While Charlottesville set itself ablaze with white supremacist fury last week, there was another equally horrifying assault in the South. The Governor of Texas signed yet another horrendous abortion bill, this one mandating something called “rape insurance” to get coverage for a medical procedure. It’s the fifth abortion bill the Texas House and/or Senate passed this year. Texas is the largest Republican-held state, and it tries like the dickens to outlaw abortion on an annual basis. It’s not very good at it.
This is because of Texas’s other propensity: faring spectacularly poorly before the U.S. Supreme Court. Here’s some legendary losses before the most august body in the land:
- In 1869, it lost Texas v. White, negating the South’s Civil War secession.
- In 1954, it lost Hernandez v. Texas, giving Mexicans equal rights.
- In 1989, it lost Texas v. Johnson, allowing us to burn the flag at will.
- In 2003, it lost Lawrence v. Texas, shredding sodomy laws across the U.S.
- In 2017, it lost Moore v. Texas, ending execution of the mentally disabled.
Texas is the biggest loser at the Supreme Court, apropos since everything’s bigger there. But even a year after the fact, no loss seems as jimmy-kicking as Whole Woman’s Health vs. Hellerstedt, the Supreme Court decision that struck down H.B. 2, Texas’s last abortion law. It’s worth taking a look at that decision, lest we panic too much over the latest predictable Texan overreach.
Much discussion centered on Justice Ginsburg’s concurrence, which characterized Texas’s law as “beyond rational belief.” But the interesting bit (to me, anyway) was the justices’ chatter about severability, both in Justice Breyer’s majority decision and in Justice Alito’s dissent. Severability is the rule that if one provision of a law is struck out, the rest of the law remains in force. This might be a dry subject, but here it was shockingly entertaining.
H.B. 2 had the most insane severability clause I’ve ever seen. It said:
Guys, this law was severable by individual word. This was madness. Even Alito, defending the clause in dissent, was gobsmacked at the overreach.
Then, in case anyone was not clear that H.B. 2 was about restricting the ability of women to access abortions, it doubled down and became severable by individual human female.
Wowsers. So okay, let’s see what happened in that “unexpected event” (a staggering term in an abortion bill). In this law, Texas set up a truckload of restrictions on abortion providers, two of which — the admitting privileges and surgical center requirements — the majority found unconstitutional under Planned Parenthood v. Casey’s “undue burden” clause. Beyond those two, there were dozens of other requirements in there, from teaching guidelines to sound barriers to fire alarms. The Court could have kept all of those intact and just cut out the two most offensive impediments. They could have, if Texas had understood basic game theory involving armor.
Armor is a series of choices. You probably want some. I wouldn’t advise wading into a Game of Thrones-style battle wearing a loincloth. But I also wouldn’t advise wearing armor so cumbersome that you can’t move, because a giant will catch you and stomp you into sandpaper.
Layering on armor has its costs. In game design, I often say: “The more armor you put on, the more you’ll get hurt when you suffer an injury.” That’s just sensible; if you cover everything but your eyes, anything that gets by that cover is going through your eyes. This is why basketball players get elbow sprains and football players get broken knees. Football’s armor brushes away the minor injuries that two colliding basketballers would suffer if they hit each other. But when something gets through and actually hurts a football player, he is out for a long time. Possibly for good.
In Hellerstedt, we got a real example of the consequences of trying to clamp on the most bulletproof, Hulkbusterish legal armor possible. Writing for the majority, Breyer seemed ready to embrace Texas’s wishes for severability:
Gee, that must have felt reassuring. And then…
OH HI THERE. Breyer showed nary a whit of enthusiasm for parsing the infinite number of conceivable rules required to save this particular patient.
With a sweeping “facial review,” Breyer said, in essence, “Man, it’s too much brain-pain to fight through all this. What if your armor just didn’t exist? Yeah, fuck that noise, your whole bill is toast.”
So H.B. 2 became nothing but powder, an unmoving husk stomped flat by a giant. And severability is no longer all that trustworthy a suit of armor. Thanks to Texas, no one will ever win with that dodge again at the USSC. Texas continues its legendary history as the Supreme Court’s whipping post. So if you tremble at this year’s awful rape insurance law—and I can see why you might—there’s a solid chance the black robes will ride to your rescue.
Oh, also, yay for women’s rights.
This is the fourth of a series of posts on politics and game theory. Previous posts have covered impeachment, Russian collusion, and white supremacy. This piece uses material from last year’s similar post on tumblr. These essays are in my book Game Theory in the Age of Chaos, which you can order by clicking the link.
