Good Friday Morning! The Supreme Court finally issued orders in Box v. Planned Parenthood! I’ll dig into what that means for the abortion debate moving forward — spoiler alert, Clarence Thomas is telegraphing the next move to state legislators. Links to follow.
Before jumping in, though, a few quick hits:
1) There’s another internecine fight among conservatives this week that made me almost shut off Twitter. Newly installed NYPost editor Sohrab Ahmari, formerly of Commentary Magazine, tweeted and wrote that David French-styled conservatism is the wrong tactic, and only the Trumpian path of total war with liberals will win. It’s a bizarre point that I believe French more than ably batted away. Ben Domenech at the Federalist jumped in to try and give Ahmari better intellectual footing. The problem for me: It’s hard to see this as anything other than Ahmari trying to build a personal brand around negative polarization. As Charlie Cooke noted, Ahmari’s “snap,” was weird and sudden, which suggests to me a more cynical ploy to build himself up. But if you enjoy this sort of thing, the links are there to join the ongoing fight. Robert Tracinski had a good thread on the First Things tactics.
2) Biden continues to lead the Democratic field. And Democrats continue to fight the urge against impeachment. Trump wants Democrats to start impeachment proceedings. It’s the oddest political dynamic I’ve ever seen. Democrats don’t have the numbers for impeachment in their own party right now — Politico can only find 41, maybe 42 House Reps (Amash) in favor of impeachment. Right now — no one wants it.
3) Speaking of odd — Robert Mueller’s press conference was extraordinarily bizarre. It doesn’t change anything, he didn’t say anything new, and all the things he emphasized were already on the record. His statement that he did not want to testify before Congress was also odd — Congress can demand any testimony it wants from him. Again, the political dynamics suggest no impeachment proceedings are on the way, but everything about that event was strange.
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.
There’s push by the federal government to raise the smoking age to 21. It’s blatant Nanny-Statism. The other problem is that the smoking age is a matter left up for the states to decide, not the federal government. Nothing in the commerce power gives the Feds the ability to control the smoking age (the current legislation does not match the drinking age laws).
Outside the abortion realm, eugenics has returned as a driving force on the genetics front. Some scientists are pushing the same logic that their predecessors did in the progressive era, and they’re making the same mistakes.
The Path Forward to Ending Roe v. Wade and PP v. Casey
A couple of weeks ago, I sketched out what I believed is the best way forward in challenging current abortion laws. I get that it’s popular right now for states to pass outright abortion bans to challenge abortion case law (Alabama, Missouri, and Louisiana), just because there’s a conservative 5-4 majority on the court. But you still have to do this the right way, to get the right challenge, and force the court to consider their precedent in a new light.
Well, if I was confident on that path forward a few weeks ago, now I’m convinced. The case that newsletter focused on was Box v. Planned Parenthood, and I said that the Supreme Court shouldn’t take the matter up now, but should look for other states to adopt similar laws. The Supreme Court did precisely that, and Justice Clarence Thomas wrote a lengthy concurrence laying out all the reasons that argument had merits. Thomas writes:
Whatever else might be said about Casey, it did not decide whether the Constitution requires States to allow eugenic abortions. It addressed the constitutionality of only “five provisions of the Pennsylvania Abortion Control Act of 1982” that were said to burden the supposed constitutional right to an abortion. None of those provisions prohibited abortions based solely on race, sex, or disability. In fact, the very first paragraph of the respondents’ brief in Casey made it clear to the Court that Pennsylvania’s prohibition on sex-selective abortions was “not [being] challenged…”
In the 1992 Casey decision, Pennsylvania had included a provision that prohibited abortions based on sex. So if your sole reason for an abortion was that the child was a girl, you were prevented from getting an abortion. Thomas correctly pointed out that provision never got challenged, and the Supreme Court has never heard anything along those lines since then. To say Casey speaks to the issue is patently absurd!
The Court’s decision to allow further percolation should not be interpreted as agreement with the decisions below. Enshrining a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th-century eugenics movement. In other contexts, the Court has been zealous in vindicating the rights of people even potentially subjected to race, sex, and disability discrimination. …
Although the Court declines to wade into these issues today, we cannot avoid them forever. Having created the constitutional right to an abortion, this Court is dutybound to address its scope. In that regard, it is easy to understand why the District Court and the Seventh Circuit looked to Casey to resolve a question it did not address. Where else could they turn? The Constitution itself is silent on abortion.
What does that mean? Thomas and the other conservatives are telegraphing where they want the next abortion challenges. They don’t want the outright bans of Alabama, Louisiana, or some other state. They want another Indiana law. The problem with Indiana’s law and their case is that they were first. No other intermediary courts had weighed in on this yet. That fact MUST change.
