What is going to happen to Roe?
Plus, why Democrats have a branding problem.
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KIM WEHLE: Will the Supreme Court Overturn Roe or Prop It Up with a Compromise?
Casey offered another test that’s unique to abortion—the “undue burden” test, which tolerates government restrictions even prior to fetal viability if they don’t unduly burden the pregnant mother’s constitutional right to access abortion treatment. The Court didn’t define “undue burden,” so the test is messy and subjective, creating loads of litigation, and thus does not point to a workable replacement standard for viability, which seems to be what Roberts is looking for.
If Roberts can get five justices to join him on a watered-down rational basis or undue burden test for more restrictive abortion laws, the result would probably be a 6-3 split that looks like something of a compromise: Roe would live for another day, though in a constrained form. But such a compromise would require Roberts to persuade some of the other conservatives. Which justice might be gettable? Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch seem ready to ditch Roe altogether. So does Justice Brett Kavanaugh, who during Wednesday’s oral argument seemed inclined to punt the question to state legislatures entirely. Justice Amy Coney Barrett, who publicly criticized Roe before becoming a federal judge, focused during oral argument on so-called “safe haven laws” offering women places to relinquish their babies to the state without fearing prosecution for abandonment or endangerment, although it is unclear what part that question could play in developing a constitutional standard moving forward.
It's not just The Bulwark saying the Democrats have a branding problem — Democrats are saying it too. So, cool it with the culture talk, control inflation, and as Bill Kristol has been telling the White House: Make Covid tests cheap and plentiful. Kristol joins Charlie Sykes today.
Slate's Will Saletan joins the group, including Bill Kristol, to discuss the implications of a possible reversal of Roe and Biden's opportunities to recover.
SONNY BUNCH on actors at work.
C’mon C’mon occasionally feels a bit more like a visual and auditory essay than it does a traditional feature film. The film’s narrative sees radio journalist Johnny (Joaquin Phoenix) care for his nephew Jesse (Woody Norman) while Jesse’s mother Viv (Gaby Hoffman) tries to convince the boy’s bipolar father Paul (Scoot McNairy) to commit to psychiatric treatment. But this is intercut with a series of interviews between Johnny and schoolchildren across the country, as well as snippets from essays and children’s books read aloud by Johnny.
What Mike Mills has put together in C’mon C’mon calls to mind longform journalism of the sort practiced by a David Foster Wallace or a Matt Labash: empathetic and occasionally discursive, though always driving toward a deeper truth. Except, of course, that it’s fiction, not fact. But the best fiction reflects reality on some level, so who’s to say that the distinction between fact and fiction is all that important when there are deeper truths to plumb. “Fake but accurate” has nothing on “fictional but true.”
🚨OVERTIME 🚨
Happy Friday! Hope you’re looking forward to the weekend. Ours involves irrigation work, Alexandria’s annual Scottish Walk, and going to find a Christmas Tree. And tying down that inflatable snow man that gets my twins up in the morning. FROSTY! HAPPY BIRTHDAY!
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That’s it for me. We’ll see you Monday. Tech support questions? Email members@thebulwark.com.
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