News: SIREN: SCOTUS ruling puts Roe v. Wade on the ropes

Thursday, September 2, 2021

SIREN: SCOTUS ruling puts Roe v. Wade on the ropes

Sep 02, 2021

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By Ryan Lizza, Rachael Bade, Eugene Daniels and Tara Palmeri

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DRIVING THE DAY

BREAKING OVERNIGHT: The Supreme Court, by 5 to 4, declined to block Texas's law banning abortions after six weeks — a strong but not final indication that the court will soon overturn Roe v. Wade … Conservative majority cites "complex," "novel" legal technicalities and insists constitutionality can still be reviewed later on … Chief Justice JOHN ROBERTS and the court's three liberals write outraged dissents describing the law as clearly unconstitutional and blasting the majority for shirking their duty. … The ruling, per AP, "for now [strips] most women of the right to an abortion in the nation's second-largest state."

What you'll hear today from abortion rights supporters, via former acting Solicitor General NEAL KATYAL (@ Neal Katyal): "Congress should tmrw pass legislation to codify Roe. SCOTUS powerless to stop it. If [Republicans] filibuster, great [argument] to get rid of it."

Josh Gerstein, POLITICO's senior legal affairs reporter, emails overnight with his analysis:

The 5-4 decision that came down just before midnight Wednesday was not far from what many courtwatchers expected after the deadline for the law to go into force came and went Tuesday night without any announcement from the justices. However, the ruling was notable for a few things:

— The court's majority acknowledged that the Texas law may well be unconstitutional, saying the law's opponents had "raised serious questions" about its impact on abortion rights that — for now — remain guaranteed under existing law by Roe v. Wade.

— Roberts, who has parted company with his conservative colleagues in a series of high-profile cases, did so again over the Texas law and sided with the liberals in declaring that the court should have prevented the novel anti-abortion measure from taking effect.

— All four of the dissenting justices authored dissents, a highly unusual move for a case on the court's emergency or "shadow" docket. The fusillade of opinions seemed intended to signal a degree of outrage from the dissenters over the court's move.

— Roberts' opinion was a bit more tepid than those from some of the court's Democratic appointees. As usual, the most passionate opinion came from Justice SONIA SOTOMAYOR , who called the majority's decision "stunning," the law "a breathtaking act of defiance," and the situation it has engendered "untenable."

The ruling is unlikely to be the last word from the court on the Texas law. While abortion rights supporters think they have little chance of persuading Justices CLARENCE THOMAS, SAMUEL ALITO or NEIL GORSUCH to act against the legislation, they still hope that either Justice BRETT KAVANAUGH or Justice AMY CONEY BARRETT might side with the law's opponents if the issue gets before them in a different legal vehicle.

From the decision …

The majority's opinion (Alito, Thomas, Gorsuch, Kavanaugh, Barrett) : "The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. … In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants' lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas's law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts."

Roberts' dissent: "The statutory scheme before the Court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime. …

"[A]lthough the Court does not address the constitutionality of this law, it can of course promptly do so when that question is properly presented."

Breyer's dissent: "I recognize that Texas's law delegates the State's power to prevent abortions not to one person (such as a district attorney) or to a few persons (such as a group of government officials or private citizens) but to any person. But I do not see why that fact should make a critical legal difference. That delegation still threatens to invade a constitutional right, and the coming into effect of that delegation still threatens imminent harm."

Sotomayor's dissent: "The Court's order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State's enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State's own invention. … Because the Court's failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent. …

Kagan's dissent: "Without full briefing or argument, and after less than 72 hours' thought, this Court greenlights the operation of Texas's patently unconstitutional law banning most abortions. The Court thus rewards Texas's scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State's behalf. As of last night, and because of this Court's ruling, Texas law prohibits abortions for the vast majority of women who seek them—in clear, and indeed undisputed, conflict with Roe and Casey."

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NYT: "[T]he ruling was certain to fuel the hopes of abortion opponents and fears of abortion rights advocates as the court takes up a separate case in its new term this fall to decide whether Roe v. Wade , the landmark 1973 decision establishing a constitutional right to the procedure, should be overruled. It also left Texas abortion providers turning away patients as they scrambled to comply with the law, which prohibits abortions after roughly six weeks."

WaPo: '"We are devastated that the Supreme Court has refused to block a law that blatantly violates Roe v. Wade,' said NANCY NORTHUP, president and chief executive of the Center for Reproductive Rights, one of the groups suing Texas. … Longtime abortion opponents claimed Wednesday as 'a historic and hopeful day' in Texas, and some began soliciting tips on who might violate the ban."

