Tangle - The SCOTUS abortion case.

Episode Date: December 2, 2021

Mississippi’s abortion law. Yesterday, the Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, the case regarding a law enacted in 2018 by the Mississippi legislature that banned abortions if the "probable gestational age of the unborn human" was more than 15 weeks. The law had narrow exceptions for medical emergencies and severe fetal abnormalities, but no exceptions for pregnancies caused by rape or incest.In case you missed it, we published a lengthy newsletter on Tuesday that explained the background of Roe v. Wade and the Dobbs v. Jackson challenge. If you haven't read that yet, I strongly suggest you go read it now.You can read today's podcast here.You can subscribe to Tangle by clicking here or drop something in our tip jar by clicking here.Our newsletter is written by Isaac Saul, edited by Bailey Saul, Sean Brady, Ari Weitzman, and produced in conjunction with Tangle’s social media manager Magdalena Bokowa, who also created our logo.The podcast is edited by Trevor Eichhorn, and music for the podcast was produced by Diet 75.--- Send in a voice message: https://podcasters.spotify.com/pod/show/tanglenews/message Hosted on Acast. See acast.com/privacy for more information.

Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight.

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To learn how we're moving the world forward, visit ubc.ca slash forward happens here. From executive producer Isaac Saul, This is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle podcast, a place where you get views from across the political spectrum, some independent thinking without all that hysterical nonsense you find everywhere else. I am your host, Isaac Saul, and in today's episode, we are stepping into the hornet's nest. We're covering abortion and some of the arguments that were brought forward in the Supreme Court case yesterday. Before we jump in, though, as always, I want to start with some quick hits. First up, researchers at UC San Francisco said they detected the first known case of the Omicron variant in the United States. Number two, the Women's Tennis Association suspended all tournaments in China and Hong Kong

in response to the treatment of Chinese tennis star Peng Shua. Number three, in outlines of a winter plan to address COVID-19, President Biden extended mask mandates for travelers into March of 2022. Number four, Simone Sanders, a high-profile aide to Vice President Kamala Harris, is leaving Harris's office by the end of the year. Number five, Democrats and Republicans reached a funding deal to prevent a government shutdown, which could take place this weekend. The U.S. Supreme Court will hear a case on Wednesday that has the potential to overturn Roe v. Wade. Roe v. Wade has stood for nearly half a century.

Now the landmark abortion rights decision is facing its most serious challenge in decades. After hearing hours of arguments today, the Supreme Court appears willing to uphold Mississippi's ban on nearly all abortions after 15 weeks. No exceptions for rape or incest. Hundreds gathered outside the court, both sides vividly demonstrating what's at stake. Mississippi defended its law passed in 2018 but blocked by lower courts that would ban virtually all abortions after 15 weeks of pregnancy. Yesterday, the Supreme Court heard oral arguments in Dobbs v. Jackson Women's Health Organization, the case regarding a law enacted in 2018 by the Mississippi legislator that banned abortions if the probable gestational age of the unborn human was more than 15 weeks. The law had narrow exceptions for medical emergencies and severe fetal abnormalities, but no exceptions for rape or incest. In case you missed it, on Tuesday we published a lengthy podcast and newsletter that explained the background of Roe

v. Wade and the Dobbs v. Jackson challenge. If you haven't yet, I think that background is critical, so I encourage you to go read or listen to it now before listening to this episode. So during oral arguments, the conservative justices who now hold a 6-3 majority seem poised to uphold the Mississippi law, which is at odds with the precedent established in Roe v. Wade. Roe v. Wade was designed to protect abortion rights up to fetal viability, usually around 24 weeks. However, Justice Brett Kavanaugh articulated a clear willingness to reverse that precedent, noting that many of the court's most important decisions have turned back long-standing precedent in the past.

Justice Elena Kagan, meanwhile, warned about the stench on the court that would exist if its interpretation of longstanding law simply changed based on the personal preferences of the sitting justices at the time. Chief Justice John Roberts, who often works to ensure the court makes incremental changes to the law, seemed inclined to find a middle ground asking questions about whether 15 weeks would be an appropriate line. Many court watchers have speculated that the justices could allow the Mississippi law to stand but attempt to reach a decision that preserves abortion rights early on in pregnancies. However, some of Roberts' fellow conservative justices did not seem inclined to take him up on his offer. What seemed clear is

