenfranchisement–on the grounds that “current conditions” did not warrant a review of  local practices of election, he effectively denied the value of such a practice, even while claiming to send the practice back to Congress:  despite notoriously exclusionary practices of the recent past, the continued review of select states’ changes in electoral law lacked “rational” grounds–despite current evidence of ongoing need to protect against discriminatory efforts to reduce the most basic right of citizenship.  Most importantly, the effective “map” of regions of oversight mis-stated the legal question of oversight, by allowing the plaintiffs to frame it as a division of the coherence of how states related to the federal government, rather than an alienation of the most important of all rights to protect to individuals on the ground–whose job the Court should most protect.

 

Coverage by Section 5

 

The replication of the map in news agencies has allowed the debate to be distanced on a map from actual circumstances of voters, orienting many to a question that seems truly unfair–“wait, the Department of Justice is only paying attention to discrimination in these states?  Huh?”–rather than to interrogate the reasons why voters might benefit from such continued protection, or that undue vigilance was demanded of the once-seceded South–and indeed constituted an undue restriction on the “equal sovereignty” of southern states.

 

vra-statesFox News

 

 

Section 2, 1982-2005, 6+ per million

 

 

The suspicion that he shared for the federal government of undue oversight in local liberties however has little to do with what other members of the Court saw as the importance of protecting the universality of the right to vote.  The division of states in the union that merited review of any potentially exclusionary processes of voting was recently accepted by the US Congress.  But Shelby County brought suit against the state of constitutionality of the review of their voting laws in 2011, and brought the case to the Supreme Court, as a case against the Attorney General, with the argument that the federal government lacked the ability to oversee state voting laws–the “extraordinary circumstance” that warranted such a distinction on account of repeated discrimination against minority voters, Roberts held, no longer exists, or had to be renegotiated, because the map used in 1965 cannot be reasonably retained, and need to be redrawn.  This seems a reasonable historicization of the map:  but it threw out any need for the assessment of longstanding historical discrimination of voting rights that had disenfranchised many and institutionalized intimidation of African American voters.  Weren’t such ugly histories of voter suppression come to terms with precisely because of their unconstitutionality?

 

lbj-mlk2Lyndon Baines Johnson Presidential Library

 

“In 1965, the States could be divided into two groups:  those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics,” the Chief Justice wrote in his verdict.  He then proceeded to strike down key clauses of the 1965 Voting Rights Act on the grounds that the law compelled specific states to seek permission from the federal Department of Justice before changing local voting laws, and in so doing unduly compromised their sovereignty.  The decision had the immediate consequence of opening the floodgates to shifting stipulations of who could vote, from the introduction of Voter ID laws to the ending of voter Registration drives, that seemed designed to –even though the actual map of oversight had been adjusted and redrawn multiple times since 1965, and the notion that an old map was being used for a question to which it was no longer relevant concealed the deep and longstanding historical survival of suspicions on the electoral voice of what were seen as minorities–and for retaining what were presented as the “local liberties” for allowing the continued suppression of the vote.  It is not surprising that the rush to adopt restrictive measures in voting were adopted in time for the Presidential election of 2016, perhaps to disenfranchise  the very populations seen as most egregious in forcing limitations on voters’ access to the ballot box, encouraging states to adopt restrictions on where turn-out could be potential hindered.

The judgement that Roberts so blindly and so forcefully made that “the Nation is no longer divided along those lines” which had been once determined by the discrepancies of “minority” registration and turnout provided grounds to classify Section 5 of the VRA as a historical constraint on states rights without merit because “today’s statistics tell a different story” seems in retrospect to have little merit:  the readiness to introduce new restrictions on voting rights compels the issue to be revisited, perhaps in time for the approaching Presidential election, in order to ensure that full access to the ballot is not only protected but encouraged.  For the occurrence of new restrictions adopted by local state legislatures suggests not only the continuing need for federal oversight–if not a strong tension between local and national policies about voting rights–but a profound misunderstanding of the lack of uniformity in how the nation will be selecting its President, not only possibly privileging the voices of citizens, but effectively diluting the national electorate in untoward ways.  Although the language of the verdict refused to treat the sovereignty of different states in different manner–evoking earlier arguments of states’ rights–the notion that all states are equal in all ways bears revisiting.

