I dashed this off in about 15 minutes after today’s updates in Dobbs v. Jackson and Whole Woman’s Health v. Jackson (different Jacksons, mind!). Didn’t really check for typos, certainly didn’t bother with many links. That might be a theme of my Dobbs coverage this year.
I’ve seen enough: based on today’s oral arguments, the Supreme Court is going to strike down the Texas abortion law (SB8)’s mechanism for evading judicial review, which will lead to SB8’s quick death in lower courts.
Only question now (in my mind) is vote count. Could be anywhere from 5-4 to 9-0, but I think 7-2 (Gorsuch, Alito in dissent) is most likely. Thomas and Gorsuch are the most questionable votes. Of course, one should never infer too much from orals, because things can change a lot when the justices go back to write opinions, but it was hard to see how you could get 5 justices to sustain SB8 after the stripping Texas took at the podium today.
Again: the question the Court is deciding today is “can a state pass a law outlawing a constitutional right and use shenanigans to prevent courts from protecting that right?” not “is abortion a constitutional right?” The second question gets argued in Dobbs v. Jackson on December 1st.
The Texas law was designed primarily as a tricky way to force the Supreme Court to consider the constitutionality of abortion rights, and I supported the law for that purpose. (The Supreme Court itself has used shenanigans to avoid confronting the obvious & murderous falsehoods of its Roe/Casey precedents. Looking at you, Johnny Roberts. Shenanigans for shenanigans, I say.) But the Court’s decision to review Dobbs largely obviated the “need” for the Texas law, and SB8’s shenanigan is clearly so subversive of our constitutional order that that aspect of it had to get killed one way or another — so SB8 has been sort of a zombie since late May.
Of course, SB8 is still doing a lot of good! Statistics show that abortions in Texas have been cut in half since the law went into effect, from the mid-4000s/month to the low-2000s/month. (Don’t let anyone tell you that abortion bans don’t decrease abortions. They sure as heck do, even after accounting for mothers who travel out of the jurisdiction to abort, and have no negative impact on maternal mortality… as even a passing glance at Ireland under Amendment 8 proved.) Literally thousands of people are alive today because the Texas legislature acted to protect them from murder. Whatever legal shenanigans were involved in saving those lives, it’s quite a lovely outcome! And when the Supreme Court strikes the law down (as I am now convinced they will, and probably should), thousands of people are going to die because of that, too.
But as long as the Supreme Court makes the correct decision in Dobbs — and I think it will — the blood on our nation’s hands will be limited, or (if the Court moves swiftly in Dobbs and slowly on SB8) perhaps minimized.