that the court, as it stands, received Mississippi's arguments favorably and that a major change to abortion law in the U.S. could well be coming. The court is expected to hand down its ruling in late spring or early summer next year. Now we're going to take a look at some reactions from the left and the right and then, as always, my take. First up, we'll start with what the left is saying. The left says overturning Roe v. Wade would be disastrous for the court and roll back women's autonomy. The court should reject Mississippi's law given 50 years of well-established precedent, and the pro-life movement disregards real experiences of dangerous pregnancies and low-income Americans. In the New York Times, Mary Ziegler said that the end of Roe is coming. There are two likely scenarios for how this

decision could go. The justices could throw out the so-called viability standard, which is the underpinning of abortion law today. Viability is the point at which a fetus can survive outside the womb or about 23 weeks of pregnancy. Or they could do something much more radical and say, precedent be damned, there is no right to abortion in America at all. After hearing oral arguments, I now believe that the justices will fully overturn Roe v. Wade when their decision comes down next year. I believed that the court would eventually overturn Roe. Several of the justices were handpicked by former President Donald Trump to do just that. But before the Dobbs arguments, I didn't think they would do it so quickly, Ziegler wrote. I thought that the justices would give themselves time to

soften the blow, to make their case to the American people while overhauling abortion rights, and to diffuse arguments that the justices are partisans in robes. What I heard Wednesday morning was not a court in which a majority was worried about backlash, but a court ready for revolutionary change. In the Detroit Free Press, Ashia George wrote about her transformation from pro-life to pro-choice. Ten years ago, the birth of my first child took a heavy physical toll. The pregnancy was very difficult, culminating in an emergency c-section. A year later, despite taking birth control, I unexpectedly became pregnant a second time. I knew my body was not ready for the trauma of giving birth again so soon, George wrote.

That experience motivated me and enabled me to get a college degree and become a registered nurse at a women's health clinic in Detroit. I see hundreds of people every month who would experience all manner of severe hardship, including death, without access to safe abortion. Here in Michigan, about a dozen bills seeking to reduce access to abortion have been introduced despite overwhelming public opposition to such restrictions, George said. Outlawing abortions will not stop them from occurring. Instead, people with means will be able to travel to places where abortions remain safe and legal. We are seeing that occur at the clinic where I work. People are flying in from Texas, where earlier this year the state legislator enacted a draconian anti-abortion law that, in essence, puts a bounty on abortion providers and anyone else who provides support

to someone in need of an abortion. Those who can't afford the cost of taking time off work and traveling out of state will be forced into pregnancy or put their lives at risk by obtaining abortions outside the safety of a medical setting. History provides us with irrefutable proof that people will always find a way to have an abortion, safe or not, legal or not, because their survival can depend on it. In Slate, Mark Joseph Stern struck a similar tone. Give this to the Supreme Court. It did not leave us in suspense, he wrote. During oral arguments on Wednesday in Dobbs v. Jackson Women's Health, five Republican-appointed justices made it abundantly clear that they are prepared to abolish the constitutional right to an abortion established

nearly 50 years ago in Roe v. Wade. Perhaps the most surprising aspect of the morning was how little Justices Brett Kavanaugh and Amy Coney Barrett concealed their desire to overrule Roe. While Chief Justice John Roberts fruitlessly sought out a compromise, Kavanaugh and Barrett showed their cards. Both justices believe the court has an obligation to let states or Congress decide the abortion question. Neither showed any appetite for incremental steps or half measures. They are eager to greenlight complete bans on all forms of abortion at every stage of pregnancy, and they are ready to do it now. The court will hold that advancements in the law of adoption and relinquishment protect women's equal participation in the nation's social and economic life after childbirth.

It will assert that these developments erode the value of Roe and Casey as precedents, Stern said. It will then declare that those decisions were egregiously wrong because the Constitution is neutral on abortion. And it will frame this outcome as a triumph of democracy and a fair compromise because the court did not mandate abortion bans, but simply permitted them. Within six months of this decision, experts predict that roughly half the states will impose complete or near total bans on abortion. And if Republicans win a trifecta in 2024, they may pass a nationwide ban. All right, and this is what the right is saying. The right argues that Roe v. Wade was wrongly decided, and at the very least, the court should uphold the Mississippi law, even if it doesn't strike down abortion rights wholesale. the court should uphold the Mississippi law even if it doesn't strike down abortion rights wholesale.