When Roberts reasoned that such review of changes in voting policies, from preregistration drives to on-site registration on Election Day, were untoward interferences in states’ rights to hold elections in the manner that they desired, did he indeed encourage the actual differences in how voters were allowed to make their voices heard?  At the very least, forestalling the introduction of new restrictions until their impact is assessed, and constitutionality is reviewed–given the spate of cases in which the constitutionality of Voter ID laws has been questioned–yet the dangers that are associated with a federal trammeling of states’ rights have provoked a broad rejection of the VRA provision for federal oversight of dangerous consequences.

 

cux3zy3ukaa5txz-jpg-large

 

Let’s compare that with the states that were facing mandated federal oversight that was dismissed as outdated and not meriting federal review of electoral policies–not the map of 1965 but a more recent one:  all but one state whose changes in voting policies were subject to oversight in Section 5 of the VRA indeed adopt changes in time for the 2016 Presidential election, but their effectiveness may impact the election.

 

Coverage by Section 5

 

It is difficult to grasp the lack of connection between the decision and the nation being mapped.  Indeed, if Denis Wood and others has argued that national maps are a performance of national identity, the amazing nature of the agreement in 1965 to turn attention to the discriminatory practices on voter registration that existed endemically in many southern states–whose legislatures were particularly resistant to and fearful of the expansion of the franchise, and sought to adopt more voter policies that the federal government could practically review–rested in a refusal to subject states to federal oversight that was blind to race-based divisions.  The decision suggests a serious blind spot about how the nation is currently being mapped.  Chief Justice Roberts’s argument rested on asserting the lack of legal grounds for continued federal oversight over local communities that is unmerited at present, since extraordinary conditions now longer exist in the southern states–many of the same which fly the Confederate Flag in their capitals. The range of counties that turned to adopt restrictive policies of registration and voting in time for the Presidential election of 2016 maps (ochre) nicely onto the regions subject to review by the Dept. of Justice of any changes in electoral laws (hatched regions) and indeed the scope of restrictive policies of voting were indeed often noticeably expanded to cover and include nearby counties were large numbers of minority voters, as if the policies of reducing the electorate grew, particularly in crucial states for Presidential voting, as Florida–where the electoral benefits to the victor can even decide a Presidential election.

 

County by county restriction v. Section 5 coverage.pngThe New Yorker/2014

 

To stamp such a “date of expiry” on the map of vigilance to laws that exclude or encourage the exclusion of voters from an election of national consequence is not only to deny the work that went into the establishment of criteria of oversight but denies the provisional value of the map as a work in progress:  the Roberts court blithely seems to seek to alter the constitution and performance of national identity, and the labor that goes into the construction of any map, while dismissing the effectiveness of that already adopted.

Chief Justice Roberts asserted that the nature of federal oversight over localities must be uniform across the nation, rather than privilege any region was effectively unduly onerous but also unfair.  Rather, he urged the primacy of rigorously respecting rights of localities. But if his opinion suggested such that current practice unfairly singled out regions as in distinct need of oversight from other fifty states, and that the criteria approved in 1965–and repeatedly renewed, with some exceptions–all of sudden no longer reflected current conditions.  The subsequent state of events have shown that the infringement of rights to vote both to exist in areas where the body politic still suffers from exclusionary practices that have survived in new guise, and sadly permits the encoding of racist practices and dogma in new language in existing voting laws.

Yet it raises questions of what sufficient conditions would be, and why there might not be broader oversight over election laws on a federal level at a time when restrictions on voting rights are actually being introduced.  The Roberts verdict oddly comes on the heals many of the criticisms Republican candidates had only recently expressed about longstanding need to eradicate voter fraud.  But rather than address the needs to reform elections or election law, Roberts argued for the compelling need to remove obstructions of self-determination that had been previously determined on a map of those states sharing past precedents of systematically curtailing universal voting.  For Roberts recognized that policies of pre-clearance had stood “for half a century [as] the most effective protection of minority voting rights“–finding that given distinctions between federal attention to local practices, federal pre-clearance of changes in local  election laws constituted unwarranted distinction among the states in the union–despite the clear grounds for concerns in southern states.

