One of the oldest sales tricks in the book is the one where the salesperson presents the potential buyer with an extremely crappy option first, and follows that up with an only moderately crappy second option. The potential buyer, dazzled by the jump in quality between options one and two, won’t scrutinize option two as much, because it’s so much better than option one. This has been employed by slimy realtors, wedding planners, and used car salesmen.
And now, we’ve reached the point in the American experiment where the Supreme Court’s new conservative majority has resorted to a cheap sales tactic in an attempt to rehabilitate its image. Lower the customer’s expectations enough, conventional wisdom goes, and they’ll thank you for ripping them off.
This week, the court agreed to hear a legal challenge to SB8, the Texas law that bans abortion once a “fetal heart rate” is detected—usually around the sixth week of gestation, which is actually around three weeks after the implantation of a fertilized egg in the wall of a uterus, or a little over a week after a missed menstrual period in a person with a predictable schedule. The law empowers any ol’ Yosemite Sam to enforce said ban by filing a lawsuit against anybody who “aids or abets” an abortion. This means doctors, receptionists, advocates, and even Uber drivers who bring a patient to a clinic could be on the hook.
The high court agreed to hear the Biden administration’s challenge to the law on Nov. 1, on an expedited schedule. Legal observers predict that the court will toss the law out. I—and many wary pro-choicers—predict that after tossing the law out, the media will fawn over the court’s newfound social moderation, and the Susan Collinses of the world will crow that they were right, the hysterical feminists were wrong, and the Supreme Court was never going to toss abortion rights on—as Mike Pence would say—“the ash-heap of history.”
The following month SCOTUS will hear oral arguments in the case of Dobbs vs. Jackson Women’s Health, testing the constitutionality of a Mississippi law that directly confronts Roe v. Wade by banning abortion after 15 weeks’ gestation. Roe established in 1973 that the government has no right to interfere with abortion access prior to fetal viability—around 24.5 weeks’ gestation (a full-term pregnancy takes 40 weeks). Dobbs is the direct challenge to Roe that conservative activists have had a hard-on for since Reagan.
John Roberts, Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett do not look like or live like the people whose rights they are about to strip. None of them are women of childbearing age. None of them are poor. Five of those six are Roman Catholic. Five of them are men. Five are white. None of them are from Texas or Mississippi. They would not be on the court in the first place had they not impressed conservative advocacy groups like the Federalist Society with their fringe bona fides that put their beliefs in opposition to the supermajority of American voters who believe that Roe v. Wade should not be overturned, and that access to abortion should be preserved.
Without the smokescreen of SB8, it would have been more difficult for the court’s conservative majority to pass off their inevitable favorable ruling in Dobbs as anything less than a wildly undemocratic ruling by a judicial body that has gone irretrievably off the rails. But thanks to SB8, we’re going to get a taste of “See, America? We could have done Option 1 (overturn Roe as hard as we possibly can!) but instead we did Option 2! (overturn Roe, but less hard).” As though the rights of women to choose whether or not they want to go through childbirth were a used car.
Tossing SB8 is a distraction. It is less than the least I previously believed the Supreme Court could do in its desperate quest to re-establish public trust and a sense of nonpartisan legitimacy. SB8 is an objectively crazy law. If the court were to uphold it, and by extension grant that it is a-OK for states to enact laws that allow ordinary citizens to enforce unconstitutional mandates, there’s nothing but small-time, cable hit-hungry legislators’ nonexistent capacity to feel shame stopping a free-for-all across the country. California’s Democratic supermajority could pass a law that would pay citizens tens of thousands of dollars to turn in people who “aid or abet” the sale or trade of any firearms. Conservative strongholds like Idaho could empower citizens to sue people who facilitate same-sex weddings.
But Mississippi’s 15-week ban is inhumane and patriarchal as well. Almost all abortions occur at or before 12 weeks, because most women who are pregnant and don’t want to be would like to end the pregnancy as soon as they possibly can, plus the procedure is less costly and complicated if it is performed early. But banning abortions after 15 weeks is a particularly cruel move considering that many serious birth defects can’t be detected before then. Fifteen weeks is less than halfway through pregnancy, and months before fetal viability. Unless the state of Mississippi plans on covering the cost of expensive early genetic testing for every pregnant person, a 15-week ban will force some women to carry and eventually give birth to wanted but nonviable pregnancies, unless they can afford to travel out of state.
If somebody showed up at your home and declared that they were going to beat you up and burn your house to the ground, and then had a change of heart and decided instead to merely burn your house to the ground, it would be—at the very least—tacky of them to expect gratitude in response. Hallmark does not make Thank You (For Doing The Second Worst Possible Thing) cards.
Similarly, the Supreme Court upholding Mississippi’s law while striking Texas’ does not cure the court of its partisan blight. This transparent sales tactic approach is designed to trick the American people into accepting the unacceptable.