Jun 30, 2020

The Supreme Court's abortion ruling.

The Supreme Court's abortion ruling.

Plus, what unites Americans?

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Today’s read: 10 minutes.

The Supreme Court’s abortion ruling, a question about what unifies Americans and an update on the COVID-19 vaccine.

Around 3000 people met outside the Minnesota state capitol building to protest against new laws banning abortion. States such as Alabama, Georgia and Missouri have recently passed new laws that are, in effect, abortion bans. Minnesota Republicans are also pushing for an abortion ban after the 20th week of pregnancy. Photo: Fibonacci Blue

Quick hits.

  1. The alleged Russian bounties on U.S. soldiers is setting off a debate about what Trump knew and when he knew it. The New York Times is reporting that the president was briefed on intelligence linking Russian military units to bounties on U.S. soldiers, but the Department of Defense and the White House are denying that reliable intelligence existed and that the president was briefed on it.
  2. China passed a sweeping law aimed at crushing dissent in Hong Kong. The National People’s Congress voted unanimously to pass the bill, which is designed to prevent and punish subversive and terrorist activities in collusion with foreign forces, The Wall Street Journal reports. The law is setting off fear amongst pro-Democracy groups that it will lead to a mainland clamp down on Hong Kong.
  3. Arizona’s Gov. Dough Ducey ordered bars, nightclubs, gyms, movie theaters and water parks to close for at least 30 days after a surge in COVID-19 cases. Ducey, a Republican, was resisting calls to mandate that Arizonans wear masks as recently as mid-June, and only reversed course after a letter signed by 1,000 medical professionals in his state was made public. Now, he’s urging everyone to wear face coverings. Arizona is one of a handful of states to re-impose restrictions amid a surge of cases.
  4. The Supreme Court ruled by a 5-4 majority to endorse a Montana tax incentive program that indirectly helps private religious schools. It’s a major victory for Americans who want more public funding for religious institutions, and Chief Justice John Roberts wrote the decision for the conservative majority. Roberts wrote that the Montana Supreme Court was wrong to strike down a tax incentive program because the state constitution forbids public funds from going to religious institutions. “A state need not subsidize private education,” Roberts wrote. “But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”
  5. 14 states are working on bills to limit the participation of transgender students in athletics. The legislators halted action on the bills because of the coronavirus pandemic, but are expected to pick them up soon. They are Alabama, Arizona, Georgia, Idaho, Indiana, Iowa, Louisiana, Missouri, Mississippi, New Hampshire, Ohio, South Carolina, Tennessee and Washington. “Proponents of the bills believe transgender athletes endanger federal funding of women's sports at all levels because trans women may have a biological advantage over competitors,” Axios reports. “Opponents argue the laws, if enacted, would bar students from joining sports and would expose them to invasive tests if their gender is challenged.”

What D.C. is talking about.

The Supreme Court struck down a Louisiana law yesterday that could have resulted in the closure of all three of the remaining abortion clinics in the state. The law aimed to require doctors performing abortions to receive admitting privileges from a hospital within 30 miles of the clinic, should something in the procedure go wrong. By a 5-4 vote, the Supreme Court ruled that the bill was identical to a 2016 Texas law that the court had struck down just four years ago, a law the court said imposed undue burdens on women seeking abortions.

Justin Stephen Breyer wrote the opinion for the majority of the court, and the four liberal justices on the bench concluded that such a law had no medical benefits and interfered with a woman’s constitutional right to end a pregnancy. But Chief Justice John Roberts, who cast the deciding vote, wrote a separate opinion against the law, with a narrower focus. He voted against the bill because of a Supreme Court legal doctrine known as stare decisis — the idea that the court should not overrule prior precedent (in this case, the 2016 ruling striking down the similar Texas law, a ruling which Roberts voted against).

It’s the third time this month that Roberts has bucked the “conservative” wing of the court, siding with his liberal colleagues in a 6-3 ruling that extended civil rights protections to LGBT employees and in the 5-4 ruling that stopped Trump’s attempt at ending Deferred Action for Childhood Arrivals (DACA). The rightward lurch of the courts has been a major conservative undertaking for decades, and these monumental rulings have sent much of the conservative judicial movement into crisis mode.

What the left is saying.

It’s a win for science. The Lousiana law was a clear attempt at shutting down abortion clinics on a trumped-up, bogus claim that abortions were dangerous — and thus abortion clinics needed admitting privileges at nearby hospitals to run. One of the preeminent studies on the safety of abortions was published in the Health Services Research journal and followed 22,000 abortion patients over a combined 200 month observation period. Just four patients needed emergency transfers to a hospital, and admitting privileges had no impact on their health outcomes. Given that physicians are often denied or ignored when they apply for admitting privileges from hospitals, shutting down clinics based on this requirement would be nonsensical.