If the purported aim of the verdict was to ensure all Americans retained the same voting rights, opening the door to pending changes in electoral law was the basis by which Shelby County was eager to bring suit against the government led the court to take its eyes of the nation. For while determining that the extraordinary grounds for previously constructing a map of states in need of federal oversight unfairly distinguished how the Department of Justice related to states, as if the review were due only to an extraordinary condition now in remission, it ignored the issue at stake.  By inviting the federal government to rely on a more current map the justices seem to have accepted the ease of redrawing a new map in the age of infographics and data visualizations that are produced nightly for the news–as if that process could be accomplished in time for the next Presidential election in a way that could be given binding fource.  The justices on the Supreme Court may have lacked authority to mandate the construction of such a new map of national voting policy or the competency to do so–but in dispensing with any guidelines for oversight, they willfully opened a conundrum which they must have understood.  The particular derision with which the late Antonin Scalia publicly discussed the “Voting Rights Act”–asking who would ever want to tamper or get rid of a piece of legislation with such a nice-sounding name–reveals either a misguided failure to appreciate its benefits, or past need, or the historically embedded nature of many counties’ voting laws–as was soon revealed in the institution of a range of restrictive policies of voting apparently aimed at curtailing voting rights, if cunningly cast in protecting the rights of those who had already registered.  The refusal to retain a map that ostensibly “was biased” against whites was a stroke of genius for a group of white southerners in a minority-majority nation, and also came with clear political pay-off for the Republican party, as those dissuaded from voting would most likely not vote Republican.

 

aia2013030701-table1

2008 Presidential Elections exist polls in Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia

 

Why weren’t the continuation of a danger of disenfranchisement evident to all members of the Court?

The cross-generational continuity believing that provisions of literacy, English literacy, or indeed the predominance of continued violations of voting rights threaten to dissuade participation in the election, and indeed increase the feelings of distrust in members of the electorate.  The very existence of problems of restrictive policies about voting mandate the importance of keeping expanded locations of registration open, opening the ability of those who haven’t voted to vote, and renewing registration until the last minute.   And despite the introduction of  legislation to restore the VRA in the US Senate, the reluctance of Republicans to endorse such legislation reveals the bizarre transformation of the debate to guarantee the franchise along party lines–in ways that echo the terrifying vocalization by Donald Trump of charges that illegal immigrants he would not permit in the country would be accepted en masse to tilt the vote, and his attempts to undermine the legitimacy of an outcome to the election that did not affirm his victory.   Such bullying of the American electorate of course itself hinders and disrespects the electoral process.  For in dismissing the previous map for areas worthy of federal attention to undue limitations on civil rights, Roberts sided with a longstanding argument first framed during Reconstruction, but examined Southern claims to autonomy as undue interference in states’ rights.  Yet the argument that geographical restrictions of federal oversight were no longer warranted depended on an imagined equality due all states, and a willful neglect of the map of local disparities in how voters are allowed equal access to the polls.

 

1.  The map became what he tilted his sword against in the opinion that he wrote, leaving Justice Ginsburg somewhat dumbfounded at its limited reading of the law:  the VRA did not mandate a permanent division among states, but the law specified redrawing of a map over time should disenfranchisement be found to no longer occur–in which case it would expire in regions where such oversight was deemed no longer necessary.

So how could the map be effectively fetishized as grounds for legal objection to the oversight of regions where voting practices had not yet gained a respectable track record for respecting the civil rights of all voters?  In granting the petition of an Alabama county in Shelby County v. Holder, No. 12-96, the court placed the Voting Rights Act in its sights in ways that it had sought to do for some time.  Roberts argued that maps of past discrimination bear little “rational relationship” raise questions of the rational relation of a map of oversight to the law–or whether a map of legal oversight can be warranted in light of histories of racial discrimination.  The verdict raises questions of knowing when a new map should be required of regions that have demonstrated histories of disenfranchisement, when a map becomes overly dated in the eyes of the law–and, given how long Congress had labored to determine how the geographic limits specified in the Voting Rights Act could shift over time, when a new map would ever be collated and compiled.  Oddly, the decision seems to deny a clear perception of the lack of equal access in the last presidential election–and Mitt Romney’s decision attribute his defeat at the feet of the promise of Universal Health Care (“Obamacare’) held to minority voters.  In an age when a Presidential candidate can explain his failure to gain votes among minority voters on “the gifts” promised by his opponents to African-Americans and Latinos, dividing the electorate along racial lines, such distinctions clearly exist:  yet Roberts questions the limited effectiveness of mapping specific states as sites of disenfranchisement as unfairly privileging DOJ oversight of select states.

