When Should We Cancel for Covid-19? A Family Email

by James J Heaney Posted on 13 March 2020

My parents, siblings, and kids normally get together every Sunday night for family dinner. Due to the covid (coronavirus) outbreak, which recently arrived in Minnesota, some of us have asked whether it’s time to suspend the meal and switch to a weekly Skype call instead. It’s a sensible question! It’s not at all obvious how to actually quantify and weigh the risk of family dinner. On Wednesday night (March 11th), I thought about it and wrote this in response. And then I thought that readers of this blog might find it useful, too, as you try to shape your own thinking about this.

Hey, all,

I don’t think we’re to the point where the risk is high enough to cancel Sunday dinner. Work — a gathering of hundreds or thousands of fellow employees and/or students — yeah, it’s probably time to empty work if we can. 

Let’s quantify this! Yes, let’s do my favorite thing: solve all problems with 9th-grade math!

TLDR: I think dinner should be on for this week. Next week probably, too. After that, pretty dicey.

Sunday dinner is at most nine people, usually just five, and the risk there is pretty low… especially if everybody at that dinner starts working from home. We can use this chart (especially the equation at the bottom!) to estimate risk.

In Minnesota, we right now have 5 diagnosed cases out of a population of (5.3 x 10^6). It’s safe to say that assume that are some undiagnosed cases circulating right now. Let’s say, somewhat pessimistically, that there are 10 such cases — covid carriers who are spreading the virus right now, but whom we haven’t found yet.* [SEE NOTE] Assume 6 people come to Sunday dinner (which is about average). If that dinner were held tonight, the risk that an infected person will attend the dinner is (1-(1-(10/5300000))^6) = 0.0011%. 

This estimate is likely high, because the 9 of us do not represent anything like a diverse cross-section of Minnesotans, and several of us are socially isolating. And note that this is an estimate of exposure, not transmission, much less death. But we’ll go with it, because better safe than sorry.

Bear in mind that any given American has a 0.01% chance of dying in a car crash in any given year, and a 0.04% chance of dying of accidental causes in general. So the odds that family dinner this Sunday will kill one of us are not quite “odds of getting struck by lightning” low (0.0002%, in case you were wondering), but they are pretty darn low.

I think we should suspend dinner when the chance of exposure goes above 0.05% — a 5-in-10,000 chance, which is about when I think most people start worrying about risks. Do some algebra and continue with the same assumption about circulation, and that implies we should stop having dinner when Minnesota passes 221 diagnosed cases.

Assuming the number of diagnosed cases continues to grow in Minnesota at the rate of about 33% per day — which is a consistent global pattern at this stage in the infection — then we will still be able to have Sunday dinner this coming Sunday (the 15th, when there will be ~15.6 diagnosed cases in Minnesota), and again on Sunday the 22nd (~115.2 cases). [Editor’s Note: See our post yesterday on how Minnesota’s coronavirus infections will grow in the next few weeks.]

By Sunday the 29th, we can expect to have ~850 diagnosed cases, and that is when we can expect to suspend Sunday dinner.

Reporting to work is quite a bit more dangerous. Assume ~6000 people on campus (be it [father’s workplace] or [siblings’ workplace]). Tomorrow, on these assumptions, there will be a 1.1% chance that someone on campus is already infected, aka 20 times the danger threshold I am proposing for family dinner. By Monday, that becomes 4.4%. 

By Monday the 30th (two weeks from now), the odds of someone on campus being infected would be about 72%. However, I expect all our campuses to be closed by then — except [family medical professional]’s, of course, which will be dealing with (on a per-capita basis) a Lombardy-scale crisis by then. Hopefully the Minnesotan health care system proves more up to the task than the wealthiest part of Italy’s.

We should obviously keep our eyes on the case count, since Minnesota could still take strident action to “flatten the curve,” and (happily) that would ruin all my dire predictions.

Love, Jamie

*NOTE: Out of everything in this letter, this is the part that makes me most nervous. How many cases are really circulating in Minnesota? I have no idea. “Double the diagnosed count” seemed like a comfortable number on Wednesday night, but tonight? I just don’t know.

It will be hard to speculate on the true case count until there’s a death; we have good estimates for the disease’s fatality rate (~1%) and doubling time (6 days), so we can work backwards from there. It appears to take roughly 16-24 days to die of COVID-19 after initial infection. Since the fatality rate is 1%, if 1 person dies, then you can reasonably guess that 99 other people had it at the same time, but recovered. Which means 100 people had it… 16 to 24 days ago. In the meantime, the virus, doubling every 6 days, has doubled in size 3-4 times. Which means there are actually now 800-1600 cases today… and 8-16 of them will be dying over the next several weeks.

