Nov. 30: The Wall Street Journal on U.S. Supreme Court at abortion crossroads:

The Supreme Court takes up its most important abortion case in years on Wednesday, and the question will be how the Justices maneuver their way out of a thicket they should never have entered 50 years ago. Will the Court, in Dobbs v. Jackson Women’s Health Organization, settle for an incremental ruling that upholds a Mississippi ban on abortion after 15 weeks, or will it overturn its misguided precedents and return the regulation of abortion to legislatures in the states?

These columns have long supported a policy of legal abortion before viability, albeit uneasily as technology has revealed the development of the fetus. But we have had no hesitation in saying that Roe v. Wade (1973) and its progeny, notably Planned Parenthood v. Casey (1992), were wrongly decided. Abortion is nowhere mentioned in the Constitution, and its regulation is a classic example of police powers reserved for the states.

Roe in particular is one of the worst decisions in the Court’s history, on par with Plessy v. Ferguson (“separate but equal” on race) and Korematsu (internment camps for Japanese-Americans). At a stroke, the Court overturned 50 state laws and turned abortion into a pitched political battle that nonetheless could not be settled politically through the ballot box.

As the great legal scholar Alexander Bickel wrote in “The Morality of Consent,” the Court simply invented a trimester medical analysis. “One is left to ask why. The Court never said. It refused the discipline to which its function is properly subject. It simply asserted the result it reached.”

That mistake has distorted American politics and law for a half century. It has heightened political polarization and made the Supreme Court a partisan battlefield. With nowhere else to turn, abortion foes have looked to the Court for redress, and abortion proponents have returned the disfavor. Abortion is the Oz behind the curtain of every Supreme Court nomination as partisans try to divine how the nominee will vote on the issue.

This is where the Justices now find themselves, with a new conservative majority and state legislatures testing the limits of Roe and Casey. That’s what Mississippi has done with its ban after 15 weeks, though it’s important to note the state’s legal bait-and-switch. The Fifth Circuit Court of Appeals blocked the law, and the state’s petition to the High Court to hear its appeal said, “To be clear, the questions presented in this petition do not require the Court to overturn Roe or Casey.”

Yet after the Justices accepted the case, the state’s brief dropped the veil and urged them to overturn both precedents. “The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition,” the brief says. “Overruling Roe and Casey makes resolution of this case straightforward.”

Easy for Mississippi to say. Not so easy for the Justices, who must look to the Constitution but also wrestle with “stare decisis,” or the question of when to overturn its own precedents. Mississippi’s sleight-of-hand could give the Justices an excuse to say the case was “improvidently granted,” though that would only be a temporary reprieve. Abortion cases will keep coming from the states.

The Justices could agree with the Fifth Circuit and declare that Mississippi’s law is unconstitutional. But that is highly unlikely given the new majority and its originalist views of constitutional interpretation.

They could also take Mississippi up on its initial offer and uphold its law without overturning Casey, which modified Roe’s trimester analysis. Casey’s core ruling is that states cannot impose regulation that is an “undue burden” on a woman’s ability to obtain an abortion. The Court could rule that Mississippi’s ban is not such a burden, and thus it does not have to reconsider Casey or Roe.

This would be justified as a matter of law in this case. Given the Court’s reluctance to overturn longstanding precedents, this may be where a majority or plurality comes out. Some Justices might feel this is a safe harbor to show that the new Court with its Trump appointees isn’t out willy-nilly to overturn precedent.

We disagree with those on the right who say this would betray the conservative legal movement. Such a ruling would be akin to the incremental progress the Roberts Court has made on other legal precedents, notably on free speech and religious liberty. For example, the Court ruled cautiously in Harris v. Quinn (2014) on the unconstitutionality of coerced union fees before finally overturning its Abood precedent in Janus v. Afscme (2018).

But such a ruling would not free the Court or the country from its abortion thicket. The cases will keep coming, and sooner or later the Justices will have to overturn Roe and Casey or assert that they stand on solid legal ground. This is the best practical argument for making a clean break now and return the policy choices on abortion to the political branches. Like Plessy, some precedents are so misguided and have such damaging consequences that they warrant overturning no matter their longevity.

If the Court does go that far in Dobbs, abortion will not be barred across America. Some states may ban it. But others will allow abortion on demand right up to the last day of pregnancy. Debate and elections will sort this out, and how the politics plays out is impossible to know. Abortion would certainly roil the midterm elections, and Democrats believe it would help them retain Congress.

To give states time to adjust, the Court could also stay its ruling for a year or more. This would reduce the reliance interests at stake, as the Court did in a 1982 energy case (Northern Pipeline v. Marathon Pipe Line).

But the politics of abortion isn’t the Court’s concern. Such a profound moral question, in a democracy, should not be determined by unelected judges. Roe and its progeny didn’t end America’s abortion debate. It merely embittered it, damaging the Court in the bargain. It’s time for the Justices to bow out and let the people decide.

Nov. 28: The (Johannesburg, S.A.) Business Day on travel bans and COVID science:

It isn’t even two months since the UK finally removed SA from its “red list” of countries deemed dangerous for travel due to Covid-19. And then it all changed.

With friends like these, one might ask, who needs enemies? The removal of that status was seen as a great victory for a tourism industry that has been on its knees since the pandemic reached SA in early 2020. The new travel restrictions are a crushing blow for people in tourism who were looking for some relief during the December holiday period.

The reaction from the UK despite little being known about the virus so far is a political act that other countries felt the need to imitate, lest they be seen to be complacent.

It is ironic that while the usefulness of travel bans is questionable, the UK has long rejected the measures that work. Its prime minister, Boris Johnson, thinks it is fine to go to hospitals or theatres without a mask. Complacency has been the one defining feature of that government’s reaction to the pandemic, and on July 19 it declared “Freedom Day”, removing precautions such as wearing masks and practising social distancing. British cases were soaring, even before the discovery of the new variant, Omicron.