Does a map of regions requiring federal preclearance divide our national territory, in short, or is it by necessity a necessary tool for preserving equal access to the ballot across our nation?  What map would be sufficiently authoritative for Congress to draw up, for one?  Do the maps of discrimination retain validity on preventative grounds, or must they be actually demonstrated?  If the latter is the case, who is doing the counting and reporting the results?  Is it of any importance that the historical preponderance of complaints about voting laws within the United States as a whole from 1957 to 2006 closely reflect a distribution that would expand the mandate the continuation of a similar map–but include the very same regions as sites historically in need of federal oversight of election laws?

 

voting-rights-usmap

Voting Complaints Voiced at County Level in the Lower Forty-Eight, 1957-2000

 

Unsurprisingly, this map would reflect many of the same counties where the voting group was likely to be one fifth “minority” voters in 2000, where those attitudes against groups defined as “minorities”–Latinos or African American, usually–were sharpest and most likely to be excluded from voting.

 

voting1-map1

Counties with 20% Minority Residence

 

Given the Chief Justice opinion that violations of voting rights “should not be too easy to prove since they provide a basis for the most intrusive interference imaginable,” and must be rooted in the explicitly stated intent to disenfranchise, Roberts would probably question the ability to map a history of discrimination at all, of course.  Given that Roberts openly doubted “Congress can impose this disparate treatment [of states] forever” in oral arguments to a 2009 challenge of Section 5 of the VRA, he might well have recused himself from considering the case, but seems to have been eager to provide a precedent for explaining why the undue interference of the Department of Justice over local procedures and warranted a continued need to mandate states to request federal permission for changing election practices.  In arguing for the antiquated nature of mapping a division among the states in the eyes of the law, Roberts questioned criteria for selecting the procedures of voting and elections in specific states, mostly located in the South, under the supervision of the Department of Justice:  strictures on select states created undue divisions in a nation, he argued, dismissing the need for such oversight as a thing of the past–even while praising the benefits it brought their residents.  Yet maps are difficult to move to a discourse of legal reasoning, and a map of discriminatory practices is bound to be approximate and selective, rather than uniformly divide the national space:

 

Clearance Required

 

 

2.  The 1969 Voting Rights Act introduced to rectify widespread blatant discrimination against the voting rights of African Americans, common in obstructing registration, mapped those regions where clearance was required to change election laws or voting practices.  The above map continued to provide an avenue of legal recourse for minorities who faced any practice or intent of disenfranchisement.  The passage of the original Act responded to registration discrepancies in 1965, but its expansion in 1975 covered a range of other subterfuges and nefarious tactics to reach the same ends–most recently, these have expanded to include from restricted polling hours to the introduction of Voter ID’s.  The Chief Justice argued whatever the potential benefits of federal  oversight, the distinction that the VRA drew in its placement of nine states under oversight created a harmful divide in the harmony of the Union of states, independent of the realities of disenfranchisement.  He hence found lack of a compelling reason to require only nine states to obtain federal approval to alter any existing election laws.  In clothing his argument in a federalist claim to state equality, Robert’s  opinion raises the question as to whether mapping practices that obstruct voting  provide an instrument to monitor the insidious but present evil of disenfranchisement or rather serve to divide states’ rights.  For even if the metric of voter registration differences seems outdated to map distinct regions worthy of oversight, continued tactics of disenfranchisement–often achieved by redrawing maps of districting–both suggest that the drawing of lines on maps of political representation demand federal oversight.

