The Texas abortion bill.

What happens now?
Isaac Saul Sep 2, 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.”

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Today’s read: 13 minutes.

The Texas abortion law. Plus, a question about decriminalizing drugs.

Photo by Maria Oswalt on Unsplash

Tomorrow.

You’ve been hearing a lot from me about Afghanistan. Tomorrow, in a subscribers only edition, we’ll be publishing a piece from Tamim Ansary, an Afghan-American author who submitted a really compelling piece to us about the last few weeks in Afghanistan. To receive it, you need to be a subscriber. You can do that here:

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Quick hits.

  1. Tropical storm Ida battered the northeast, and at least 9 people died in flooding in the New York region. (The floods)
  2. A Colorado grand jury has indicted three police officers and two paramedics who were involved in the 2019 death of Elijah McClain, a 23-year-old Black man who was placed in a carotid hold and then injected with ketamine while in police custody. (The story)
  3. Covid-19-era federal jobless benefits are set to expire on September 6, and the Biden administration has told states to use emergency coronavirus funds if they want to provide additional benefits to their unemployed. (The end)
  4. Rep. Liz Cheney (R-WY) has been appointed vice chair of the committee investigating the Jan. 6 attack at the capitol. (The announcement)
  5. A bankruptcy judge has approved a settlement to dissolve OxyContin maker Purdue Pharma. (The ruling)

What D.C. is talking about.

Texas. Yesterday, a divided Supreme Court allowed a new Texas law that bans abortions after six weeks to remain in place. It is the most restrictive abortion law passed in America since abortions became legal nearly 50 years ago. The bill prohibits abortions once medical professionals can say there is “a detectable fetal heartbeat,” but this detection includes embryonic cardiac activity that happens around six weeks — often before a woman knows she is pregnant (these bills are colloquially referred to as “heartbeat bills,” however, opponents of the bill have argued this language is misleading because an embryo isn’t deemed a fetus until the 11th week of pregnancy, and the detectable activity is not always an actual heartbeat). There are exemptions in the bill for medical emergencies but no exemption for rape or incest.

The court’s ruling is not a final order on the bill’s constitutionality, but it will at least temporarily allow the law to go into effect — marking a major turning point in the battle over abortion rights. At least 12 other states have enacted bans on abortion in early stages of pregnancy, but all have been blocked from going into effect. Previously, the high court has not allowed states to ban abortions until after a fetus is able to live outside the womb, which is usually around 22-24 weeks. The unsigned order came down on a 5-4 vote, with Chief Justice John Roberts joining the three liberal justices in dissent.

The Texas Heartbeat Act, also known as SB 8, is particularly unique — and appears to have been successful in avoiding the same fate as other bills — because it calls for a novel enforcement scheme. In an effort to avoid being struck down by the court, the crafters of the law delegated enforcement to private parties instead of state officials. Under the law, any person in Texas can sue someone in the state who is alleged to have performed or aided in an abortion, and a successful suit can earn the plaintiff $10,000 in damages per abortion (the woman getting the abortion cannot be sued).

Critics described this mechanism as a bounty for private groups to sue abortion providers, but because state officials are banned from enforcing the law, their lawyers have argued that abortion providers weren’t entitled to an emergency order blocking it. That defense, along with the fact abortion providers are asking the court to rule on issues lower courts have not yet addressed, seems to have favored the state of Texas — at least for the moment. In the court’s majority opinion, it said abortion providers “raised serious questions regarding the constitutionality of the Texas law at issue,” but that continuing litigation raised “complex and novel” questions about legal procedure that undercut the providers’ request to halt the ban.

Writing for the minority, Justice Sonia Sotomayor said the bill “is a breathtaking act of defiance — of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas.” The Supreme Court is set to hear a direct challenge to Roe v. Wade in the coming term, which begins in October.

We have covered abortion in previous issues here and here.

Below, we’ll take a look at some reactions from the right and left. Then my take.


What the right is saying.

The right is supportive of this bill, though some are concerned about how long it will be until it’s struck down by a judge.

In his Substack newsletter, Erick-Woods Erickson tried to summarize how we got here.

“The abortion providers in Texas sued a Texas judge and county court clerk and others in an attempt to cast as wide of a net as possible to challenge the Texas Fetal Heartbeat Law that bans abortion when a fetal heartbeat is detected,” Woods wrote. “The defendants filed a motion to dismiss the case. It was denied. They appealed to the Fifth Circuit Court of Appeals. The Fifth Circuit denied the abortion providers' request to hold a quick hearing on the law before it could take effect. The result is that they had to file an emergency application with Sam Alito. Sam Alito chose to do nothing. The result is that the Texas law goes into effect. There will be court hearings. I'm sure a progressive judge will issue an injunction of some kind. But right now in Texas, abortions must cease when a child's heart develops in utero.

