https://slate.com/news-and-politics...J1mhcmQ0f5DZODXTD_wnP06jy2XwEUKARISw2oz83xUw8
key steps in getting America to full handmaid's tale are goin down
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The holding in
Whole Woman’s Health was unequivocal: A TRAP law will be struck down if it “provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so.” Justice Stephen Breyer, writing for the majority, pointed to the “virtual absence of any health benefit” conferred by the Texas law. The Louisiana law confers no benefit either. The majority in
Whole Woman’s Health was perfectly clear on this point: When there are no “medical benefits sufficient to justify the burdens upon access,” the law is unconstitutional. The 5th Circuit’s determination that the burdens on women aren’t crippling doesn’t change the fact that the law doesn’t protect any woman from any real thing.
In the absence of a ruling from SCOTUS, the Louisiana law would have gone into effect Monday. Late Friday, Justice Samuel Alito, who handles appeals out of this circuit,
issued a brief order barring the state from implementation until Thursday. This isn’t a signal of any conclusions on the merits. As Alito said, the justices—among them Trump’s nominees, Gorsuch and Kavanaugh—just need more time to consider the emergency appeal.
TRAP laws are rooted in the willingness to go along with a fiction that something “protects maternal health” even when science and data show that it does not. Confirmation hearings are rooted in the fiction that a judicial nominee who pledges fealty to precedent cannot stand aside and allow a precedent to die. Women will be the victims of both such fictions. Perhaps we shouldn’t be surprised. It bears saying again that Donald Trump’s federal judicial nominees have been 76 percent male and 91 percent white. A review done by Bloomberg Law last week showed that female advocates made up only
17 of the 112 appearances before the Supreme Court so far this term.
The author of the 5th Circuit’s majority opinion invalidating the injunction in Louisiana ended his opinion with this piece of mathematical wizardry: “The denominator of women actually burdened is limited to those 3,000 women who seek abortions annually at Hope Clinic. The numerator is limited to those women substantially burdened. Since we have already concluded that Act 620 effects no constitutional deprivation, the numerator encompasses no one. In other words, the statute imposes an undue burden on 0% of women. By definition, zero percent is not large.”
It’s a fitting bit of word salad that perfectly encapsulates the current moment. We are watching the zeroing out of women’s interests alongside the zeroing out of women’s representation, all of it done via sly acts of omission. Meanwhile, the Supreme Court is still deciding whether it wants to get involved. You can be certain that what John Roberts is currently grappling with comes down to this: whether the silent benefits of being done with
Roe outweigh the costs of being overruled from below.
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