The future of abortion is now in the Supreme Court’s hands
Everything you need to know from today’s oral arguments on Mississippi’s anti-abortion law. Plus: The shower kit I hope will provide the refresh my old-faithful grooming products can’t deliver.
First, a bit of late-breaking news: The Centers for Disease Control and Prevention confirmed the first case of the Omicron variant in California. “As the President said last Friday, it was only a matter of time before the first case of Omicron was detected in the US,” Jeff Zients, White House COVID-19 response coordinator, said. “We are prepared to meet this challenge with science and speed.” President Biden is expected tomorrow to lay out his adminstration’s strategy for fighting the virus this winter. I’ll share any valuable takeaways in tomorrow’s issue.
The other big story today unfolded at the Supreme Court this morning, as justices heard nearly two hours of arguments in a case involving Mississippi’s attempt to ban virtually all abortions after 15 weeks.
The case has major implications for Roe v. Wade, the 1973 landmark ruling that established the constitutional right to an abortion and Planned Parenthood v. Casey, with reaffirmed Roe but crafted the undue burden standard to evaluate abortion regulations prior to the ability of a fetus to survive outside of the uterus.
“The Mississippi law is a straight-up heartbeat law with no weird enforcement policies,” Aron Solomon, chief legal analyst for Esquire Digital, a digital marketing agency for legal firms, said in an interview with Supercreator News this afternoon. “There are like 19 other heartbeat laws in the United States that either fully passed laws or about to become laws and these will either be made null or come into effect by what the Court decides to do here with Dobbs. So people need to understand that it’s a lot bigger than Mississippi. It’s a lot bigger than any state. It’s the eyes of the world and the fate of abortion in the nation.”
Scott Stewart, the lawyer representing Mississippi who didn’t do “as good of a job as the other lawyers did,” according to Solomon, began his argument by saying Roe and Casey “damaged the democratic process” and poisoned the law.” In response, Julie Rikelman of the Center for Reproductive Rights, representing Jackson Women’s Health Organization, Mississippi’s only abortion clinic said that Casey rejected “every possible reason” for overturning Roe before US Solicitor General Elizabeth Prelogar — arguing on behalf of the Biden administration, which is supporting the clinic — said that “the real-world effects of overruling Roe and Casey would be severe and swift,” noting that almost half the states in the country would be expected to enact bans on all or nearly all abortions. President Biden said he didn’t see any of the arguments when he was asked earlier today by a reporter. “I support Roe v. Wade. I think it’s the reasonable position to take. And I continue to support it,” he said.
The Court’s three liberal justices — Stephen Breyer, Sonia Sotomayor and Elana Kagan — focused their inquiry on the role of stare decisis, a legal concept of courts generally deferring to precedent, in the case.
“To reexamine a watershed” like Roe “would subvert the court’s legitimacy,” Justice Breyer said. Justice Sotomayor suggested the legislators who designed Mississippi’s 15-week abortion ban, as well as Texas’s controversial six-week ban (also pending before the Supreme Court), are motivated by the belief their case can succeed because the ideological composition of the Court has swung to the right. “Will this institution survive the stench that this creates in the public perception — that the Constitution and its reading are just political acts? I don’t see how it is possible,” she said. And Justice Kagan said a major goal of stare decisis is “to prevent people from thinking that this court is a political institution that will go back and forth” based on the court’s membership or who “yells the loudest.” She added that “usually has to be a justification, a strong justification,” beyond the fact that some people think the precedent is wrong for the Court to overturn it.
Chief Justice John Roberts, one of the cases key votes, said found Justice Breyer’s statement about Casey and stare decisis “quite compelling.” He also asked Stewart about how Mississippi moved the goalposts for the case: When the state petitioned the court for review, it said the case wouldn’t require the court to overturn Roe and Casey. But the state flipped the script after the court agreed to review the case. (Stewart told Justice Kagan that the best path is to overturn Roe and Casey wholesale because the undue-burden standard is too difficult for lower courts to apply.)
But Chief Justice Roberts asked Rikelman, the lawyer representing the abortion clinic, what the effects would be of moving the viability line back earlier in pregnancy. “If you think that the issue is one of choice, it seems to me [viability] doesn’t have anything to the do with choice,” he said. “If it really is about choice, why is 15 weeks not enough time?” He said that fetal viability was not initially central to Roe v. Wade, noting that Justice Harry Blackmun, who wrote the opinion of Roe, later suggested that Roe’s viability line wasn’t considered authoritative. For what it’s worth, Justice Samuel Alito said the viability line is “arbitrary” and “doesn’t make any sense.”
