GOP's anti-abortion strategy could establish precedent for massive, corrupt regulation

The US Republican Party welds together two separate and sometimes conflicting ideologies: dogwhistles to Christian conservatives on abortion, LGBTQ issues, etc; and a doctrinaire commitment to "free markets" and deregulation, often at the expense of the working class Christian conservatives whose votes are coaxed forth with the campaign dollars funded by the one percenter beneficiaries of the deregulation movement.

Now those two contradictions are headed for a hell of a collision course.

State-level Republican governments have pursued an end-run around Roe v Wade, which guarantees women the right to choose to have an abortion. Rather than directly banning abortion, they've larded abortion providers with absurd, anti-competitive regulations that are precisely the sort of thing the GOP attacks in every other commercial context. Historically, this contradiction hasn't mattered because there's no money in providing abortions, so there aren't any members of the investor class who suffer when these regulations are piled on.

But the end-game of this over-regulation is, naturally, a Supreme Court challenge to the constitutionality of this sort of regulation, one that GOP strategists can't afford to back down from without fracturing the uneasy alliance between social conservatives and rich people.

Therein lies the problem: if the right wins in the Supreme Court, they will be setting the iron-clad precedent that invasive, nonsensical, anti-competitive regulation is legal. If they lose, states like Texas will once again be open for abortion on demand, as the absurd regulations imposed by state governments is struck down.

So what happens when many of these conservative supporters of economic liberty are also anti-abortion and these two principles are in tension? Too often it seems like conservatives don't connect the two—at their own peril. Conservatives are free to keep challenging the right to an abortion if that's their goal, but obscuring the path to accessing one on the basis of fabricated health assertions delegitimizes their claims to economic liberty. That's why proponents of economic liberty should be very concerned about how abortion clinics fare at the Supreme Court (Whole Women's Health v. Hellerstedt) in their challenge to the licensing regime that Texas put in place to distort the market for abortion services on the pretext of protecting health. Unlike the split over economic protectionism, it is black-letter law that blocking women from obtaining pre-viability abortions is not a legitimate state interest. So if the Court upholds anti-competitive regulations on the basis of bogus health claims when a fundamental right—which gets a higher standard of review—is at issue, the libertarian campaign to open the markets in interior design and eyebrow threading is definitely doomed.

But I don't think the Court is going to uphold Texas's anti-competitive regulations—they are a flagrant attack on the Court's abortion precedent. The Court is likely to strike down the law on the grounds that it is an "undue burden" on a woman's right to access abortion—because a woman seeking an abortion in Texas will have to travel hundreds of miles, go out of state, or have the procedure later than she wants. But striking down the law without also clearly rejecting the lower court's rational-basis analysis, in which it held that courts cannot even look at evidence that a law lacks medical validity, will leave a bad precedent in place for those fighting the market cartels.

When Regulation Is Bad—Except for Abortion
[Bridgette Dunlap/The Atlantic]

(via Naked Capitalism)

(Image: Businessweek)