Tuesday, May 18, 2021


The Supreme Court has agreed to hear a Mississippi abortion case, Dobbs v. Jackson Women’s Health Organization, after months of dithering. Slate's Mark Joseph Stern writes:
It seems that the justices struggled with the decision to take up Dobbs. The court has been sitting on the case since September 2020, when [Ruth Bader] Ginsburg was still alive. It rescheduled and relisted Dobbs for more than eight months, a nearly unprecedented amount of time. This dawdling probably signifies a battle behind the scenes, with the liberal justices lobbying their conservative colleagues—[Brett] Kavanaugh and [Amy Coney] Barrett in particular—to stay out of the abortion debate for the good of the court. It takes four votes to grant a case, and [Chief Justice John] Roberts obviously has little taste for abortion disputes. So, we can deduce that either Kavanaugh, Barrett, or both ultimately decided it was time to take on Roe.
It's hard to imagine Barrett, in particular, being hesitant. I don't know the specifics, but it seems to me that if the Republicans on the Court wanted to gut Roe v. Wade, they would have wanted to do it as early as possible in an election cycle, rather than less than a year before a presidential or midterm election, so the decision wouldn't be fresh in the minds of Democratic voters. Now, as New York magazine's Ed Kilgore notes, a decision in the case "is likely in the spring or early summer of 2022" -- months before the midterms.

My main assumption about this Supreme Court is that its primary goal isn't to fight religious culture wars -- it's to keep electing pro-plutocrat Republicans, albeit through means that appear to be lawful (which is why the Court didn't back Donald Trump's transparently phony election challenges). The main goal is to rubber-stamp election laws -- in areas of campaign finance, gerrymandering, and protection of voting rights, among others -- that enable Republican victories forever.

A ruling that guts Roe threatens the project of electing Republicans. On the other hand, a ruling that doesn't gut Roe demotivates Republican voters. So I expect a ruling that will batter Roe but leave it standing, if barely. The portion of the Democratic electorate that isn't deeply engaged in politcs will regard the decision as tolerable, while the right will understand that change has been made.

Tierney Sneed of Talking Points Memo writes:
For years, anti-abortion activists have put their energy towards passing so-called gestational bans that banned abortions at points in the pregnancy earlier than viability, such as 20 week bans (when, supposedly, the fetus could potentially feel pain) or when a heartbeat is detected (between six and eight weeks).

“It makes a lot of sense to press on” the concept of viability, [Jessie] Hill [of Case Western Reserve University law school] said. “Because if you sort of make the court throw up his hand and say, ‘We don’t actually know. If this is a messy medical, scientific question, maybe we should just let it sit, let states decide what it means and whatever it is they want to rely on.'”

With that deference, states could then get creative in putting forward rationales that would allow them to to ban abortions earlier and earlier in the pregnancy, if not outright, Hill said.

That kind of decision would let the courts essentially gut Roe while claiming they were not reversing it, Hill said. That kind decision may be in keeping with Chief Justice John Roberts’ reported desire to navigate the court away from decisions that are so drastic, they shred the court’s credibility altogether. But abortion rights groups won’t see it that way.
I'm guessing the Court will say that 15-week bans are fine while suggesting that 6-week bans might not be acceptable, so the decision seems "centrist."

This Court will never stop attacking Roe but might never have the honesty to reject it outright. The time to do that would be after a sweeping Republican victory that leaves the party with a cushion of several seats in the House and Senate -- and then the ruling should come down more than a year before the next election.

The current wave of new election laws in Republican states might get the party closer to that moment. Then we might see Roe fully overturned.

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