Pro-life advocates demonstrate outside the Supreme Court in Washington, D.C., June 26, 2018. (Leah Millis/Reuters) Everything else is just noise.
‘What do you think of the abortion law in Texas?” a friend asked me this morning.
I’ll tell you: I think that the question makes no sense. Properly understood, the abortion law in Texas is not really an abortion law, but a key designed to interact with one of the world’s most preposterous Rube Goldberg machines. What Texas has done is a response to what the Supreme Court has done, which is a response to what previous Supreme Courts did, which was a response to what even earlier Supreme Courts did. And all of it, right from the start, has been nonsense.
Which is to say that the core problem here is not Texas’s law, or the order it prompted, or the case law that it put at issue. The problem is Roe. The problem has always been Roe. It is not this or that law; it is not this or that precedent; it is not this or that state or legislator or governor. It’s not the trimester rule or the viability standard or the shift from strict to undue burden; it’s not the details that were presented in that case from 1991, or the circumstances in which that 2017 appeal was heard, or the judicial philosophy of the judges who heard that brief up in Pennsylvania; and it’s not this or that “ism,” either. It’s Roe. Because, legally, Roe has always been utter nonsense — and because, deep down, we all know it. In this country, there exist profound and sincerely held differences of opinion on the question of abortion — views that run from the insistence that all abortion ought to be banned without exception to the claim that abortion is a positive good that ought to be celebrated. But there does not exist a set of rival cases for Roe. Roe is a lie, a contrivance, a calculation. It is a 50-year-old imposter that has distorted our fundamental law, corrupted our politics, and
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