The Economist March 19th 2022 United States 35ReproductiverightsAbort mission
L
ike schrödinger’s unfortunate cat,
Roe v Wade is in a quantum state as
America awaits word from the Supreme
Court on a case that could put an end to the
constitutional right to abortion. The justic
es are expected to open that box—in a case
challenging Mississippi’s ban on terminat
ing a pregnancy after 15 weeks—by the end
of June. But several states are not waiting to
see what is revealed. They are forging
ahead as if Roe, a precedent from 1973
which protects a woman’s freedom to
choose an abortion, were already dead.
The reckoning has been brewing for a
while. Three years ago, highly restrictive
abortion laws were enacted in nine states.
Alabama’s was the most extreme: it banned
nearly all abortions, beginning at the point
of fertilisation. Most of these laws were
promptly blocked in federal courts. The
point, however, was to begin to get an
increasingly conservative Supreme Court
to reconsider Roe.
Texas took a different tack last year with
Senate Bill 8, an abortion ban from about
six weeks enforced not by the state but
through private lawsuits. Despite its in
compatibility with Roe, which protects
abortion rights to about the 23rd week of
pregnancy, the law was let through by the
Supreme Court on September 1st, and the
number of abortions in Texas promptly
plummeted. The justices held a hearing
two months later and, on December 10th,
released their ruling: an 81 decision offer
ing a narrow path to challenge the bill’s
constitutionality. Although most potential
defendants were out of reach, the majority
said, the plaintiffs may sue state officials
who have a hand in enforcing the bill.
On March 11th a final roadblock closed
that path. Following the Supreme Court’s
ruling, the Fifth Circuit Court of Appeals
declined to let the case move forward in
the trial court. Instead, the Fifth Circuit
sent a query to the Texas state Supreme
Court: do these agency heads in fact play a
role in enforcing Senate Bill 8, making
them proper targets of a lawsuit challeng
ing the law under Roe? The judges’ answer
was no. The architects of Texas’s law—deri
sively dubbed “some geniuses” by Justice
Elena Kagan—prevailed in their quest to
craft an abortion ban that would stymie
broad legal challenge.
Other states are catching on. Idaho is on
the verge of adopting a ban modelled on
Texas’s. A legislator in Missouri is pushinga provision that uses Texas’s privatelaw
suit mechanism to stop women from seek
ing abortions outside their state. Anyone
who helps a Missourian obtain an abortion
across state lines—from doctors to ap
pointment schedulers—could be subject to
a lawsuit. Another bill in Missouri in effect
bans abortions for ectopic pregnancies,
nonviable fertilisations outside the uterus
that are dangerous if not terminated.
These proposals mark a new, radicalfrontier. They join more conventional 15
week bans under consideration in Arizona,
Florida and West Virginia. The compara
tively moderate tactics in those states may
be designed to test the waters “to see if
there is backlash to less sweeping mea
sures”, suggests Mary Ziegler of Florida
State University College of Law. But if Roe
goes, Ms Ziegler predicts,nored states may
be “content regulatingjustwhat happens
inside their own borders”. nN EW YORK
Some states can’t wait to end abortion Whentheyhearsnowonthefore
cast many American children cross
their fingers and hope school will close.
But “snow days” may soon melt away.
Last year New York City, the country’s
largest school district with 1m children,
announced that families should expect
to take part in remote learning on snow
days. Alexandria, Virginia, has taken
snow days off the school calendar.
Thanks to the pandemic, many districts
have the tools and experience to turn to
remote learning in an emergency.
Most states require 180 days of in
struction a year. Remotelearning days
do not generally count. If school is can
celled because of snow, hurricane or
extreme heat, pupils have to make up for
the day in person. Most districts tack on
the days at the end of the school year.
“The uscalendar is already short by
international standards,” says Michael
Petrilli of the Thomas B. Fordham In
stitute, an education thinktank, “so we
can’t afford to lose any of them.” This
month New Jersey’s Senate unanimously
voted to allow those days to count towardsthemandatorydaysoflearning.
Nicholas Sacco, the bill’s author, says it
has safeguards to prevent overuse.
The New Jersey Education Associa
tion, a teachers’ union, is not convinced
that remote instruction is a proper sub
stitute. Tafshier Cosby, a New Jersey
parent and a member of the National
Parents Union, which speaks for working
parents, points out that not every child
has ready access to a device.
Closing a school is a hard decision.
Parents may have to take the day off
work, perhaps without pay. Children
may miss out on food and crucial thera
py. But the danger of children being
outdoors and travelling in extreme con
ditions can outweigh those consider
ations. “More superintendents have been
fired by snow days, either calling it or not
calling it, than anything else,” says Dan
Domenech, head of the American Associ
ation of School Administrators.
Extreme weather has meant that
some southern states, which lack the
infrastructure to cope with snow, are
having to consider snow days and re
mote learning, and the frequency of such
disruption in colder parts of the country
may well increase. Rupak Gandhi, super
intendent of schools in Fargo, North
Dakota, says he has had to cancel in
struction because of inclement weather
on an unusual five days this winter. If he
has to close schools again his district will
switch to distance learning.
Some superintendents wish they had
the flexibility to make such a call. Mark
Benigni, superintendent of Meriden
Public Schools in Connecticut, says his
district used remote snow days success
fully during the pandemic, but this year
the state will not approve them. Others
remain wary. Matthew Baughman, the
superintendent of Wolverine Communi
ty Schools in northern Michigan, be
lieves “in preserving the magic of snow
days for kids and teachers”.SchoolsandbadweatherSay it ain’t snow
N EW YORK
Some districts are opting for remote learning instead of closing schoolsAday to remember