Zeno’s Abortion Ban

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September 3, 2021 10:24 a.m.

One notable thing about a nakedly political Supreme Court majority is that a handful of legal academics, wholly cocooned from everyday life, aren’t terribly adept at politics. You can see this in the reaction to the Court’s effort to moonwalk Roe v Wade out of existence earlier this week. They seem to have thought they could throw up their hands and pretend they weren’t really doing anything or didn’t have any choice in the matter. Even John Roberts showed them the path toward overruling Roe through the normal review process some time next year. The majority both couldn’t hide its impatience to strike down Roe but also wanted to do so in the middle of the night – by not acting rather than acting – and that somehow no one would notice.

People noticed.

Various articles I read this morning had references to the idea that the Court was already scheduled to ‘consider further restrictions on abortion’ next year in the Mississippi case. That may sorta be true inasmuch as the law bans abortions after 15 weeks. But these press reports seem not to accept that these ‘restrictions’ effectively amount to bans or that one expects the Court will simply overrule Roe altogether. The news and legal commentary doesn’t seem to have caught up to the public reaction and backlash.

It has long been obvious that the vast majority of Republican elected officials prefer the Zeno’s paradox approach to banning abortion: keep giving abortion rights opponents new wins with more and more restrictions on abortion while never quite getting to a formal or total ban which risks shifting the political calculus that has worked for them for so long. I don’t think that applies to the Court’s far-right majority. They’ve got their lifetime appointments. They’re ideologues. And yet the Texas non-decision shows they’d like to do it somehow out of public view.

But now they’ve essentially managed not only to overrule Roe but do so with a law that lets that guy you knew in High School who’s always sharing right wing memes on Facebook sue your sister who drove you to the clinic for a $10,000 cash prize. In a way the antis and the Court have done abortion rights advocates a favor by creating a reality in Texas that exposes the hideousness of the Roe opponents’ aspirations: both shackling and predatory.

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