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      The Guardian view on the Texas abortion ban: this is not the end | Editorial

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      OpinionAbortionThe Guardian view on the Texas abortion ban: this is not the endEditorialThe supreme court’s refusal to block the law marks a grave blow to the freedom and safety of women Thu 2 Sep 2021 13.45 EDTLast modified on Thu 2 Sep 2021 14.31 EDTThe cruel, vindictive and dangerous law that has taken effect in Texas is much more than the most extreme anti-abortion legislation in the United States. To many, it understandably feels like the beginning of the end – denying women the rights enjoyed under the landmark Roe v Wade ruling, which established that abortion is legal before the foetus is viable outside the womb, at around 24 weeks. It will further embolden the religious right. Though polling suggests the majority of Americans believe that terminations should be legal in most or all cases, this is already the worst ever legislative year for restrictions.But it is better understood as the end of the beginning. The right to abortion has, in practice, been systematically dismantled through methods ranging from intimidation to cynical regulation. This moment is the culmination of the first stage in a decades-long war on the rights of women, made possible by Donald Trump’s appointment of judges known to support restricting reproductive rights. A divided supreme court refused to block the legislation while the legal battle over it plays out.This is a near-total abortion ban, with an exemption only for medical emergencies. The six-week limit in practice applies not from fertilisation, but from six weeks after a woman’s last period, used by doctors to date pregnancies – when most women will not even know they are pregnant. Up to 90% of the state’s procedures happened after that time. International evidence, and America’s own past, testifies that it will not stop abortions. It will push them underground, endangering women’s health and lives. It is an attack on the rights of all women, but above all will punish those who are poor and black, who already struggled to access services and will not be able to travel outside the state easily. It will hurt women who want to control their own bodies, including survivors of incest, rape and abuse. Many states have enacted similar laws, which have been blocked. But this one is especially egregious. It has used the architecture of the state to promote the rule of the mob. It prohibits officials from enforcing it, instead deputising ordinary citizens to sue anyone for suspected violations. While designed this way to make legal challenges harder, it is part of the broader turn of Trump Republicans towards vigilantism and away from democratic institutions. By promising a $10,000 bounty to anyone who sues successfully, it encourages the greedy as well as vindictive ex-partners and zealots to act. Not only abortion providers, but anyone who “aids and abets” an abortion is liable; it appears that even someone who drives a woman to a clinic could be targeted. There is no redress against malicious suits, even in cases where the plaintiff has a past history of similar claims. The result is that doctors and providers who comply with the law can still be put out of business by vexatious claims.Justice Sonia Sotomayor’s blistering dissent attacked the supreme court’s inaction in the face of “a breathtaking act of defiance – of the constitution, of this court’s precedents and of rights of women seeking abortions throughout Texas”. But she is in the minority as the court prepares to rule on a separate case – Mississippi’s ban on most abortions after 15 weeks – which anti-abortion activists see as a chance to overturn Roe v Wade. If that happens, bans will automatically come into force under trigger statutes enacted by multiple states. Others would be able to enforce pre-Roe v Wade bans that remain on their books.This law, like the wider anti-abortion drive, hurts women’s freedom, their health and even their lives. It has been achieved through the relentless efforts of activists who are not merely egging on but also funding others around the world. Meeting and defeating these challenges will require an equally committed, comprehensive and ambitious campaign. The opponents of women’s freedom will not stop. Defenders cannot either. This law will galvanise them.TopicsAbortionOpinionWomenUS supreme courtHealthRepublicansUS politicsLaw (US)editorialsReuse this content More

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      The supreme court is deciding more and more cases in a secretive ‘shadow docket’ | Moira Donegan

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      OpinionUS politicsThe US supreme court is deciding more and more cases in a secretive ‘shadow docket’Moira DoneganThese emergency rulings – short, unsigned and issued without hearing oral arguments – undermine the public’s faith in the integrity of the court Tue 31 Aug 2021 06.14 EDTLast modified on Tue 31 Aug 2021 16.45 EDTLast week, it was Remain in Mexico. On Tuesday, the supreme court issued an order requiring the Biden administration to reinstate the Trump-era policy that required asylum seekers from Central America to stay across the border in Mexico while their claims are adjudicated. It was an uncommonly aggressive intervention into foreign policy, an area where previous courts have preferred a light touch, and it posed massive logistical, diplomatic and humanitarian crises at the border that will need to be rapidly resolved if the Biden administration is to comply with the order.Two days later, it was the eviction moratorium. On Thursday, the court blocked an extension of the federal emergency ban on evictions, gutting a 1944 law that gave the CDC the authority to implement such measures to curb disease, and endangering the 8m American households that are behind on rent – who now, without federal eviction protection, may face homelessness.Both of these orders last week