In their analysis, SCOTUS blog said this is a very significant line of questioning from Roberts that suggests he is at least mulling the possibility of a ruling that would not formally overturn Roe and Casey but would discard the viability line — opening the door to prohibitions on abortion earlier in pregnancy. Solomon, the Esquire Digital analyst, agreed. “I think when all is said and done in [this case], the court isn't simply going to repeal Roe and Casey but I think they're going to begin the process of taking little chunks out of it," he said. “Something like finding that this particular Mississippi law is fatally flawed in some way but not saying that the heartbeat abortion laws are generally unconstitutional and violate the Fourteenth Amendment. That's kind of what I think the end results going to be from it.”
Justice Brett Kavanaugh pressed Prelogar about the argument that the Roe-Casey framework accommodates both the interests of pregnant people and the interests in protecting fetal life, openly expressing that it’s possible to balance both interests: “You have to pick. That’s the fundamental problem. And one interest has to prevail over the other at any given point in time. And that’s why this is so challenging.”
Another interesting line of questioning came from Justice Clarence Thomas when he asked Rikelman to identify the constitutional right that protects abortion. “It’s liberty,” she said. “It’s the textual protection in the 14th Amendment that the state can’t deny someone liberty without the due process of law.” Rikelman reiterated her argument to Justice Alito: “Allowing a state to take control of a woman’s body and force her to bear the burdens of pregnancy “is a fundamental violation of her liberty.”
Justice Amy Coney Barrett, the Trump-nominee who was confirmed to replace liberal legend Ruth Bader Ginsburg and represents another key vote in the case, seemed to be concerned with if ruling in favor of Mississippi would endanger other constitutional rulings on issues like the right to use birth control and the right to same-sex marriage. Stewart said no, but Justice Sotomayor wasn’t having it. She noted that other cases on birth control, same-sex marriage, and other constitutional rights “all rely on substantive due process,” just like Roe and Casey. “They’re all wrong, according to your theater,” she said to Stewart.
Now that the arguments are finished now we wait for a ruling that unlikely to come before next May or June. And although the court leans right, Solomon says people shouldn’t underestimate it’s ability to arrive at a just decision. “There’s some very, very strong jurists that sit on this court, no matter what one’s political persuasion is,” he said, specifically pointing to Justice Barrett who he argues has exceeded most people’s expectations in what she’s able to accomplish as a Supreme Court justice and history is going to treat her as a very, very skilled one. “Everyone that listened or followed or watched social media or just heard stuff from this morning that’s thinking that Roe v. Wade and Casey are going to be overturned, they need to relax.”
Solomon told me he expects the court to be “careful with the end result of this because they realize it’s such a deep constitutional issue as regards to state powers, the 14th Amendment and due process.” Then there’s SB 8, the Texas abortion ban the justices heard arguments for and against in an emergency hearing last month. Solomon said the court wanted to deal with Dobbs first so nothing they said or did with SB 8 would leave breadcrumbs as to what they’re going to do with Roe or Casey.
Still, this case represents more than fodder for legal minds to debate. People from all walks of life get abortions for all kinds of reasons, none of which are any of our business. And regardless of how the court rules, this won’t change. “Women are going to have abortion no matter what. The practical issue is are we going to return to a time where it’s much less safe to have an abortion?” Solomon asked. “Or are women going to be able to get an abortion in their own cities and in their own states. That’s something that they Court practically needs to decide.”
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Today in Politics
After President Biden received his daily intelligence briefing, he delivered remarks on the supply chain and his administration’s strategy to lower costs of goods and ensure shelves are stocked this holiday season. Then, the president delivered remarks to commemorate World AIDS Day. He and First Lady Jill Biden will be joined this evening by Vice President Kamala Harris and Second Gentleman Doug Emhoff for a Menorah lighting celebration of Hanukkah.
Vice President Harris also convened the administration’s first National Space Council meeting at the United States Institute of Peace.
The House met today for debate and to take votes on several bills, including legislation that would require federal judges to follow the same financial disclosure laws as members of Congress and senior officials in the executive branch. House Democratic Caucus Chair Hakeem Jeffries and Vice Chair Pete Aguilar held a press conference to discuss GOP leadership’s failure to hold Rep. Lauren Boebert accountable for her Islamophobic comments against Rep. Ilhan Omar.
