And Now the Cat Is Out of the Bag on the Texas Abortion Case

·2 min read
Photo credit: Montinique Monroe - Getty Images
Photo credit: Montinique Monroe - Getty Images

It is no secret that the conservative movement in this country has been gunning for Roe v. Wade ever since it was decided. (If there’s ever been anything covert about the effort, it’s the fact that the real target all along has been Griswold v. Connecticut, and the entire notion of a constitutional right to privacy.) But, for decades, the assaults have been oblique, aiming to whittle away Roe as a functional precedent without ever directly overturning it. This was very satisfactory, because even the most fanatical anti-choice politicians realized that overturning Roe and criminalizing abortion would result in a gender gap the size of the Dardanelles.

Steadily, though, and emboldened by the conservative capture of the federal courts, up to and including the current engineered 6-3 majority on the Supreme Court, this reluctance has melted away. The Dobbs case, soon to be argued in Washington, is a direct appeal to overturn Roe, and it appears that Texas may be trying to beat Mississippi to the punch. On Thursday, Texas filed its answer to the administration’s request that the Supreme Court block the draconian new Texas anti-choice law. In that answer, toward the end, the kitty comes screeching from the burlap.

The federal government criticized Texas for not “forthrightly . . . asking this Court to revisit its decisions.” Texas has done so now.

Despite the Court’s hope that its decision in Casey would “call[] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution,” abortion remains a divisive issue. There will always be those who deem abortion “nothing short of an act of violence against innocent human life.” Consequently, there will always be States who seek to protect unborn life through their laws, and there will be those who seek to challenge such laws, unless and until this Court returns the question of abortion to where it belongs—the States.

If the Court decides to construe the federal government’s application as a cert petition, it may also construe this response as a conditional cross-petition on the question whether the Constitution recognizes and protects a right to abortion and whether the Court should reconsider its decisions in Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey.

And there it is.

Texas is saying that if the Court takes up the administration’s case against a Texas law that essentially repeals Roe in practice, it may consider Texas’s response to be a request that the Court repeal its previous decisions on the subject outright. They don’t care about the gender gap anymore. They don’t really see politics that way anymore. Qui audet adipiscitur, goes the saying.

Who dares, wins.

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