Good Friday Morning! The abortion issue front and center these days. I’m going to lay out where I think this debate is headed, and which cases will matter for the Supreme Court. Instead of focusing on all the various fires happening across your social media feeds, we’re going to back up to the 30,000 ft view and think about the landscape moving forward — links to follow.
Three quick notes before jumping into commentary this week:
1: The Supreme Court released an opinion in Apple v. Pepper. I got some questions about this case during the week and wanted to share a teleforum by the Federalist Society that discussed the case. If you buy iPhone apps in the app store, this case could interest you. Also interesting, the case was a split with Kavanaugh writing the majority opinion with the liberals and Gorsuch penning the dissent with the conservatives (it’s not an ideological case per se, hence the odd split). The podcast episode is available via Apple Podcasts, Google Play, or on the FedSoc website.
2: Joe Biden had a weird comment this week on China, hitting Trump on his trade negotiations. Biden said:
“China is going to eat our lunch? Come on, man!” Biden exclaimed at the time. “The fact that they have this great division between the China Sea and the mountains in the East — I mean in the West. They can’t figure out how they’re going to deal with the corruption that exists within the system. They’re not bad folks, folks. But guess what, they’re not competition for us.”
This statement is almost as bad as Obama’s hit on Romney in the 2012 debates (and Romney tweeted as much). I don’t get it. The Obama administration’s “pivot to Asia,” where they were trying to contain an increasingly bad China, building around the TPP trade deal was all GOOD policy. Had Obama signed the TPP instead of letting it languish, the US would be in a much stronger position against China. Biden is attacking one of the few good foreign policy points from the Obama era to attack Trump. The Pentagon spent considerable money trying to figure out what China would do in the form of war with the US (see Ghost Fleet for examples). If Biden makes the general election — watch Trump/GOP hammer him on this line.
3: Bill de Blasio for President answers a question no one asked. Also, New York City Mayor Bill de Blasio is a groundhog murderer. #NeverForget #JusticeforCharlotte.
Where you can find me this week
Make sure to sign up for the Conservative Institute’s daily newsletter. You can also go to their Facebook page. You can join Ricochet here. And I do recommend their ever-growing network of podcasts, which you can find on all popular podcast platforms. They have a show for every topic you can imagine, and the list continues to grow.
The anti-Semitism in the Democratic Party is somehow getting worse.
De-platforming comes for Obama-era officials, and it’s just as stupid any other censorship movement.
The abortion landscape
As I said above, it seems like the abortion issue has taken on new life recently.
Two broad issues are driving this trend: 1) The new conservative majority on the Supreme Court is encouraging both left and right to push state-level laws, the left because they’re terrified of losing at the federal level, and the right because they’re looking for a vehicle to send to the Supreme Court to overturn the Roe-Casey framework. And 2) both sides are pushing more extreme laws in response to the other. The left started this with their extreme abortion at any time bills in Virginia and New York, the latest bills out of Alabama, Missouri, and the various heartbeat bills are responses.
Right now, abortion case law favors the left. They can pass laws that expand the abortion right with impunity. Restrictions on abortion, of most types, have lost a slew of legal battles in the federal court system. Heartbeat bills, which were all the rage across pro-life states this past year, have lost every challenge in the courts. That’s why most pro-life groups opposed them.
Ideally, Trump nominates one more conservative to the Court to tilt the balance closer to 6-3. That would almost guarantee the Supreme Court takes the issue and reverse the Roe v. Wade and Planned Parenthood v. Casey decisions. But until then, the key is to provide the court system with a new type of challenge.
I believe the way to challenge the abortion precedent is to come at it from the side and push bans on various types of genetic discrimination. I first sketched out a general version of this in law school during a bioethics class, but haven’t done anything with it. Fortunately, Indiana decided to try a version of this themselves.
Indiana passed HEA 1337, which barred abortions based on genetic, sex, or racial discrimination. You may have heard headlines about this law back in 2018 when news sites ran headlines along the lines of: “Indiana abortion law signed by Mike Pence ruled unconstitutional.”
The law lost before a three-judge panel before the 7th Circuit, and then again on en banc review (sort of).
So if it lost before the 7th Circuit, why am I convinced it could work? Because the majority opinion, in that case, was lazy and wrong. The story above says that the majority position held:
The non-discrimination provisions clearly violate well-established Supreme Court precedent holding that a woman may terminate her pregnancy prior to viability, and that the State may not prohibit a woman from exercising that right for any reason.