— The next critical moment will arrive this fall, when SCOTUS takes up Mississippi's 15-week abortion ban in a case, Dobbs v. Jackson Women's Health Organization, which is expected to decide the fate of Roe. A ruling would likely come next year.

Of course, there are real-life implications playing out in Texas right now. Per WaPo, about nine of 10 women "who obtain abortions in Texas are at least six weeks into pregnancy, meaning the law would prohibit nearly all abortions in the state."

Our health care reporter Alice Miranda Ollstein, who has covered abortion issues for years, tweeted Wednesday that three things are already starting to occur:

1) Other red states are weighing copycat laws.

2) Anti-abortion groups are soliciting anonymous tips about women getting abortions past the ban deadline, and getting flooded with fake ones from protesters.

3) And clinics that do such procedures are seeing more surveillance of who's coming and going.

The political implications: "Abortion becomes a 'huge motivator' in governor's races," by Zach Montellaro

And the NYT has a useful Q&A on the Texas law — and its novel enforcement mechanism — here.

Good Thursday morning, and thanks for reading Playbook. Drop us a line: Rachael Bade, Eugene Daniels, Ryan Lizza, Tara Palmeri.

Three must-reads today from our POLITICO colleagues:

1) Jennifer Scholtes, Heather Caygle and Caitlin Emma break down the state of play on assembling the reconciliation bill: "Speaker NANCY PELOSI has ordered committee leaders to battle it out with their Senate counterparts to resolve all major disputes this week on what will be included in the up-to-$3.5 trillion bill. But wide gulfs remain between the House and Senate on central pieces of the package, including expanding Medicare, shoring up Obamacare, raising taxes and curbing carbon emissions."

2) David Siders, with a fancy Round Rock, Texas, dateline, tells you everything you need to know about BETO O'ROURKE's return to politics (did he ever really leave?): "In Texas, the Democrats' hope for the governorship, or a Senate seat, rests on the shoulders of Beto O'Rourke. But does he even have a shot?"

3) Ben Weyl interviews GOP lobbyist LIAM DONOVAN, one of our favorite Twitter follows, who has some savvy advice for Democrats about how they can avoid screwing up President JOE BIDEN's agenda.

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BIDEN'S THURSDAY:

— 9:30 a.m.: The president will receive the President's Daily Brief.

— 11:30 a.m.: Biden will deliver remarks about the Hurricane Ida response.

— 1:45 p.m.: Biden will take part in a virtual event with rabbis nationwide for the Jewish High Holidays.

Press secretary JEN PSAKI will brief at 1 p.m. The White House Covid-19 response team and public health officials will brief at 3 p.m.

VP KAMALA HARRIS' THURSDAY:

— 3 p.m.: The VP will swear in KEN SALAZAR as U.S. ambassador to Mexico.

— 4:25 p.m.: Harris will meet with Labor Secretary MARTY WALSH and staff on the White House Task Force on Worker Organizing and Empowerment.

THE SENATE and THE HOUSE are out.

NEW ON THE SCHEDULE: Biden will travel to New Orleans on Friday to survey the impact of Hurricane Ida and meet with state and local leaders.

STEP INSIDE THE WEST WING: What's really happening in West Wing offices? Find out who's up, who's down, and who really has the president's ear in our West Wing Playbook newsletter, the insider's guide to the Biden White House and Cabinet. For buzzy nuggets and details that you won't find anywhere else, subscribe today.

PLAYBOOK READS

A tornado is pictured near a toll booth. | AP Photo

PHOTO OF THE DAY: A fast-moving tornado is seen in the distance through a windshield near the Burlington Bristol Bridge in Burlington, N.J., on Wednesday, Sept. 1. | Scott Smith via AP Photo

CONGRESS

WHAT BERNIE SANDERS IS READING — "White House seeks to speed potential Medicare dental expansion in face of expected delays," by WaPo's Jeff Stein and Rachel Roubein: "[O]fficials with the Centers for Medicare and Medicaid Services have said it could take in the range of three to five years to implement new dental benefits … The lengthy timeline threatens to diminish the political upside of the new benefits, which Democrats have seen as an immediate and tangible improvement in voters' lives they could present to the public in the 2022 and 2024 elections. …

"The White House, Congressional Democrats, and officials with the Department of Health and Human Services are currently working to see what they could do to expedite implementation of the dental care … Democrats intend to provide a benefit that offers seniors financial assistance next year for dental, vision and hearing care while the formal benefits are set up. One option may involve working with private dental companies with access to better data … Another option could involve a temporary stopgap measure."