In short, 1 death today = approximately 1200 cases today, probably, roughly, ish. More deaths can make that estimate more precise.

But Minnesota has no deaths yet, so we’re just guessing wildly. There could be 10 unidentified cases in circulation, like I speculated; there could be 100. With so little testing, it’s very hard to know!

(P.S. Thanks, Cate.)

UPDATE: Epidemiologist Trevor Bedford, who was the first to notice sustained community spread in Washington, suggests a “very rough” rate of 10 undetected infections for every 1 diagnosed case in the U.S. currently. That’s a good deal more pessimistic than I was in this email, and implies that there were, very roughly, 50 cases circulating in Minnesota on Wednesday, not 10. (And it’s up to 140 by now.)

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Expected Spread of Covid (Coronavirus) in Minnesota

by James J Heaney Posted on 13 March 2020

People keep asking me how bad this thing could get.

I don’t think it’s helpful to look at the national level, because there is no single national outbreak. There are a series of local outbreaks, each of which is currently in a different stage. Washington State, right now, is under serious strain right now, desperately trying to mitigate what has already become an out-of-control epidemic. Minnesota has several cases, but (supposedly) it is not yet spreading person-to-person here, so Minnesota is still trying to work on containment, delaying the start of a real outbreak. Alabama has no cases at all, so it’s simply in monitoring-and-preparation mode, hoping to recognize covid (and contain it, for a while) when it does finally show its face in Dixie. Unfortunately, Alabama cannot lend its hospital beds and nursing staff to Washington State; those resources are fixed in place.

So when I want to know how risky it is for me to go to church on Sunday, it’s not that helpful for me to look at the number of cases nationwide. Most of them are thousands of miles away from me. I want to know how many cases there are around here — and, more importantly, how many there will be a few days from now.

Something interesting: so far in the epidemic, diagnosed case counts have grown by approximately 33% daily, unless there is dramatic government intervention. Even more interesting, this has been fairly consistent at both the local and national levels.

For example: in the morning on March 2nd, the U.S. had 102 diagnosed coronavirus cases. Suppose you wanted to predict how many cases the U.S. would have in the morning today, March 12th. Assuming a 33% average daily growth rate, you would have pulled out your calculator and typed:

102 * ((1.33) ^ 10) = 1,766 cases expected by March 12th.

How many diagnosed cases did the U.S. actually have this morning? 1,697, off by 4%. Not bad, for an estimate made 10 days ago about a virus whose case count doubled four times.

Similarly, in the morning on March 4th, Seattle had 39 diagnosed cases. Assuming a daily 33% average growth rate, how many would Seattle have eight days later, on March 12th?

39 * ((1.33) ^ 8) = 381

How many did they actually have? 366, again off by 4%.

I played around with this looking at recent historical data for Italy, and Colorado as well, and it did pretty well. 33% growth per day has been a pretty decent average. Sometimes the estimate went a bit high, sometimes a bit low, but it was always fairly close to the truth.

I’m not really sure why this works so well. These are only diagnosed cases, and our testing regime is very bad right now, so we are certainly lagging the actual progress of the disease. At times, diagnosed cases may only be a fraction of real cases. (We saw that in Wuhan, although they eventually caught up.) So I wouldn’t expect to see the diagnosed case count grow so smoothly. But, hey, it does, and I’ll take it.

What I want to know is how bad it’s going to get in Minnesota.

This is only an estimate, and not a very smart one. It doesn’t account for any specific factors on the ground, community spread vs. imported infections, etc. And it only predicts diagnosed cases; there are likely many more undiagnosed cases, and we won’t really know how many until we start having people die of it. Yet I’m going to stick with this formula, since it has proven fairly good at predicting the future, and I don’t have anything more sophisticated at hand.

As of dawn on Friday, March 13th (oof, Friday the 13th, I just noticed that), we will have 9 diagnosed cases in Minnesota. (That’s not an estimate, that’s a news report.)

By dawn the following day, March 14th, assuming a 33% growth rate on average, we can estimate that Minnesota will have approximately 12 diagnosed cases.

By Sunday, March 15th, we can estimate 16 diagnosed cases.

By Wednesday, March 18th: 37 diagnosed cases.

By Sunday, March 22nd: 117 cases.

By Wednesday, March 25th: 276 cases.

By Sunday, March 29th: 863 cases.

By Wednesday, April 1st: 2,030 diagnosed cases.

By Sunday, April 5th (Happy First Contact Day):, 6,351 cases.

By Wednesday, April 8th: 14,941 cases.

By Sunday, April 12th: 46,751 cases… approximately 1,589 of whom will die.