How can one map a compelling need to supervise voting rights?  Roberts might well have asked.  By appealing to the uniformity of standards among states as a guiding rational of his decision, or couching his argument as a “division” of the nation, the Chief Justice invokes the lack of grounds to divide how space is abstracted in a map to strike down civil protections for voters, ostensibly to  maintain equality among the states, but to restore the lack of interference of  federal government in regional elections–despite the increasing hostility showed to the growing presence at polls of formerly minority groups.  Many objections to the Act question its viability as a question of “racial entitlements,” as did Justice Scalia, who described the emergence of “black districts [facilitated] by law” in the House in argument.  But the 14th amendment were less central to the decision than the rationale for renewing oversight of election laws in the fifth clause of the VRA, now on the books for over 40 years, and long a target of Chief Justice Robert’s ire because of the federal oversight it allows, and invites Congress to draw a new map of those “jurisdictions to be singled out on a basis that makes sense in the light of current conditions.”  The Roberts court oddly departs here from an argument based on precedent, to pose a federalist argument against singling out individual jurisdictions that are in need of supervision–notwithstanding documented attempts of disenfranchisement in these regions.  For Roberts, the map has “no logical relationship to the present day”:  things have changed, Chief Justice Roberts tells us now; we no longer need to supervise obstacles in voting laws in select states.  Yet do maps ever have such transparently logical relations to ideas or principles?

 

3.  Maps drawn as tools for determining effective political representation are improperly treated as if they defined entities.  And to argue that the map is simply a division of the polity into separate entities–as Roberts’ decision–obscures the extent to which the purely precautionary nature of review exists to ensure political representation.  Robert’s argument seems to make a categorical confusion between the ways that maps abstract a record of lived experience of disenfranchisement to a region and the abstract categories of rights in legal thought.

The objections of the Dept. of Justice to ‘pre-clearance’ have in fact radically declined since 1965, but this does not undermine the validity of Congressional attempts to map disenfranchisement in the US.

 

Coverage by Section 5

 

Yet the map is not a territory–or a means of conjuring an entity–so much as a tool of oversight.  The Voting Rights Act frames a legal avenue for redressing discrimination at the polls or in redistricting–and redressing a level of discrimination not effectively able to be monitored by pursuing suits of local jurisdictions.  Roberts’ opinion withdrew the existing avenue to appeal such insidious discrimination by finding it to violate the uniformity of a map in which all states–if not all voters–were to be treated as equal.  All law is based on abstractions, but his reliance on the abstract autonomy of the state is an odd substitution or sleight of hand, that preserves the autonomy of states’ jurisdictions for the rights of their inhabitants:  it appeals to the abstraction of the state to question the logic of distributing persistent inequalities , rather than the injustices to specific residents of the states.

In a decision that almost mocks the intent to seek to find distinguish discrepancies in voter registration on a map by sharp divides, Chief Justice  Roberts condemned the VRA as a flawed in its attempt to make reality correspond to a map of actual discrimination, and notes that the divisions it maps no longer reflects actual circumstance.  This denies the flexibility that the Act has long had.  The application of the law was not applied only to states, but to jurisdictions with a history of voter discrimination in any form.  Yet Roberts finds that its criteria, although based on alleviating restrictions on voters, imposed unequal burdens on states’ administration of elections, as if the autonomy of states unified in the map be preserved in the face of history, and the government be protected from meddling with how the fifty states map their own representation or internal affairs–even when the outcome is in the nation’s collective interest.

Roberts’ allegation that how the VRA maps “pre-clearance” disrupts the integrity of states distracts from the actual inequality–manifested in inequality and disenfranchisement–by positing a need for equality among the fifty states.  Yet, as many observers have noted, the increased anxiety at an increased number of minority and Latino voters in central and western states might make this the most dangerous time to shrink the map of where impediments to the “any voting qualification or prerequisite to voting,  or standard, practice, or procedure . . . [deemed intended] to deny or abridge the right of any United States citizen to vote on account of race or color.”  Although these terms written in 1965 echo those in the US Constitution, the Chief Justice seems to find a basis to question the assertion by a rosy-hued map of uniform states rights, as if each state best flourishes when left to practice its own electoral practices no matter what practices or means of impeding a broad vote might be a direct result or consequence of them.

 

us in globe's surface color map

 

Roberts the strict constructionist seems to question the accuracy of a map of “covered jurisdictions” in need of judicial “preclearance” both as an impediment to states’ rights because it maps a divide he argues no longer reflects “current conditions.”  Yet isn’t a map simply a convenience to create grounds for adequate representation?  While finding the map of covered jurisdictions “out of date,” but accepting a map of all fifty states, he finds the previously sanctioned formula for “pre-clearance” “unconstitutional.”  In the name of the specious argument of “states rights,” he seems to have vitiated the compelling nature of an argument to ensure the votes of all.

