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On the forthcoming end of reproductive freedom in much of America

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President Donald Trump and Amy Coney Barrett stand on the Blue Room Balcony after Supreme Court Justice Clarence Thomas administered the Constitutional Oath to her on the South Lawn of the White House White House in Washington, Monday, Oct. 26, 2020. Barrett was confirmed to be a Supreme Court justice by the Senate earlier in the evening. (AP Photo/Patrick Semansky)

To follow up on Paul’s post below, it’s worth emphasizing the sole legal question the Court is intending to answer in Dobbs v. Jackson Women’s Health Organization:

Barring the death of several Republican-nominated justices in a blimp accident, the answer to that question will be “no,” and as far as Roe and Casey are concerned, that’s the whole ballgame. The Court might overrule them honestly, and is more likely to do a bunch of handwaving about how Roe and Casey haven’t been truly overruled until a ban on all abortions in all circumstances has been upheld so that PolitiFact can call any Democrat who correctly says that Roe has been overruled the Liar of the Millennium, but if a state can ban pre-viability abortions Roe has not survived, simple as that.

But what about the conspiracy of Republican elites to keep Roe on the books to keep the rubes riled up? Well, it’s never existed — Roe‘s survival was a series of flukes and contingencies not some kind of grand scheme. (Nor is it remotely obvious how abortion being a live issue with everything the table in most states and Congress will demobilize opponents of legal abortion, but for many pundits you start with the most complacent possible position and backfill everything later whether it makes sense or not.)

If we held democratic elections for president and Congress increasing the salience of abortion this way would be a significant net negative for the Republican Party, but we don’t. Republicans taking over both houses of Congress months after the Supreme Court overrules Roe de facto is eminently possible. Besides, no matter what Dem Senate candidates Mark or Mary UTERUS say about it Roe hasn’t technically been overruled so why won’t they shut up about the issue and start talking about something that really matters to the American people, like saving Social Security by raising the retirement age to 83?

At least the Supreme Court cannot reasonably described as a political institution so long as only Republican-nominated justices retire strategically.

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