Dec 2, 2021

The SCOTUS abortion case.

The SCOTUS abortion case.

Oral arguments gave clues about what's coming.

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 on the news of the day — then “my take.”

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Today's read: 13 minutes.

We're covering the arguments made before the Supreme Court yesterday. We're also skipping today's reader question to give this delicate issue some extra space and attention.

Note: a previous version of this piece inaccurately attributed a quote to Justice Elena Kagan. This edition has been updated.

English: Participants in the "March for Life" walk along Concord Avenue in Knoxville, Tennessee, United States. Photo: Brian Stansberry
English: Participants in the "March for Life" walk along Concord Avenue in Knoxville, Tennessee, United States. Photo: Brian Stansberry

Tomorrow.

In tomorrow's subscribers only edition, I'll be publishing an essay submitted by a reader related to today's topic: abortion. This reader is pro-life, but an advocate of the consistent life ethic, an ideology that opposes abortion, capital punishment, assisted suicide and euthanasia. I find her writing to be compelling and her well articulated perspective both fascinating and unique, and have decided to share it in Tangle. If you'd like to receive the issue (and have half of your subscription donated to feeding the hungry), you can subscribe below:


Quick hits.

  1. Researchers at U.C. San Francisco say they’ve detected the first known case of the Omicron coronavirus variant in the United States. (The first case)
  2. The Women's Tennis Association has suspended all tournaments in China and Hong Kong in response to the treatment of Chinese tennis star Peng Shuai. (The suspension)
  3. In outlines of a "winter plan" to address Covid-19, President Biden extended mask mandates for travelers into March of 2022. (The plan)
  4. Symone Sanders, a high profile aide to Vice President Kamala Harris, is leaving Harris's office by the end of the year. (The move)
  5. Democrats and Republicans reached a funding deal to prevent a government shutdown, which would have taken place this weekend. (The deal)

Today's topic.

Mississippi’s abortion law. Yesterday, the Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, the case regarding a law enacted in 2018 by the Mississippi legislature that banned abortions if the "probable gestational age of the unborn human" was more than 15 weeks. The law had narrow exceptions for medical emergencies and severe fetal abnormalities, but no exceptions for pregnancies caused by rape or incest.

In case you missed it, we published a lengthy newsletter on Tuesday that explained the background of Roe v. Wade and the Dobbs v. Jackson challenge. If you haven't read that yet, I strongly suggest you go read it now.

During the oral arguments, the conservative justices — who now hold a 6-3 majority — seemed poised to uphold the Mississippi law, which is at odds with the precedent established by Roe v. Wade 50 years ago (Roe v. Wade was designed to protect abortion rights up until fetal viability, usually around 24 weeks). Justice Brett Kavanaugh articulated a clear willingness to reverse that precedent, noting that many of the court's most important decisions have turned back long standing precedent in the past. Justice Sonia Sotomayor, meanwhile, warned about the "stench" on the court that would exist if its interpretation of established law simply changed based on the personal preferences of the sitting justices at the time.

Chief Justice John Roberts, who often works to ensure the court makes incremental changes to law, seemed inclined to find a middle ground, asking questions about whether 15 weeks would be an appropriate line. Many court watchers have speculated the justices could allow the Mississippi law to stand, but attempt to reach a decision that preserves abortion rights early on in pregnancies.

What seemed clear, though, is that the court as it stands received Mississippi's arguments favorably, and that a major change to abortion law in the U.S. could well be coming. The court is expected to hand down its ruling in late spring or early summer.

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


What the left is saying.

  • Overturning Roe v. Wade would be disastrous for the court and roll back women's autonomy.
  • The court should reject Mississippi's law, given 50 years of well-established precedent.
  • The pro-life movement disregards real experiences of dangerous pregnancies and low-income Americans.

In The New York Times, Mary Ziegler said the "end of Roe is coming."

"There are two likely scenarios for how this decision could go: The justices could throw out the so-called viability standard, which is the underpinning of abortion law today (Viability is the point at which a fetus can survive outside the womb, or about 23 weeks of pregnancy.) Or they could do something much more radical and say — precedent be damned — there is no right to abortion in America at all," Ziegler wrote. "After hearing arguments, I now believe that the justices will fully overturn Roe v. Wade when their decision comes down next year.