The Senate was back this afternoon to continue negotiations on the 2022 National Defense Authorization Act (NDAA), which sets the annual budget and expenditures for US armed forces. It’s also worth noting Democratic Leader Chuck Schumer intends to put the Build Back Better Act on the floor during the week of Dec. 13 once the Senate Democrats complete its review of the legislation to make sure it meets the criteria to pass without Republican support.
In The Know
Living alone became slightly more common over the past decade. The percentage of adults living with an unmarried partner — or “shacking up” as the old folks like to say — also increased from seven percent to eight percent during the same span. (US Census Bureau)
Stacey Abrams is running for Georgia Governor in 2022. Abrams, who lost her bid for the governor’s mansion by less than 1.4 percentage points in 2018, highlighted her work in the state since her defeat, along with a message that “opportunity and success in Georgia shouldn’t be determined by your ZIP code, background or access to power.” (Greg Bluestein / AJC)
Related: Andre Dickens was elected as Atlanta’s next mayor in a runoff election on Tuesday after running a campaign focused on public safety and restoring the “soul of Atlanta.” “I’m humbled that you have put this faith in me to be the city’s next leader,” Dickens said. (J.D. Capelouto / AJC)
Bill de Blasio, New York City’s outgoing mayor, announced the nation’s first overdose prevention center services to offer safe, clean places where people who use drugs can access clinical care and other services. According to a study from the city’s health department, OPCs could save 130 lives a year. (The Office of the Mayor)
Dr. Oz, the celebrity surgeon who hyped up a malaria drug as an effective treatment for the coronavirus last year, announced his campaign for the US Senate. He’ll run as a Republican in Pennsylvania and hopes to appeal to loyalists of former president Donald Trump with lazy dog whistles like “America First.” (Marc Levy / AP News)
CNN suspended Chris Cuomo for the unethical role he played during an investigation into sexual misconduct against his brother and former New York governor Andrew. “The New York Attorney General's office released transcripts and exhibits Monday that shed new light on Chris Cuomo's involvement in his brother's defense,” a CNN spokesperson said Tuesday evening. “The documents, which we were not privy to before their public release, raise serious questions.” (Oliver Darcy and Brian Stelter / CNN)
52 percent of young Americans believe that our democracy is either “in trouble,” or “failing.” “When they look at the America they will soon inherit, they see a democracy and climate in peril — and Washington as more interested in confrontation than compromise,” John Della Volpe, polling director at Harvard’s Institute of Politics said. “Despite this, they seem as determined as ever to fight for the change they seek.” (Harvard Kennedy School)
The US Department of Housing and Urban Development announced it will award $41 million in grants to 20 local governments and non-profits to create housing opportunities for people with AIDS. “The importance of affordable housing and access to inclusive, non-discriminatory supportive services for low-income persons living with HIV/AIDS cannot be understated,” said Secretary Marcia L. Fudge. “Housing is a powerful structural intervention in ending the HIV/AIDS epidemic and this funding will provide grantees and their partners the opportunity to make a real impact in their communities.”
HBO released a mobile game based on its hit show Insecure from creator Issa Rae. Features include a fast-paced rhyme and lyric mini game to unleash your inner Mirror Bitch, plus hair, accessories, and special clothing items so you can fully express your character and custom story arcs, exclusive product drops, and special cameos. (Riley Van Steward / The Streamable)
TikTok introduced a series of creator monetization features, including tips and video gifts. These features are rolling out alongside a new “Creator Next” portal, which organizes all TikTok’s monetization opportunities in one place. (Sarah Perez / TechCrunch)
Read All About It
Kaitlyn Tiffany on when multilevel marketing met Gen Z.
Ibram X. Kendi on the mantra of white supremacy.
Reynolds Holding on the judge who told the truth about the Mississippi abortion ban.
Lizzie Presser on America’s shadow foster system.
Sarah Jones on why there’s no such thing as a pro-life feminist.
Rick Rojas on the last abortion clinic in Mississippi.
Huron Shower Kit ($39): I’m kind of bored with my old-faithful body wash and skin care products so I hope this popular set provides the refresh I’m looking for.
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Be kind to yourself and I’ll see you in the next post!