“I did not expect the Supreme Court to allow the Texas pro-life law to proceed, but they’ve done just that,” he said in a follow-up shortly after the court’s decision. “In a 5-4 decision overnight, the Supreme Court is allowing the Texas law to proceed pending current litigation. Just as notable, while John Roberts would have stopped the law from proceeding for now given the novel and new type of enforcement mechanism, Roberts patently refused to join the four liberal justices in saying the law is unconstitutional because it violated Roe and Casey… For now, the Supreme Court is allowing Texas’s law to proceed in large part because it allows private rights of action, none of which have actually been taken yet so there is nothing to deal with.”

In The National Review, Alexandra DeSanctis said the outcome was the “product of the legal strategy” pursued by the abortion providers: “waiting to challenge the Texas statute and then rushing to the Supreme Court at the eleventh hour.”

“But the outraged reaction from abortion supporters to the Texas law’s being allowed to take effect is a helpful insight into what we might expect to witness if the Court does its job and reverses the decades of legal inanity propping up the shambles of Roe,” she said, before citing some reactions from the left. “Planned Parenthood described the present situation like this: ‘Because starting today, the majority of people in Texas seeking an abortion will be denied the care they need because of politicians trying to control their bodies and their personal decisions.’

“Of course, the ‘care they need’ here refers to a procedure that intentionally ends the life of an unborn child,” DeSanctis wrote. “And rather than controlling people’s bodies and decisions, politicians are seeking to regulate a procedure that, again, intentionally ends the life of an unborn child. That Planned Parenthood disguises this reality in euphemisms is, as ever, especially telling… Contrary to this rhetoric, it’s important to note that the law in Texas imposes no criminal penalties, and none of its civil provisions apply to a woman who seeks or obtains an abortion after a fetal heartbeat can be detected. But that fact is impossible to locate among nearly any media coverage, let alone in the rhetoric of abortion-rights groups.”

In The Washington Examiner, Tiana Lowe celebrated the news.

“In Texas, the feminist Left is freaking out over a ban on abortions after six weeks of gestation taking effect,” she wrote. “Despite the fact that pregnancies can be ascertained with home tests before a missed period, and even though that six-week embryo has a detectable heartbeat and functional brain stem, Woko Haram would have you believe that this is oppression tantamount to the Taliban. So here's a piece of advice for all of them: If you plan to have sex and you wish not to become pregnant, get some birth control. For most women in the United States, it is free.

“Even if you refuse the pill, the patch, the shot, the IUD, an over-the-counter condom, or any other pregnancy prophylactic, most pharmacies, and even some delivery apps, sell emergency contraceptives without a prescription,” Lowe wrote. “Women in America seeking family planning resources have it better than any of their counterparts on the planet today or in human history. The state either funds or mandates dozens of varieties of free contraception. Even if those fail, hospitals provide Plan B for free… You are not oppressed, and Texas's new law is not an excuse to start pretending you are.”


What the left is saying.

The left is vehemently opposed to the legislation, saying it violates Supreme Court precedent and opens the door for abortion providers to be harassed.

“There’s a sinister brilliance to the way this whole thing has gone down,” Michelle Goldberg wrote in The New York Times. “Texas fashioned an abortion prohibition whose bizarre, crowdsourced enforcement mechanism gave conservative courts a pretext not to enjoin it despite its conflict with Roe… Pregnant women themselves are exempt, but anyone who helps them, including clinic staff, friends and family, nonprofits that help fund abortions, and even taxi drivers can be held liable. If the people who file lawsuits win, they’re entitled to attorney’s fees and at least $10,000. If they lose, they’re out nothing but whatever it cost to bring the suits, because defendants can’t recoup their attorney’s fees.

“It is also an outgrowth of a Republican Party that increasingly encourages vigilantism,” she wrote. “Today’s G.O.P. made a hero out of Kyle Rittenhouse, the young man charged with killing two people during protests against police violence in Kenosha, Wis. Leading Republicans speak of the Jan. 6 insurgents, who tried to stop the certification of an election, as martyrs and political prisoners… The Texas law should be seen in this context. It deputizes abortion opponents to harass their enemies. Texas Right to Life has already launched a ‘whistle-blower’ website where people can submit anonymous tips.”

In Slate, Mark Joseph Stern said the court just “overturned” Roe v. Wade in the most cowardly manner imaginable.”

“The decision renders almost all abortions in Texas illegal for the first time since 1973.” he wrote. “Although the majority did not say these words exactly, the upshot of Wednesday’s decision is undeniable: The Supreme Court has abandoned the constitutional right to abortion. Roe is no longer good law… Random strangers can sue any ‘abettor’ to an abortion anywhere in Texas and collect a minimum of $10,000, plus attorneys’ fees. The act’s language is incredibly broad, encompassing any friend, family member, clergy member, or counselor who facilitates the abortion in any way. Every employee of an abortion clinic, from front-desk staff to doctors, is liable as well. And when an individual successfully sues an abortion provider, the court must permanently shut it down.

