The Supreme Court

[Mickey]

Undue burden?

My understanding is that because the defense was not focused on undue burden, and because this portion of the law is about providers and not patients, the court found that this is in a different category from abortion restrictions and thus was a reasonable law to enact (or that there wasn't enough reason to say that it's unconstitutional). I think the outrage about this portion of the bill is a little unfounded--there's a lot of claims that this will make the mother bury the fetus, when it seems as far as I understand it that it only requires the abortion provider to separately incinerate fetal remains. But I do think it lays a precedent for separating fetal tissue from other sorts of tissue. The opinion did seem to suggest, though, that if the defense had argued on the grounds of undue burden, the court would have done something different?

[4/5]

Undue burden?

My understanding is that because the defense was not focused on undue burden, and because this portion of the law is about providers and not patients, the court found that this is in a different category from abortion restrictions and thus was a reasonable law to enact (or that there wasn't enough reason to say that it's unconstitutional). I think the outrage about this portion of the bill is a little unfounded--there's a lot of claims that this will make the mother bury the fetus, when it seems as far as I understand it that it only requires the abortion provider to separately incinerate fetal remains. But I do think it lays a precedent for separating fetal tissue from other sorts of tissue. The opinion did seem to suggest, though, that if the defense had argued on the grounds of undue burden, the court would have done something different?

You're right. I just read the per curiam opinion. They really went out of their way to point out that this wasn't focused on an undue burden.

RBG's dissent argues that the respondents should have made an undue burden argument and that rational basis isn't the correct scrutiny for this law, anyway.

I skimmed Thomas's concurrence. He quoted the debunked Freakonomics' "Roe v. Wade led to the crime rate dropping beginning in the early nineties" claim and then said it doesn't matter whether that argument is correct or not because it sounds like a eugenicist.

[4/5]

Since my representation of his quote wasn't at all charitable, here it is:

Some believe that the United States is already experiencing
the eugenic effects of abortion. According to one
economist, “Roe v. Wade help[ed] trigger, a generation
later, the greatest crime drop in recorded history.” S.
Levitt & S. Dubner, Freakonomics 6 (2005); see id., at
136–144 (elaborating on this theory). On this view, “it
turns out that not all children are born equal” in terms of
criminal propensity. Id., at 6. And legalized abortion
meant that the children of “poor, unmarried, and teenage
mothers” who were “much more likely than average to
become criminals” “weren’t being born.” Ibid. (emphasis
deleted). Whether accurate or not, these observations
echo the views articulated by the eugenicists and by Sanger
decades earlier: “Birth Control of itself . . . will make a
better race” and tend “toward the elimination of the unfit.”
Racial Betterment 11–12.

[Mickey]

Undue burden?

My understanding is that because the defense was not focused on undue burden, and because this portion of the law is about providers and not patients, the court found that this is in a different category from abortion restrictions and thus was a reasonable law to enact (or that there wasn't enough reason to say that it's unconstitutional). I think the outrage about this portion of the bill is a little unfounded--there's a lot of claims that this will make the mother bury the fetus, when it seems as far as I understand it that it only requires the abortion provider to separately incinerate fetal remains. But I do think it lays a precedent for separating fetal tissue from other sorts of tissue. The opinion did seem to suggest, though, that if the defense had argued on the grounds of undue burden, the court would have done something different?

You're right. I just read the per curiam opinion. They really went out of their way to point out that this wasn't focused on an undue burden.

RBG's dissent argues that the respondents should have made an undue burden argument and that rational basis isn't the correct scrutiny for this law, anyway.

I skimmed Thomas's concurrence. He quoted the debunked Freakonomics' "Roe v. Wade led to the crime rate dropping beginning in the early nineties" claim and then said it doesn't matter whether that argument is correct or not because it sounds like a eugenicist.

Yeah I skimmed that one too--I think that's the thing to be very unsettled about from a pro-choice standpoint. Thomas is laying groundwork for the abortion-eugenics connection to become the defining read of the issue.

