The Aperitif: W.4
Back from my break, why you're wrong about Texas, and an adjusted format.
Hello everyone! I’ve had to take several weeks off due to personal busyness but this is my return to regularly scheduled programming. I’m going to play with the format, so please give any feedback, particularly via Twitter, and I hope you keep reading!
The Big Story: You're Wrong About Texas
This new Texas law is among the scariest I have ever seen. But not because of abortion.
In fact, regardless of your opinion on abortion, this doesn’t affect much.
For pro-life advocates, seeing this as a first success in stopping abortion, it isn’t. It doesn’t ‘ban’ abortion in Texas so much as putting its legality on a very temporary hold.
And for those pro-choice advocates, terrified that the Supreme Court’s decision means that Roe v. Wade is overturned, this is not true at all; and it’s almost certain that, had the law been written differently, it would have been found, 8-1, as unconstitutional1.
So let’s answer some core questions:
What does the law do? This is a heart-beat bill, meaning that it is illegal for women to have an abortion after a heart-beat is detected, which is usually at about 6 weeks. However, rather than mandating that the police, courts etc. uphold this, or that woman who gets the abortion gets charged, the law motivates private citizens to sue anyone involved in the obtaining of an abortion in Texas where a heartbeat was detected, to the tune of a potential $10,000 reward if they win. This theoretically not only includes the doctor, but any partner, therapist, or Uber driver who know. The bill therefore is trying to ban abortion by making it financially impossible for anyone to risk perform one.
Is this constitutional? No - at least under current Constitutional precedent. It clearly violates the standards set by Row and Casey, which may be overturned in the future, but this won’t do that; and until then, it is unconsititutional.
What does Row v. Wade (and the following precedents) do again? That no state can ban abortion, and restrict it in onerous ways so as to make this functionally so. Contrary to expectations, this means that America is actually more lax on abortion than Western Europe, where most countries have hard-lines at 16 weeks, but such a ban is unconstitutional in the US - or, at least is at the moment, until the Dobbs case is addressed next year, a 16-week ban introduced in Mississippi. If Row etc. was overturned, this means that states would individually decide their abortion laws; not that abortion would be banned.
Why did the Supreme Court uphold the Texas law then? The Supreme Court is not in session, and this was brought on an emergency basis; at which time the Supreme Court may enjoin an official (prevent them from enforcing a law) but not overturn the law itself. But, because it is any random citizen who may sue but not a government official - who are explictly banned in the law from enforcing it - there is no party to enjoin who is responsible. Whole Woman’s Health (the leading Texas abortion provider), in an attempt to have this ruling overturned, sued the Attorney General and every judge in Texas (!) as a violation of Constitutional rights - but that doesn’t make much legal sense.
Why was it a 5-4 decision then, and not 9-0? The four dissenting justices argue that, simply because the law is written in a legally clever, loop-hole-ish way, that doesn’t mean a clearly unconstitutional law should stand. The problem though is that to do so requires an invention of a new standard to allow that.
Will it be upheld? Not an ice-cube’s chance in hell. This will be challenged in State and Federal Court, now and as soon as someone tries to actually enforce it by sueing an ‘abortion facilitator’.
But why do I say this isn’t that relevant for abortion?
85% of Texas abortions happen after 6 weeks - but we don't know what percentage of those are miscarriage abortions. These make up a significant percentage of abortions and are not barred under 'heart-beat’ bills, for there is no heart-beat to detect.
Similarly, support and opposition to abortion is consistently found to be about equal across genders; and, therefore, a majority conservative state will also have a majority of women who oppose abortions, and relatively few abortions - as is so in Texas. There are only 14 centres in Texas that provide abortions - and that’s largely due to a lack of demand, and not just legal pressure from Texas legislatures.
As such, even were Roe v. Wade overturned, 98% of American abortions would be unaffected. The states that would pass abortion bans have by far the fewest abortions anyway, and those with the most abortions support the right to have them, so the federal decision wouldn’t matter.
If that’s so, why do I say it’s “among the scariest [laws] I have ever seen?”
Because it’s a loophole in the Constitution that allows states to - temporarily - remove a citizens rights. Imagine if New York copied this model, introducing a law that allowed citizens to sue if they heard an offensive remark, with a potential $10K reward; or that California did for guns rights, allowing people who dislike their neighbours owning weapons to sue them and seize the weapons from their property. Any one of these laws would be struck down at the Supreme Court, just as this one will, but not before a lot of heartache, political heat, and potentially violence.
Because it encourages social division with financial incentives. It’s the opposite of a ‘live-and-let-live’ society, making the state an angel investor in the vigelantism of citizens who dislike what you do. If you hate your neighbour, you have the perfect incentive to screw them over; and even if you don’t but are just in a financially precarious position, it forces your hand to do something you find morally abhorrent.
AFGHANISTAN: Everything is shit. An American drone-strike, intended to retaliate against the airport attack, killed 10 innocent people, including children, and was the wrong target. The Taliban have put together a government filled with the most high-value terror targets in the world, and have continued to strip rights from the people of Afganistan. And, because their banks have no money and the Taliban don’t know how to run an economy, the masses of US military supplies left will be sold off to China, Russia, Pakistan etc. so that they can analyze in depth what the US uses. Thankfully, governments around the world have condemned the Taliban government for their lack of diversity, not having a single woman in their cabinet; an outrage, that could never be expected, and certainly is the issue that should have us most up in arms.
