The Misleading Conservative Talking Point That Refuses to Die

Ben: The now-notorious Texas law that deputizes citizens to report anyone who assists in carrying out an abortion might seem like an unalloyed victory for the right. Even if it’s technically only a procedural win and even if it might only be temporary, the law, which the Supreme Court declined to halt a couple weeks ago, has put a stop to most abortions in the state — a result that decades of previous legal efforts around the country failed to manage. But not every anti-abortion group or activist thinks the deviously clever strategy that got this far is such a good idea going forward — some think it will actually backfire. Can you explain why?

Irin: The Texas law has brought into stark relief a longtime tension in the anti-abortion movement between incrementalists who worry about both political and legal backlash, and the absolutists who think the piecemeal attacks on abortion have been a losing strategy.

To be clear, both of these factions want exactly the same thing, which is no abortions for anyone. In the short term, at least, the absolutists have won. Unlike literally every other pre-viability abortion ban passed by a state since Roe v. Wade, Texas’s law is in effect and is actively denying abortions to women and pregnant people, forcing them out of state or to carry to term against their will.

But there’s still some hand-wringing that the political costs of this law — not only a ban on almost all abortions, but one that comes with the creepy image of bounty hunters — will be too high. Note that Florida governor Ron DeSantis backed off the idea after promising to copy it.

Fortunately for everyone in the anti-abortion movement, there’s a good chance the conservative lock on the Supreme Court will insulate way more of their politicians from what the voters actually want.

Ben: So do you expect most red states to take that wait-and-see approach here? To gauge what kind of backlash actually takes place, or just hang on for a few months until the Supreme Court weighs in on the blockbuster case you hinted at — a Mississippi challenge to Roe v. Wade coming down the pike this fall?

Irin: It’s a bit too early to tell if the initial statements of support from other red states will bear fruit, but I haven’t seen anyone invest a lot of energy into copying Texas. If I were them, I would wait. Most of them have trigger laws in place that ban abortion as soon as Roe v. Wade/Planned Parenthood v. Casey are overturned anyway. So why spend even more on defending from litigation?

Ben: How do the concerns over this Texas law relate to that other looming case? Are some anti-abortion advocates worried that Brett Kavanaugh or Amy Coney Barrett might actually be swayed by the backlash to Texas to the extent that they might not rule the “right” way in the Mississippi case?

Irin: It’s interesting because the Mississippi law is also a pre-viability ban, but a 15-week ban without any of the convoluted private enforcement (“bounty hunters”) mechanisms that have so far made it harder to challenge the Texas law. The Mississippi law looks more like standard incrementalist stuff. Its defenders are probably responding to polling that shows that first-trimester abortions are broadly supported by the public, and they’re distorting data about second-trimester and beyond abortions being riskier to evince a faux concern for abortion patients. It’s a stalking horse for getting rid of the Supreme Court’s viability standard that is the only thing keeping abortion legal in red states — or was.

The Supreme Court has had many chances to rule on these laws before, and they always let lower courts shoot them down without getting involved. This new court has at least four votes to take it up, which means they think they have a reasonable chance of getting to five and undoing almost 50 years of abortion rights.

All of this is why it was puzzling to me and a lot of the legal experts I interviewed — why do this in Texas in the middle of the night when they could open the door to a straightforward ban on abortion a few months later? And I guess the answer is that they simply do not care.

So no, I don’t think there is that much of a chance of Kavanaugh or Barrett being swayed by the backlash. But maybe purple-state governors or senators would be. And what happens at the state level is about to be more important than ever.

Ben: Going back to the Texas law. You wrote yesterday that some experts believe it may not last long — that it might crumble at the hands of a DOJ lawsuit, or that an abortion provider might willfully break the law, spurring the kind of lawsuit the new rule authorizes but which hasn’t actually happened yet. If this law was struck down by a state court, it might end up back at the Supreme Court as well, right?

Irin: Yes, the case could be appealed from the Texas State Supreme Court to the U.S. Supreme Court. Which is another reason even if Texas’s law doesn’t last in its current form, sweeping abortion bans are likely to be in place there one way or another. It’s a question of when and how, but not if. Unless there is some major structural change — to the Supreme Court, to federal law. To spell it out, “codifying Roe,” which Biden promised on the campaign trail would mean abolishing the filibuster.

Some people are still bringing up expanding the court or otherwise changing how it works. Biden’s pretty much ruled that out, but hey, the anti-abortion movement has been getting back at it after losses for about 50 years, and they’re pretty close to getting everything they want now.