[B]

Since my representation of his quote wasn't at all charitable, here it is:

Some believe that the United States is already experiencing
the eugenic effects of abortion. According to one
economist, “Roe v. Wade help[ed] trigger, a generation
later, the greatest crime drop in recorded history.” S.
Levitt & S. Dubner, Freakonomics 6 (2005); see id., at
136–144 (elaborating on this theory). On this view, “it
turns out that not all children are born equal” in terms of
criminal propensity. Id., at 6. And legalized abortion
meant that the children of “poor, unmarried, and teenage
mothers” who were “much more likely than average to
become criminals” “weren’t being born.” Ibid. (emphasis
deleted). Whether accurate or not, these observations
echo the views articulated by the eugenicists and by Sanger
decades earlier: “Birth Control of itself . . . will make a
better race” and tend “toward the elimination of the unfit.”
Racial Betterment 11–12.

Only a person who had not read Freakonomics would make such a claim.

[4/5]

Undue burden?

My understanding is that because the defense was not focused on undue burden, and because this portion of the law is about providers and not patients, the court found that this is in a different category from abortion restrictions and thus was a reasonable law to enact (or that there wasn't enough reason to say that it's unconstitutional). I think the outrage about this portion of the bill is a little unfounded--there's a lot of claims that this will make the mother bury the fetus, when it seems as far as I understand it that it only requires the abortion provider to separately incinerate fetal remains. But I do think it lays a precedent for separating fetal tissue from other sorts of tissue. The opinion did seem to suggest, though, that if the defense had argued on the grounds of undue burden, the court would have done something different?

You're right. I just read the per curiam opinion. They really went out of their way to point out that this wasn't focused on an undue burden.

RBG's dissent argues that the respondents should have made an undue burden argument and that rational basis isn't the correct scrutiny for this law, anyway.

I skimmed Thomas's concurrence. He quoted the debunked Freakonomics' "Roe v. Wade led to the crime rate dropping beginning in the early nineties" claim and then said it doesn't matter whether that argument is correct or not because it sounds like a eugenicist.

Yeah I skimmed that one too--I think that's the thing to be very unsettled about from a pro-choice standpoint. Thomas is laying groundwork for the abortion-eugenics connection to become the defining read of the issue.

He's been sneaky successful at pulling the conversation further and further right. He writes these absurd, lonely concurring opinions that make everybody roll their eyes, but then sometimes in future cases other conservative Justices seem to make versions of Thomas-lite arguments and the arguments seem to play out more and more on his turf. Even the liberal dissents in the gun cases (Heller and McDonald) were in large part an argument about the framers' intention.

[Bi_3]

What is the eugenics argument? The disparate impact of abortion on blacks?

[Green Habit]

What is the eugenics argument? The disparate impact of abortion on blacks?

Yup. Here's footnote 4 in his concurrence.

Both eugenics and disparate-impact liability rely on the simplistic and often faulty assumption that “some one particular factor is the key or dominant factor behind differences in outcomes” and that one should expect “an even or random distribution of outcomes...in the absence of such complicating causes as genes or discrimination.” Sowell 25, 87. Among other pitfalls, these assumptions tend to collapse the distinction between correlation and causation and shift the analytical focus awayfrom “flesh-and-blood human being” to impersonal statistical groups frozen in time. Id., at 83; see id., at 87–149 (explaining how statistics and linguistics can be used to obscure realities). Just as we should not assume, based on bare statistical disparities, “that the Negro lacks in his germ-plasm excellence of some qualities which the white races possess,” Applied Eugenics 285, “[w]e should not automatically presume that any institution with a neutral practice that happens to produce a racial disparity is guilty of discrimination until proved innocent.” Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U. S. ___, ___ (2015) (THOMAS, J., dissenting) (slip op., at 8). Both views “ignore the complexities of human existence.” Id., at ___ (slip op., at 9).

[Green Habit]

I skimmed Thomas's concurrence. He quoted the debunked Freakonomics' "Roe v. Wade led to the crime rate dropping beginning in the early nineties" claim and then said it doesn't matter whether that argument is correct or not because it sounds like a eugenicist.

Has this been fully debunked? I thought it was reckless of Freakonomics to imply that it had a significant impact, but I also think that of every other explanation. There are likely dozens of reasons why crime's dropped, and I'm willing to consider that this was one very small sliver of that pie.