Leaving this up to states and voters would be the appropriate constitutional response, and getting the Supreme Court back to neutral would allow a real moral debate about abortion to happen. The Wall Street Journal editorial board called it a crossroads. These columns have long supported a policy of legal abortion before viability, albeit uneasily, as technology has revealed the development of a fetus, the board said. But we have no hesitation in saying that Roe v. Wade and his progeny, notably Planned Parenthood v. Casey, were wrongly decided. Abortion is nowhere mentioned in the Constitution, and its regulation is a classic example of police powers reserved for the states. The justices could agree with the Fifth Circuit and declare that Mississippi's law is unconstitutional,

but that is highly unlikely given the new majority and its originalist views of the constitutional interpretation. They could also take Mississippi up on its initial offer and uphold its law without overturning Casey, which modified Roe's trimester analysis. Casey's core ruling is that states cannot impose regulation that is an undue burden on a woman's ability to obtain an abortion. The court could rule that Mississippi's ban is not such a burden, and thus it does not have to reconsider Casey or Roe. This would be justified as a manner of law in this case. Given the court's reluctance to overturn long-standing precedent, this may be where a majority or plurality comes out. Some justices might feel this is a safe harbor to show that the new court,

with its Trump appointees, isn't out willy-nilly to overturn precedent. We disagree with those on the right who say this would betray the conservative legal movement. Such a ruling would be akin to the incremental progress the Roberts court has made on other legal precedents, notably on free speech and religious liberty. In the National Review, Michael Brendan Daugherty said this is only a march to the starting line for the real race to win the moral argument on abortion. The issue before the court is not the morality of abortion, he said. All that is at issue is whether the people, through their state legislators, are able to limit and regulate the practice of abortion, whether abortion is a fundamental constitutional right or a matter of self-governing people to determine democratically.

A huge against-all-odds victory that vitiates the holding of Roe v. Wade and Planned Parenthood v. Casey would only mean the restoration of American self-governments on the issue of abortion. The legal movement to restore constitutional rule on the issue is only the prelude to a true democratic pro-life movement. Overall, American abortion law will, in aggregate, become more like European abortion law, with a variety of restrictions kicking in after the first trimester. And, like European abortion law, American abortion law will likely develop in a way that seeks to satisfy the contrary and contradictory impulses of the American people. The laws will often lack moral coherence, he wrote.

If the pro-life movement succeeds in the court, suddenly it faces its real problem, of which legal abortion is the result. The pro-life movement will be facing the sexual revolution itself, and it will suddenly be in the position where it must argue that sexual liberation is simply impossible. Abortion has become our culture's attempt to make the impossible possible. It is used to make abandonment look like a change of mind, to make death look like healthcare. It's the awful, bloody thing we've done to reconcile our desires with our circumstances and limitations. Overcoming it will require more than this courtroom drama.

Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. In Fox News, Marjorie Dannenfelser said overturning Roe v. Wade will allow women to debate the issues that matter most to them. Standing by precedent may sound prudent, but this appeal quickly falls apart for several reasons, she wrote. Firstly, precedent is supposed to provide workable guidance and establish a clear path forward, but Roe only muddied the waters. At the time, progressive legal scholars criticized the ruling, saying Roe is not constitutional law and gives almost no sense of obligation to try to be.

Edward Lazarus, a clerk for majority opinion author Justice Harry Blackmun, stated that Roe's interpretation of the Constitution, quote, borders on the indefensible. Justice Ruth Bader Ginsburg even conceded Roe provoked, not resolved, conflict. Secondly, supporters of abortion argue that without Roe, women would be reduced to second-class status, she said. This is both false and paternalistic. Women are gaining representation in many professional areas, even as abortion rates steadily decline. Legalizing abortion wasn't a panacea that allowed women to succeed. Their hard work and determination, along with good policymaking, made that possible. To claim seven male justices save women from gender inequality is ludicrous. Women themselves hold a diverse

range of views about abortion. For example, 79 pro-life female legislators from 45 states signed our amicus brief supporting Mississippi. Overturning Roe won't reduce the number of women in the workforce or repeal the 19th Amendment. Instead, it will allow women to debate the issues that matter the most to them. All right. And finally, that brings us to my take. So I'll be honest here. I rarely feel intimidated or scared to say something these days. I've regularly stepped out of my comfort zone as a writer and podcaster. I've written about taboo subjects. I've regularly stepped out of my comfort zone as a writer and podcaster. I've written about taboo subjects. I've taken controversial opinions and put them out in the

open, and I can usually comfortably steal myself for the responses. But for whatever reason, covering abortion or writing about my own opinions on it in any way still makes my stomach turn. I think the reasons for that are kind of self-evident, but they're worth stating up front for the record for me. If you take anything that resembles a pro-choice position, one where a woman gets to make the decision about whether to carry her pregnancy to term without the forcible hand of the government involved, a good chunk of the country views you as complicit in murder. The lives of the unborn are on near equal footing as those of us already outside the womb, and even if they don't see it as the quote same as killing a person, many certainly view it

