The Morning Jolt

Law & the Courts

Change Is Coming to America’s Abortion Laws

Pro-life demonstrators outside the Supreme Court in Washington, D.C., December 1, 2021. (Evelyn Hockstein/Reuters)

Today, we run the gamut: three observations about yesterday’s oral arguments at the Supreme Court and the future of abortion in the U.S.; why the Omicron variant may have been hanging around here much longer than we thought; why the International Olympic Committee is functionally pro-abuse and pro-kidnapping; and why both Hallmark movies and Die Hard share a bizarre belief about corporate America’s holiday schedules.

Analyzing Yesterday’s Oral Arguments

If you want excellent coverage, discussion, and analysis of yesterday’s oral arguments at the Supreme Court, peruse the offerings from the all-star team of my distinguished colleagues — Kathryn Jean Lopez, Charlie Cooke, David Harsanyi, Michael Brendan Dougherty, Alexandra DeSanctis, Andrew McCarthy, Ramesh Ponnuru (and Ramesh again), John McCormack, Ed Whelan, Isaac Schorr, Dan McLaughlin, and the full editorial from the editors.

I have only three observations to add.

First, I find it difficult to envision a majority of Supreme Court justices ruling that Mississippi’s ban on abortion after 15 weeks of pregnancy is wholly unconstitutional and voting to uphold Roe v. Wade as it is currently stands. Change is coming, but I’m just not sure what form that change is going to take. It is likely that a majority of the Supreme Court justices will reinterpret or overturn Roe in a manner that gives states greater latitude to restrict abortions, but how far the ruling goes won’t be known for a while — probably not until late June 2022.

Second, this is likely to be a messy, complicated decision, with justices concurring in parts and dissenting in parts. But I would not be surprised to see six justices effectively voting to permit states to restrict abortion more thoroughly than the current legal status quo allows.

The comment in oral arguments that surprised me the most came from Chief Justice John Roberts, a man whom many conservatives have learned to never fully put their faith in when it comes to consequential decisions. And yes, of course, a justice’s comments during oral arguments do not always preview or hint how that justice will rule on a particular issue. But if you bet that the chief justice would comment from the bench on how America’s current abortion laws are comparable to those of North Korea, collect your winnings:

CHIEF JUSTICE ROBERTS: Well, I know, but I’d like to focus on the 15-week ban because that’s not a dramatic departure from viability. It is the standard that the vast majority of other countries have. When you get to the viability standard, we share that standard with the People’s Republic of China and North Korea. And I don’t think you have to be in favor of looking to international law to set our constitutional standards to be concerned if those are your — share that particular time period.

A chief justice who observes that, “Hey, we’re kind of like North Korea in this way” does not seem like a chief justice who is comfortable with the morality or constitutionality of America’s current laws regarding abortion.

Third, the political world can sense that the ground is about to shift underneath its feet, and the current conventional wisdom is that if the court overturns Roe v. Wade, the potential for greater restrictions on abortion will redound to the political benefit of the Democratic Party.

At the risk of enraging all of those who care so much about the issue of abortion, pro or con, allow me to offer the counterintuitive thought that abortion might not become an all-consuming issue in the 2022 midterm elections or the 2024 presidential election. Polling consistently demonstrates that about 20 percent of Americans think abortion should be illegal in all circumstances, about 25 to 30 percent think it should be legal in all circumstances, and around half of all Americans fall somewhere in the mushy middle, believing that it should be legal only in some circumstances. Lots of people see a significant difference between the morning-after pill and partial-birth abortion, and lots of self-identified pro-lifers are comfortable with exceptions for rape, incest, and the life of the mother. Lots of Americans would like to see fewer abortions and wide-ranging support systems for women who face an unexpected or unintended pregnancy — but they’re not quite comfortable with a blanket ban, and foresee terrible consequences if “back-alley abortions” return where the procedure becomes illegal. “Safe, legal, and rare” was actually a pretty popular position for a lot of years.

If next June brings the headline, “SUPREME COURT REVERSES ROE V. WADE,” some people who don’t pay a lot of attention to the news may think this means that abortion has been banned nationwide. (It is a near-certainty that ill-informed celebrities will share overwrought reactions on social media.) But that’s not even close to the way the law works. State abortion laws are a complicated patchwork, and those laws don’t always align with the political reputation of the state. New Hampshire has a partial-birth abortion ban, but Wyoming does not. The state of Wisconsin mandates that a woman must be given counseling about fetal pain before undergoing the procedure, but the state of South Carolina does not.

If the Supreme Court overturns or reverses Roe v. Wade, some state legislatures will attempt to pass legislation effectively banning abortion. The likelihood of those proposals becoming law are probably closely tied to the current position of the state’s abortion laws. Overall, red-state governments are likely to make their abortion laws more restrictive; blue-state governments are likely to keep their laws the way they are, or may attempt to expand taxpayer assistance to cover the cost of abortions. But a state’s political, social, and legal cultures rarely turns on a dime. The laws regarding abortion in this country are going to change — but they are going to change slowly, gradually, and at different paces in different states.