[Mickey]

I skimmed Thomas's concurrence. He quoted the debunked Freakonomics' "Roe v. Wade led to the crime rate dropping beginning in the early nineties" claim and then said it doesn't matter whether that argument is correct or not because it sounds like a eugenicist.

Has this been fully debunked? I thought it was reckless of Freakonomics to imply that it had a significant impact, but I also think that of every other explanation. There are likely dozens of reasons why crime's dropped, and I'm willing to consider that this was one very small sliver of that pie.

I read debunked in that Freakonomics positions it as more or less the determining causal factor. I don't understand B's post though--I read Freakonomics as a right-wing text, why is it strange that Thomas is citing it? (Other than, perhaps, that FE is also quite racist)

[B]

I skimmed Thomas's concurrence. He quoted the debunked Freakonomics' "Roe v. Wade led to the crime rate dropping beginning in the early nineties" claim and then said it doesn't matter whether that argument is correct or not because it sounds like a eugenicist.

Has this been fully debunked? I thought it was reckless of Freakonomics to imply that it had a significant impact, but I also think that of every other explanation. There are likely dozens of reasons why crime's dropped, and I'm willing to consider that this was one very small sliver of that pie.

I read debunked in that Freakonomics positions it as more or less the determining causal factor. I don't understand B's post though--I read Freakonomics as a right-wing text, why is it strange that Thomas is citing it? (Other than, perhaps, that FE is also quite racist)

That book goes to great lengths to be clear that it's an interesting anomaly in the data that should, in no way, influence the abortion debate.

[Mickey]

I skimmed Thomas's concurrence. He quoted the debunked Freakonomics' "Roe v. Wade led to the crime rate dropping beginning in the early nineties" claim and then said it doesn't matter whether that argument is correct or not because it sounds like a eugenicist.

Has this been fully debunked? I thought it was reckless of Freakonomics to imply that it had a significant impact, but I also think that of every other explanation. There are likely dozens of reasons why crime's dropped, and I'm willing to consider that this was one very small sliver of that pie.

I read debunked in that Freakonomics positions it as more or less the determining causal factor. I don't understand B's post though--I read Freakonomics as a right-wing text, why is it strange that Thomas is citing it? (Other than, perhaps, that FE is also quite racist)

That book goes to great lengths to be clear that it's an interesting anomaly in the data that should, in no way, influence the abortion debate.

I mean if you really didn't want that to happen then you wouldn't publish that spurious claim in the first place.

[B]

I skimmed Thomas's concurrence. He quoted the debunked Freakonomics' "Roe v. Wade led to the crime rate dropping beginning in the early nineties" claim and then said it doesn't matter whether that argument is correct or not because it sounds like a eugenicist.

Has this been fully debunked? I thought it was reckless of Freakonomics to imply that it had a significant impact, but I also think that of every other explanation. There are likely dozens of reasons why crime's dropped, and I'm willing to consider that this was one very small sliver of that pie.

I read debunked in that Freakonomics positions it as more or less the determining causal factor. I don't understand B's post though--I read Freakonomics as a right-wing text, why is it strange that Thomas is citing it? (Other than, perhaps, that FE is also quite racist)

That book goes to great lengths to be clear that it's an interesting anomaly in the data that should, in no way, influence the abortion debate.

I mean if you really didn't want that to happen then you wouldn't publish that spurious claim in the first place.

The goal of that book was to make Economics sound interesting, not to rewrite public policy.

[Mickey]

I skimmed Thomas's concurrence. He quoted the debunked Freakonomics' "Roe v. Wade led to the crime rate dropping beginning in the early nineties" claim and then said it doesn't matter whether that argument is correct or not because it sounds like a eugenicist.

Has this been fully debunked? I thought it was reckless of Freakonomics to imply that it had a significant impact, but I also think that of every other explanation. There are likely dozens of reasons why crime's dropped, and I'm willing to consider that this was one very small sliver of that pie.

I read debunked in that Freakonomics positions it as more or less the determining causal factor. I don't understand B's post though--I read Freakonomics as a right-wing text, why is it strange that Thomas is citing it? (Other than, perhaps, that FE is also quite racist)

That book goes to great lengths to be clear that it's an interesting anomaly in the data that should, in no way, influence the abortion debate.

I mean if you really didn't want that to happen then you wouldn't publish that spurious claim in the first place.

