It’s no secret that Republican state legislators have disturbing priorities. The tidal wave of voter-suppression laws that they have been enacting is front and center in the nation’s consciousness.
Citizens are likewise watching closely—mostly with slack-jawed disbelief—the unhinged election “audit” that state legislators have commissioned in Maricopa County, Arizona. That’s the one where auditors have searched in vain for traces of bamboo in ballots, sniffing out a suspected Chinese plot. (Auditors evidently posit that the former president was literally bamboo-zled out of re-election.)
Republican state legislators from Wisconsin and Pennsylvania—who, it might have been hoped, would seek professional help for their addled Arizona compatriots—have, instead, traveled to Phoenix to study the spectacle for possible emulation.
Auditors have searched in vain for traces of bamboo in ballots, sniffing out a suspected Chinese plot.
But this big-ticket Republican-agenda item has crowded off the front pages a wide range of hair-raising objectives that G.O.P. state legislators have also been diligently pursuing. These overshadowed bills—and enacted laws—are almost as dangerous.
This year, for instance, Republican state legislators may well have introduced more bills to outlaw transgender girls from playing on public-school girls’ sports teams than there are transgender girls playing on public-school girls’ sports teams.
In March, after reaching out to the sponsors of the roughly two dozen such bills, the Associated Press reported that most had been unable to cite a single instance of a pertinent complaint that had arisen within their states’ borders. One Tennessee lawmaker defended his bill as “proactive.” (When the first such law to be enacted—in Idaho—was enjoined by a federal judge last August, he noted in passing that there was “no history of transgender athletes ever competing in sports in Idaho.”)
We’ve also seen a rash of ghoulish bills—and enacted statutes—known as “fetal-remains laws.” Generally, these seek to force health-care providers to bury or cremate tissues from a miscarriage or abortion rather than incinerating them as medical waste—unless the formerly pregnant mother opts to dispose of them herself.
We’ve also seen a rash of ghoulish bills—and enacted statutes—known as “fetal-remains laws.”
One such Pennsylvania bill, which passed out of committee last month, effectively forces health-care providers to discuss these painful issues with patients—and, according to providers, to file a “fetal death certificate”—for any miscarriage or abortion whatsoever, no matter how soon after fertilization, including those triggered by life-threatening, nonviable ectopic pregnancies in which the embryo never implanted in the uterus.
“It would heighten the emotional suffering for patients and families,” says Alhambra Frarey, an ob-gyn in Philadelphia, while also pointlessly adding regulatory costs to health-care providers. (The office of state representative Francis X. Ryan, the bill’s principal sponsor, did not return two messages.)
Fetal-remains bills are a surreptitious, flank operation in a state-legislative “shock-and-awe campaign” against abortion this year, as the Guttmacher Institute has termed it. (Guttmacher is a reproductive-rights research group.)
In fairness, this strategy is hardly illogical, given the spanking-new six-to-three majority on the Supreme Court that conservatives won last October, when Justice Amy Coney Barrett was shoehorned onto the Court a week before the election that swept her appointer out to Mar-a-Lago. Some 561 bills to restrict abortion rights have been introduced this year, according to the institute, with 83 already signed into law—the most since 1973, the year Roe v. Wade established a constitutional right to abortion.
One set of such bills would require doctors to give scientifically dubious advice to patients as to the purported “reversibility” of medication-induced abortions. These laws allude to an unproven, experimental therapy that involves giving the mother large quantities of the hormone progesterone after she has received the first of two abortion-inducing medications, but before she has received the second.
The American College of Obstetricians and Gynecologists has opined that “no evidence” establishes that this therapy works, while some evidence indicates that it “may be associated with an increased risk of hemorrhage.” But an Indiana law passed in April makes it a felony for a doctor not to tell patients about the controversial regimen or, indeed, not to hand them a written notice that must read, per statute: “Immediately contact the following for more information at (insert applicable abortion inducing drug reversal Internet web site and corresponding hotline number).”
Some 561 bills to restrict abortion rights have been introduced this year.
Bills such as these, which gnaw around the edges of abortion rights, may soon be passé, however. This year, at least 14 states have introduced bills that would cut to the chase and simply outlaw abortion outright (except to save the life of the mother). Arkansas’s governor signed one into law in March. Similarly, Texas last month adopted one that bars most abortions after a fetal heartbeat can be detected. That’s typically around six to eight weeks, which is before many women realize that they are pregnant.