were issued in the dead of night. Their opinions were truncated, light on the details of their legal reasoning, and unsigned. Vote counts were not issued showing how each justice decided. And despite the enormous legal and human impact that the decisions inflicted, they were the product of rushed, abbreviated proceedings. The court did not receive full briefs on these matters, heard no oral arguments and overrode the normal sequence of appellate proceedings to issue their orders.Welcome to the “shadow docket”, the so-called emergency proceedings that now constitute the majority of the supreme court’s business. Minimally argued, rarely justified and decided without transparency, shadow docket orders were once a tool the court used to dispense with unremarkable and legally unambiguous matters. To have an issue addressed on the shadow docket, a litigant has to apply for “emergency relief” – usually to stop a decision against them from a lower court from going into effect while appeals proceed. Traditionally, applicants would need to demonstrate that they would suffer “irreparable harm” if their petition wasn’t granted immediately. So one historical use of the shadow docket has been in federal death penalty cases, where the court has used the emergency proceeding to affirm or deny requests for stays of execution.But in recent years the court has largely dispensed with any meaningful application of the irreparable harm standard, and instead has entertained emergency relief petitions from more and more litigants, issuing shadow docket rulings on increasingly significant and controversial legal questions without the rigor or transparency that such issues demand.The term “shadow docket” was coined in 2015 by a conservative law professor to refer to the thousands of supreme court actions each term that defy the “normal procedural regularity” of the federal appellate process. A newer, expanded version of the shadow docket began to emerge in 2017, when the Trump administration came to power. Previously, shadow docket emergency requests had been rarely used, to advance the interests of the governing administration. From 2001 through 2016, the Department of Justice applied for these emergency relief interventions from the court only eight times. During the four years of Trump’s presidency, however, the justice department applied 41 times. The use of shadow docket requests by Trump’s justice department especially accelerated after 2018, when Justice Anthony Kennedy retired and was replaced by Brett Kavanaugh, initiating the court’s rightward lurch.The gambit worked. Of those 41 requests, the supreme court granted 28 of them in whole or in part, denying the Trump administration outright only four times – much more generous than the court has been to other litigants. Bypassing lower courts, the Trump administration was able to solicit the supreme court for a green light for border wall funding and construction, for a ban of transgender troops in the military, for a ban of immigrants from Muslim majority countries, and for many, many executions during the administration’s 11th-hour killing spree in the latter half of 2020.Ultimately, many of the policies that the court used the shadow docket to keep in place were never declared legal: they were simply rescinded when Trump left office. It was only because of the supreme court’s unusual intervention via the shadow docket that they were able to be enacted at all. If this seems like the court merely deferring to the prerogatives of the executive, rest assured that it isn’t: the court’s shadow docket has not been similarly generous towards Biden administration claims.In this way, the shadow docket’s expanded use raises troubling questions – both for transparency, and for the separation of powers. What does it mean for popular sovereignty when the unelected supreme court can overturn the actions of elected officials seemingly at whim, without reading briefs, without hearing arguments and without having to assign judges’ names to their opinions or make any effort to explain their reasoning? The supreme court’s cryptic, late-night shadow docket decrees risk overextending the court’s already tremendous power, and its lack of transparency shrinks the already slim opportunities for oversight. There is considerable potential for abuse, and there are also simple logistical problems: without a real accounting of the justices’ reasoning, lower courts are left to guess why a certain decision was handed down, rendering them less equipped to interpret precedent.And all of this is before we get to the shadow docket’s real problem: it further undermines the already severely damaged public trust in the court. The justices and the legal elites who flatter them like to say that the supreme court is composed of neutral, apolitical arbiters of the law. But this mythology conflicts with a growing public perception of the federal judiciary as protectors of Republican priorities. This impression is not helped by the reality that the court’s decisions on the shadow docket seem much less consistent in their legal reasoning than they do in their politics. In light of this, it is tempting to conclude that the court has transformed the once-anodyne tool of the shadow docket into a way to achieve the preferred outcomes of the conservative majority without having to justify its own actions to the public.Steve Vladeck, a University of Texas law professor and one of the shadow docket’s most prominent critics, summarized the danger in an article in the Harvard Law Review. The shadow docket, he writes, “risks the perception that the rule is not one for the federal government in general, but for the federal government at particular moments in time – perhaps depending on the identity (or political affiliation) of the sitting president, or perhaps, more granularly, depending on the political or ideological valence of the particular government policy at issue”.With respect to Professor Vladeck, maybe the shadow docket does not risk such a perception – maybe it reaffirms it.