 

4.  Roberts interpreted the individuation of nine states by historical attempts of disfranchisement as “dividing” the nation.  And since these states are no longer defined in a similar manner by policies of explicit segregation of registration or voting, despite clear inequalities in the history of the regional reception of voters’ inalienable rights to vote, the majority opinion took voter registration and turnout numbers as an index of voter discrimination.  Through such a metric, Roberts questioned whether such discrimination continues, or continued in such a clearly mapped manner as he grants it clearly did in 1965.   The VRA defined those states it mandated to seek federal permission prior to altering electoral laws or voting practices to identify those places with voter turnout or registration of minorities below fifty percent, and hence in need of oversight to rectify deep imbalances.  The  seven states were subsequently augmented to include those where a percentage of voting age citizens spoke only a non-English language–Texas, Arizona, Alaska–as they were judged in need of “preclearance oversight” as well since the Act’s historic passage in 1965–suggesting th flexibility with which the VRA was long employed to ensure the equality of voting rights.

Roberts found the divided national map to perpetuate antiquated divisions that “divided into two groups” a unified country.  But the flexibility of how oversight was framed in the map historically varied in response to demonstrated need, as shown in the maps of  oversight compiled in the New York Times, which traced the coverage of states by the Act, coloring those covered since 1965 in deep purple, and those added in the 1970s in violet, and subsequently judged free from such voting discrimination in tan:  the disparate nature of these regions suggests attention to areas in the country where electoral laws merited continued scrutiny by relatively current criteria.

Areas Covered by VRA-and additions
The shifting landscape negotiated evidence of voter discrimination, rather than disrupting national harmony.

Chief Justice Roberts’ opinion foregrounded data compiled for Congress’ 2006 review of the Act to call into question the relevance with which the VRA maps a uniform division of states Congress kept under coverage.  Yet in citing only one metric–discrepancies in voter registration, the original criteria used in 1965–he oddly adopts an antiquated sense of the relevance of mapping in relation to the VRA, throwing out the map on the basis of its antiquated measurement of obstructing universal suffrage, and opening the door to the introduction of further abuses by removing oversight entirely.  Even while calling for basing such oversight on more current data, he avoided looking at the data that was available–summarized in part in Justice Ginsburg’s impassioned eloquent dissent–by confusing one map with the ends of oversight.   And so a declining registration gap served as grounds to question the need for the continued federal oversight:

Voter Registration Gap 1965-2006

Several of the gaps in these six states survive, and the gap of registration among African American voters has been dramatically reduced in Alabama, Georgia, South Carolina, and Louisiana, which partly reflects the standard set by the Act, but these numbers present only a very partial or selective picture, and a map that does not conform to voting practices.

 

5.  Yet the assiduousness with which attempts to reduce voter turnout have been since developed in many states listed above in the rise of increased minority voting, and indeed with the rise of the proportion of ‘minorities’ among registered voters.  The lack of uniformity that Roberts finds in the ability of mapping disenfranchisement among those states who were mandated to submit any electoral alterations for “pre-clearance” by the Department of Justice perversely became his basis for arguing that the concept of preclearance should be jettisoned as unconstitutional in the undue constraints it imposed on nine named states–as if the question was the ability to map discrimination, or use a map to regulate voting practices, rather than its continued existence to remedy historical prejudice.  So whereas the Voting Rights Act was persuasively linked to the region placed under federal coverage–or “pre-clearance”–of any changes or modifications to electoral laws or procedure, Roberts ruled that the geographic divide in disenfranchisement that was relevant in 1965 was no longer operative or commensurate with actual historical experience or current data–although the measure he chose to highlight does not conclusively demonstrate this assertion to in fact be the case at all.

But rather than look more deeply at actual data, Chief Justice Roberts appeals to the “fundamental principles of equal sovereignty” among states and record of national unity as if it were abstractly represented on a map, rather than something that played out in lived experience and effective political representation.  The opinion seems partly in the question of trusting an earlier mapping of disenfranchisement.  It ignores the extent to which the Act aims to prevent disenfranchisement; it displaces these questions by those concerning the propriety of mapping out a division in jurisdictions, as if to implying that uniform disenfranchisement was the target of the laws more than its inherently undemocratic evil that disrupted the legal equality of the state in the eyes of federal law, before which all states should have equality.