"I believed that the court would eventually overturn Roe — several of the justices were handpicked by former President Donald Trump to do just that — but before the Dobbs arguments, I didn’t think they would do it so quickly. I thought that the justices would give themselves time to soften the blow, to make their case to the American people while overhauling abortion rights and to defuse arguments that the justices are just partisans in robes," she said. "What I heard Wednesday morning was not a court in which a majority was worried about backlash, but a court ready for revolutionary change."

In The Detroit Free Press, Ashia George wrote about her transformation from pro-life to pro-choice.

"Ten years ago, the birth of my first child took a heavy physical toll. The pregnancy was very difficult, culminating in an emergency C-section. A year later, despite taking birth control, I unexpectedly became pregnant a second time. I knew my body was not ready for the trauma of giving birth again so soon," George wrote. "That experience motivated me — and enabled me — to get a college degree and become a registered nurse at a women’s health clinic in Detroit. I see hundreds of people every month who would experience all manner of severe hardship — including death — without access to safe abortion.

"Here in Michigan, about a dozen bills seeking to reduce access to abortion have been introduced, despite overwhelming public opposition to such restrictions," George added. "Outlawing abortions will not stop them from occurring. Instead, people with means will be able to travel to places where abortions remain safe and legal. We are seeing that occur at the clinic where I work. People are flying in from Texas, where earlier this year, the state Legislature enacted a draconian anti-abortion law that, in essence, puts a bounty on abortion providers, and anyone else who provides support to someone in need of an abortion... Those who can’t afford the costs of taking time off work and traveling out of state will be forced into pregnancy, or put their lives at risk by obtaining abortions outside the safety of a medical setting. History provides us with irrefutable proof that people will always find a way to have an abortion, safe or not, legal or not, because their survival can depend on it."

In Slate, Mark Joseph Stern struck a similar tone.

"Give this to the Supreme Court: It did not leave us in suspense," he wrote. "During oral arguments on Wednesday in Dobbs v. Jackson Women’s Health Organization, five Republican-appointed justices made it abundantly clear that they are prepared to abolish the constitutional right to abortion established nearly 50 years ago in Roe v. Wade. Perhaps the most surprising aspect of the morning was how little Justices Brett Kavanaugh and Amy Coney Barrett concealed their desire to overrule Roe. While Chief Justice John Roberts fruitlessly sought out a compromise, Kavanaugh and Barrett showed their cards: Both justices believe the court has an obligation to let states (or Congress) decide the abortion question. Neither showed any appetite for incremental steps or half-measures. They are eager to greenlight complete bans on all forms of abortion at every stage of pregnancy. And they are ready to do it now.

"The court will hold that advancements in the law of adoption and relinquishment protect women’s equal participation in the nation’s social and economic life after childbirth," he wrote. "It will assert that these developments erode the value of Roe and Casey as precedents. It will then declare that those decisions were egregiously wrong, because the Constitution is “neutral” on abortion. And it will frame this outcome as a triumph of democracy and a fair compromise because the court did not mandate abortion bans, but simply permitted them. Within six months of the decision, experts predict that roughly half the states will impose complete or near-total bans on abortion. And if Republicans win a trifecta in 2024, they may pass a nationwide ban."


What the right is saying.

  • They argue Roe v. Wade was wrongly decided, and at the very least the court should uphold the Mississippi law, even if it doesn't strike down abortion rights wholesale.
  • Leaving this issue up to states and voters would be the appropriate Constitutional response.
  • Getting the Supreme Court back to "neutral" would allow a real moral debate about abortion to happen.

The Wall Street Journal editorial board called it a "crossroads."

"These columns have long supported a policy of legal abortion before viability, albeit uneasily as technology has revealed the development of the fetus," the board wrote. "But we have had no hesitation in saying that Roe v. Wade (1973) and its progeny, notably Planned Parenthood v. Casey (1992), were wrongly decided. Abortion is nowhere mentioned in the Constitution, and its regulation is a classic example of police powers reserved for the states... The Justices could agree with the Fifth Circuit and declare that Mississippi’s law is unconstitutional. But that is highly unlikely given the new majority and its originalist views of constitutional interpretation.