      Moira Donegan is a Guardian US columnist
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      Why is the right suddenly interested in Native American adoption law? | Nick Estes

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      OpinionUS politicsWhy is the US right suddenly interested in Native American adoption law?Nick EstesA 1978 law tried to remedy adoption practices created to forcibly assimilate Native children. Now conservative lawyers are arguing that the law constitutes ‘reverse racism’ Mon 23 Aug 2021 06.23 EDTLast modified on Mon 23 Aug 2021 12.05 EDTGeorge Armstrong Custer of the Seventh Cavalry was infamous during the 19th-century Indian wars for riding into the enemy camp, holding Native women, children and elders hostage at gunpoint, and forcing the surrender of the tribe. He systematically attacked and captured civilians to crush Indigenous resistance, which is partly how he defeated the Cheyenne at the Battle of Washita River in 1868. Cheyenne, Lakota and Arapaho warriors later killed Custer as he fled after trying the same hostage-taking ploy at the Battle of Greasy Grass in 1876.Attacking non-combatants, especially children, to enable the conquest of land by destroying the family, and therefore Indigenous nations, wasn’t unique to Custer or the US military.There’s a reason why “forcibly transferring children” from one group to another is an international legal definition of genocide. Taking children has been one strategy for terrorizing Native families for centuries, from the mass removal of Native children from their communities into boarding schools to their widespread adoption and fostering out to mostly white families. It’s what led to the passage of the Indian Child Welfare Act (ICWA) of 1978, touchstone legislation that aimed to reverse more than a century of state-sponsored family separation.Yet the spirit of Custer still haunts the fate of Native children even today. The fight has shifted from battlefield to courtroom.In the new season of the This Land podcast premiering this Monday, Cherokee journalist Rebecca Nagle shows how corporate lawyers and rightwing thinktanks like the Cato Institute have teamed up with non-Native families to not only dismantle the ICWA but the entire legal structure protecting Native rights. And so far, they’ve made small but important victories.Last April, an appeals court upheld parts of a federal district court decision, in a case called Brackeen v Haaland, that found parts of ICWA “unconstitutional”. The non-Indian plaintiffs contend that federal protections to keep Native children with Native families constitute illegal racial discrimination, and that ICWA’s federal standards “commandeer” state courts and agencies for a federal agenda. Put plainly, the mostly white families wanting to foster and adopt Native children are claiming reverse racism and arguing that federal overreach is trampling states’ rights – two codewords frequently associated with dismantling anti-racist policies.According to this upside-down logic, ICWA – monumental legislation consciously designed to undo genocidal, racist policy – is racist because it prevents mostly non-Indians from adopting Native children. The thinking is as old as the “civilizing” mission of colonialism – saving brown children from brown parents.Native child welfare in practice, however, is quite different, and, as Nagle shows in story after heartbreaking story, it very often works against the interests of Native children and families and in favor of families like the plaintiffs in Brackeen.Court records show that two of the three non-Indian families in Brackeen have successfully fostered or adopted Native children despite ICWA protections and with tribes agreeing to the adoption. But they still claim discrimination.A mountain of evidence suggests that Native families, particularly poor ones, are the real victims.In two studies from 1969 to 1974, the Association on American Indian Affairs found that 25-35% of all Native children had been separated from the families and placed in foster homes or adoptive homes or institutions. Ninety percent were placed in non-Indian homes.ICWA aimed to reverse this trend. Today, Native children are four times more likely to be removed from their families than white children are from theirs. And according to a 2020 study, in many states Native family separation has surpassed rates prior to ICWA. This is mostly due to states ignoring or flouting ICWA requirements.A common cause for removal is “neglect”, a form of abuse and a highly skewed claim especially when the Native families most targeted are poor. Failure to pay rent, for example, can result in eviction and homelessness and the placement of a child in state foster care system because of unstable living conditions. Some state statutes may provide up to several thousands of dollars a child per month to foster parents, depending on the number of children in their care and a child’s special needs.Why doesn’t that money go towards keeping families together by providing homes instead of tearing them apart?And there’s the dark side of foster care.Much like the boarding school system which preceded it, foster care is rife with stories of sexual and physical abuse, neglect and forced assimilation into dominant, white culture. To say nothing of the