DEMS BUCK BIDEN — "House panel backs $24B Pentagon budget boost, defying Biden," by Connor O'Brien and Paul McLeary: "The committee voted to boost the budget topline of the annual National Defense Authorization Act in a 42-17 vote during its marathon markup of the military policy legislation. … Fourteen Democrats broke ranks to push the GOP budget proposal over the finish line."

TALIBAN TAKEOVER

FOR YOUR RADAR — "Cotton leads Senate GOP push on Biden's Afghanistan withdrawal," by Burgess Everett: "Senate Republicans are pressing President Joe Biden to account for how many Americans, green card holders and special immigrant visa applicants remain in Afghanistan after the U.S. completed its withdrawal earlier this week.

"Led by Sen. TOM COTTON (R-Ark.), a group of 26 Republicans wrote Biden on Thursday morning requesting information by next week about who remains in Afghanistan after the frenzied evacuation effort at the end of August. … The Republicans' letter on Thursday centers on how many Americans are still in Afghanistan and how many of those want to leave. In addition, the GOP senators asked similar questions about green card holders and special immigrant visa applicants who assisted U.S. operations in Afghanistan."

WaPo: "For Afghan evacuees arriving to U.S., a tenuous legal status and little financial support"

NYT: "Pentagon Leaders Wary of Working With Taliban"

POLITICO: "Hundreds of U.S. citizens, Afghan commandos, successfully evacuated through secret CIA base"

ANOTHER MAJOR LEAK — "Exclusive: Before Afghan collapse, Biden pressed Ghani to 'change perception,'" by Reuters' Aram Roston and Nandita Bose: "In much of the [July 23] call, Biden focused on what he called the Afghan government's 'perception' problem. 'I need not tell you the perception around the world and in parts of Afghanistan, I believe, is that things are not going well in terms of the fight against the Taliban,' Biden said. 'And there is a need, whether it is true or not, there is a need to project a different picture.'"

THE EVACUEES — "U.S. housing 17,000 Afghan evacuees in 5 states, with another 40,000 overseas," by CBS' Camilo Montoya Galvez, Bo Erickson, Christina Ruffini and Eleanor Watson: "These figures, which have not been previously reported, provide more detail on the whereabouts of a portion of the approximately 124,000 people the Biden administration said it airlifted from Kabul in the past few weeks."

THOSE WE LEFT BEHIND — "Majority of Interpreters, Other U.S. Visa Applicants Were Left Behind in Afghanistan, Official Says," by WSJ's Jessica Donati: "The U.S. still doesn't have reliable data on who was evacuated, nor for what type of visas they may qualify, the official said, but initial assessments suggested most visa applicants didn't make it through the crush at the airport. 'I would say it's the majority of them,' the official estimated. 'Just based on anecdotal information about the populations we were able to support.'"

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POLICY CORNER

DOJ VS. GOOGLE — "U.S. DOJ Readying Google Antitrust Lawsuit Over Ad-Tech Business," by Bloomberg's David McLaughlin

WHAT MARCIA FUDGE IS UP TO — "White House tackles housing shortage with plan for 100,000 affordable homes," Reuters: "The moves will focus on boosting home sales to individuals and non-profit organizations, while limiting sales to large investors … U.S. President Joe Biden has proposed spending over $300 billion to add 2 million more affordable housing units as part of a $3.5 trillion investment package being considered by Congress, but wanted to push forward with immediate steps that could be taken now."

— "The Secret Bias Hidden in Mortgage-Approval Algorithms," a special report co-published by The Markup and AP

BEYOND THE BELTWAY

OUTRAGE AND PARANOIA IN GEORGIA — "The election gambit that's sending Georgia Democrats into a frenzy," by Maya King: "Georgia Republicans say it's merely an attempt to improve a chronically mismanaged elections administration. But a newly-formed election review panel in Atlanta's Fulton County is nevertheless sparking outrage — and paranoia — from Democrats who believe it's the GOP's first step toward commandeering the levers of election administration in the counties that powered Democratic gains last year.

"The belief is not entirely unfounded. … In the GOP's action in Fulton County, Democrats see the makings of a grand design to take control of local election offices in the metro Atlanta region, which would give Republicans the power to challenge election results, hold up certification and announce investigations in the counties that produce the most Democratic votes. In other words, it would enable them to execute the pieces of the Trump playbook that failed in 2020."