"They could also take Mississippi up on its initial offer and uphold its law without overturning Casey, which modified Roe’s trimester analysis. Casey’s core ruling is that states cannot impose regulation that is an 'undue burden' on a woman’s ability to obtain an abortion," the board wrote. "The Court could rule that Mississippi’s ban is not such a burden, and thus it does not have to reconsider Casey or Roe. This would be justified as a matter of law in this case. Given the Court’s reluctance to overturn long standing precedents, this may be where a majority or plurality comes out. Some Justices might feel this is a safe harbor to show that the new Court with its Trump appointees isn’t out willy-nilly to overturn precedent. We disagree with those on the right who say this would betray the conservative legal movement. Such a ruling would be akin to the incremental progress the Roberts Court has made on other legal precedents, notably on free speech and religious liberty."

In The National Review, Michael Brendan Dougherty said this is only a march to the starting line for the "real race" to win the moral argument on abortion.

"The issue before the Court is not the morality of abortion," he said. "All that is at issue is whether the people, through their state legislatures, are able to limit and regulate the practice of abortion — whether abortion is a fundamental constitutional right or a matter for self-governing people to determine democratically. A huge, against-all-odds victory that vitiates the holding of Roe v. Wade and Planned Parenthood v. Casey would only mean the restoration of American self-governance on the issue of abortion. The legal movement to restore constitutional rule on the issue is only the prelude to a true democratic pro-life movement.

"Overall, American abortion law will — in aggregate — become more like European abortion law, with a variety of restrictions kicking in after the first trimester. And like European abortion law, American abortion law will likely develop in a way that seeks to satisfy the contrary and contradictory impulses of the American people; the laws will often lack moral coherence," he wrote. "If the pro-life movement succeeds in the Court, suddenly it faces its real problem, of which legal abortion is the result. The pro-life movement will be facing the sexual revolution itself. And it will suddenly be in the position where it must argue that sexual liberation is simply impossible... Abortion has become our culture’s attempt to make the impossible possible. It is used to make abandonment look like a change of mind, to make death look like health care. It’s the awful, bloody thing we’ve done to reconcile our desires with our circumstances and limitations. Overcoming it will require more than this courtroom drama."

In Fox News, Marjorie Dannenfelser said overturning Roe v. Wade will allow women to debate the issues that matter most to them.

"Standing by precedent may sound prudent, but this appeal quickly falls apart for several reasons," she wrote. "Firstly, precedent is supposed to provide workable guidance and establish a clear path forward, but Roe only muddied the waters. At the time, progressive legal scholars like John Hart Ely criticized the ruling, saying Roe 'is not constitutional law and gives almost no sense of an obligation to try to be.' Edward Lazarus, a clerk for majority-opinion author Justice Harry Blackmun, stated that Roe’s interpretation of the Constitution 'borders on the indefensible.' Justice Ruth Bader Ginsburg even conceded Roe 'provoked, not resolved, conflict.'

"Secondly, supporters of abortion argue that without Roe, women would be reduced to second-class status," she said. "This is both false and paternalistic. Women are gaining representation in many professional areas even as abortion rates steadily decline. Legalizing abortion wasn't a panacea that allowed women to succeed; their hard work and determination, along with good policymaking, made that possible. To claim seven male justices saved women from gender inequality is ludicrous. Women themselves hold a diverse range of views about abortion. For example, 79 pro-life female legislators from 45 states signed our amicus brief supporting Mississippi... Overturning Roe won't reduce the number of women in the workforce or repeal the 19th Amendment; instead, it will allow women to debate the issues that matter the most to them."


My take.

I'll be honest: I rarely feel intimidated or scared to write something these days. I've regularly stepped out of my comfort zone, written about taboo subjects, or taken controversial opinions and can usually comfortably steel myself for the response. But covering abortion, or writing about my own opinions on it in any way, still makes my stomach turn. The reasons for that are probably self-evident, but they're worth stating up front for the record.

