The justices may agree that the pandemic should not provide cover for arbitrarily shelving constitutional rights
THE RECENTLY bolstered conservative majority on America’s Supreme Court is famously unfriendly to abortion. Many expect the five Republican appointees to forge a retreat from, the 1973 case recognising a woman’s right to terminate her pregnancy, when a ruling on access to clinics in Louisiana arrives later this spring.occasioned by the covid-19 pandemic—bans on abortion in Texas and several other states—April 11th brought a curious development.
The abortion providers and their lawyers gave it another go, this time persuading Judge Yeakel to prune the ban by permitting early-term “medication abortions”—terminations spurred by taking two pills—and surgical abortions for women nearing 22 weeks’ gestation. On April 10th, in a provisional ruling, the same three-judge panel on the Fifth Circuit nixed the medication carve-out.
This narrower request seems tactically astute. Governor Abbott’s emergency order, the plaintiffs point out, explicitly exempts “surgeries and procedures that do not deplete the capacity” of personal protective equipment or hospital beds. As pill-based abortions require neither protective gear nor—except very rarely—hospital stays, there seems to be little reason to ban them. A mere “0.
The Supreme Court does not seem to be in quite the hurry it was in a week ago, when a pandemic-inflected dispute over absentee ballots in Wisconsin reached the justices. On April 4th, the court asked Democrats for a response less than 90 minutes after Republicans filed their application. It ruled on April 6th. The Texas dispute is not as time-bound—there is no hard deadline of an approaching election—but every day of deliberation marks another day women in Texas lack access to abortion.
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