“Texas Republicans devised this convoluted scheme to avoid judicial review of their ban, which blatantly violates binding Supreme Court precedent protecting the right to abortion before viability (around 23 weeks),” Stern wrote. “Abortion providers tried to work around Republicans’ scheme by suing the judges and clerks tasked with executing the ban, as well as an individual who indicated that he would sue an abortion ‘abettor.’ Nonetheless, the majority claimed that these providers failed to make a ‘strong showing’ that their legal arguments against SB 8 would be ‘likely to succeed on the merits,’ complaining about the ‘complex and novel antecedent procedural questions’ of the case. After months spent rewriting the court’s own rules by awarding themselves the power to intervene in cases that present all manner of ‘novel’ legal questions—including COVID restrictions and the eviction moratorium—the conservative majority decided it was powerless to halt a direct attack on Roe. And it did so with a thinly reasoned one-paragraph order handed down in the dead of night.”

In The Washington Post, Alexandra Petri criticized the hypocrisy of “freedom” in Texas.

“Let me explain!” she wrote. “Here in Texas, your body is your own, and the government is not going to interfere. We respect you as an individual much too much. We believe you should have total bodily freedom — to carry a firearm (basically a body part; has ‘arm’ in it) or breathe infectiously on a stranger. That’s why there are no mask mandates, just this new six-week abortion ban: because we don’t want the government to interfere with people’s lives, ever, except the minor degree to which someone’s life is interfered with by having to carry a fetus to term inside themself. Which is barely an inconvenience at all.

“We believe in freedom,” Petri wrote. “Your fist must stop where my nose starts, the Alamo, pew pew, etc. Except this one minor thing that is obviously not a big deal, where you have to use your body to build another body from whole cloth, give it eyeballs and a circulatory system, undergo months and months of creeping bodily horror as your torso becomes unrecognizable to you, familiar smells become off-putting, and the recently fired ‘Jeopardy!’ man threatens your livelihood, and then at the end of this process you have a human being for whom you have to arrange a life. Compare that minor, barely palpable discomfort with the shocking, invasive horror of placing a damp strip of fabric across your nose when you enter a business establishment for three to five minutes. I shudder just imagining it.”


My take.

Newsflash: we’re not going to solve the abortion debate here, however magical this newsletter is. I’m also not just going to punt for fear of upsetting people, either. There is obviously a debate about the ethical nature of abortion. As a reader put it to me recently, even the most die-hard, pro-choice advocate would agree that once a child is born, it has a right to live. And if you draw a line to the moment before conception, there is obviously no life whose rights need to be considered. So somewhere between those two points, things change for many people. But I actually don’t think that is a debate we need to resolve for this issue (there’s my partial punt: you can read past coverage here and here).

When examining Supreme Court rulings in Tangle — or the law in general — I usually go through a few different stages. The first is the standard sniff test: does this law feel right? And I’ll be honest with you, few pieces of legislation have failed the sniff test for me as badly as this one does. A bill that allows a random person in Texas to sue a doctor in Texas for providing an abortion to a woman at six weeks? Or a cab driver for taking her there? And to have a potential financial incentive of at least $10,000 of damages if they manage to win that lawsuit? Even if the woman was raped? Any one of these things on its own would be enough to set off my alarms — together they’re horrifying.

The second thing I do is try to put away my feelings and examine the process. In this case, it looks like the abortion providers just got bulldozed by the state. In the legal sense, they appear to have been outmaneuvered: the crafting of the law was cunning in achieving its end, and the providers waited weeks to act on it, then clearly got caught flat-footed. Because of how the law was crafted, and because no provider has been sued, the court can’t yet declare it unconstitutional. However you want to cut it, it appears the abortion providers expected a different outcome from the court and were not prepared for this moment.

The third thing I try to do is cut through the legal jargon and complexity of these rulings — of which, in this case, there is a lot — and just try to simplify what’s happening. In that regard, the bill again looks pretty absurd. The precedent in this country, right now, is Roe. Roe makes it clear abortion is, at minimum, legal until a fetus is viable, usually at about 23 weeks. Yet in our second most populous state, most abortions — perhaps more than 85 percent — and many well before viability, are now illegal. Anyone who “abets” in that abortion could face financial ruin, and any citizen can make thousands of dollars by successfully suing one of those abettors. Worse, it appears they can do so with impunity, as the sued have little legal recourse to recover lost earnings or legal fees. As Stern wrote, precedent is only precedent if the court enforces it, and in this case, they haven’t. It’s head spinning.

