Abortion rights hit Supreme Court.

It's the biggest threat to Roe v. Wade yet.
Isaac Saul May 18, 2021
I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum — then “my take.” You can read Tangle for free or subscribe for Friday editions, and you can reach me anytime by replying to this email. If someone sent you this email, they’re asking you to sign up. You can do that by clicking here.

Today’s read: 11 minutes.

We’re covering the challenge Roe v. Wade that will reach the Supreme Court. Plus, a big “story that matters” and a chance to submit a question to Tangle.

Norma McCorvey, left, who was Jane Roe in the 1973 Roe v. Wade case, with her attorney, Gloria Allred, outside the Supreme Court in April 1989, where the Court heard arguments in a case that could have overturned the Roe v. Wade decision. Photo: Lorie Shaull

We’re back.

Thank you all for graciously accepting (and in some cases, encouraging!) my brief day off yesterday. With my wedding and honeymoon happening this summer, there will be a few other Tangle-free days, but I’ll always try to ensure you’ve got an engaging, valuable email from us — even if I’m taking some time away.

Quick hits.

  1. Rep. Val Demings (D-FL), who was on the shortlist to be President Biden’s running mate, says she is going to run for Sen. Marco Rubio’s Senate seat in 2022. (Politico)
  2. President Biden says the U.S. will ship an additional 20 million doses of coronavirus vaccines to other countries by the end of June. (Axios)
  3. The United States blocked what would have been a unanimous statement from the U.N. Security Council that expressed “grave concern” over the loss of civilian life in the Israeli-Palestinian conflict. (Associated Press) Fighting continued into a second week on Monday. (The Washington Post, subscription)
  4. New York, once the state hardest hit by the coronavirus pandemic, will lift its mask mandate for vaccinated people, with exceptions for public transit, nursing homes, homeless shelters, jails, schools, and health care facilities. (NBC New York)
  5. The Maricopa County Board of Supervisors, comprised predominantly of Republicans, said an ongoing audit of the Arizona county’s 2020 election vote was a “sham” and a “con” and called on the GOP-led Senate to end it. (AZ Central)

What D.C. is talking about.

Roe v. Wade. Yesterday, the Supreme Court agreed to hear a challenge to its landmark 1973 ruling that made abortion legal across the United States. That ruling recognized that a constitutional right to personal privacy protected a woman’s ability to obtain an abortion.

The challenge comes from the state of Mississippi (Dobbs v. Jackson Women’s Health Organization), which passed a law in 2018 that bans abortion after 15 weeks of pregnancy except in cases of medical emergencies or serious fetal abnormalities. The law was meant to create a direct challenge to Roe v. Wade, as previous Supreme Court rulings have defined fetal viability at about 24 weeks (allowing unrestricted abortion up to that time). The timeline of fetal viability is a contentious issue on its own, but courts have typically marked it in the 24 to 28 week window, though some states (including Mississippi) have passed laws that define it as 20 weeks from conception. The court said it would examine whether “all pre-viability prohibitions on abortion are unconstitutional.”

When abortion rights groups responded to the law by suing Mississippi, the state’s law was struck down by a federal judge in 2018 and then the 5th Circuit Court of Appeals in 2019. For months, the Supreme Court has balked on whether to hear this case or not — but now plans to take it head on. Similar laws in a dozen states, including Alabama, Louisiana and Oklahoma, have also been struck down under Roe v. Wade precedent. In the most recent high-profile case, in 2020, the Supreme Court struck down a Louisiana law that imposed restrictions on doctors who performed abortions in a 5-4 ruling. But liberal justice Ruth Bader Ginsburg was still on the court at that time.

This time, the Mississippi challenge will reach a court with a staunch 6-3 conservative majority. With the addition of Justice Amy Coney Barrett in October, many legal observers believe Mississippi’s challenge to Roe v. Wade could result in a major weakening of the law — or even see it struck down entirely. NARAL, an abortion rights group, estimates that 24 states could ban abortion outright if Roe v. Wade is struck down.

The court will hear the case in October of 2022, right before midterm elections that will determine who controls Congress, staging a political battle (on top of a legal one) that could set off a bitter culture war. Below, we’ll look at some reactions to the news from the right and left.


What the left is saying.