CALIFORNIA: Gavin Newsom wins the recall election because the Republicans put forth a terrible candidate. As I said on Twitter, were the leading Republican a bland bureaucrat - or even Caitlyn Jenner - then the focus would have been solely on Newsom’s record, and it would have been close - as we know, as polls showed this when this was the case in August. However, with the talk-radio arm of the Republican Party becoming the candidate, there was no chance Newsom would lose.
COMEDY: The brilliant Norm Macdonald has passed away after a long, private fight with cancer. So much of stand-up comedy is about the performers voice, but so many comedians just emulate the sounds and trends of the time. Norm sounded… like Norm, in his weird, brilliant, compelling way. These two moments are among my favourite; joking about Steve Irwin but a few days after he died in a hilarious but not cruel way; and this perfect example of how he trashed a junket.
FILM: Christopher Nolan is a boss. If you care about cinema, this is fantastic news.
MET GALA: A spectacle in hypocritical decidence finally got the negative attention it deserved, largely spurred by one bratty politician. Note; it wasn’t the white dress that outraged me; it was her costume of being working class, as she repeatedly described herself and her ‘immigrant’* (*from Canada) fashion designer. If you drive a Tesla, work in Washington, and attend the MET Gala you are not ‘working class’ - unless you are a chauffeur; and she’s not. Similarly, the ‘immigrant fashion designer’ is the millionaire owner of her own label, immigrated from Toronto, and happens to date the son of a notable billionaire family, who escorted them that night. Note; we make a lot of hay about ‘cultural appropriation’, as though making a curry is some grievous moral sin, and don’t care when millionaires pretend to be working people.
MUSIC: Certified Lover Boy is the latest from Drake and offers no surprises and all the spice of mayonnaise. No Friends in the Industry has got lots of attention, despite its entire narrative being laughably false, and You Only Live Twice is a gratifying song, but essentially a lesser version of the Drake-Rick Ross collaborations we have heard many times over. Conversely Montero is the debut album from internet-superstar Lil Nas X and - though it doesn’t always work - it’s a compelling, catchy pop album that has a surprising thematic and sonic variety.
PODCASTING: Joe Rogan got COVID and everyone freaked out when he used Ivermectin, even though it was given to him by his doctor, along with many other elements. Unsurprisingly, he recovered easily; unsurprisingly, media figures screamed about this all; and unsurprisingly, this became another unnecessary culture war.
REALITY TV: ‘The Activist’ reality show, where celebrities judge competing candidates working for humanitarian causes, has been cancelled after outrage. This was a horrifically dumb idea, but laid bare many of the moral contradictions of our elite age in a more transparent and honest way. If you want to make a difference, donate to GiveWell’s ‘Maximum Impact’ fund.
LUCID: The long-delayed Lucid Air achieves the highest EPA electric range ever awarded, at 520 miles per charge. All that needs to happen now is for the car to actually go into production, be delivered to customers, and be good.
MERCEDES BENZ #1: The very talented fashion designer Heron Preston partnered with Mercedes Benz on an S-class art car and clothing collaboration and everything involved is some shade of ugly. It's quite surprising considering the talent involved and the 'broken clock is right twice a day' principle, but oh well.
MERCEDES BENZ #2: Mercedes-AMG unveils its 831BHP GT63 S E Performance hybrid super-coupe/sedan thing. It’s deeply impressive and very fast, but it’s also quite boring to look at and is so immensely complex, that I couldn’t recommend anyone buy it, new or used. It may be fast, but the maintenance bills will be horrific.
PORSCHE: Porsche unveils the new Mission R concept; an electric track weapon that previews the future of motorsports. It looks striking but we need great improvements in thermal capacity and battery weight loss before electric cars can outcompete their petrol-powered equivalent in a track setting.
RENAULT: Renault's new Megan E-Tech is a stylish, new electric addition to the French manufacturers lineup, but it does concern me that all new small electric cars seem to share the same blobby, cross-over-ish shape - and that will grow boring fast.
APPLE #1: Apple delays the launch of its controversial CSAM detection features. This has received praise from many but I hold the same position I held before; this was a good implementation and is the only privacy-protecting system that actually addresses the problem that I've seen.
APPLE #2: Apple launches the new iPhone 13, iPad Mini, and Watch and boy, they are boring. The inclusion of 120hz is long-overdue and is doubtlessly an industry best (considering the smoothness of animation etc.) but there’s little new here and Apple is just waiting to be overtaken by a company like Oppo.
ARTICLE #1: Jeff Ross remembers Norm MacDonald for Bari Weiss’s Substack. A beautiful article starting with the brilliant lines: “Norm was a risk taker. Now we have a better understanding why. Everyone has a gun to their head, but Norm’s was cocked and loaded — and none of us knew it.”
ARTICLE #2: Ross Douthat on COVID. I should hate Douthat, as his continued work ensures that I can never be the most interesting Ross in American writing; but his work is too good for that, and this is a perfect example of that. I don’t agree with everything he writes here - or anywhere - but he’s always thought provoking.
I say 8 to 1, as it completely contradicts Roe v. Wade and all other judgements built upon that, and the court is not fond of simply disregarding precedent - that’s not how a legal system works. Or; that’s the view of everyone on the court but Justice Clarence Thomas, who views stare decisis as being unimportant if the underlying decision or law would otherwise be unconstitutional. Ergo; considering that he views Roe v. Wade as being wrongly decided, he would likely vote to uphold such a bill, and is thus a slight seasoning of progressive legal theory to his textualism. It’s possible that it would get a 7-2, if Alito joined, but I think that’s less likely.