The goal of that book was to make Economics sound interesting, not to rewrite public policy.

The goal of that book was to sell books. The authors used whatever tidbits of decontextualized data they could to achieve that goal, in the process crafting a view of the world that more or less supports right-wing governmentality. Again, if you really didn't want to influence the abortion debate, you wouldn't write about this neat-o! but spurious correspondence with obviously negative implications for the perception of abortion.

[4/5]

It’s been a decade since I’ve read it, but I don’t remember it being right wing or political. I thought it was a collection of interesting stories mostly designed to sell books like you said.

My other main memory is that right in the beginning they go on a whole thing about correlation not meaning causation but then it felt like the whole book was essentially strongly implying causation.

I liked the gangs and daycare stories, still remember those.

[4/5]

Fwiw, reading his Wikipedia page some of his research does appear to be right wing.

[B]

The goal of that book was to sell books.

That's the goal of all books.

[Green Habit]

They definitely had a libertarian lean (one of the authors is a University of Chicago economist, after all), but like the rest of you I don't think they wore that label heavily. For one, I recall then getting beat up by both the right and left over their geoengineering article.

My favorite thing they wrote wasn't even an entire chapter, but an introductory observation on how the automobile was first hailed as an environmental savior because it ended the literal horseshit of using horses for transportation, and the massive diseases they caused.

[Bi_3]

I skimmed Thomas's concurrence. He quoted the debunked Freakonomics' "Roe v. Wade led to the crime rate dropping beginning in the early nineties" claim and then said it doesn't matter whether that argument is correct or not because it sounds like a eugenicist.

Has this been fully debunked? I thought it was reckless of Freakonomics to imply that it had a significant impact, but I also think that of every other explanation. There are likely dozens of reasons why crime's dropped, and I'm willing to consider that this was one very small sliver of that pie.

I read debunked in that Freakonomics positions it as more or less the determining causal factor. I don't understand B's post though--I read Freakonomics as a right-wing text, why is it strange that Thomas is citing it? (Other than, perhaps, that FE is also quite racist)

That book goes to great lengths to be clear that it's an interesting anomaly in the data that should, in no way, influence the abortion debate.

I mean if you really didn't want that to happen then you wouldn't publish that spurious claim in the first place.

The goal of that book was to make Economics sound interesting, not to rewrite public policy.

The goal of that book was to sell books. The authors used whatever tidbits of decontextualized data they could to achieve that goal, in the process crafting a view of the world that more or less supports right-wing governmentality. Again, if you really didn't want to influence the abortion debate, you wouldn't write about this neat-o! but spurious correspondence with obviously negative implications for the perception of abortion.

I don't understand this. If they believed it was causation, why not provide people with that result? Because it risks reinforcing what has historically been a path to fascism?

[Mickey]

I skimmed Thomas's concurrence. He quoted the debunked Freakonomics' "Roe v. Wade led to the crime rate dropping beginning in the early nineties" claim and then said it doesn't matter whether that argument is correct or not because it sounds like a eugenicist.

Has this been fully debunked? I thought it was reckless of Freakonomics to imply that it had a significant impact, but I also think that of every other explanation. There are likely dozens of reasons why crime's dropped, and I'm willing to consider that this was one very small sliver of that pie.

I read debunked in that Freakonomics positions it as more or less the determining causal factor. I don't understand B's post though--I read Freakonomics as a right-wing text, why is it strange that Thomas is citing it? (Other than, perhaps, that FE is also quite racist)

That book goes to great lengths to be clear that it's an interesting anomaly in the data that should, in no way, influence the abortion debate.

I mean if you really didn't want that to happen then you wouldn't publish that spurious claim in the first place.

The goal of that book was to make Economics sound interesting, not to rewrite public policy.

The goal of that book was to sell books. The authors used whatever tidbits of decontextualized data they could to achieve that goal, in the process crafting a view of the world that more or less supports right-wing governmentality. Again, if you really didn't want to influence the abortion debate, you wouldn't write about this neat-o! but spurious correspondence with obviously negative implications for the perception of abortion.

I don't understand this. If they believed it was causation, why not provide people with that result? Because it risks reinforcing what has historically been a path to fascism?

What...has historically been a path to fascism?