The left is sounding the alarm, calling this a legitimate threat to Roe v. Wade, women’s rights and the right to abortion.

In The Washington Post, law professors Leah Litman and Melissa Murray said the court “is about to show the country its true colors,” and doesn’t even have to strike down Roe v. Wade — it could just limit it.

“The Mississippi law at issue would prevent women from terminating their pregnancies before viability, the point at which the fetus may survive outside of the womb,” they wrote. “Under existing case law, the statute is plainly unconstitutional. In Roe v. Wade, the Supreme Court held that women have a constitutional right to terminate a pregnancy. And in 1992, in Planned Parenthood v. Casey, the court declined to overrule Roe and reaffirmed that ‘a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability…’

“Rather than overruling Roe and Casey, the court might say that viability is no longer a meaningful marker for determining when a state may restrict a woman’s right to choose — a decision that would be as consequential as scuttling Roe itself,” they said. “It could allow states to restrict access to abortion at any point during pregnancy, sharply curtailing reproductive rights as lower courts reconsider the constitutionality of bans on abortion after 12 weeks, 10 weeks or six weeks of pregnancy. Under Roe  and Casey, courts easily found all such laws unconstitutional because they prohibited abortions before viability. If the court erases viability’s significance, many abortion restrictions once easily struck down will pose more difficult questions for reviewing courts.”

In Slate, Mark Joseph Stern said the fact that the court decided to hear the case “indicates that the ultra-conservative five-justice majority is prepared to move aggressively against Roe v. Wade rather than tinker around the edges of abortion rights.”

“Mississippi gave the justices several options for a more limited ruling; its petition to the court included a question that would’ve let the court modify the standard for abortion restrictions without overtly killing off Roe,” Stern wrote. “But the justices rejected that alternative and agreed to consider the central question in the case: ‘Whether all pre-viability prohibitions on elective abortions are unconstitutional.’

“This action suggests that the conservative majority is no longer interested in gradually eroding abortion rights until they are, in reality, nonexistent. This strategy has guided the anti-abortion movement for decades. It has resulted in laws that shutter abortion clinics under a bogus pretext, compel doctors to read anti-abortion propaganda, force women to undergo ultrasounds and waiting periods, and forbid abortions for specific reasons, like fetal disability. After the confirmations of Justices Brett Kavanaugh and Amy Coney Barrett, the conventional wisdom dictated that the Supreme Court would begin to uphold these laws, chipping away at Roe until it became a hollow promise. But the new conservative majority is not waiting for these half-measures to reach the court; with Dobbs, it has gone for the jugular. Roe itself is on the table.”

In a CNN op-ed, Mary Ziegler said this could be the case that takes down Roe v. Wade.

“Many advocates and Americans in general will likely see Monday's development as a sign that the writing is on the wall -- that Roe v. Wade may well be doomed. They will not be wrong,” she wrote. “A court eager to take on abortion bans early in pregnancy seems unlikely to hesitate when the moment comes to eliminate abortion rights altogether. Indeed, there is some reason to believe that Dobbs may be that moment. To uphold Mississippi's law, the justices would need to undo a core part of the rules that have governed abortion since 1973: the idea that states cannot criminalize abortion outright until viability. If the court is willing to jettison a key ingredient of the Roe case, there is no reason to think the justices won't be ready to ditch the rest.”


What the right is saying.

The right supports reversing Roe v. Wade, arguing that abortion is not protected by the Constitution and the issue should be up to the states.

The National Review editorial board said it’s time to end Roe v. Wade and send abortion law back to state representatives.

“Seven men in black robes started this,” the board said. “For 48 years, using a shifting series of rationales — emanations from penumbras, a woman’s ‘own concept of existence, of meaning, of the universe, and of the mystery of human life’ — the Court has been winging it. Making up the rules has led to making up more rules: What burdens on abortion are ‘undue?’ Should the court apply a ‘balancing test?’ Even Chief Justice John Roberts has mocked that project: ‘There is no plausible sense in which anyone, let alone this Court, could objectively assign weight to such imponderable values and no meaningful way to compare them if there were.’

“Meanwhile, with each passing year, modern medicine finds new ways to save babies delivered earlier and earlier, and modern science finds new ways to bring us face to face with the elementary biological fact that the unborn are individual human beings,” they added. “Roe was supposed to make law rest on science instead of text and tradition, but real science accepts new discoveries. The refusal of judges and lawyers to adjust to new science is a sign that they were better off sticking to reading laws.”

