Republicans are filing terrifying bills by the fistful every week. But that doesn't mean resistance is futile.
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For most people paying attention to U.S. national politics and law, the situation looks incredibly grim. Roe v. Wade has fallen, and abortion is illegal in almost half the country, and there’s no hope of reversing the Supreme Court’s decision for at least a decade. These same states have filed over 300 anti-transgender bills only two months into 2023, and because of the demise of Roe v. Wade, they’re likely to stand. And people can’t just “vote them out.” Gerrymandering makes flipping legislatures in many swing states such as Wisconsin and North Carolina nearly impossible. Worse, in many states like Texas, Virginia, and Florida, Americans are happily electing right-wing populist (read: fascist) state officials like Governors Greg Abbott, Glenn Youngkin, and Ron DeSantis by wide margins.
However, that doesn’t mean resistance is futile. There are still options available while Republicans push highly unpopular ideas through state legislatures and the administrative system.
One that is available in some states is a ballot initiative to either amend state laws or the state constitution. We saw this succeed in Michigan in 2022, where the right to abortion was enshrined into law by voters with a 14-point margin. Ballot initiatives on abortion went 6 and 0 in favor of access in 2022, and advocates for reproductive rights are adopting this strategy wherever possible in 2024. Seventeen states allow the public to initiate ballot proposals to amend the state constitution. This includes 10 states with abortion restrictions (Arizona, Arkansas, Florida, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, and South Dakota), and advocates in those states plan on putting this on the ballot during the next presidential cycle.
While red states threaten to prosecute doctors, women seeking abortions, and supportive parents of transgender youth in states like California, New York, Vermont, and Massachusetts are passing sanctuary laws protecting those affected. The reaction from the religious right to these sanctuary laws demonstrates that they have drawn the right’s attention. These laws effectively block GOP reach into other states, and Republicans see them as something to be torn down when they seize power at the federal level.
Governor Gavin Newsom has also taken to the art of trolling conservative courts with their own rulings. After Texas passed a law (SB8) allowing people to individually sue abortion providers as a back door way of banning abortion, the Supreme Court ruled that it lacked the jurisdiction to overturn laws involving torts at the state level. Governor Newsom turned around and passed a control law that allows people to sue individuals who sell assault weapons using the exact same logic endorsed by the Supreme Court only months earlier. While a district court blocked the law, it set California on a trajectory to force the Supreme Court to explain why courts didn’t have the jurisdiction with SB8, but suddenly did when it was SB1327 targeting guns instead of abortion.
The Supreme Court has also carved out massive exemptions for religion from, well, everything. Civil rights laws. Labor laws. Accounting laws. Oversight laws. Laws governing non-profits. You name it. They’ve also made it clear that it is not the business of the government to question the sincerity of a religion, and that any government interference with a religion is intolerable.
Enter the Satanic Temple. The “religion” (it’s a secular humanist organization) has taken up the mantle of trolling on behalf of the LGBTQIA community. Some chapters’ membership is 25% trans and non-binary people. They’ve trolled the GOP for years, but it seems a matter of time before they declare puberty blockers and estrogen tablets to be a part of a religious sacrament, the way wafers and grape juice are part of mass. For the states that are banning trans health care, this is going to turn into a fight over why letting kids at Pentecostal Churches handle rattlesnakes is just fine, but doctors can’t administer life-saving drugs to trans kids at the Satanic Temple next door.
The Supreme Court is going to have to tie itself in logical knots to explain why one type of religion gets carte blanche to ignore basically any law it likes, but a less popular religion is subject to government interference.
At an even more granular level, individuals can engage in malicious compliance with the rules. Rarely are jurors prosecuted, and it makes the use of jury nullification a tempting way to prevent doctors and parents of trans youth from being successfully convicted. Strict adherence to unjust laws is a moral failing and leads to horrors committed by the state against its citizens.
Unfortunately, this is cold comfort to the doctors, trans people, and parents of trans youth fleeing repressive states. In parts of Mississippi, there are no gynecologists left, leaving a state with one of the highest maternal mortality rates in the developed world in even worse shape. Other trans people are looking for ways to leave the country altogether and seek asylum abroad. The mainstream media has turned on trans people, and already seemingly forgotten the harms caused by Dobbs v. Jackson.
It’s all incredibly grim. But I believe that most Americans have assured themselves that if THEY lived in a repressive state where minorities were demonized and driven out, and women reduced to childbearing chattel, that they would have fought back. They would have done something. They would have resisted. They would have been one of the “good ones.”
Well, here’s your chance.
Because while resistance is not futile, it does entail personal risk.
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