GOP’s Sexual Repression
While the focus over the last few weeks has rightly been on the war in Ukraine, there has been a remarkable proliferation of extraordinarily repressive legislation coming out of Republican-controlled legislatures. The targets are the gay, lesbian, and transgender communities, women of a child-bearing age as a whole, and Democratic voters in general. Most of these bills are abjectly cruel and potentially deadly for those targeted groups and many rely on what are essentially vigilante civilian enforcement procedures that were recently endorsed by the Supreme Court in the Texas abortion bounty case.
Idaho became the first state to replicate the Texas bounty law that limits abortion to the first six weeks of pregnancy, which is often before a woman even knows she is pregnant. As opposed to Texas where anyone can sue those who in any way aids or abets an abortion after that time, Idaho is restricting lawsuits to a maximum of ten family members of the so-called “pre-born child” but increases the award to $20,000 per family member, potentially exposing each of those sued to a $200,000 liability. These laws are designed not to directly target the mother, who is exempt from such lawsuits, but rather the entire apparatus that makes abortion available. There is an exception for rape and incest, but it requires filing a police report which could further endanger the woman being abused. If the rape victim does not file the police report but goes ahead with the abortion, she would then become liable just like anyone who aided and abetted that abortion. Incredibly, then, the only time a mother could be sued under this law is by her rapist and his family. Like the Texas law, the Idaho bill establishes the six-week threshold based on a “fetal heartbeat”, a non-medical term that is basically junk science. A fully formed four-chambered heart is usually not found until at least 10 weeks into pregnancy.
Other red states are following suit. Oklahoma is considering multiple bills – one that mirrors Texas’ abortion bounty and fetal heartbeat limit and another that would limit abortions to within 30 days of the woman’s last period, which, of course, is long before a woman even suspects she’s pregnant. Tennessee is taking the Texas law one step further, outlawing all abortions entirely. It does prohibit a rapist from suing those who provide an abortion for the victim but does nothing to prevent the rapist’s family or friends from doing so. Missouri is even more extreme. Although its bill allows abortions up to ten weeks, it requires ectopic pregnancies after that time to be carried to term. Not only are those pregnancies not viable, they are also the leading cause of death for women in their first trimester. This would reprise a 2019 Ohio bill that mandated the transplant of an ectopic fertilized egg into the uterus, a medical procedure that is apparently not possible. In addition, Missouri would put a bounty on anyone who helps its residents get an abortion anywhere, even outside Missouri, in essence a fugitive uterus law. Finally, Missouri would be make it felony punishable by up to 30 years in jail to provide abortion medications, cutting off another yet another abortion option.
Missouri’s fugitive uterus law is clearly and blatantly unconstitutional as no individual state has jurisdiction over activities in another state. But then again, so are all the other abortion restrictions described above. Roe v. Wade is still the law of the land and allows abortions until fetal viability which is somewhere around 24 weeks. The Texas and now Idaho restrictions only exist because the Supreme Court currently endorses the view that state laws can be crafted in such a way as to abrogate current constitutional rights and evade judicial review.
In implementing these abortion restrictions, Republicans constantly talk about the sanctity of life and desire to protect the “pre-born children”. Their actions, however, put lie to that rhetoric. In Iowa, for instance, the Senate passed a bill to legalize the sale of unregulated raw milk without any warning labelling as to its dangers. Unpasteurized raw milk products can lead to miscarriages, stillbirth, and premature birth for the “pre-born”. And Republicans’ concern for those children ends with birth. Raw milk is also responsible for Salmonella and E.coli outbreaks that can result in kidney failure and even death. In one five year period at least one child under five years old was sickened in nearly 60% of the outbreaks associated with raw milk. In Kansas, the legislature is considering creating a religious exemption for any school and child care vaccination requirements for children, including measles, polio, and chicken pox.
Similarly, as some of the aforementioned laws illustrate, Republicans’ concern for the mother is virtually non-existent except as a Handmaid’s Tale vehicle for the child. After birth, it’s even worse. In Mississippi, for the second year in a row, the House just blocked a Senate-passed bill that would have extended Medicaid benefits to new mothers beyond the current two months after birth. In one recent study, Mississippi’s pregnancy-related maternal mortality rate was found to be nearly twice the national average and Black mothers in the state were three times more likely to die than white mothers from pregnancy-related issues. 86% of the state’s pregnancy-related deaths occurred after birth and 37% of those were over six weeks after birth. The state also has the highest infant mortality rate in the country. And, let’s not forget, it is Mississippi’s law that outlaws abortion after fifteen weeks that Supreme Court is using as the vehicle to overturn Roe v. Wade.