In The Daily Signal, Sarah Parshall Perry wrote that “mainstream media outlets clutched their pearls and unsurprisingly characterized the decision to hear the case as portending a massive rollback of reproductive rights.”

“Pro-life conservatives everywhere can only hope,” she said. “American sentiment is behind continued limitations on abortion, as revealed in an NPR/PBS NewsHour/Marist poll in 2019. That poll found that only 29% of Americans say abortion should be allowed after the first 13 weeks of pregnancy. Perhaps the court will take this opportunity to reconsider Roe v. Wade and to see it for what it was—an unwarranted and unwise power grab in which the court crafted a ‘constitutional’ right to abortion out of thin air.

“Overturning Roe would return abortion policy to the states where it belongs—and to the democratic process in which Americans debate the morality of abortion and their elected state representatives decide what citizens of their state can and cannot do,” she concluded.

In The Washington Examiner, Tom Joyce said abortion at 15 weeks “ends a complex and developing human life.”

“This is a developing human being who has his or her own unique DNA and one who most likely developed a detectable heartbeat at six weeks of development,” he wrote. “At eight weeks, the unborn human's lungs develop, and two weeks later, the brain and other vital organs are beginning to function, as the Virginia Department of Public Health notes. Even at 12 weeks, which is still in the first trimester, the unborn human can swallow. At 16 weeks, the unborn human is usually about 4 1/2 inches long and has its own movements inside of the womb (limbs and eyes), according to the Mayo Clinic.

“Although this is a developing human being and the public generally opposes second-trimester abortions, the pro-choice side doesn’t care,” he added. “Abortion proponents see abortion as healthcare and vigorously oppose the Supreme Court allowing any restrictions on abortion.”


My take.

Anyone who has read this newsletter for any period of time knows that I look kindly on much of America’s founding documents. I share the mainstream conservative view that the Constitution is one of the greatest pieces of legal writing of all-time, and one that has been emulated and regurgitated and adapted in nations across the planet to promote freedom and democracy ever since. It has changed and evolved in meaningful ways here, too, often in the pursuit of extending its original promise to a larger group of Americans than just White, male property owners.

To point to the lack of a specific Constitutional right to abortion as reason for upholding abortion prohibitions now is an unconvincing way to make an argument. The original Constitution didn’t grant women a right to vote either; indeed, much like everyone other than those White, male property owners, it barely recognized their existence at all. It took centuries to amend and correct that. To use a document that hardly acknowledged women’s existence then as the foundation to uphold laws that prohibit women from abortion now strikes me as absurd.

On the contrary, and without addressing the moral, religious or philosophical questions of when life begins, the best argument for repealing Roe v. Wade is that it would allow voters in each state to choose their own abortion regulations. As Coleman Hughes once pointed out, all kinds of controversial and highly charged questions are solved at the state level, perhaps most relevantly the age of sexual consent. And many of those laws operate inside what we as a society (and the federal government) have determined to be a reasonable range (e.g. most Western democracies pin the age of consent for sexual activity at 16 to 18 years old).

My own Extremely Controversial Hot Take™ is that abortion law in America is somewhere close to where it should be — and that’s in large part thanks to Roe v. Wade. To recall the question of sexual consent, our courts have determined that nobody under the age of 16 can legally consent to sexual intercourse, and nobody over the age of 18 can be legally prohibited from consenting to sex. States have mostly solved for the grey area in between.

What Roe v. Wade does, and what this challenge is attempting to reverse, is create a federal protection for the bottom end of that viability range when it comes to the question of abortion. Roe v. Wade essentially preserves a woman’s right to have an abortion at any stage in her pregnancy up to 24 weeks if she deems it necessary — which is somewhere near the court’s determination of when the average fetus can live on its own outside the womb.

Everything I’ve read about the moral, scientific and ethical questions around abortion, scientific life, philosophical personhood and a woman’s right to control her own body makes me think it’s reasonable for the government to attempt to preserve choice in this range. If you have an opinion on this issue, you probably just had a knee-jerk reaction to that sentence. Most thinkers on abortion have their own lines: many “pro-life” Americans would not object to a woman taking Plan B after being sexually assaulted; many “pro-choice” Americans support things like partial-birth abortion bans or bans on abortions past a certain stage in pregnancy. Depending on the poll, around one-fifth of Americans on each side want outright bans or outright legality at any stage in a pregnancy regardless of the circumstances. But in this case, the existence of Roe v. Wade is not determining anything that has to do with late-stage abortions — it’s only addressing that lower range.