That’s exactly wrong. The Supreme Court has never held that at all. In fact, in the Planned Parenthood v. Casey case, Pennsylvania had a provision banning abortions if the only reason for the abortion was the sex of the child. No one sued over that provision, and no case at the Supreme Court has ruled on that position. To say non-discrimination principles are clearly ANYTHING is flagrantly stupidity.
The next interesting point is that Indiana petitioned for the Supreme Court to hear this case. And the Supreme Court has had this case before them since January, trying to decide whether or not they’ll take it. The justices have relisted this case for discussion 13 times so far, with no reasons given for why. John Elwood’s indispensable relist watch column over at SCOTUSblog had this to say:
The Supreme Court already has a number of important cases before it raising issues about the constitutionality of restrictions on abortion. The most-relisted case on the court’s docket is Box v. Planned Parenthood of Indiana and Kentucky Inc., 18-483, which has been relisted 13 times, and which involves constitutional challenges to state statutes that require health-care facilities to dispose of fetal remains by burial or cremation and that prohibit abortions motivated solely by the race, sex or disability of the fetus. It is joined this week by a case with the familiar caption Box v. Planned Parenthood of Indiana and Kentucky, 18-1019, which involves a constitutional challenge to a statute requiring an ultrasound as part of informed consent at least 18 hours before an abortion. Then there is Harris v. West Alabama Women’s Center, 18-837, which involves a constitutional challenge to Alabama’s ban on what it terms “dismemberment abortion[s].” Although that case has never been relisted, nor is there any public indication it was discussed at the court’s private conference, it has been rescheduled four times – meaning that someone has been paying close attention to it.
In short, the Supreme Court is watching the issue of abortion, and the most compelling and divisive case appears to be the Indiana case. I’ll note here that the Indiana law is the only one like it that I’m aware of in the country. There are similar laws that focus on banning abortions if the fetus has Down’s Syndrome, but none quite as comprehensive as Indiana.
In the dissent from the en banc decision, Judge Easterbrook joined most notably by Trump SCOTUS short-lister Amy Coney Barrett (more on that in a moment) wrote the following:
Casey did not consider the validity of an anti-eugenics law. Judicial opinions are not statutes; they resolve only the situations presented for decision. Consider a parallel in private law. Judges often said that employers could fire workers for any or no reason. That’s the doctrine of employment at will. But by the late twentieth century courts regularly created exceptions when the discharge was based on race, sex, or disability. Casey does not tell us whether a parallel “except” clause is permissible for abortions.
Casey and other decisions hold that, until a fetus is viable, a woman is entitled to decide whether to bear a child. But there is a difference between “I don’t want a child” and “I want a child, but only a male” or “I want only children whose genes predict success in life.” Using abortion to promote eugenic goals is morally and prudentially debatable on grounds different from those that underlay the statutes Casey considered.
None of the Court’s abortion decisions holds that states are powerless to prevent abortions designed to choose the sex, race, and other attributes of children.
And when you read through the opinion saying the discrimination provisions or anti-eugenic provisions as Easterbrook calls them are unconstitutional, you encounter incredibly lazy writing. The liberals on the court presume that Casey speaks to these issues when there’s no evidence that case or any others do.
Typically, when a case has gotten relisted as many times like this one, it means that the justices are arguing over what to do, and one of them is writing a dissent from a denial of cert. But that’s all conjecture at this point. The Supreme Court has two Indiana laws before it, and they could be waiting to combine the two cases into one.
There’s one other issue I’m concerned about with the Box. v. Planned Parenthood cases. If Trump gets to nominate another justice, the odds on favorite is Amy Coney Barrett (she’d be my top choice too). And if she got on the Supreme Court during the deliberation of this case, she’d have to recuse herself because she was a part of the lower court proceedings. What we need is another state to pass a law nearly identical (and I have some ideas on how to point a fine point on it) to give the court multiple options, so no justice recuses themselves. Ideally, I’d like to see both the 6th and 11th Circuits getting shots at this type of law. Getting just one circuit to rule the opposite way provides the Supreme Court with a circuit split, which increases the possibility of them granting cert.
I doubt these cases will end abortion as we know it — BUT what they can do is severely weaken the Undue Burden standard laid out in Casey. If that standard gets reduced, it opens the doors for states to attempt new restrictions that could pass muster under a new legal rule.
The Supreme Court rarely does these things in sudden shifts; you have to give them multiple cases to signal a certain set of case law is bad before they entirely overrule it. The Indiana law and anti-eugenic provisions have a shot at providing the first major blow against abortion we’ve had in ages.