The decision has brought back the prospect of SA being stigmatised again and banned from most countries for months — the previous UK ban lasted about 10 months — with the country seemingly being punished for its advances in monitoring infectious diseases and for being transparent. It is also telling that while the variant has been identified elsewhere, the UK has only targeted African nations.

The reaction was seen in leisure stocks, which on Friday slumped the most since April 2020, when SA was at the earliest and the most severe stage of the initial lockdown. Then the country had voluntarily locked itself out of the world, even refusing to export its wine, in one of the many illogical steps taken by the government then. ...

... The impact of the discovery of the new variant, named after a letter in the Greek alphabet, was felt across global markets, with the rand tumbling to weaker than R16/$ for the first time since November 2020. Stocks also dropped in the US and Europe.

Part of the rand’s weakness was due to investors seeking safe-haven assets such as the dollar. While SA has been the primary victim, concerns about new restrictions and travel bans have been increasing in recent weeks as case numbers in Europe surged.

Some in SA are now starting to believe that local scientists’ renowned genome sequencing abilities are turning out to be a curse for the country. A glimpse at social media would indicate that the scientists are facing a backlash, accused of being attention seeking, holding media conferences prematurely and adding to the panic, which then exposes the country to stigma and the economic cost of travel bans.

But it is important that SA remains open and honest, though it may pay a high price for it. The secrecy about the initial outbreak in China did much damage by slowing the global response and has led to mistrust and conspiracy theories.

When people suggest that scientists should keep information under wraps for reasons other than safeguarding public health, this can only lead to a slippery slope. The politicians need to deploy all of SA’s diplomatic efforts to have these harmful, and probably ineffective, bans reversed.

Lock down the unvaccinated

At home, the government took a step in the right direction when President Cyril Ramaphosa said consultations will begin shortly about possibly introducing vaccine mandates. The unvaccinated should be prevented from buying alcohol and from accessing some public services and indoor areas.

We endorse the call by Business for SA (B4SA) that employers take steps that may include restricting their premises to vaccinated individuals and introducing mandates.

The price of doing too little is too high and SA’s economy cannot be held ransom by those who refuse to be vaccinated.

Nov. 27: The Winston-Salem (N.C.) Journal on verdicts in the “Unite the Right” trial:

Some “very fine people” were held liable for terrible crimes Thursday in Virginia. A jury there concluded that representatives of five white supremacy hate groups — all of whom were involved in the deadly “Unite the Right” rally in Charlottesville in 2017, in which far-right marchers carrying torches chanted “Jews will not replace us” — violated Virginia state laws and should pay more than $25 million in damages to nine plaintiffs who suffered physical or emotional injuries during the rally.

The jury failed to reach a verdict on whether the defendants were liable under a federal statute — the rarely used so-called Ku Klux Klan Act, which outlaws conspiracies to commit racially motivated violence. But the verdicts on state charges should be enough to put these hatemongers out of business. That’s good news.

The jury imposed $500,000 each in punitive damages against several defendants, including a few self-professed neo-Nazis and white supremacists, and $1 million each against the right-wing fascist organizations.

James Alex Fields, the neo-Nazi who murdered Heather Heyer by running over her in his car and was subsequently sentenced to life in prison, received a $12 million fine. He’s going to have to stamp out a lot of license plates to pay that off.

The trial itself was something of a circus. Several defendants represented themselves, proving the adage that “a lawyer who represents himself has a fool for a client.” They include Richard B. Spencer, the creator of the term “alt-right” in an attempt to disguise his Nazi beliefs with a sheen of respectability. These defendants used their court time to harass witnesses and air polemics about the superiority of the white race, the threat of Jews, the greatness of Adolf Hitler and the pleasure of using the N-word.

Most of the defendants tried to separate themselves from Fields and, indeed, blamed him for all the harm done to the defendants — all the broken bones, bloody wounds and emotional injuries suffered during the violent confrontations they initiated with anti-racist protesters who attended the rally.

Though most defendants claimed they were merely exercising their “First Amendment rights,” among the evidence considered were text messages and social media posts leading up to the rally that were liberally laced with antisemitic and racial slurs as well as their desire to “crack some skulls” in what they called “the Battle of Charlottesville.” The posts were packed with “insider language and codes” that expert witnesses said white nationalists use to incite participants.

There’s nothing illegal about being racist or stupid, but the defendants certainly didn’t help their case by livestreaming their testimony — what one called his “spoken-word performance” — to their followers. The large fines will likely financially ruin the organizations they lead, but they’re still heroes to their followers and, now, martyrs to their racist cause.

The decisions were still just.

Following the trial, co-lead counsels for the plaintiffs, Roberta Kaplan and Karen Dunn, said in a statement, “The laws of this country will not tolerate the use of violence to deprive racial and religious minorities of the basic right we all share to live as free and equal citizens.”

That’s an optimistic view, to be certain, especially as we see a continued resurgence of white supremacists who aren’t satisfied to march and be laughed at, but who actively recruit directionless, impressionable young people to their ranks, poisoning their minds against their fellow Americans.

It’s truly sorrowful that the outcome of this trial only affects a sliver of the white supremacist movement that’s been gaining traction in the U.S. A preferable outcome would be for Americans, including our political leaders, both Democrats and Republicans, to more firmly reject discriminatory views that blame minority groups for the country’s problems. Congress should support President Biden’s efforts to increase resources to combat domestic extremism.

Any political violence is wrong, whether it comes from protesters, rioters or militia groups. But the violence that melds itself with and glories in the philosophy that our “greatest generation” went to war to stop is especially onerous. We’ve got to crush it.

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