Then there are bills that target protesters. A slew of these—more than 100 introduced since June 2020, according to PEN America—appear to have been triggered by last summer’s unprecedented wave of racial-justice demonstrations. For instance, the “hit and kill” bills. These seek to immunize drivers from any adverse civil or criminal consequences for unintentionally running over protesters. (Oklahoma passed one in April.)
Others create fuzzy new crimes such as “riot-boosting,” “unlawful assembly,” “civil unrest,” “rout,” and “disorderly assembly.” Some seek to punish organizations that provide “material support”—“financial, logistical, informational or other”—to protesters who commit these ill-defined offenses.
Still others would impose onerous new penalties for protest-related offenses, including loss of public assistance (cash, medical, or food) for those convicted—or, in one case, even just charged. (One bill introduced last September in Michigan—though not adopted—would have required siccing child-protective services on mothers who had a child with them at the time they were charged with a protest-related offense.)
Others create fuzzy new crimes such as “riot-boosting,” “unlawful assembly,” “civil unrest,” “rout,” and “disorderly assembly.”
In a possibly related development, a spate of “permitless concealed carry” (P.C.C.) laws have been passed. They free up “patriots” to hide loaded firearms on their persons without the training, background checks, or law-enforcement approvals that were once required to do that.
According to the Giffords Law Center, as recently as 2014 permitless concealed carry was a rarity—lawful in just four states. By 2019, however, 11 more states had joined their ranks. This year already, according to the center, five more have gone P.C.C., while a sixth, Texas, has a bill awaiting signature on the governor’s desk.
Finally, a rash of confusing bills have been introduced that seem to have been inspired by a short-lived executive order that the ex-president issued last September. That order attempted to bar federal agencies and contractors from conducting training programs that promoted “divisive concepts.” Subsequently issued White House guidance suggested that trainings that used phrases such as “critical race theory,” “white privilege,” “systemic racism,” “intersectionality,” and “unconscious bias” would be among those forbidden.
Since January, many state legislatures have picked up the gauntlet. At least 6 bills have been introduced to bar trainings of state officials or contractors that employ similar concepts, while 14 bills would bar those concepts from being taught in public schools—sometimes even at the university level. According to the African American Policy Forum, which tracks such legislation, five bills specifically ban the teaching of the 1619 Project. Arizona’s bill calls for fining teachers up to $5,000 per violation. Florida and Idaho enacted versions of these bills this month and last, respectively.
Apostate Republican George Conway III recently described his former party in a Washington Post op-ed as “a declining sect dominated by crackpots, charlatans and cowards.” Very apt comment—except for the “declining” part.
Though Democrats unambiguously won the presidency in November, retained control of the House of Representatives, and narrowly seized control of the Senate, the party actually lost ground in the nation’s statehouses, where it had already been miserably behind.
Five bills specifically ban the teaching of the 1619 Project. Arizona’s bill calls for fining teachers up to $5,000 per violation.
As a consequence, Republicans are now in command of 61 of 99 state legislative chambers, including both chambers in 30 states (compared to 18 for Democrats). They have the trifecta—a Republican governor, too—in 23 states (compared to 15 for Democrats).
In many trifecta states, they’ll be able to gerrymander the post-census re-districting, helping them to artificially control federal congressional delegations in those states for 10 years—until the next census. (In 2019, the five Republican-appointed Supreme Court justices voted to let them do that.)
By controlling those congressional delegations, Republicans will be able to win presidential elections without either the popular vote or even an Electoral College victory.
If Republican state legislators halt certification of enough adverse results of presidential elections in their states, they can, under the 12th Amendment, throw the election to the House of Representatives. And since the 12th Amendment permits only one vote per state delegation under those unique circumstances, Republicans will likely win there, regardless of whether Democrats “control” the House for all other purposes.
How can Democrats restore democracy? They probably can’t. That’s because their “victory” in the Senate last November was illusory. The party is hog-tied by Senator Joe Manchin, of West Virginia, who won’t permit it to eliminate the filibuster. This has, so far, hobbled efforts to counteract Republican voter-suppression laws, while thwarting any hope of adding majoritarian voices to the Supreme Court to offset the three appointed by the minority-elected ex-president.
And that’s the grim conclusion, I’m afraid. Although the Republican Party may well be “dominated by crackpots, charlatans and cowards,” as Conway writes, it’s actually an ascendant sect.
Roger Parloff is a New York City–based writer