The Supreme Court usually doesn’t like to take on cases of first impression without first letting the lower courts grapple with the issue. BUT — Thomas is telegraphing an opening to conservative judges on the lower courts: lower court judges are not bound by the current abortion precedent when they deal with anti-eugenic laws.
If you’re a pro-life state legislator — this is the opening you need to exploit ASAP. Copy the Indiana law and attempt it in your state and see what happens.
Law professor Josh Blackman had a great twitter thread on what we can glean from this case. And he notes that there’s a split between the pragmatic liberal wing, Kagan and Breyer, and the far left side of Ginsberg and Sotomayor. Kagan and Breyer took a small win this round to avoid facing the questions presented, while Ginsberg and Sotomayor both claimed the case had no merits to judge (Ginsberg and Thomas snipe at each other in their footnotes).
Avoiding this case also punts any major abortion decisions out of the 2020 term — which is preferable to Roberts. Thomas’ concurrence and the fact that the case got kicked around in conference for five months suggests there’s also some horse trading going on among the conservatives. They realize they can’t do anything on a new issue, but if a circuit split could get created, they could act.
Again, what the pro-life movement needs is a circuit split — one federal circuit voting the other way, to help trigger a division. None of them has heard a case like this one yet, and the Supreme Court is telegraphing; this is the best bet.
The only thing to give me pause is Ed Whelan’s point that other potential abortion cases could help the liberal wing. Whelan writes:
Insofar as some conservative justices might, for whatever reason, find it appealing to avoid having an abortion case on the Court’s docket soon, the deal they apparently struck won’t achieve that. It’s a virtual certainty that the four liberal justices will vote to grant review of the Fifth Circuit decision (in Gee v. June Medical Services) that, but for the Court’s 5-4 vote granting an emergency stay, would have allowed a Louisiana law on hospital admitting privileges to take effect. I don’t see why it is better to have that case as the sole or lead abortion case on the court’s docket (even if the justices also grant, as I hope they do, the state of Louisiana’s conditional cross-petition on the question of third-party standing) rather than having it along with the questions that the Box petition posed.
Ed could be right on this point, but I also think the difference here is that the Indiana law was too new for the Court to act. Thomas agreed that this action is practically begging the states to try more version of this proposal.
The Supreme Court likely won’t do anything significant on abortion the next term — but watch out two years from now. All the outrage right now is too early. The real battle is on the way. In the meantime, read Thomas’ full concurrence in the orders list for this week. It’s incredible. Link here. Thomas starts on page 13.
Anti-eugenic abortions are the next phase of this culture fight.
Links of the week
When Abortion Suddenly Stopped Making Sense – Frederica Mathewes-Green, National Review
North Korea Envoy Executed Over Trump-Kim Summit, Chosun Reports – Shinhye Kang, Bloomberg
America’s Millennial Baby Bust: Profound cultural shifts can’t be overcome by pro-natalist subsidies. – The Editorial Board, The Wall Street Journal
The Agony & Hope Of Christian Courtship – Rod Dreher, The American Conservative
The Labour meltdown means Corbyn must choose sides on Brexit – James Forsyth, The Spectator
Mueller Spokesman Knocks Down Major Claim In Michael Wolff’s New Book – Chuck Ross, The Daily Caller
Protectionism Is Iatrogenic Government – George Will, National Review
I Staked Out My Local Domino’s to See Just How Accurate Its Pizza Tracker Is: THIS IS SERIOUS JOURNALISM, PEOPLE – Brian VanHooker, Mel Magazine
 The Things That Carried Him: The award-winning true story behind one soldier’s last trip home. – Chris Jones, Esquire Magazine
Secret spectacles: The story of a migrant spy – Joel Gunter, BBC Africa Eye
Twitter Thread(s) of the week
On why the French healthcare system pays for homeopathy and what that tells you about the French. [Long thread, but great]
Satire piece of the week
Groot In Hot Water After Recent ‘I Am Groot’ Comments – The Babylon Bee
HOLLYWOOD, CA — Another Hollywood celebrity has come under fire for making controversial statements that some are calling “the worst thing anyone has ever said anywhere, at any time in the history of the universe.”
“I am Groot,” Groot proclaimed while addressing a packed auditorium in a video that has been viewed by more than 10 million people on YouTube. The comment was made in passing during a keynote lecture on ethical botany at the annual Arborist Activists International Convention.
“I couldn’t believe my ears!” recalled Olivia Jackson, a botanist who was in attendance during the speech, “He started getting edgier, branching off into weird tangents like ‘I am Groot’ and ‘I am Groot.’”
Thanks for reading!