Opinion

Marcotte mangles TX abortion case, unwittingly admits problem with judicial supremacy

Amanda Marcotte

The Supreme Court’s decision to hear the Texas abortion clinic regulations case is not sitting well with Amanda Marcotte, who takes the opportunity at Salon to peddle misinformation about medicine, confusion about the Constitution, and inadvertently boost pro-lifers’ spirits about the case’s fate…

Under the circumstances, it might seem excessive to say that legal abortion itself is under threat. But the blunt fact of the matter is that it is, and depending on how the Supreme Court handles this, we may soon be looking at a country where legal abortion is only available in liberal states like New York and California, while red states keep passing all sorts of medically unnecessary restrictions that keep abortion legal in theory but impossible to legally provide in practice.

Marcotte doesn’t realize it, but what she’s just described is a situation called “federalism.” If that sounds familiar to you, it’s because federalism is precisely how our system of government is supposed to work—the country adopts a uniform standard for the most fundamental and unavoidable national concerns, but leaves everything else for states to decide for themselves.

That’s meant to apply to virtually everything that affects our lives, including things with far more direct impact than whether we can get abortions—how our schools and healthcare systems operate, how much money the government takes from us, how harshly crime is punished, how heavily employers are regulated, and more.

In fact, the only way federalism’s applicability to abortion differs from those issues cuts against Marcotte’s position: the Fourteenth Amendment to the Constitution expressly affords all human beings basic legal protections that legal abortion violates. But then, we already know that she doesn’t understand the 14th Amendment.

Amanda, you’re perfectly free to dislike the prospect of women having to move to a blue state to secure their abortion “access.” Urge voters to rectify that situation at the ballot box all you like. But spare us the absurd pretense that the political hierarchy the Constitution itself creates somehow violates the Constitution.

“Abortion is one of the safest medical procedures performed in the United States, and neither of the requirements imposed by the Texas law would make it any safer,” the American Congress of Obstetricians and Gynecologists explained in a statement to the court on Friday.

And ACOG would never lead us astray on abortion-related matters! Except for the time they let the politics of the Clinton Administration manipulate their official findings on partial-birth abortion. Or the time they cited Planned Parenthood officials implicated in the Center for Medical Progress videos as credible authorities on the safety of webcam abortions. Or the time they injected themselves into debate over North Dakota abortion laws based solely on their ideological commitment to abortion. Or the time they redefined “conception” and “pregnancy” to help legitimize the birth control pill, despite how actual physicians use the terms. Or the time they refused to clearly answer when human life begins despite the overwhelming scientific consensus that it begins at fertilization.

On second thought, maybe we shouldn’t assume ACOG is telling us the truth about Texas.

If the Supreme Court agrees that medical and scientific evidence doesn’t matter when evaluating the validity of medical restrictions, that will open the door for states to basically ban abortion through red tape, claiming that it’s all being done for “women’s health.”

You don’t have medical and scientific evidence on your side, Amanda, but strictly speaking… medical and scientific evidence doesn’t matter to the Supreme Court. We already have two branches of government that decide whether laws are sensible or foolish, informed or fallacious. The judiciary isn’t there to rule on policy merits, but solely on whether anything in the Constitution tells states, “you can’t do that.”

That’s because anything but the most basic and obvious facts are susceptible to too much political distortion, parsing, and interpretation to let a small group of unelected individuals take the decision over a claim’s credibility out of our hands. When Congress or the President make decisions based on bad information, public pressure can get them to reverse themselves or replace them at the next election. When SCOTUS does the same, however, we’re stuck with the guilty judges for life and have no hope of reversal until SCOTUS itself decides to reconsider the matter at some indeterminate point in the far future.

Of course, the court could do the right thing and rule, correctly, that a restriction is inherently undue if its purpose is to make abortion harder to get while not making it safer to get.

This presupposes the undue burden test is itself authoritative. Amanda should read my article from last week explaining why it isn’t.

Unfortunately, history suggests that Justice Anthony Kennedy, who is the swing vote, could go wishy-washy and try to find some sort of “middle ground” on this, perhaps by upholding some of the restrictions and striking down others. While it might be emotionally satisfying for Kennedy, who is uncomfortable with banning abortion outright but also dislikes abortion since he thinks that motherhood is a woman’s natural vocation (never mind that most women getting abortions are mothers already), this kind of decision is just kicking the can down the road.

We can take solace in the possibility of Anthony Kennedy’s haphazard jurisprudence leading to the right outcome for a change, and we can agree that the fates of major political issues should not be held hostage to the whims of one man. A pity, however, that Marcotte doesn’t see the irony in complaining about the very same problem with judicial activism that we’ve been trying to explain to her side for years.

The sad part in all this is that Congress actually has a simple, straightforward way to make this entire problem go away. It’s a bill called the Women’s Health Protection Act and its main provision is simple but powerful: It would require restrictions on abortion to be medically necessary. A state would not be allowed to have restrictions on abortion that it doesn’t have on other medical procedures with the same low risk levels.

Translation: when in doubt, take away even more of the states’ right to decide abortion policies for themselves.

But of course, Congress is controlled by Republicans now and Republicans love nothing more than the non-stop screaming and hollering about women getting abortions (and, by implication, having sex without conservative Christian permission). And so here we are again, having to deal with the abortion question that should have been settled for good in 1973, and things look like they are going to have to get a whole lot worse before they even have a chance of getting better.

Pretending that the GOP is obsessed with abortion despite abundant evidence they’d largely rather the issue just disappear? Check. Obligatory invocation of pet conspiracy theory that sex obsession is pro-lifers’ ulterior motive? Check. Pouting that Americans dare to think independently about abortion instead of outsourcing their thinking to the Supreme Court and shutting up for the rest of their lives? Check.

Another Amanda Marcotte diatribe full of sound and fury but signifying no truth? Check.

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