“Abortion has been shown to be safer than the simple procedures of a tonsillectomy or a wisdom tooth extraction,” Ushma Upadhyay wrote in USA Today. “Yet even with the overwhelming evidence on abortion safety, there are still multiple laws that ignore the science and restrict access to this essential care.”

In The Washington Post, Paul Waldman conceded that Justice Roberts may be operating with political motives. Waldman argued that Roberts would likely overturn Roe v. Wade, the Supreme Court ruling that made abortion legal, if he had a proper opportunity. But he recognized this wasn’t the moment.

“Roberts has an ideology, but he is not an ideologue,” Waldman wrote. “He is an extremely savvy political operator, one who carefully sides with liberals when he determines that it is necessary to save the Republican Party from itself. Which is what he just did.”

Other liberals were less optimistic. Ian Millhiser, the preeminent Supreme Court reporter at Vox, called it “the narrowest, most temporary victory for abortion rights,” saying Roberts didn’t just save abortion rights, “he told future litigants how to bury them.” Roberts signaled that he would be open to other challenges to abortion law in his opinion. Just not the challenge that was brought to the court this time. That means the current protections could last a year or two.

“The takeaway from Roberts’s opinion isn’t that the right to an abortion is safe,” he said. “It’s that Roberts is reluctant to bend the Court’s ordinary procedures to hand abortion opponents a victory in this particular case.”

What the right is saying.

There’s fury and fire for Justice Roberts. The ruling is a clear political calculation from a justice who oversees the court and whose job is to uphold the constitution and the law, not politically palatable decisions and not past precedents.

“Why would Roberts vote to strike down a law that he believed, only four years ago, was constitutional?” John Yoo wrote for Fox News. “His claim to stare decisis proves unconvincing. If Roberts were right, the court should never have decided Brown v. Board of Education, which declared segregation unconstitutional, since it overruled Plessy v. Ferguson. Roberts himself voted just last year to overrule precedents related to the Takings Clause and two years ago against mandatory union dues.”

The National Review editors took a similar stance, listing all the precedents Roberts has overruled in the past, and noting the absurdity of the situation: five of the eight Supreme Court justices have written clearly that the Louisiana law does not violate the constitution. And yet the law will be struck down anyway.

“Perhaps he [Roberts] believes that this decision will somehow strengthen the legitimacy of the Supreme Court as an institution above political strife,” they wrote. “Instead, he has reinforced the impression, on all sides of our national debates, that he is the most politically calculating of the justices.”

Dan McClaughlin accepted the premise that abortion is a relatively safe and routine procedure, but quoted Justice Neil Gorsuch, who pointed out that Louisiana law has similar admitting privilege restrictions for “physicians who perform relatively low-risk procedures like colonoscopies, Lasik eye surgeries, and steroid injections at ambulatory surgical centers.”

And the Wall Street Journal Editorial board went directly for Roberts, giving a recap of his contributions to the conservative movement: “On ObamaCare, he defined the insurance mandate as a tax. On the Census, he said the government’s logic was ‘pretextual.’ On immigration this month, he said an Obama order was illegal but he overturned President Trump’s repeal order on procedural grounds. Now he relies on an abortion precedent he dissented from by rewriting that precedent. All of these look like a Justice searching for a legal port, any port, to justify his rulings in a political storm.”

My take.

One fascinating part of Justice Roberts’s opinion is that it “harks back” to the dissenting opinion in Roe v. Wade, Millhiser wrote for Vox. In that case, Justice Byron White argued that the courts “were not competent to weigh the difficult moral questions presented by the abortion debate.”

“In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ,” White wrote, the courts should leave questions of abortion rights “with the people and to the political processes the people have devised to govern their affairs.”

I had a similar feeling reading through these opinions. The question of abortion, of when life begins, of the inherent value of life, of the rights and control a woman should have over her own body — they are so sticky and complex and difficult that they almost seem obfuscated by the law (I can hear my pro-choice readers typing already!).

A Tangle reader recently observed to me that “the Supreme Court has made great decisions and horrible decisions using all manner of intellectual argument… There is an intellectual argument for everything (see: waterboarding and torture). Intellectual argument cannot be the human sense we use exclusively to decide anything, because anything and everything can be rationalized. We must decide the fate of humanity with humanity... you know, heart. Does this feel right?”

Those words have stuck with me recently — and the court's recent split decisions, and Roberts’ seemingly bending over backward to reach certain conclusions, have left me feeling as if any wise judge can move the law to their whim. In a paradoxical way, it’s proven the right’s point: Roberts has further politicized the court by abandoning the justices we imagine to be on his “team.” Of course, the opposite should be true. Roberts siding with liberal justices should prove that the court can’t be politicized, can’t be scored by right and left justices, can’t be overtaken by a president.