 

Maps of the USA

 

Yet are all states equal in their entitlement to police their own voting rights?  Recent cartographical endeavors to draw maps of political representation by equally distributed units of population reveal that the boundaries of states are approximate realities, rather than the abstract entities Roberts accuses the framers of the VRA of positing.  To distribute population were equally divided to correspond to the shifts in population in the nation, Neil Freeman decided to remap the states to allow chambers of Congress to remedy the disproportionate influence of specific states and prevent gerrymandering.

 

electoral10-1100

 

Freeman’s counter-map reminds us of the political convenience of such abstract entities, and the incoherence of some of our states as entities.   It reveals the poor approximation that the existing divisions of states gives voters in the nation, effectively privileging votes of residents in the more  thinly populated prospective regions of “Salt Lake,” “Ozark,” “Shiprock” or “Ogallala.”

Can the division of federal oversight be understood as an approximate and imperfect but necessary tool analogous to that of the electoral college?  Such abstractions are imperfect tools for considering local electoral practices, but are the units that exist as units of electoral law, rather than as legal abstractions whose jurisdictions are in need of projection.  Indeed, these convenient units for political administration poorly reflect population density–in fact, the limited density of the area of federal oversight seems less densely inhabited, and more isolated from broader cultural norms.

 

Cartogram of US popation on grid

 

 

6.  The Voting Rights Act served as a preventative that decreased a marked discrepancy among the registration of whites and minorities in these states.  Yet in gutting its enforcement, Roberts found poor logic in arguments that preclearance has itself diminished potential electoral abuse, asserting it impossible to prove with rigor this as the case, and noting this lack of rationality contrasts to the undue “burdens” that the division creates.

The Chief Justice may have effectively distorted the question in an optic of states rights.  But this argument seems anything but rational or watertight, with 81 percent of the voter discrimination complaints of voting practice lay in the areas where the VRA sustained “preclearance” of changes and/or modifications in voting law or elections–the region of the states who lost or settled the largest number of cases in favor of minority voters between 1982-2005, as Judge David S. Tatel had noted in the appeals court’s decision, if one focusses on those regions that lost 6 or 7 cases per million people.

 

Section 2, 1982-2005, 6+ per million

Lost or settled cases

 

This map of the settlement of cases that violated Section 2 of the VRA might, Chief Justice Roberts could object, fail to map in identical fashion onto the boundaries that the VRA enshrined–and the second excluding both Virginia and North Carolina, and providing little rational for the validity of the existing map of areas whose election laws merit more careful observation and protection.  But this point denies the imperfect conventionality of all mapped entities–and the confusion in conflating the abstract unity of the map and experience of the jurisdictions it maps.

A map that measures at lest ten successful settlements of cases that minority voters brought of disenfranchisement in the years between 1982 and 2005 defines a similar  region as worthy of oversight:

 

Over Ten Voting Discrimination Cases settled in favor of Minority Voters

 

The question turns on what sort of maps best show current conditions of civil rights.  But a deeper problem in Robert’s argument the difficulty to select a single map  with a level of logical consistency as a record of conditions, given the selective nature of mapping:  the map is not the territory, but construes it.  To object to the divisions a map creates misunderstands its instrumentality.

Roberts found “Today the Nation is no longer divided along those lines” revealed by low registration and turnout, and finds little rational by which the division should be preserved since “today’s statistics tell a different story.”  The story Justice Ginsburg offers for “the completion of impressive gains thus far made” as a way “to combat voting discrimination where other remedies have been tried and failed” against “‘the blight of racial discrimination in voting'” to give, as Oliver Wendell Holmes argued in 1903, “relief from [that] great political wrong.”   The curbing of such a wrong perpetuated either by a state or its residents was the aim of the VRA, and the benefits were directly attributed to its reauthorization in 2006.