If you take anything that resembles a pro-choice position, one where a woman gets to make the decision about whether to carry her pregnancy to term without the forcible hand of the government involved, a good chunk of the country views you as complicit in murder. The lives of the unborn are on near-equal footing in their minds with those of us already outside the womb, and even if they don't see it as "the same as killing a person," many certainly view it as worse than, say, executing someone on death row.

On the other hand, if you articulate a position that in any way advocates for valuing the life of a fetus over the mother’s decision, or putting limits on the timeframe in which an abortion can happen, there's a huge chunk of the country that believes you don’t think women should have autonomy over their own bodies. This group thinks you want to control women’s bodies, their sex lives, and their self-determination, to the degree that they become second-class citizens. And that you are likely some kind of brainwashed religious zealot, too. This is especially true if you are, like me, a man: someone who will never have to face the question of whether to give birth to a human being or not. Someone whose life will never be as powerfully impacted by abortion law as a woman's.

As Michael Brendan Dougherty wrote above, the question before the court is not a moral one. At the risk of alienating some of my readers, though, I think it’s necessary to be transparent that I fall into the “pro-choice” camp. I see good legal and ethical causes for having certain limits on abortion, and I don't view pro-lifers as insidious evil zealots trying to reduce women to nothing more than childbearers. Virtuous arguments in the pro-life movement abound, especially among pro-lifers who consistently carry that ethic across the spectrum (an idea you'll see articulated well in tomorrow's reader essay).

I'm equally sympathetic to the idea that Roe v. Wade and abortion law as it stands in the U.S. was mostly concocted out of thin air. The justice who wrote the viability standard basically admitted as much, and the idea that there is a moral difference in a 24-week old fetus vs. a 26-week old fetus outside the womb seems pretty preposterous on the face of it (anecdotally, the record for earliest premature birth is constantly being broken). Even full term newborn babies, as any parent or aunt or uncle or grandmother can attest, wouldn't last very long without constant support and attention from those around them. This is a pro-life argument I find particularly compelling.

And yet, we regularly draw arbitrary lines as a guidepost in law. You must be 18 to vote, or 21 to drink, or 16 to drive, and we accept these thresholds as law even though they are equally arbitrary as when we should or shouldn’t allow an abortion. Further, it's equally disingenuous to pretend that a newly fertilized egg carries the same inherent value as a newborn baby or a prospective or current mother (many women receiving abortions are already mothers, or planning to be in the future), which I think is why the court has struggled for so long to navigate this issue.

There's no way to reasonably put a fertilized egg’s consciousness, sense of pain, societal value, personality, self-determination or worth on the same playing field as a newborn baby, let alone a pregnant woman. And I've simply never seen, heard or read a compelling argument to the contrary. Once we accept that there is that difference, then we are accepting that there is a gradient of life, and that we are responsible for the incredibly challenging moral question of determining where in that gradient we want to begin giving explicit legal protections to a fetus that may take away the free will and choice of a pregnant woman.

I'm not going to pretend to have a satisfying answer to that question, and I don't think I need to for this discussion. As it pertains to the case before the Supreme Court, though, the outcome seems clear: I think Roe v. Wade is going to be overturned and I think legal abortion is about to become a lot less common the United States. This is, for me, a worst-case-scenario proposition.

I say that not just because we know that women will still find ways to get abortions, only now in far less safe environments and at the risk of penalty (or punishment) for the doctors involved in the abortions (and, perhaps, the women themselves). But also because of the tragic reality that it's unlikely to do much to actually reduce the number of abortions in the U.S. The practical outcome is going to further exacerbate the disparities in care across states, take away 50 years of deeply embedded Constitutionally protected autonomy that women have had (whether you agree with the Roe v. Wade ruling or not, it now runs generations deep) and it is unlikely to even serve the "victorious" side's overarching objective, which — unless you think it's about controlling sex or women's bodies — is to reduce the number of abortions.