And yet his recent rulings, and the reactions to them, have somehow made the line between conservatives and liberals on the court more stark.

Ultimately, this debate is not over the moral or ethical efficacy of abortion. It’s a debate over the law, the impact that law will have and whether that impact is constitutionally just. The issue at hand is that abortion is both a constitutionally granted right for American women, as decided in Roe v. Wade, and still something conservatives believe is not a constitutionally granted right. This dichotomy creates two different foundational realities as a starting point.

If the Roe v. Wade ruling is “correct” and the right to abortion is in fact a right, then you’d expect conservatives to fight tooth and nail to stop laws that infringe on that right — the same way they fight tooth and nail to stop laws that infringe on gun rights. What good is it for abortion to be legal if stacks of legislation make it so there is a single abortion clinic in a state of 4.6 million people? Any law, no matter how legally drawn, would be struck down by conservatives if it had a similar impact on our right to bear arms (of course, the right to bear arms is far more explicit, even given its conditions, than the right to an abortion is in the constitution).

From a pure outcome perspective, even if you’re coming from a pro-life stance, there’s a good argument to make that striking down this law is a good thing (I can hear my pro-life readers typing already!). Abortion rates are already falling across the U.S., and the reason why is messy, but closing abortion clinics is almost certainly not the driving force. Texas is often cited because abortions there dropped 28% between 2011 and 2014 after the state restricted abortion access. But birthrates on the whole also dropped during that time, indicating it wasn’t access to abortion — but a reduction in unintended pregnancies that slowed the rates of abortion.

And thus I arrive at my point: we know how to reduce unintended pregnancies, which we know reduces the number of abortions. Contraceptive access and education help more than anything. If the Louisana law were to hold, there’s a good deal of evidence that the outcome wouldn’t be fewer abortions — but instead less safe ones. The tenuous legal arguments and Roberts’ legacy aside, I come away feeling that the ruling is a win for Louisiana women, especially the poor women who would have been disproportionately impacted by this law, as is so often the case. In the meantime, I hope Louisiana’s pro-life community commits to better sex education and more access to contraceptives, which have (historically) been far more effective at reducing abortion than piecemeal lawmaking to restrict abortion access.

Biden shots.

I’ve shared number of political ads from Donald Trump against Joe Biden, and think it continues to be interesting to watch how the two campaign against each other. This tweet represents an issue you can expect to see Biden hammering home a bit more over the next few months: “Trump golfs while COVID-19 spreads.”

Your questions, answered

Remember: Asking a reader question, or writing into Tangle, is easy. All you have to do is reply to this email. It goes straight to my inbox.

Q: I was in a discussion tonight about how divided our country is. I think you wrote about this previously somewhere. I’m wondering if there’s polling on what beliefs still unite Americans? And if so, how does American disunity compare to other nations in the world? How does it compare at present to other tumultuous eras in our history? Some days it just feels the divide is untenable.

— Sean, Baltimore, MD

Tangle: Two quick notes before I begin: 1) I can’t link to all the polls I reference here, because email inboxes flag stuff as “junk” if they contain too much mail. That’s why I always have to be selective about my hyperlinks in newsletters. But if you want the source on something, let me know. 2) This is something I’ve written about before, though the website I published that article on has been retired to the dustbin of the internet. However, the issue of divisiveness is at the core of why I started Tangle.

When we discuss what “unites” Americans, I think it’s first important to set parameters for how we gauge that. For me, I view an issue as a unifier if a minimum of 70%-75% of Americans view it favorably or agree on it. This is a bit more than a supermajority (two-thirds, or 66%, in political-speak) which gets at being a unification issue in my mind.

First, and perhaps most importantly, Americans agree that we’re divided and that it stinks that we’re divided. 9 in 10 Americans believe it’s important that we do something to reduce the divisiveness in America, according to a 2020 USA Today poll. 78% of respondents said that political leaders “promoted a mostly destructive public debate” and that divisions were exacerbated to benefit vested interests while hurting normal people.

I just want to pause to note how extraordinary that is: it’s part of the reason I created Tangle. There is a thirst for this kind of reporting and political coverage, one that does more to bridge gaps and improve understanding than it does to shame or destroy the other side and create more division. The country is truly pining for a more unified existence.

Politically, the first thing that came to my mind is the disapproval of Congress. That’s not the most uplifting thing, but it’s true: in August of 2019, Gallup found some 79% of Americans disapproved of the job Congress was doing. That number has come down to 71% in the last few weeks, as Congress has addressed the COVID-19 pandemic, but I think it’s safe to say most Americans believe they’re not being properly represented by the federal government. That tracks with other polls, which show 83% of Americans believe political gridlock and divisiveness are a big problem.