But Roberts seems to argue from the map that the unity of law is disrupted by the federal imposition of different norms.  This despite fears of active “redrawing of legislative districts” to dilute the rising power of minority votes,  that  effectively segregate the distribution of minority votes by lines of race, drawing distinctions designed to minimize the effects of those votes, independent of registration or attendance at the polls that actively diminish the increases of minority representation:  Congress found many “second-generation barriers” arising in different forms which demonstrated “the need for continued Federal oversight” in these specific regions, Congress determined, and included among other things the purging of voter rolls of minority voters; dual voter-registration schema; restricting of early voting practices or curbing late voting; openly expressed fears of African-American turnout increasing; and intentional redistricting designed to eliminate those districts where minorities were majorities–a practice noted in Shelby County itself as recently as 2008.  The act, Justice Ginsburg argued in her forceful eloquent dissent, might be retained “[in those] jurisdictions as to which its application does not transgress constitutional limits.”

 

7.  It is accepted that maps of oversight are in fact instrumental tools of political representation.  Abigail Thernstrom of the American Enterprise Institute has written pointedly that the primary reason for defending Section Five of the VRA is to secure African-American constituencies in “racially tailored districts” that protect minority seats; she sustains the abuse of Section 5 by a Department of Justice to block Voter ID laws that would have the effect of limiting the voting franchise.  And instead of protecting against disenfranchisement, the law’s current form has provided a basis for preventing “multiracial coalitions,” Thernstrom argues, and effectively continue to limit the focus of African-American politicians–with polarizing results.  Yet the rise of minority voting blocks has also provided regions which stubbornly tend to support Democratic candidates, making redistricting a partisan issue.  In other words, the law undermines our polity–never mind its accuracy.

The redrawing of electoral maps in response to Roberts’ ruling so that they minimize minority votes is an inevitable irony of Roberts’ failure to see any reason to map of federal oversight on specific states.  Within two hours after the public announcement of the Supreme Court decision–in a move either premeditated or revealing insider pre-knowledge of the decision to come–when Texas’ Attorney General Greg Abbott announced the return of voided voter-ID legislation designed to curb minority voting together with a new redistricting map limiting Hispanic and African American voters–both previously blocked as discriminatory, unveiling a new map of the map of Congressional districts in the state that effectively minimized the impact of a growing number of Latino votes in ways that are not revealed in the limited metric of registration.  In fact, Abbott could barely contain his glee,  tweeting to the world “Eric Holder can no longer deny #VoterID in #Texas after today’s #SCOTUS decision.”

 

Talbot Maps Texas

 

The redistricting in no small part responded to the growth of minority voters in the 2012 election, designed to restrict the effects of district demographics–it can be viewed in clickable form here–that responds to the recent dramatic rise in non-white voters in the state.

 

Texas Electoral Map

 

Both changes had been earlier blocked by the Department of Justice for targeting growing minority communities in the state of Texas, by passing the most stringent Voter ID laws in the United states.  Critics of the map–“drawn in secret by white Republican representatives, without notifying their black and latino peers,” according to Aviva Shen,” or Voter ID, argued that it would effectively diminish minority votes.  Local resident Mack Green observed ruefully, “Travis county looks like something drawn by 5 malevolent and blindfolded pre-schoolers. . . . . Gosh, can this be the rampant voter fraud Republicans are fighting to prevent?”  Unsurprisingly, a range of states are collectively moving to re-adopt previously banned Voter ID laws, in ways that promise to change the electoral map:  Attorney Generals in Alabama, Arizona, South Dakota, and South Carolina all want to institute Voter ID laws that they argued the Voting Rights Act impeded.  Is this related to the election of President Obama with huge majorities of African-American, Asian-American, and Hispanics, but less than half of white votes?  Ari Berman questioned the relation to recent controversies around past evidence of voter suppression: “There’s a particular irony to the Court killing Section 5 just months after a presidential election in which voter suppression attempts played a starring role.”

The map of voting rights will in the coming months quickly be redrawn elsewhere in response to the court’s short-sighted decision to remove preclearance across nine states.  It is ironic that Chief Justice Roberts’ argument began from the imposition of an unfair division of the map that the federal oversight had first created.  One can only hope that “dignity” will re-emerge as a standard by which to enforce a redrawn region of oversight.

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Filed under 2016 Presidential election, institutional racism, minority voters, Southern States, Voting Rights Act