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PaperclipPerfector  12d ago (text post)   33894 thread views

Culture War Roundup for the week of November 11, 2024

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women's reproductive health

I never understood what people think the mechanism is that connects the re-election of Trump with worse access to abortion than is present in the status quo. These are the only things I can think of:

  • Going after interstate abortion tourism (unlikely that the agencies play ball, but at least that's a realistic fear)
  • Preventing the SCOTUS from being flipped back which ices any plans to conjure a new legal theory of why there is a constitutional right to abortion, actually
  • In the same vein, installing pro-life judges further up the pipeline
  • A federal abortion ban (not going to happen)
  • Blocking efforts to introduce a constitutional amendment guaranteeing the right to abortion (Dems had decades to try this, they didn't)

To steelman:

  • There's a Biden-era regulation holding EMTALA to cover abortion in emergency room case involving life or health of the mother, and under the supremacy clause, override states that ban abortion under those circumstances. A Trump administration is extremely likely to reduce this in scope to life or serious physical harm of the mother, if not rescind it wholesale.
  • While surgical interventions are almost entirely regulated at the state level, drugs are near-completely dominated by federal law. The Biden-era FDA took an unusually expansive approach toward availability of prescription abortificants (and some contraceptives), allowing levels of telemedicine and other issuance that was previously not accepted. I don't think a Trump admin cares about OTC birth control pills, but I think it both at least attempts to claw back things like the reading that states may not ban a drug that the FDA has permitted or the guidance that refusing to fill a reproductive health prescription is a violation of civil rights law.
  • The Comstock Act is still technically on the books, and while I don't think expansive interpretations focused on speech are likely to be used (and extremely unlikely to survive court scrutiny if used), there are a pretty wide variety of unenforced bits that would be highly sympathetic to bring to bear, and would make a lot of stuff that's illegal-but-you-can-do-it-anyway into hope you like federal prison if you attract the eye of sauron stuff.
  • Medi* funding is an absolute clusterfuck: by law, it's not supposed to support it, excepting a few cases where the spending is instead mandatory, but cash is fungible and there's a lot of places that aren't exactly great about paperwork. That's historically been papered over (largely because then-unsettled Constitutional law was a third rail), but if the Trump DoJ drops the Haim indictment and starts aggressively auditing or courting whistleblowers, even short of actual enforcement it will likely reduce availability as hospitals check their six consistently.
  • Direct defunding of groups like Planned Parenthood isn't possible without a law (and shouldn't be even with one, except the protections of the writs of attainder clause are pretty lackluster), but something like the ACORN path is possible, and there's questions about the extent regulation could create rules that had the same effect without needing a law. Even if new orgs grow in response, they will be disrupted in the meantime.
  • There's a lot of politics that's about building terrain for latter politics. There's a paranoid conspiracy theory about Project 2025 wanting a registry of every woman's pregnancy, but the actual policy proposal is :

Because liberal states have now become sanctuaries for abortion tourism, HHS should use every available tool, including the cutting of funds, to ensure that every state reports exactly how many abortions take place within its borders, at what gestational age of the child, for what reason, the mother’s state of residence, and by what method. It should also ensure that statistics are separated by category: spontaneous miscarriage; treatments that incidentally result in the death of a child (such as chemotherapy); stillbirths; and induced abortion. In addition, CDC should require monitoring and reporting for complications due to abortion and every instance of children being born alive after an abortion

And this is something that's not that objectionable, but it's also extremely likely to have a number of very unpleasant numbers reported by a government agency.

Great steelman, thanks! I am updating towards some of the panic being less unfounded than I previously thought.

Most people don’t know Jack about constitutional law. Many of them thought Roe was the only thing keeping abortion legal and that it would automatically become illegal everywhere the second it was overturned. They probably think Trump can and will ban abortion with an executive order.

A federal abortion ban (not going to happen)

I agree this almost certainly won't happen now because the margins in the Senate and House probably don't allow for it, but in the world in which Republicans made a more convincing sweep of both chambers it wasn't off the table, surely. Certainly, had a ban reached Trump's desk I doubt he'd have had the guts to defy most of the Republican party by vetoing it.

It really depends on whether Trump or the rest of the GOP is more willing to call the other’s bluff.

When I put it that way, you already know the answer. I suspect Trump would sign a 15 week abortion ban(he opposes late term abortions), but the Republican Party doesn’t defy trump well at all.

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