The number of abortions in the U.S. have declined dramatically over the past three decades, although it may have inched up a bit in the past two years. Fertility rates are declining, teen pregnancies are declining, and some surveys indicate that sexual activity is declining, both among adults in general and young adults in particular. All of these are factors which indicate that the demand for abortion is declining and is likely to continue to decline. And during this period, legal restrictions on abortion have been slowly and steadily expanding, year by year without a massive backlash against Republicans and those rare but notable pro-life Democrats.

People — particularly apolitical people — don’t think about abortion much until they or someone they know wants one or contemplates one. Terry McAuliffe bet a lot on abortion being a decisive issue in this year’s Virginia governor’s race, and it didn’t work out for him.

We don’t know what the state and mood of the country will be in 2022, but we’re close enough to have some ideas. The supply-chain issues may be worked out by then, and inflation will hopefully not be so bad, but Americans are likely to still be irritated by the state of the economy. If the COVID-19 pandemic isn’t completely in the rear-view mirror, a lot of voters will be irked by Biden’s broken promise to “shut down the virus.” Crime, the waves of migrants attempting to cross the southern border, what’s being taught in schools — none of those issues are likely to disappear between now and next November. Abortion will be a huge issue to those who already care a great deal about it. For everybody else, it remains to be seen.

Has Omicron Been Hanging Around for a While, and We’re Only Noticing It Now?

Monday’s Morning Jolt urged people to be alert about the Omicron variant but noted that, “A more contagious virus is not necessarily a more virulent virus” and that our fears should not increase as dramatically as the news coverage of the new variant has.

This week has brought more curious developments. South Africa first reported the new strain to the WHO on November 24 — leading to the perception that the variant first emerged there. But the Dutch National Institute for Public Health and the Environment later said it found Omicron in samples dating from November 19 and 23. And other European countries have found earlier cases, too:

Belgium, the first European country to report the presence of the new variant, has said that a case tested positive on November 22, and had developed symptoms 11 days after travelling to Egypt via Turkey.

Germany has meanwhile said that a person who tested positive for the variant had arrived at Frankfurt international airport on November 21.

And then there’s this observation about the timing of the emergence of this variant: “Based on a comparison of different Omicron genomes, [Kristian Andersen, an infectious disease researcher at Scripps Research] estimates the virus emerged sometime around late September or early October, which suggests it might be spreading more slowly than it appears to have.”

Keep in mind, here in the U.S., only a fraction of positive tests are sent on for genomic sequencing, and state and local public laboratories only now have a clear sense of what to look for to identify the Omicron variant. “State and local labs were collecting the genetic sequences of 15,000 to 20,000 diagnostic tests each week.” We’re currently averaging about 85,000 new cases per day.

So Omicron may not be “coming here,” it may well have been here for a while. And in the last two weeks, new cases in the U.S. are down . . . 1 percent, and new deaths are down 10 percent. Globally, new cases are up 12 percent, but deaths are down 2 percent. Maybe Omicron really is more contagious but not as virulent.

The International Olympic Committee Is Functionally Pro-Abuse and Pro-Kidnapping

Our Jimmy Quinn writes on the Women’s Tennis Association’s commendable move to suspend its tournaments in China following the disappearance of tennis star Peng Shuai:

WTA’s made the smart move here, but this only casts a harsher light on the International Olympic Committee, which has shown a callous disregard for Beijing victims and attempted to help the Chinese party-state cover up Peng’s apparent detention. The IOC doesn’t seem to care about Olympic athletes — who are slated to compete in the Winter Games in a mere three months. And there’s even a lower likelihood that they’ll heed warnings that athletes competing in China could face the risk of arbitrary detention.

ADDENDUM: In case you missed it, yesterday’s Three Martini Lunch podcast took a detour to discuss the spectacularly illogical plot contrivances of Hallmark Christmas movies, including the frequency of major corporations needing reports submitted, merger deals completed, or sites inspected on Christmas Eve. As noted on Twitter the other night, one movie featured the busy CEO businesswoman character declaring that, “I missed the last two Christmases with my family because I had to make sure those consumer reports got filed.” Just who set these deadlines? She’s the CEO! Who’s making her skip Christmas with her family? Plot contrivances such as these raises the possibility that Hallmark Christmas movies take place in some alternate universe where some quasi-fascistic offscreen authority sets these intractable deadlines, with draconian punishments.

And yes, right around here I should admit that the greatest Christmas movie of all time, Die Hard, has this logical flaw as well. According to the dialogue, Nakatomi Corporation’s Los Angeles office is holding its Christmas party on Christmas Eve, which, even by the standards of late 1980s L.A., seems implausible. The entire movie could have taken place on the last working day before Christmas break — usually December 23 or so — and everything would have worked out the same way.


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