The truth is that the best way to reduce that number in the U.S., if that really is your goal, is to popularize secular sexual education, make birth control cheap and effective, and improve access to women's health care. This is not a complicated truth — it's logically straightforward, and observable throughout history and across the country. But it's one far too many people on the pro-life side don't want to hear. Which, hey, if you view abortion as state-sanctioned murder that's happening every day, I understand not wanting to take a middle ground. But staking out that position leaves little room to resolve the issue (or make any progress at all) in a country where most people don't agree with you, another reality that has remained essentially unchanged for 50 years.

It's also true that this ruling is going to have a disproportionately negative impact across the lower economic classes. Well-off people will still be able to travel to get abortions, or pay for the abortion itself, or order abortifacient medicines, while poor and low-income Americans in states with abortion restrictions won't. And, simultaneously, those people will then face the burden of giving birth in a country where carrying a child to term is absurdly expensive, quite dangerous, and comes with little government support for the parents or the child (though things seem to be improving in that department). That child will then face the prospect of growing up in a family with few resources to provide the care and quality of life we all want for our own kids. And while there are millions of parents wanting to adopt, there are also hundreds of thousands of kids waiting to be adopted, and ultimately adoption does nothing to resolve the actual costs and risks of carrying a pregnancy to term, even though Justice Amy Coney Barrett argued as much.

None of this strikes me as a just or positive whole life outcome, particularly when determining the fate of a law that has no exceptions for rape or incest (despite some 84% of Americans supporting such a clause). In fact, Americans are split on whether abortion is morally wrong, but quite clear on their preference that abortion should be legal in specific scenarios. Relatedly, current CDC data indicate that 92.7% of abortions are performed at or less than 13 weeks’ gestation, 6.2% are performed between 14 and 20 weeks, and fewer than 1% were performed after 21 weeks. In other words, right now, abortions are happening almost entirely within the timeframe that the Mississippi law currently allows, and that the vast majority of Americans deems morally acceptable. Thanks to many of the snap laws in place across the country, though, overturning Roe v. Wade would immediately make most or all of those abortions illegal.

My feelings aside, it seems that outcome is very likely. And I fear what will come after it, especially in a country that's already hopelessly divided, with a court that's already viewed overwhelmingly negatively, and on an issue that has always seemed irreconcilable.


A story that matters.

The U.S. has been under a deluge of cyberware attacks, and the Biden administration is now accelerating efforts to address them. Over the last year, ransomware attacks have targeted government information infrastructure and major corporations’ networks, leaving them susceptible to data leaks, blackmail and other security risks. Meanwhile, there are nearly 600,000 vacant cybersecurity positions in public and private sectors, including 1,500 at the Department of Homeland Security alone, leaving those industries even more vulnerable. Now, government, nonprofit and private entities are partnering in an attempt to train new cybersecurity technicians to fill the void as quickly as possible. Axios has the story.


Numbers.

  • 32%. The percentage of Americans who think abortion should be legal under any circumstances, according to Gallup.
  • 48%. The percentage of Americans who think abortion should be legal only under certain circumstances, according to Gallup.
  • 19%. The percentage of Americans who think abortion should be illegal in all circumstances.
  • 46%. The percentage of Americans who say abortion is morally acceptable, according Gallup.
  • 47%. The percentage of Americans who say abortion is morally wrong, according to Gallup.
  • 61%. The percentage of Americans who believe abortion should be legal during the first trimester, according to an AP/NORC poll.
  • 34%. The percentage of Americans who believe abortion should be legal during the second trimester, according to an AP/NORC poll.
  • 19%. The percentage of Americans who believe abortion should be legal during the third trimester, according to an AP/NORC poll.

Don't forget.


Have a nice day.

Phew. Who needs a "have a nice day" story? I definitely do. Here's a good one: Yesterday, Capital One announced it was going to end the industry practice of charging customers hefty overdraft fees, giving up approximately $150 million in annual revenue. Customers who have paid the fees will be automatically rolled over into a free overdraft protection service next year, and those who opt out of the service will simply have overdrawn transactions declined. For years, consumer advocates have been pressing banks to abandon this practice, which often punishes those who can least afford to pay the fines. As someone who once lived in the constant hellish fear of an overdraft, I'm thrilled to see the change. CNBC has the story.


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