In that case, even if you’re starting from Sarah Parshall Perry’s contention that the Supreme Court “crafted a Constitutional right to abortion out of thin air,” and therefore it should go back to the states, this does nothing to address the reality of what abandoning Roe v. Wade would do. The current law largely gives women, their partners and their doctors the ability to address the moral, scientific and ethical question of abortion without permission or intrusion from the government during the early stages of pregnancy. Conversely, striking down Roe v. Wade would probably make the abortions one in four women have gotten a criminal act (or criminalize the doctors that have performed them) in over 20 states. My opinion is that option one is strikingly better than option two.

Just as I wrote about the Arkansas bill that removed the right for transgender teens to consult their doctors and parents, opening the door for states to legally prohibit all abortions — which is exactly what many would do — would be a fundamental infringement on the right of women, their doctors and their partners’ self-determination to freely make these life-altering decisions. Just as I wrote about banning menthol cigarettes, we can consult our own history to understand what prohibitions work and which don’t. Just as I wrote about vaccine passports, handing the government wide-reaching power over your own health care — which is what many decisions around abortion amount to — is a massive privacy and autonomy issue.

It’s a frequent refrain from the left, but it’s a worthwhile one: Roe v. Wade is not encouraging or promoting abortions. No woman and no family I’ve ever heard of desires having to make that choice. While some research has predicted that increasing the distance to a legal abortion clinic would reduce the number of abortions, it does little to account for the untold number of dangerous, black market abortions that could replace safer procedures. If you’re interested in reducing the number of abortions that happen in America every year, we can make some educated guesses about why legal abortions are at an all-time low (birth control, sex education, state restrictions in the boundaries of Roe v. Wade) — and it’s not due to criminalizing women who seek them out, or doctors who perform them. But that’s precisely, and perhaps exclusively, what the outcome of overturning Roe v. Wade would be.


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A story that matters.

The Treasury Department said that the federal government will begin sending its monthly child tax credit payments on July 15. That means starting in mid-July, some 39 million households will receive up to $300 per child under the new initiative signed into law by the Biden administration. Almost 90 percent of the nation’s children will receive the allowance. The checks will continue to go out on the 15th of every month, and the program is currently set to continue for a year, though Democrats aim to expand it. (The New York Times, subscription)


Numbers.

  • 619,591. The number of legal induced abortions reported to the CDC in 2018.
  • 1,300,760. The number of legal induced abortions reported to the CDC in 1981.
  • 16.3. The estimated number of legal abortions per 1,000 women in 1973.
  • 29.3. The estimated number of legal abortions per 1,000 women in 1980.
  • 13.5. The estimated number of legal abortions per 1,000 women in 2017.
  • $5.1 million. The amount of money New York Gov. Andrew Cuomo is expected to receive in his pandemic book deal.
  • $607,336. The income President Joe Biden and his wife Jill earned in 2020, according to their latest tax return filing.
  • $1.7 million. The income Vice President Kamala Harris and her husband Douglas Emhoff earned in 2020, according to their latest tax return filing.

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Have a nice day.

Latonya Young just got her bachelor’s degree last week at the age of 44 years old. And the single mother of three said one of her Uber passengers is a big reason why. Three years ago, Young was driving for Uber when she picked up Kevin Esch. The two struck up a conversation, which eventually led to Esch talking about his divorce and Young sharing the challenges of getting a degree. The two exchanged numbers and kept in touch, and after the conversation — and a big tip — Young was inspired to re-enroll in school.

But when she went to re-enroll she found out she still owed $693 from a previous semester that she couldn’t afford. After telling Esch the story, he went to Georgia State University without her knowledge and paid off the debt — opening the door for her to return, and then graduate. The two shared the story of their enduring friendship with The Washington Post.

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Isaac Saul

I'm a politics reporter who grew up in Buck County, PA — one of the most politically divisive counties in America. I'm trying to fix the way we consume political news.

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