Judge Manion described the case this way in the opinion where he agreed he was bound to follow Roe and Casey but found the solution presented despicable:
Indiana and the amici States persuasively argue that the right identified in Roe and Casey is only the right to decide whether to have a child, not the right to decide which child to have. This argument makes sense. After all, the women for whom the nondiscrimination provisions present an obstacle have already determined that they want a child. The nondiscrimination provisions simply prohibit those women from targeting their unborn child because of later-discovered immutable human characteristics. Indiana and the amici States have made a noble effort to defend a statute that should need no defense. …
[T]his case reveals two major flaws of the Casey analysis that combine to produce such an absurd result — absurd even relative to other abortion cases. First, Casey treats abortion as a super-right, more sacrosanct even than the enumerated rights in the Bill of Rights. And second, while Casey jettisoned Roe‘s strict-scrutiny test for all first-trimester abortion regulation, it replaced strict scrutiny with an effects-based test that is actually more difficult to satisfy in many cases.
If you can get the Supreme Court to recognize this fact, and then weaken the undue burden standard, that would open the door to other restrictions on abortion that were previously impossible to pass current law.
Whether or not any of this works in the end, the reality remains that legislation has to get drafted that gives the Supreme Court a vehicle to overturn Roe-Casey. The Indiana law provides the most novel way developed yet, and it would be smart for other states to follow suit to get a wide array of opinions on it.
Links of the week
Harvard Betrays a Law Professor — and Itself – Randall Kennedy, The New York Times
Who Should Be Allowed to Compete in Women’s Sports? – Andrew Sullivan, New York Magazine
The Legacy of Eugenics Still Echoes in America: Rather than a “renunciation” of eugenics in the 1930s, forced-sterilization laws persisted for 40 more years at some of the best medical institutions. – Brant S. Mittler, M.D., J.D., The Wall Street Journal
The search for the kryptonite that can stop CRISPR: Powerful gene-editing tools have the potential to heal—or to harm. Now there’s a race to develop the antidote to the next bioweapon. – Antonio Regalado, MIT Technology Review
STUDY: Nets Savage ‘Extreme’ Georgia/Alabama Laws, Ignore NY’s Radical Late-Term Abortion Bill – Geoffrey Dickens, Newsbusters
2020 is going to come down to one issue: Abortion – Kimberly Ross, The Washington Examiner
Alabama and Georgia Are Throwing Down the Gauntlet against Roe. Good.: For two generations, the Roe decision has distorted American politics. Now the states are fighting back. – David French, National Review
No, Georgia’s Heartbeat Bill Won’t Imprison Women Who Have Abortions – David French, National Review
 The pervading dishonesty of Roe v. Wade – Timothy P. Carney, The Washington Examiner
Rashida Tlaib says thinking of the Holocaust provides her a ‘calming feeling,’ shockingly claims Palestinians created ‘safe haven’ for Jews – Philip Klein, The Washington Examiner
Anti-Semitic attacks are rising in Brooklyn, and it seems like no one cares – Karol Markowicz, The New York Post
The Case for Free Trade – Scott Lincicome, National Review
Marvel and the Jews: Moviegoing past, present, and future – John Podhoretz, Commentary Magazine
Selena Gomez’s takedown of social media is spot on – Suzy Weiss, The New York Post
Why getting Trump’s tax returns won’t help Democrats – Seth Barron, The New York Post
The Curious Rise and Spectacular Crash of the Alliance of American Football: What happens when you launch a sports league that’s really a tech startup, with a nebulous mission, shaky funding and a killer app promising more than it delivered? The inside story of how a football operation with Silicon Valley dreams fell apart before a single season could finish. – Conor Orr, Sports Illustrated
For 40 Years, This Russian Family Was Cut Off From All Human Contact, Unaware of World War II: In 1978, Soviet geologists prospecting in the wilds of Siberia discovered a family of six, lost in the taiga – Mike Dash, Smithsonian Magazine
Twitter Thread of the week
Satire piece of the week
DALLAS, TX—Local man Eric Spolar attempted to voice his opinion on abortion to a coworker Thursday.
Unfortunately, he was informed that since he is a man, he does not get to have an opinion on killing babies.
So, Spolar came up with a brilliant solution: he identified as a woman just long enough to voice his opinion on abortion, then reverted his gender identity back to male after he had said his piece.
“Sorry: men don’t get a say,” his coworker, Tina, had informed him, shutting down his statement that maybe killing a baby doesn’t solve anything. “Only women get to have their voices heard on this issue.”
“I’m sorry: did you just assume my gender?” Spolar replied, looking offended. “I actually identify as a 23-year-old woman named Veronica. Now do you have to listen to my opinion?”
Thanks for reading!