These abortion restrictions are just prelude to the next phase of the right’s assault on the privacy rights of women. In Michigan, the three Republican candidates for Attorney General were all asked about the landmark case Griswold v. Connecticut which established a constitutional right to privacy and woman’s right to obtain and use birth control. All three were apparently unfamiliar with the case, but they all agreed that it was wrongly decided and that this issue should be left up to the states to decide. In New Hampshire, the Republican House passed laws to implement a Texas style six-week abortion ban as well as to allow pharmacists and other health care providers to deny access to birth control based on a “moral objection”. Incredibly, that “moral objection” could also be used to deny life-saving medical care to patients in general, not just women seeking abortions or birth control. More of these laws targeting birth control will proliferate when the Supreme Court finally and officially overturns Roe v. Wade later this Spring.
Women aren’t the only targets of this new right wing vigilante crusade. Florida’s new “Don’t Say Gay” law is another intentionally vague statute that relies on private lawsuits for its enforcement and as a cover to avoid judicial review. The bill states that “classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards”. As Ian Millhiser points out, none of those terms, such as “classroom instruction”, “age appropriate”, are clearly defined, and the State Education Department is not even required to produce the “state standards” that apply for another year. In the interim, all the bill does is provide a way to terrorize teachers and school administrators into avoiding any gender or sexual orientation issues entirely. Mark Joseph Stern adds that the “or in a manner that is not age appropriate” standard would actually mean that grades 4-12 would also be covered by this law.
Georgia is considering a similar bill that matches the Florida language almost identically. However, the Georgia bill would not just cover public schools but virtually every private school in the state as well. Kansas, Indiana, Oklahoma, and Louisiana are considering similar legislation. Tennessee recently considered an even more extreme version that would bar “use in the public schools of this state, textbooks and instructional materials or supplemental instructional materials that promote, normalize, support, or address lesbian, gay, bi-sexual, or transgender (LGBT) issues or lifestyles”. Essentially, this bill would erase LGBT persons or issues in public school education. Thankfully, that bill died in a House committee.
Republican supporters of these bills are describing any descriptions or even acknowledgement of homosexuality in schools as being part of an effort to “groom” children, a throwback to the 1950s when gays and lesbians were forced to live in the closet and were presumed, by definition, as liable to engage in predatory behavior against children. The “grooming” charge from conservatives is just an attempt to criminalize and stigmatize anyone who isn’t straight.
That attempt to stigmatize is especially true for trans children. Texas’ new anti-trans directive treats any “elective procedures for gender transitioning” for minors as child abuse. It requires those with a duty-to-report, such as doctors and educators, to notify the state if a child is engaged in or considering such action. It encourages the general public to report such instances as well, creating a Stasi-like environment for trans families who now have to worry about who might report them. It blocks the prescription of puberty blockers and hormone therapy for trans minors. It is also backward looking, so that the parents of a trans adult could still be charged with child abuse if the efforts at transitioning occurred as a minor. As one parent of a trans child who is currently being investigated sadly summarized, “Our state is terrorizing us and torturing us. We didn’t do anything wrong other than love our kids and want our kids to be healthy”.
Idaho is again following in Texas’ footsteps. The Idaho House has passed a bill that would criminalize gender-affirming medical treatment for minors including puberty blockers and hormone therapy. It would also make it a felony punishable with a life sentence for helping a minor get such medical treatment in another state, a reprise of Missouri’s fugitive uterus law. Thankfully, it appears that the bill will die in the State Senate. The Alabama legislature is also close to passing a law that would criminalize providing puberty blockers, hormone therapy, and gender-affirming surgery by medical professionals. Indiana and Iowa have passed legislation that prohibits transgender girls from competing in women’s sports.
Just as the attacks on abortion and birth control show little concern for the health of women, the attacks on homosexual and trans rights show no concern for the health of the children being criminalized and stigmatized. A recent study showed that over 40% of LGBTQ youths had recently considered suicide yet Texas removed its suicide hotline from its resources for trans youth as part of the governor’s anti-trans directive. One medical professional summed up the negative impact of these laws, saying, “Discriminatory laws can worsen mental health and suicide rates among LGBTQ people…Stressed children can withdraw from normal activities, have difficulty concentrating, have poorer academic performance, and resort to behaviors present at a younger age. Stressed teens are more susceptible to substance use and suicide”.
Conservatives defend most of these laws by claiming they are defending parents’ rights. But the real legal argument behind this claim is actually an appeal to states’ rights. It is an effective strategy because, at its core, the US Supreme Court is now a states’ rights court. As the nearly two centuries of Black disenfranchisement illustrated, a states’ rights country is a country where constitutional rights are not universal, but instead are denied to a few targeted classes within our society. In our new iteration of states’ rights, it’s not just Blacks but Democrats as a whole who are being denied voting rights. For women, the right of privacy is now disappearing. For the LBGTQ community, their brief taste of equality is now also under threat. This is the new Republican vision. For those who might downplay the threat that this vision poses, the life and soon-to-be death of Roe v. Wade should be all the warning one would need.