REPUBLICANS REINVENTED — "Tea party 2.0? Conservatives get organized in school battles," AP's Thomas Beaumont and Stephen Groves: "A loose network of conservative groups with ties to major Republican donors and party-aligned think tanks is quietly lending firepower to local activists engaged in culture war fights in schools across the country. While they are drawn by the anger of parents opposed to school policies on racial history or COVID-19 protocols like mask mandates, the groups are often run by political operatives and lawyers standing ready to amplify local disputes.

"This growing support network highlights the energy and resources being poured into the cauldron of political debate in the nation's schools. Republicans hope the efforts lay the groundwork for a comeback in congressional elections next year. Some see the burst of local organizing on the right as reminiscent of a movement that helped power the GOP takeover of the House 10 years ago."

TRUMP CARDS

WITH A VENGEANCE — "Trump endorses Joe Kent, Republican challenger to Rep. Jaime Herrera Beutler, who voted for impeachment," by Seattle Times' Jim Brunner: "Following up on vows to exact revenge against Republicans who voted to impeach him, Trump on Wednesday endorsed JOE KENT, a challenger to U.S. Rep. JAIME HERRERA BEUTLER. Herrera Beutler, R-Battle Ground, was one of 10 House Republicans who voted to impeach Trump in January, citing the former president's role in inciting the Jan. 6 assault on the U.S. Capitol by promoting baseless claims of election fraud."

— "Trump endorses Parnell in Pennsylvania Senate race," by Pittsburgh Post-Gazette's Julian Routh: "Mr. Trump's endorsement was seen as a potential game-changer among Republican insiders, as the former president continues to be popular among GOP voters. But some analysts had urged Republican candidates to be careful with how close they align with Mr. Trump if they want to win a general election in a state that Democrat Joe Biden carried in 2020."

HAPPENING THIS WEEK — "Trump Organization Employees to Testify Before Manhattan Grand Jury," by WSJ's Rebecca Ballhaus and Corinne Ramey

JAN. 6 AND ITS AFTERMATH

COMING LATER THIS MONTH … "Intel shows extremists to attend Capitol rally," by AP's Michael Balsamo, Eric Tucker and Lisa Mascaro: "Far right extremist groups like the Proud Boys and Oath Keepers are planning to attend a rally later this month at the U.S. Capitol that is designed to demand 'justice' for the hundreds of people who have been charged in connection with January's insurrection, according to three people familiar with intelligence gathered by federal officials.

"As a result, U.S. Capitol Police have been discussing in recent weeks whether the large perimeter fence that was erected outside the Capitol after January's riot will need to be put back up, the people said. The officials have been discussing security plans that involve reconstructing the fence as well as another plan that does not involve a fence, the people said."

SUBSCRIBE TO "THE RECAST" TODAY: Power is shifting in Washington and in communities across the country. More people are demanding a seat at the table, insisting that politics is personal and not all policy is equitable. The Recast is a twice-weekly newsletter that explores the changing power dynamics in Washington and breaks down how race and identity are recasting politics and policy in America. Get fresh insights, scoops and dispatches on this crucial intersection from across the country and hear critical new voices that challenge business as usual. Don't miss out, SUBSCRIBE . Thank you to our sponsor, Intel.

PLAYBOOKERS

Rudy Giuliani recorded a Cameo video praising a group of journalist and activist critics of one of his clients, leading N.Y. Mag's Olivia Nuzzi, who obtained the video, to compare him to the "fourth Stooge."

Joe Rogan has Covid-19 and says on Instagram that he's attacked it with a cocktail of monoclonal antibodies, Z-Pak, prednisone and the horse dewormer ivermectin (natch).

Rosie O'Donnell will interview fellow 9/11 truthers whom Spike Lee cut from his forthcoming HBO documentary.

Rep. Alexandria Ocasio-Cortez (D-N.Y.) released a statement calling on the Senate to reject Rahm Emanuel's nomination to be the U.S. ambassador to Japan.

Devin O'Malley, a spokesman for GOP gubernatorial candidate Glenn Youngkin, reportedly called into the show of right-wing radio host Seb Gorka and pretended to be a Youngkin supporter named Josh. (The clip is hilarious.)

Julie Pace was named the top editor at the AP. She was previously the AP's bureau chief in Washington, where she has worked to shake off the venerable newswire's reputation for staid no-frills coverage.

"I understand that sometimes there is an outdated impression of the AP or a feeling like we're just a basic wire service putting out choppy sentences," she told the NYT. "If that is your impression of the AP, then you haven't been paying attention to the AP. We produce just incredibly high-level, sophisticated reports across all formats every day."

Doug Heye got really mad at United Airlines.