On a pure issues perspective, there are also a number of things that stick out. 77% of Americans agree that “the more important energy priority should be developing alternative energy sources such as wind and solar power and hydrogen technology rather than increasing U.S. production of fossil fuels,” according to Pew. Similarly, 72% of all Americans say making health care more affordable should be a top issue. 80% or more of Americans say politicians, large corporations or the wealthy have too much impact and power over the economy. 70% of Americans in total believe the economy favors the wealthy too much.

Gun safety is actually a consensus issue, with 94% of Americans believing a background check is necessary before someone buys a weapon, 85% of Americans supporting “red flag” laws that allow guns to be taken from people deemed a threat, and 79% of Americans wanting the minimum age to buy a weapon to be raised to 21. The right to gun ownership is nearly a consensus issue, too, with 68% of Americans rejecting laws that would limit gun ownership exclusively to the military and police.

87% of Americans say “yes” when asked directly if they believe in God, according to a 2017 Gallup poll. Many more, I am assuming, believe in some kind of higher power. 78% of Americans are satisfied with the performance of our military and 71% of Americans believe the Supreme Court is motivated mostly by politics. 82% of Americans believe abortion should be legal in the case of rape or incest.

These numbers give me some hope, though I agree we are still hopelessly divided on so many issues that are important to us.

As for how it compares globally — and historically — we’re not in the best place. Research from 2018 on the “world divided” found that political affiliation, more than any other issue (wealth, religion, ethnicity or gender), was dividing nations. 19,000 people from 27 countries were asked about whether they were “more” or “less” divided than they were 10 years ago, and a higher percentage of people in Spain, Sweden, Italy, Germany, Great Britain, Hungary and Belgium said they were “more” divided than respondents in the U.S. did. It’s tough to parse that meaning: was the U.S. just more divided 10 years ago than those countries, or are the other countries legitimately more divided now?

Taking a step back, though, I think the divisions we experience here are happening in most other places, too. The rise of nationalism globally is creating political friction unlike any we’ve seen in decades. Look at Great Britain and Brexit or what’s happening in France. Shoot, in Spain, Catalans just voted to split from the country in 2017 — something not unlike the idea of Texas seceding.

It’s hard to contextualize America’s division given how long some polls have been asking certain questions. But, according to Pew, we are “more divided than ever,” based on their research into historical partisanship.

At the same time, ironically, we are clearly seeking some kind of resolution to this divide, which in and of itself is an underlying current of unity. I think Americans are recognizing that political leaders and many media outlets they consume are creating conditions for division, demonizing the other side and arguing in bad faith. My hope — my dream! — is that more people turn to new sources of news and information. Not just for the kumbaya of it all, but because there is genuine understanding to be had amidst all of our diversity and division.

Things may get worse before they get better, but I think our national conscience and exhaustion over current divides are nearing their breaking points.

A story that matters.

The Food and Drug Administration will release new guidance today that outlines the conditions for a COVID-19 vaccine to be made available to the American public. The vaccine will have to be 50% more effective than a placebo in preventing the coronavirus, and a vaccine won’t be approved if it simply leads to antibodies in the bloodstream, since we don’t yet understand how many antibodies are needed to confer protection. The FDA also plans to ask vaccine makers to follow patients for a year after treatment in order to monitor the safety of their vaccines. An emergency authorization is expected to be used instead of a full FDA approval to release the vaccine to the public, but it will require a strong clinical study on an estimated 30,000 people first. Click.


  • 60. The number of Chinese apps, including TikTok, that were banned in India after the two countries clashed this month.
  • 330,000. The number of IUDs that were implanted in women in Xinjiang in 2018, according to a new AP investigation, a sign of a sweeping forced birth control campaign in China on Uighurs, Muslims and other minorities.
  • 70%. The percent of additional properties in the U.S. that are now at risk of substantial flooding, according to a new study.
  • 50%. The percentage of Americans who think working at home is better than the workplace.
  • 30%. The percentage of Americans who think working at home is worse than the workplace.
  • 30%. The percentage of U.S. adults who say that Trump and his administration get the facts right almost all or most of the time when it comes to the coronavirus outbreak.

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Have a nice day.

The Atlanta Hawks basketball team has approved a plan to transform its massive arena into a polling station for Georgia’s primary election runoff that’s scheduled for August 11th — and for early voting in the general election scheduled for November 3rd. The team’s decision comes after Georgia’s most recent elections were marred by allegations of voter suppression and long lines while polling stations across the state have been closed. The idea was first hatched by Hawks head coach Lloyd Pierce, CEO Steve Koonin and majority owner Antony Ressler after the protests over the death of George Floyd. "We were casually brainstorming since our whole world turned about what we can do internally as an organization," Pierce said. "We were trying to figure out how we can take care of home first, and [Koonin] pitched the idea." Click.

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