Now, I know what many pro-lifers are thinking: Roe v. Wade is a ridiculous judicial overreach in the first place, and if you want abortion to be legal you should go and pass a Constitutional amendment or law to make it so. But that argument is actually irrelevant here. The fact is Roe v. Wade is the law of the land, is the precedent, and should be enforced. Legally. Until it no longer is the precedent, this bill is just as ridiculous as it looks.

This brings me to my final point: this all looks bad to me in a vacuum, but it’s made even worse by the fact there is a direct challenge to Roe v. Wade coming in the next term this October — one that will include oral arguments, a full robust debate, and opinions from the justices on how and why they are making their rulings. If the court is going to strike down Roe v. Wade and allow states to craft their own abortion laws, that’s how they should do it. Given the stakes of this topic, it’s the minimum we deserve from our Supreme Court. Instead, we essentially have them throwing their hands up and saying they don’t know what to do, so they’ll allow a law that clearly violates constitutional precedent to go into effect by default.

I understand that for the millions of Americans who view abortion as murder, this is a day to celebrate, because who cares if ending the systematic killing of babies requires some quirky judicial maneuvering? I also know that many of those Americans have genuine, well-intentioned and empathetic motivations for that position. But this is a truly dangerous, litigious bill that is going to create chaos in Texas and, worse, create financial incentives for frivolous lawsuits, to say nothing of the impact on women and healthcare providers across the state. For me, something like this doesn’t — and shouldn’t — pass that basic sniff test.


Your questions, answered.

Q: There's a growing wave of drug decriminalization efforts in the United States, as well as some more fringe pushes for full legalization. You've written before about how you don't believe in the efficacy of prohibition, but what sort of system do you think we should move to going forward?

— Bryan, Chicago, IL

Tangle: Generally speaking, I would say basically everything I can think of should be decriminalized. I don’t say that because I want more people using drugs — just the opposite. I’m not talking about legal opioids like heroin or percocet that someone can buy at a dispensary as you can now buy cannabis in Colorado. But it seems clear to me that imprisoning people for drug use and possession is counterproductive.

Drug dealing is a different conversation, and I’m not totally sure my opinion is fully formed there. Do I want the dealers who sold my high school friends heroin to go to jail after seeing so many of them ruin their lives or die? Yes. I do. Am I certain that putting those people in prison would make the world safer? No. I’m not.

It’s also true, though, that decriminalization can lead to legalization and then make many dangerous drugs easier to access. Alcohol and tobacco, for instance, destroy lives and ruin public health every day. Making them legal has made them more accessible, and the cost to public health has been tremendous. Our society is attached to alcohol and tobacco, but they are objectively horrible for us and are great financial and health burdens on the country as a whole (they’re also, of course, big profit centers).

That’s why decriminalizing a drug — as a starting point — seems wise to me. We know that keeping something illegal, or threatening a prison sentence for using it, does not reduce its use. We know that legalizing a drug, and allowing the sale and regulation and taxation of it, can increase its use. So as a baseline, decriminalizing something so people aren’t being thrown in jail for what they put in their bodies seems good. Legalizing something is a larger conversation that requires a drug-specific debate.


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A story that matters.

Around 15 million doses of the Covid-19 vaccine have been thrown away in the U.S. since March, according to a new NBC investigation. The 15.1 million doses wasted is likely an undercount, according to government data obtained by NBC News. “Four national pharmacy chains reported more than 1 million wasted doses each,” according to the report. “Walgreens reported the most waste of any pharmacy, state or other vaccine provider, with nearly 2.6 million wasted doses. CVS reported 2.3 million wasted doses, while Walmart reported 1.6 million and Rite Aid reported 1.1 million.” While the reasons for discarding the doses are not listed, common issues have included cracked vials, malfunctioning freezers, and more doses in a vial than people who want to take them. NBC has the story.


Numbers.

  • 85%. The estimated number of abortions that happen after 6 weeks of pregnancy in Texas.
  • 54,741. The number of abortions that took place in Texas in 2020, according to Texas Health and Human Services.
  • 40. The number of abortion clinics in Texas in 2013.
  • 24. The number of abortion clinics in Texas today.
  • 166,080. The average number of new Covid-19 cases in America every day for the last week.
  • 210, 816. The number of new Covid-19 cases recorded in America yesterday.

From a reader…

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Have a nice day.

Video of a cow outside New Orleans is going viral after it was found in a tree in the wake of Hurricane Ida. The cow was discovered in a tree in Florissant, Louisiana, east of New Orleans, in the Louisiana bayou. Rescue workers rushed to the unusual scene and successfully got the cow down, who presumably ended up in the tree thanks to the winds of Hurricane Ida — which were the fifth fastest ever recorded for a hurricane as it made landfall in the U.S. (USA Today)

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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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