By Monday, April 20th, we arrive at 450,000 diagnosed cases.

The day after that, the total number of cases exceeds 10% of the state’s population. At that point, the virus will naturally begin to slow down, because enough of the population will have developed immunity (or died) to start to grant herd immunity. Covid won’t actually stop, of course, but it will no longer grow on a 33% daily curve. A statistically significant chunk of Minnesota’s over-60 population will already be dead or dying, but the deaths won’t stop for some time after.

That’s where we are headed right now, on our current trajectory. 9 (known) cases today turns into tens of thousands in a matter of weeks. That’s exactly what happened in Italy.

There appear to be three ways to prevent this exponential growth in case counts from happening:

  1. Stop testing. Can’t have diagnosed cases if you don’t try to diagnose! This won’t reduce the case load or the fatality rate, and actually will make things much worse and kill lots of people needlessly… but it will make your numbers look good, so there’s that.
  2. Wait until the virus burns itself out (basically, until so many people have been infected that it can’t infect enough new patients to remain an epidemic) and hope that it burns out much faster than other flu-like diseases. Maybe you’ll get lucky, and Minnesota’s wet, warming climate means that the infection rate will start to fall long before late April! There seems to be no reason to believe this will happen, but it COULD!
  3. Impose and support major restrictions on the movement and gathering of human beings in Minnesota. Ban parades, ban sports, close schools (perhaps leaving them partially open, on a skeleton-crew basis, solely for the children of health care workers who have nowhere else to put them), cancel concerts, require businesses to support telecommuting and/or provide paid time off. Shut. Down. Everything.

Iran has tried option (1), and it’s working out pretty well for them. Although a number of senior officials have died and they’re currently digging mass graves, their official numbers aren’t growing quite as fast as you’d expect them to grow if they were doing honest testing and reporting. And that’s the goal of option (1), so it’s working as intended.

Italy tried option (2), but chickened out completely after their medical system collapsed under the strain of patients flooding every bed and corridor in their hospitals, with doctors forced to use scarce resources to treat the young while leaving the elderly to die. They are now trying option (3), locking down the entire country, like a bunch of boring mcboringstans… but it’s probably too late for option (3) to stop the mass casualties for at least a couple more weeks.

Who knows? Maybe we could try option (2) ourselves, and we’ll have better luck than Italy. We have absolutely no reason to believe we’ll do any better, but it’s a chaotic world! Who knows?

There are four countries on Earth that have successfully beaten back the exponential growth of covid. They are all still seeing cases on a daily basis, but they are not having huge numbers of cases coming in all at once and crushing their medical systems. Those countries are: South Korea, Japan, China (after the initial calamity in Hubei province), and Singapore. At the moment, it looks like they are all going to get through this relatively okay.

By a truly bizarre coincidence, all four of these countries adopted the same strategy to fight covid. That’s right! They all chose option (3)! They shut down their cities, ordered widespread testing, closed the schools, and cancelled everything. And, after each country did this, cases started to fall almost immediately!

Thomas Pueyo goes into a lot of depth about how this worked in his article from earlier this week, “Why You Must Act Now.” I wouldn’t trust every number in his post — some of his speculation about the “true” number of cases in any given community is a little wild, and the “model” he offers at the end is a bit high-strung as a result, but his basic point is sound: the sooner these countries imposed social distancing, the more lives were saved, and the difference was drastic.

They might be on to something!

So consider this post a prediction. If Minnesota takes no real action to combat covid, expect over a hundred thousand cases in a little over a month.

If Minnesota does take real action, then you can look at this post instead as a kind of alternate universe. Every time you miss out on something you were looking forward to doing, you can look at this post, compare my predicted case count with whatever the actual case count is that day, and thank God and your fellow Minnesotans for moving Heaven and Earth to spare us from that.

Happily, there are signs that Minnesota will indeed take appropriate measures. Several local colleges are going online-only, the Archdiocese has dispensed everyone from the requirement to attend Sunday Mass, and locals seem to be stocking up for impending social isolation appropriately.

Don’t panic. This isn’t the end of the world. It’s not like that movie Contagion, where most of the infected died. Covid likely kills a little less than 1% of its victims, most of them elderly. Many more than that are left with permanent scars of one form or another. But we will get through this, just as humans have got through every other epidemic in history. And our forefathers didn’t have Hulu. Or indoor plumbing.

Don’t pretend. This isn’t a run-of-the-mill flu pandemic. Stop imagining it is. It’s likely the most serious health threat the human race has faced since the Spanish flu almost exactly a century ago. The fact that bodies aren’t stacked like cordwood outside hospitals doesn’t mean covid is a hoax; it simply means that covid hasn’t taken root in your community yet. Again, look at those mass graves in Iran. (I’ll be writing more about this tomorrow / later today.)