as worse than, say, executing someone on death row. On the other hand, if you articulate a position that in any way advocates for valuing the life of a fetus over the mother's decision, or putting limits on the time frame in which an abortion can happen, there's a huge chunk of the country that believes you don't think women should have autonomy over their bodies. This group thinks you want to control their bodies, their sex lives, and their self-determination, and that you are likely some kind of brainwashed religious zealot too. This is especially true if you are, like me, a man, someone who will never have to face the question of whether to give birth to a human being or not, someone whose life will never be as powerfully impacted by abortion

law as a woman's. As Michael Brendan Daugherty wrote above in What the Right is Saying, the question before the court is not a moral one. At the risk of alienating some of my listeners, though, I feel it's necessary to concede that I fall into the pro-choice side. I see good and legal ethical causes for having certain limits on abortion, and I don't view pro-lifers as insidious evil zealots trying to reduce women to nothing more than childbearers. Virtuous arguments in the pro-life movement abound, especially among pro-lifers who consistently carry that ethic across the spectrum. In fact, in tomorrow's Friday's Subscribers Only edition, we're publishing an essay from someone who writes about the

consistent life ethic of being pro-life and anti-capital punishment, for instance. I'm equally sympathetic to the idea that Roe v. Wade and abortion law as it stands in the U.S. was mostly concocted out of thin air. The justice who wrote the viability standard basically admitted as much, and the idea that there's a marked difference in a 24-week-old fetus versus a 26-week-old fetus outside the womb seems pretty preposterous on the face of it. Anecdotally, the record for premature births is constantly being broken. Even newborn babies, as any parent or aunt or uncle or grandmother can attest, wouldn't last very long without constant support and attention from those around them. This is a pro-life argument that I find particularly compelling. But it's equally disingenuous to pretend that a newly fertilized egg carries the same inherent

value as a newborn baby or a prospective or current mother, which I think is why the court has struggled for so long to navigate this issue. There's no way to reasonably put a fertilized egg's consciousness, sense of pain, societal value, personality, self-determination, or worth on the same playing field as a newborn baby or adult woman, pregnant or not. And I've simply never seen, heard, or read a compelling argument to the contrary. Once we accept that there is that difference, then we are accepting that there is a gradient of life and that we are responsible for the incredibly challenging moral question of determining where in that gradient we want to begin giving explicit legal protections to a fetus that may take away the free will and choice of a potential or current

mother. I'm not going to pretend to have a satisfying answer to that question, and I don't think I need to for this discussion. As it pertains to the case before the Supreme Court, though, the outcome seems clear to me. I think Roe v. Wade is going to be overturned, and I think legal abortion is about to become a lot less common and available in the United States. This is, for me, a terrifying proposition. a terrifying proposition. It terrifies me not just because we know that women will still find ways to get abortions, only now they will occur in far less safe environments and at the risk of penalty or punishment for the doctors involved in the abortions, but also because of the tragic reality that it's unlikely to do much to actually reduce the number of abortions in the U.S.

The practical outcome is that this fight is going to tear the country apart, take away 50 years of deeply embedded constitutionally protected autonomy that women have had. Whether you agree with Roe v. Wade or not, it now runs generations deep, and it is unlikely to even serve the, quote, victorious side's overarching objective, which, unless you think it's about controlling sex or women's bodies, is to reduce the number of abortions ultimately to zero. The truth is that the best way to reduce that number in the U.S., if that really is your goal, is to popularize secular sexual education, make birth control cheap and effective, and improve access to women's health care. This is not a complicated truth. It's an observable fact throughout history and across the country, but it's one far too many people on the pro-life side don't want to hear. Which, hey, if you view abortion as state-sanctioned murder that's happening every day, I understand not wanting to take a middle ground, but staking out that position leaves little room to resolve the issue or make any progress in a country where most people don't agree with you, another reality that has remained essentially unchanged for 50 years. It's also true that this ruling is going to have a disproportionately

negative impact across the lower economic classes. Well-off people will still be able to travel to get abortions. Many of them already are from states that are restricting abortions. They'll be able to pay for the abortion itself, while poor and low-income Americans in states with abortion restrictions won't. And simultaneously, those people will then face the burden of giving birth in a country where carrying a child to term is absurdly expensive, quite dangerous medically, and comes with little government support for the parents or the child, though things finally seem to be improving in that department a little bit. That child will then face the prospect of growing up in a family with few resources

