the end of Roe v Wade

a sharply divided supreme court ruled late last night on the legality of a texas law which ban most abortions in the state. before getting into the nitty gritty of angry moms and undead children (jk, they come back as ghosts not zombies), it’s worth looking at Roe v Wade which started the modern abortion debate -

Roe v Wade…

Roe v Wade was a 1973 supreme court case which made elective abortions before 22-24 weeks a legal right. the 7-2 case mostly argued that the right of privacy extends to pregnant women being able to decide, without much state interference, if they want to carry their fetus to full term. the case overturned a whole host of state laws which placed restrictions on abortion, or outlawed it entirely, which had been passed in the 1900’s.

while abortion was illegal, that didn’t really stop women from trying to get abortions anyways. these illegal procedures were often dangerous and life threatening, with a reported 5000 women dying each year from attempted abortions in the 1940’s, 50’s, and 60’s. because they were illegal, the procedures were performed by unlicensed hucksters trying to take advantage of women in precarious states.

...and its knock-on effects

the case essentially started the culture wars around abortion we see today. it was a major act of activism by the justices, writing new law because of congress’s failure to act. to this day, congress has not rewritten the federal code to reflect Roe v Wade - which means if the supreme court ever overturned their 1973 decision, abortion would once again become illegal in potentially dozens of states overnight.

interestingly, while the case dramatically expanded abortion access and did lead to a temporary spike in the rate of abortion as a result, the abortion rate has fallen significantly since about 2000. it is now lower than it was pre-Roe v Wade - a statistic which conservatives should be happy about. if all they wanted was as few abortions as possible they should be okay with the status quo.

the 'my body, my choice' argument does have its logical limits, like any slogan. arguably, it cannot be taken literally - governments have taken steps to outlaw procedures like euthanasia and biohacking with little to no pushback (though that does show signs of changing). of course, conservatives largely refuse to consider policies which would make child-bearing easier for mothers and theoretically further reduce the number of abortions, like free childcare, unlimited free maternal care, and permanent child tax credits. ironically, both sides are being a touch too individualistic - progressives value an individual's control over their body over all else, and conservatives value an individual's ability to provide for themself without assistance over all else.

now, the reality is Roe v Wade, while significant, was incredibly disruptive. a more incremental legalization of abortion over time may have resulted in less of a cultural war over the issue. we can look at gay marriage as an example of this - instead of a single bombshell ruling, the court allowed states to slowly legalize it over time. by the time it issued its landmark ruling in 2015 legalizing gay marriage in all 50 states, over 70% of americans already lived in a jurisdiction where it was legal.

now what’s going on in texas?

apart from cowboy hats, people jumping the border, and gun vending machines? well, this new abortion law is in direct contradiction to Roe v Wade. it effectively bans abortions after six weeks of pregnancy, well before the 22 week threshold the court previously enforced. under normal circumstances, one would expect the court to place a temporary hold on the law - preventing it from taking effect until it winds it way through the court system.

however, these ain’t normal times, and the supreme court is stacked with conservatives. so, the court decided in a late night, last minute ruling that the texas law could take effect immediately. with just a couple days of deliberation, the court threw out Roe v Wade for texans, since 85% of abortions take place after six weeks.

a shady late night ruling

what makes this ruling even more unusual is the way in which it was reached. the court usually takes several months to deliberate over big policy or political questions, with arguments held in the fall and decisions released in the spring. however, this ruling was pulled from the court’s emergency summer “shadow docket” - a process designed mostly for last minute death penalty appeals, not for overturning court precedent.

this isn’t the first time this summer that the court has ruled in such a manner either. apart from this abortion ruling, the court also tred into murky matters of foreign affairs, typically left to the president’s discretion, by forcing Joe to renegotiate a border pact with mexico. additionally, it ended an eviction moratorium, affecting 3.5 million american tenants.

the problem is such rulings are barely thought out (with a few days of internal deliberation, instead of months) and lack any sort of democratic transparency (typically no oral or written arguments are received, and the rulings are mostly unsigned). the recent rise of this type of ruling leads us to another point -

Roberts has lost control of the court

even though the court has had a conservative majority for years, chief justice John Roberts largely held its worst political ideologies in check by acting as a swing vote (along with former justice Anthony Kennedy). most notably, Roberts was the critical vote in ruling that Obamacare was constitutional and as recently as last court session voted with the liberals on the bench to block a louisiana anti-abortion law. however, now that the court has a 6-3 conservative bend, the conservatives don’t need Roberts to rule the chicken coop - and he’s lost control. expect not only more shadow docket rulings in the future, but also more anti-abortion, pro-religious rights, anti-gun control, and just generally anti-administrative government rulings without Roberts’ hand on the wheel.

how is big business reacting to this mess?

texas is home to the headquarters of a staggering 10% of the Fortune 500, but remarkably few of them have any comment on the latest abortion bill. companies with long histories in texas, like American Airlines and Dell, to companies which are new to the state but rapidly expanding, like HP and Google, have said little to nothing publicly. this is in contrast to many companies quickly and strongly coming out against voting restriction bills and laws throughout the south this past year.

there are probably two main reasons for this silence. first, companies are just straight up scared of texas. it’s just about the largest market in the US outside of california, and companies know their lucrative tax credits and special tax rates could easily be wiped out by a vindictive state legislature. that’s nearly what happened to Delta in georgia after it spoke out against its new laws restricting voting. we’ll be the first to say that all those companies should just ditch texas for the great frozen tundra of the midwest...

second, companies have historically just stayed out of the abortion fight. it’s an incredibly hot topic, with really no winners. the latest statistics show that while 59% of americans support legalized abortion, 39% says it should be illegal in most or all cases. while that’s a significant majority in favor, that’s still a very sizable (and vocal) minority against. companies don’t want to alienate potential customers over something as insignificant as...the health of women and potential babies?