lifelong trauma of being torn from one’s family and nation during the formative years of childhood.So why are corporate law firms like Gibson Dunn – which has represented Walmart, Amazon, Chevron and Shell and is a former employer of the far-right Arkansas senator Tom Cotton – showing up at custody battles to square off with poor Native families and tribes? Are they really interested in the welfare of Native children?It’s foolish to think Custer had the best interests of Native children in mind when he captured them at gunpoint to slaughter and imprison their parents or that the Indian boarding school system, which disappeared thousands of children and raped, tortured, and traumatized countless more, was about “education”.Powerful conservative forces want to bring Brackeen v Haaland to the supreme court not just to overturn the ICWA but to gut Native tribes’ federal protections and rights. Like their counterparts the anti-critical race crusaders, anti-ICWA advocates use the language of “equality” to target Native nations. The collective tyranny of the tribe, the thinking goes, violates the rights of the individual.It’s the libertarian spin on the genocidal logic of Richard Henry Pratt’s nineteenth century maxim to justify child removal: “Kill the Indian, save the man.” The “Indian” is the tribal consciousness; the collective rights of a nation and its sovereignty must be weakened or destroyed to gain access to its lands and resources.Without the tribe, there is no Indian. When there is no Indian, there’s no one to claim the land.White congressmen from western states used the same reasoning to terminate tribes in the 1950s, making the argument that the collective rights of tribes shouldn’t trump individual rights of US citizens. The results were catastrophic. The legal abolition of dozens of tribes led to the privatization of their lands for the benefit of white settlers and businesses.Indigenous people are trying to drag the people of this land into the twentieth-first century by advocating for the protection of healthy water and land, the very elements necessary for all life, a true universal aspiration for a future on a livable planet that benefits everyone. And Native journalists like Rebecca Nagle reveal how nefarious corporate interests are trying to undermine that project by attacking the most precious among us – our children.
      Nick Estes is a citizen of the Lower Brule Sioux Tribe. He is a journalist, historian, and host of The Red Nation Podcast. He is the author of Our History Is the Future: Standing Rock Versus the Dakota Access Pipeline, and the Long Tradition of Indigenous Resistance (Verso, 2019)
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      US supreme court deals blow to voting rights by upholding Arizona restrictions

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      The US supreme court has upheld two Arizona voting restrictions in a ruling that dealt a major blow to the Voting Rights Act, the landmark 1965 civil rights law designed to prevent voting discrimination.In a 6-3 ruling, the justices upheld Arizona statutes that prohibit anyone other than a close family member or caregiver from collecting mail-in ballots, which are widely used in the state.The court also upheld a statute that requires officials to wholly reject votes from people who show up to cast a ballot in the wrong precinct, even if the person is otherwise entitled to vote in the state.“Neither Arizona’s out-of-precinct rule nor its ballot-collection law violates §2 of the VRA. Arizona’s out-of-precinct rule enforces the requirement that voters who choose to vote in person on election day must do so in their assigned precincts,” Justice Samuel Alito wrote for a majority that included the court’s five other conservative justices, referring to section 2 of the Voting Rights Act.He added: “Having to identify one’s own polling place and then travel there to vote does not exceed the ‘usual burdens of voting’.”The decision means that the Arizona statutes will remain in effect and make it harder to challenge discriminatory voting laws across the US at a time when a swath of Republican-run state legislatures are pushing a wave of new voting restrictions that voting rights advocates say are aimed at suppressing the vote and especially target communities of color.“Today the supreme court made it much harder to challenge discriminatory voting laws in court. The justices stopped short of eviscerating the Voting Rights Act, but nevertheless did significant damage to this vital civil rights law and to the freedom to vote,” Sean Morales-Doyle, the acting director of the voting rights and elections program at the Brennan Center for Justice, said in a statement.Richard Hasen, an election law scholar at the University of California, Irvine, said the decision was a significant blow to the Voting Rights Act, one of America’s landmark civil rights laws.