to provide the care and quality of life we all want for our own kids. And, while I know there are millions of parents waiting to adopt, there are also hundreds of thousands of kids waiting to be adopted, none of which resolves the actual costs and risks of carrying a pregnancy to term. None of this strikes me as a positive or whole-life just outcome, as a positive or whole-life just outcome, particularly when determining the fate of a law that has no exceptions for rape or incest, despite some 84% of Americans supporting such a clause. In fact, Americans are split on whether abortion is morally wrong, but they're quite clear on their preference that abortion should be legal in specific scenarios. Relatedly, current CDC data indicate that 92.7% of abortions are performed at or less than 13 weeks gestation,

6.2% are performed between 14 and 20 weeks, and fewer than 1% were performed after 21 weeks. In other words, right now, abortions are happening almost entirely in the time frame that the Mississippi law already allows, and that the vast majority of Americans deem morally acceptable. Thanks to many of the snap laws in place across the country, though, overturning Roe v. Wade in this case would immediately make most or all of those abortions illegal. My feelings aside, it seems that outcome might be likely, and I fear what will come after it, especially in a country that's already hopelessly divided, with a court that's already viewed overwhelmingly negatively, and on an issue that has always seemed irreconcilable.

All right, that brings us to our story that matters today. The United States has been under a deluge of cyberware attacks, and the Biden administration is now accelerating efforts to address them. Over the last year, ransomware attacks have targeted government information infrastructure and major corporations' networks, leaving them susceptible to data leaks, blackmail, and other security risks. Meanwhile, there are nearly 600,000 vacant cybersecurity positions in public and private sectors, including 1,500 at the Department of Homeland Security alone. This leaves those industries even more vulnerable. Government, nonprofit, and private entities are now partnering

in an attempt to train new cybersecurity technicians to fill the voids as quickly as possible. Axios has a story about this in today's newsletter. That brings us to our numbers section. That brings us to our numbers section. All of these are related to today's issue. 32% is the percentage of Americans who think abortion should be legal under any circumstances, according to Gallup. 48% is the percentage of Americans who think abortion should be legal only under certain circumstances, according to Gallup. 19% is the percentage of Americans who think abortion should be illegal in all circumstances. 46% is the percentage of Americans who think abortion should be illegal in all circumstances. 46% is the percentage of Americans who say abortion is morally acceptable. And 47% is the percentage of Americans who say abortion is morally wrong. 61% is the percentage of Americans

who believe abortion should be legal during the first trimester. And 34% is the percentage of Americans who believe abortion should be legal during the second trimester. Finally and 34% is the percentage of Americans who believe abortion should be legal during the second trimester. Finally, 19% is the percentage of Americans who believe abortion should be legal during the third trimester. All of those last three data points are from the Associated Press. Phew. All right. Who needs a have a nice day story? I definitely do. Here's a good one. Yesterday, Capital One announced it was going to end the industry practice of charging customers hefty overdraft fees, giving up approximately $150 million in annual revenue. Customers who have paid the fees will be automatically rolled over into a free overdraft protection service

next year. And those who opt out of the service will simply have overdrawn transactions declined. For years, consumer advocates have been pressing banks to abandon this practice, which often punishes those who can least afford to pay the fines. As someone who once lived under the constant hellish fear of an overdraft, I'm thrilled to see the change. CNBC has a story about this. You can find it in today's newsletter. All right, everybody, that is it for today's issue. Tomorrow, as I mentioned in the newsletter, we are going to be publishing a reader submission, an essay somebody sent me, a reader sent me about the whole life ethic ideology. I thought it was

really interesting. It's related to today's issue on abortion rights and being pro-life, and it's a different view than I have, which is why I'm choosing to publish it. But you only get it if you are a subscriber, so if you want to receive that, you need to go to readtangled.com backslash membership and subscribe. As I said earlier this week, we are donating half of all new subscription revenue and tips to Heavenly Harvest, which feeds the hungry in New York City and up and down the East Coast. So you can subscribe and also donate to a good cause at the same time. All right, everybody. If not tomorrow, I will see you on Monday. Peace. Our newsletter is written by Isaac Saul, edited by Bailey Saul, Sean Brady,

Ari Weitzman, and produced in conjunction with Tangle's social media manager, Magdalena Bokova, who also helped create our logo. The podcast is edited by Trevor Eichhorn, and music for the podcast was produced by Diet75. For more from Tangle, subscribe to our newsletter or check out our content archives at www.readtangle.com. We'll see you next time. who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+.