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The Weeds: how big of an impact will the Supreme Court abortion decision really have?

In late June, the Supreme Court struck down two major anti-abortion laws with its decision in Whole Woman’s Health v. Hellerstedt. The ruling, which overturned legislation responsible for shuttering roughly half of the abortion clinics in Texas, has been hailed as a pretty significant victory for pro-choice advocates.

And it is — at least in the immediate sense.

The long-term implications of the decision are less clear. As Vox’s Sarah Kliff has pointed out, the two laws targeted by the Court restricted access to abortions in a very specific way — by using the guise of patient safety to bog down Texas abortion clinics. The Whole Woman’s Health ruling will prevent Texas and other states from implementing similar laws in the future, but it does nothing to touch the myriad other ways legislatures might try to curb abortion access.

Will Whole Woman’s Health v. Hellerstedt represent a turning point in the way the Court considers abortion cases? Or is it merely a speed bump along one of the many avenues pro-life activists and lawmakers use to limit access to abortions in this country?

In the latest episode of The Weeds, Vox’s Kliff, Ezra Klein, and Matt Yglesias consider the Whole Woman’s Health ruling and discuss what it means in terms of the longstanding battle over abortion rights in this country.

Kliff argues that the answer might be a bit complex:

I see a positive and a negative in this for the pro-choice movement. ... It was a different kind of abortion ruling because it was just so rooted in evidence. It suggests, possibly, a new way that the Supreme Court might think about abortion laws. Not just about the theory of what counts as obstructing access, but also what types of laws constitute an undue burden.

In this case they really got into the evidence of what has actually changed and used that to decide if something is an undue burden on women. That was really interesting and different and important in [determining] where the Supreme Court is going in regulating abortion. I think the idea of the Supreme Court requesting facts and requesting to understand how these laws affect women on the ground will generally be good for women’s rights advocates. Because if they can show that women’s access to abortions is being hindered in a major way, they have a decent chance of winning these cases.

However, the reason I think it may not be as powerful for the pro-choice movement is that the pro-life movement can kind of shoot first and ask questions later. They can pass all these abortion restrictions and have them proliferate throughout the country years before courts step in and say, "No, that’s not constitutional."

So if you think of this Texas law, it was passed in 2013, it’s been in effect for almost three years, and half of Texas’s abortion clinics have closed. It’s going to be very hard for them to reopen. Texas has already said that it’s looking for new ways to limit access. It has to re-certify all these abortion clinics as they open. Twenty-three other states passed similar laws in the time between Texas’s law and the Supreme Court decision, and now all of those have to be individually challenged. The Texas law was overturned, but there’s so much of the Texas law still in the United States.

The way the Supreme Court’s relationship with the pro-life movement has typically worked is that the Supreme Court says, "You can’t do this," or, "You can’t do that." And when the movement hears that they can’t do a certain type of restriction, they just start testing out a different type of restriction.

I still see it as a very much uphill battle for the pro-choice movement. The way we have this state-level regulation of abortion with the Supreme Court weighing in a few years later definitely gives the pro-life movement a lot of space to restrict the pro-choice movement before the pro-choice movement can even respond.

Though Supreme Court decisions have done quite a bit to change the landscape of legal abortion access in America, Yglesias argues that they’re an inadequate stand-in for on-the-ground organizing and civic engagement:

I think you see time and again in American political life that there's no substitute for having an engaged activist movement whose champions win elections in a reliable way up and down the ballot. The Supreme Court matters a great deal, but it’s hard to have practical change on the ground when you constantly are losing everywhere. And that’s what is happening with the Democratic party writ large, and a microcosm of this is the abortion rights arena.

The abortion restriction movement is a primary origin story for a lot of Republican Party state legislative candidates. So not only have Republicans dominated state-level elections, but this is an issue that the people who are winning those elections tend to be very personally invested in. So, if they lose a court fight or something else, they come back and they try again, because ultimately they care a lot and they’re winning.

Whereas, you have lawyers for women’s groups, and they’re out there doing their best, but you don’t have a lot of Democratic majorities outside of California, and you don’t have the same activist network that’s as involved. It’s not the same top priority even when Democrats do run a state. There are some moves in the other direction. [...]

If you look at school desegregation, everyone knows about the landmark Brown v. Board of Education [case] in 1954, but it took forever for school districts to actually desegregate. And then, in a practical sense, they tend to resegregate even when it happens. That’s because education policy is being made in a million different schools and towns and districts all around the country. If you don’t control those institutions in a primary way, you don’t really get what you want.

Kliff responded:

And you see that in the numbers. You see a quarter of abortion restrictions in the US have been passed since 2011. There was the Republican takeover of state legislatures in the midterm election of 2010, and the national fight about abortion in Obamacare. And then you see this massive upswing in abortion restriction where Republicans both are energized by the fight they had in DC where a lot of them think they got a really raw deal in Obamacare, and then they have these majorities where they can pass laws very easily. That’s really given them control of that landscape since the start of this decade.

Show notes:

  • In fewer than 1,000 words, what even is Brexit?
  • The Brexit decision has left the UK’s Labour Party in omnishambles.
  • Kliff’s piece published right after the Whole Woman’s Health decision.
  • Whole Woman’s Health doesn’t necessarily mean that Texas abortion clinics will be reopened.
  • An elaboration on Kliff's point that the decision could establish a precedent of data-driven rulings.
  • Dylan Matthews’s magisterial welfare reform explainer.
  • So does welfare make people lazy? (Nah.)

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