“The conservative supreme court has taken away all the major available tools for going after voting restrictions. This at a time when some Republican states are passing new restrictive voting law[s],” he wrote in a blogpost. “This is not a death blow for section 2 claims, but it will make it much, much harder for such challenges to succeed.”The larger dispute in the case, Brnovich v Democratic National Committee, was how courts should interpret section 2 of the Voting Rights Act, which prohibits any voting practice that results in the “denial or abridgment” of the right to vote based on race. The provision has become a critical tool for civil rights lawyers to challenge discriminatory voting laws in recent years, especially after a 2013 supreme court ruling that dramatically weakened the Voting Rights Act.Alito declined to endorse a specific test for future section 2 cases, but outlined five “guideposts” that could be applied in future cases.Courts should weigh the size of the burden that a voting law imposes, the magnitude of disparities in how they affect different minority groups, the state’s interest in enacting such a law, as well as how far the challenged law departs from standard practice in 1982, the year when the relevant portion of the Voting Rights Act was adopted, Alito wrote.And when courts evaluate a voting law, they need to consider the accessibility of a state’s entire electoral system, rather than just the law at hand, Alito added.Alito used those five factors to set an extremely high bar for challenging the Arizona law.Arizona’s prohibition on out-of-precinct voting only required voters to ensure they showed up at the right precinct on election day, a minimal burden in Alito’s view. Alito also dismissed evidence that minority voters were about twice as likely to have their provisional ballots rejected than white voters, noting that only a small percentage of Arizona voters overall cast an out-of-precinct provisional ballot on election day.“A policy that appears to work for 98% or more of voters to whom it applies – minority and non-minority alike – is unlikely to render a system unequally open,” he stated.Alito took a similar approach in upholding Arizona’s ban on third-party ballot collection. He noted that voters who cast their ballot by mail have several ways to return the ballot other than having someone collect it. The plaintiffs in the case also failed to provide statistically significant evidence, Alito said, that the ban disproportionately harmed Native American voters.Alito also gave states significant leeway to use voter fraud – which is extremely rare – as an excuse to restrict voting. “It should go without saying that a state may take action to prevent election fraud without waiting for it to occur and be detected within its own borders,” he wrote.Justice Elena Kagan wrote a searing dissenting opinion for the court’s three liberal justices, bluntly saying the majority opinion “enables voting discrimination”.The Voting Rights Act, Kagan wrote, makes any voting law that results in racial discrimination illegal, no matter how small the burden is for the voter, since even burdens that seem small can lead to discrimination in voting.She also rejected Alito’s suggestion that the Arizona laws did not provide more of a burden on minority voters because 98% of voters overall were unaffected.“Suppose a state decided to throw out 1% of the Hispanic vote each election. Presumably, the majority would not approve the action just because 99% of the Hispanic vote is unaffected,” she wrote.She also dismissed Alito’s acceptance of voter fraud as an excuse to pass voting restrictions. “Of course preventing voter intimidation is an important state interest. And of course preventing election fraud is the same. But those interests are also easy to assert groundlessly or pre-textually in voting discrimination cases,” she wrote.Joe Biden said in a statement he was “deeply disappointed” with the ruling and renewed his call for federal voting legislation, which Republicans blocked in the US Senate last month.“In a span of just eight years, the court has now done severe damage to two of the most important provisions of the Voting Rights Act of 1965 – a law that took years of struggle and strife to secure,” he said in a statement.Biden added: “While this broad assault against voting rights is sadly not unprecedented, it is taking on new forms. It is no longer just about a fight over who gets to vote and making it easier for eligible voters to vote. It is about who gets to count the vote and whether your vote counts at all.”Democrats in Washington are scrambling to find a way to pass new federal voting rights protections.One of the bills under consideration would restore the portion of the Voting Rights Act that section 2 has been used in lieu of in recent years and require certain states across the country to get voting changes approved by the federal government before they go into effect, in a bid to minimize discrimination.Kagan also noted in her dissenting opinion that the case came to the court at a time when states were considering hundreds of laws that would make it harder to vote, a moment she described as uniquely dangerous for American democracy.“The court decides this Voting Rights Act case at a perilous moment for the nation’s commitment to equal citizenship. It decides this case in an era of voting-rights retrenchment,” she wrote. “What is tragic here is that the court has (yet again) rewritten – in order to weaken – a statute that stands as a monument to America’s greatness, and protects against its basest impulses. What is tragic is that the court has damaged a statute designed to bring about ‘the end of discrimination in voting’.” More