SCOTUS Will Hear Challenge to Texas Abortion Law

BUCK: We have breaking news for you right now, and this — implications of this are big, and this is going to be something that we are all talking about and focusing in on in 2022 because it’s probably about June that we’ll be hearing what the final decision is on this. But the Supreme Court — this is the breaking news — will hear arguments over Texas’s heartbeat law on November 1st. The law will remain in effect for the time being.

You have right now some of the most direct challenges to abortion at the state level since Roe v. Wade was decided, and you can imagine that this will create a tremendous amount of thrill fighting next year over — from the pro-life movement to the pro-abortion movement — and this could create enormous ramifications that will not just affect the country and its laws, its morality, but also the midterm elections. I’m sure this is going to be a major issue when it comes to fundraising mobilization of the grassroots organizations on both sides of this and the astroturf organizations like Planned Parenthood and all the rest of them. So, Clay, how do you think this is going to go? Right now the law in Texas remains in effect. There’s also that Mississippi heartbeat bill. What do you see happening?

CLAY: If I were trying to read the tea leaves here, I think what happens is if they allow the Mississippi law, which correct me if I’m wrong, Buck, but I think Mississippi’s law bans abortions after 15 weeks. Am I right about that? Maybe we can look that up to be sure. And the Texas law potentially six weeks. So I think they will argue that there is a new standard based on health for when the viability of a fetus can be concerned. Am I right about 15 weeks?

BUCK: Yeah, 15 weeks is the Mississippi law passed in 2018. All abortions after 15 weeks prohibited in the state of Mississippi.

CLAY: So I think what they may try to do to say, hey, we’re not overturning Roe v. Wade — this is my read on the Roberts court — is that they will disallow Texas, and so politically they give something to the pro-choice people and they give something to the pro-life people right? This is what I think will happen. What John Roberts wants is incrementalism. That’s my best bet.

Now, it’s also possible they sync these cases in some way and they say, hey, individual states have the right to make decisions about abortions inside of their states. There is now no longer federal protection for Roe v. Wade so you’re not necessarily ending abortions but you’re throwing it back to the states and arguing that this is a case that they should have never taken.

BUCK: So Roe creates a federal constitutional make-believe but it’s unfortunately been real in terms of the way it’s been implemented. It’s not actually in the Constitution and everyone knows that so they’ll create that right. So you think that they’re going to essentially allow states to start to pare back at that, quote, unquote, right?

CLAY: I think the most likely outcome is —

BUCK: I think they’re striking it down; so —

CLAY: I think Mississippi, they will say it’s legal, but that Texas went too far, and they will then argue that there is some new standard for how Roe v. Wade is implemented in the twenty-first century. That’s my bet.

BUCK: I think for the first time in 50 years we could sight Roe go down. I think that’s what the court is in terms of the makeup ’cause Roberts will try to save it. I don’t think Roberts will be able to save it.

CLAY: My point is I don’t know why they would take the Texas case if they were going to strike it down. Why not go ahead and strike it down with the Mississippi case? So my thought is that there is an attempt — and I’m not sure whether it’s gonna be successfully or not — to sort of — to end up with both sides having to feel like they got some win while in general abortion is restricted more. You say Texas is unconstitutional the way they did it. You say Mississippi is permissible and you continue to fight that battle.

BUCK: And there will be probably be more actually of a Planned Parenthood v. Casey issue than a Roe issue perhaps when you’re looking — because Planned Parenthood v. Casey, right? Makes it essentially impossible to — there’s all these additional affirmative rights to abortion.

CLAY: The whole thing is a disaster of a decision, right? Regardless of what your political beliefs are, it is an untenable legal argument.

BUCK: It created a right that doesn’t exist in the Constitution but also there’s no other right like it. We have a right to bear arms. There’s millions of laws out there — not millions — but a lot of laws out there about guns — everybody has restrictions on all rights. The only right that has no restrictions is abortion so I think this court is gonna say, hmm. There’s a problem here, folks. But we’ll see. That’s a big one. November 1st it’s coming up soon we’ll hear those arguments, those will be very close to listen to.

CLAY: I just don’t know why they would take both if they were gonna hundred percent strike it down. I could be wrong. I think they’re gonna try to finesse the needle here.