SPOTTED: Terry McAuliffe at the Eagles concert at Capital One Arena on Tuesday. Pic

MEDIA MOVES — Bloomberg is adding Stacy-Marie Ishmael as managing editor for crypto, Anna Wong as chief U.S. economist and Adrian Wooldridge as global business columnist. Ishmael most recently was editorial director of the Texas Tribune. Wong most recently was a principal economist at the Federal Reserve Board. Wooldridge most recently was political editor and the person behind the Bagehot column at The Economist.

BOOK NEWS — "Raskin writing memoir about Jan. 6, son's suicide," by The Hill's Scott Wong: "In 'Unthinkable: Trauma, Truth, and the Trials of American Democracy,' [Rep. Jamie] Raskin opens up about losing his 25-year-old son Tommy to suicide on New Year's Eve, defending the results of the 2020 election on the House floor on Jan. 6, surviving the deadly Capitol insurrection with his daughter and son-in-law, drafting two articles of impeachment against Trump for his role in the riot and leading the Democrats' ultimately unsuccessful prosecution of the 45th president in his second Senate impeachment trial.

"It will be published by Harper, an imprint of HarperCollins Publishers, on Jan. 4, just two days before the first anniversary of the Capitol insurrection."

FIRST IN PLAYBOOK — Sophia Sokolowski is now director of intergovernmental affairs for the Office of the U.S. Trade Representative. She most recently was a consultant for the Freedom Initiative and is an inaugural committee and Biden campaign alum.

STAFFING UP — The Interior Department is adding Jordan Chatman as senior advance representative, Sarah Greenberger as associate deputy secretary, Rebecca Kasper as adviser in the Office of Congressional and Legislative Affairs, Keone Nakoa as deputy assistant secretary for insular and international affairs and Summer Sylva as senior adviser for Native Hawaiian affairs. Announcement

TRANSITIONS — Farah Melendez will manage Nikki Fried's Florida gubernatorial campaign. She most recently has managed Virginia A.G. Mark Herring's reelect and worked as national political director for the Democratic Attorneys General Association. More from Florida Politics … Dan Henke is now director of U.S. government relations at the ONE Campaign. He's a USAID, Monument Advocacy and Pat Roberts alum. …

… Rachel Ver Velde is leaving Rep. Glenn Grothman's (R-Wis.) office, where she was chief of staff, to become director of workforce, education and employment policy at Wisconsin Manufacturers and Commerce. Alan Ott will move up to become a district-based chief of staff, and Tim Svoboda will move up to lead the D.C. office.

TRUMP ALUMNI — Hannah Anderson is now a senior associate for FP1 Strategies. She previously was scheduler for Rep. Carlos Gimenez (R-Fla.) and is a Trump campaign alum.

BIRTHWEEK (was Wednesday): RNC's Lindsay Wigo (23)

HAPPY BIRTHDAY: Rep. John Rutherford (R-Fla.) … Lisa Barclay … NPR's Don Gonyea … Sinclair's James Rosen … Jess Fassler … former Sens. Jim DeMint (R-S.C.) (7-0) and Alan Simpson (R-Wyo.) (9-0) … J.P. Freire … former Rep. Earl Pomeroy (D-N.D.) … Zakiya Thomas … Yahoo News' Dan Klaidman … Taylor Hennings … Tom Manatos of Spotify … Coleman Hutchins … Bill Bode of Sen. Thom Tillis' (R-N.C.) office … Kris Balderston … Emily Porter of Sidecar Health … Joe Shonkwiler … PBS' Raney Aronson-Rath … Bully Pulpit Interactive's Bryan Watt … Seth Gainer of Sen. Joe Manchin's (D-W.Va.) office … Will Attig ... Evan Viau of the House Energy and Commerce Committee … Victoria Bonney of Rep. Chellie Pingree's (D-Maine) office … Axiom Strategies' Ethan Zorfas … Dylan Vorbach … AHIP's Andrew Shine … Jennifer Hanley … Chester Bedell of Data Trust … Wyss Foundation's Molly McUsic … Kevin Smith … POLITICO Europe's Laura Greenhalgh … Elizabeth Birch of CBRE … TMZ's Harvey Levin

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Kamal Bell is the proud owner of Sankofa Farms, a thriving family farm that employs his community. He knows food insecurity impacts minority groups in his area. But with help from accessible and affordable broadband, he can provide a food source to local food deserts, and teach Black youth about agriculture and STEM. He also uses new tech to collect data, run beekeeping operations, and monitor his farm with drones. Thanks to Access from AT&T, we can connect low-income households like the ones Kamal works with, and more communities in areas we serve with their American Dream. Learn more.