Roe v. Wade is dead - and only a conservative Supreme Court can revive it. Now think about what that means.
The Supreme Court's decision to let the Texas law go into effect is game changing
There has been a real attempt to downplay what the Supreme Court did this week when it guaranteed that the most restrictive abortion law in the country would take effect in Texas. I’ve seen this happen time and again by really smart people so focused on technicalities they forget what’s going on in the real world for real people. I won’t even bore you with my personal views about abortion (they are complex but if I was forced to answer, I’d say I’m 60-40 pro-choice) because that’s not important right now. I’d rather talk about how we discuss complex issues in ways that makes things harder to understand. We get so focused on the technicalities that we can’t see anything else, or even when we can we end up making it harder to bring clarity to others. It’s a phony objectivity that helps no one.
Here’s one example:
The libertarian magazine Reason clearly understands what this move by the Supreme Court means. It details a good deal of it in this piece. And yet even they use a word like “punt” to describe what the court did.
The Court did not punt. The Court guaranteed the Texas law would go into effect. The 5 members of the Court who ruled this way knew this precisely. They know it better than everyone of the rest of us. It matters little that they try to claim it was because they didn’t believe the defendants had standing. That’s utter horseshit. When it came to lawsuits against covid mandates, those justices did not give a darn about that rationale. But they come up with these words just so folks like conservative commentators like Ben Shapiro can tweet things like this:
This is gaslighting at its finest. In a world in which Roe is still the law of the land, the Texas law simply could not exist. Period. There is no wiggle room on that. That’s why women were already being turned away from abortion clinics yesterday.
When the Court had ensured the Texas law would go into effect by not saying anything - which is an affirmative act given the context and the stakes - before releasing their 5-4 ruling many hours later, there were lawyers and law experts saying things like this:
Carissa Byrne Hessick @CBHessickI understand that abortion is a big deal. But an awful lot of tweets that I'm reading about the new Texas law and the US Supreme Court are really collapsing the act/omission distinction.
Look at the language and illogical in that tweet from a pretty darn smart person. He claimed the Court did nothing. He claimed Roe was still law of the land even though the Court has “permitted a ban that violates Roe to go into effect for now.” I have no doubt he knows the law better than I do, as well as how Supreme Court proceedings work. If I wanted to get a full run down on the legal details and technicalities about what happened and how and why and what those who wanted the Texas law to become permanent or be overturned need to do going forward, I’d turn to him. But if I wanted to know what this meant for real people in real world right now, I wouldn’t.
In the real world, it means that abortions will effectively come to a halt in Texas over the coming weeks and other red states - like my home state of South Carolina - will likely copy what Texas did. In other words, we are already in a post-Roe world even if Roe hasn’t technically been overturned. Again, depending on your politics, you may think this is a great thing or a bad thing. Either way, it’s important to know that this is the reality and stop getting bogged down in technical language.
In the real world, here is another effect of what the Supreme Court did - which was not nothing even before they released their 5-4 decision:
If you want to get into the technical arguments made by the justices, check this out:
If you want to understand the legal reasons for why this is bigger than just abortion, check this out:
But if you want clarity about what this actually means to real people in the real world, check this out: Abortion providers and distraught patients confront stark realities of Texas’ new law.
From that piece:
Dr. Bhavik Kumar said he normally performs between 20 to 30 abortions every day at the Planned Parenthood Center for Choice in Houston.
But on Wednesday, following the implementation in Texas of one of the country’s most restrictive abortion laws, Kumar saw only six patients. He had to deny abortions to half of them.
“One patient was very distraught and did not expect to be as far along as she was, and so the staff spent a good amount of time helping her think about other options and places out of state,” said Kumar, one of the named plaintiffs in the federal lawsuit seeking to overturn the new law. “When you're told your only option is to go to another state and travel and all the logistics involved with that, it's very distressing.”
Two other things you should know:
1) A post-Roe U.S. has never meant the elimination of all abortions. It mainly means that each state would get to decide for itself whether to allow abortion and/or how to restrict it. That’s where we currently are because of what the Supreme Court did.
2) Even in countries where abortion has been outlawed for a long time, abortions are still taking place. In fact, the abortion rate in those countries are often similar to the abortion rate here. It’s just that abortions are done in different ways. I don’t believe there is a country on the planet where abortions don’t take place. The question is and has always been who should decide and what those decisions mean for pregnant women who are dealing with these issues. This week, the Supreme Court decided that Republican legislators in Texas get to decide, and those legislators decided to essentially deputize residents to chase down women who are thinking about getting abortions as well as anyone who might help them.
If you are an Uber driver in Texas, you may want to figure out if the woman in the backseat is pregnant and trying to get an abortion after 6 weeks, because if you don’t, you may accidentally be participating in a crime in which a fellow citizen can take you to court and get at least $10,000 for turning you in. And you should know that many women don’t even know they are pregnant in the first six weeks.
All the legal technicalities in the world can’t obscure what’s happening in the real world.
And here is the primary fact that should not be left out of “straight news” coverage: The only way this turns around if the Supreme Court during its next session decides to reverse this. That’s right. In order to get out of this post-Roe world, at least one of the Republican justices who ensured the Texas law would go into effect would have to change his or her mind. (I say change his or her mind even though they technically didn’t rule on the merits because the practical effect of what they did means, yes, they actually did rule on the merits. You don’t ensure a law like this becomes law if you didn’t want it to be the law.) If that doesn’t happen, the practical reality is that what happened this week will be in place for the foreseeable future.