Do prepare. If you’re in Minnesota, it’s time to start working from home if you can. I hope you did the sensible thing and stocked up on essentials over the past few weeks; if not, there’s still time. (However, please DO NOT buy masks — health care workers need them much much much much much more than you do.) Stop going out for non-essential activities. Don’t gather with large numbers of people. Take care of yourself and those around you, especially the elderly. Do your part, and we’re that much closer to “bending the curve” and preventing the awful predictions in this post from coming true.

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Political Disruption Due to Novel Coronavirus

by James J Heaney Posted on 5 March 2020

Assume that these “consensus” projections for covid (aka “novel coronavirus”) are correct:

  • This report’s fatality rates by age (Table 1) end up being more or less accurate — particularly the high fatality rates for people age 70+.

These are both large assumptions. Covid might not be this bad. Or it might be worse. The first assumption arguably conflicts with the second. There’s still so much we don’t know or aren’t sure of.

If these assumptions are true, though, and all else is held equal (another huge assumption), a little back-of-the-envelope math shows:

  • There is a 1-in-5 chance that one of the five main candidates currently running for President of the United States will die of covid by the end of the year.
  • There is just about a 1-in-4 chance that one of the current justices on the U.S. Supreme Court will die of covid by the end of the year.
  • A little over a 1-in-3 chance that at least one of these things happens.
  • About a 1-in-20 chance that both will happen.

70-to-90 year olds dominate our key political institutions, and are also (according to that particular paper) roughly 50 times more vulnerable to coronavirus than 20-50 year olds. This has consequences.

(I don’t even want to think about running this math for all of Congress, which is chock full of old people. Mitch McConnell is 78. Nancy Pelosi is 79.)

This math is very naive, and ignores things like co-morbidity and celebrity-level health care… but (assuming the assumptions about covid are true) it’s in the ballpark. It stands to reason that folks should start pricing in at least some possibility of significant political disruption caused by the novel coronavirus.

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A Viewer’s Guide to Outcomes in June Medical Services v. Gee

by James J Heaney Posted on 4 March 2020

Tomorrow, the Supreme Court will hear the first significant abortion case since Justices Kavanaugh and Gorsuch joined the Court. You can read a lot of great analysis about it at SCOTUSBlog, including a symposium article by my friend and brilliant lawyer Teresa Collett.

This blog will simply attempt to describe the range of plausible outcomes in June Medical Services v. Russo (known until quite recently as June Medical Services v. Gee). After tomorrow’s oral arguments, we will have a much clearer idea of where the Court is heading. The pro-choice mainstream media will scream in horror at the top of its lungs under all plausible outcomes. The headline “The End of Roe is Nigh” will appear regardless of whether the end of Roe is, in fact, nigh. I want to post a few insights about the case now to help you set expectations and put the media’s forthcoming tantrum in perspective.

June v. Gee revolves around a series of medical regulations the state of Louisiana has imposed on abortion clinics. (Interestingly, the regulations were imposed in large part by Louisiana’s strong contingent of pro-life Democrats, God bless ’em.) These regulations are in many ways similar to regulations imposed by Texas several years ago. The Supreme Court struck down the Texas regulations in the 2016 case Whole Women’s Health v. Hellerstedt.

Hellerstedt was a 5-3 decision, with Justice Scalia absent (due to being dead). Leftist justices voted to strike down the regulations; right-wing justices voted to uphold them. Justice Kennedy cast the deciding vote and sided with the left-wingers.

But Scalia and Kennedy have both been replaced with conservative justices. Meanwhile, the 5th Circuit Court of Appeals has ruled that the Louisiana regulations are actually not that close to the Texas regulations and shouldn’t be affected by Hellerstedt.

What will the new Supreme Court do? Will they accept Hellerstedt as settled precedent? If they do, will they hold the new regulations should also be struck down, or are they different enough to be upheld? Will they finally act to minimize (or eliminate) the demented precedents of Roe v. Wade and Planned Parenthood v. Casey? Will they try and wriggle out of the whole question on a technicality, and both sides live to fight another day? Have pro-lifers finally succeeded in restoring the Supreme Court to correct constitutional rulings on abortion… or were all those votes for pro-life presidents and senators over the past twenty-five years ultimately in vain?

There are a few plausible possibilities:

REGULATIONS STRUCK DOWN (DEFEAT): In this outcome, the pro-lifers lose. This would be pretty bad. First, it would foreclose a huge area of legislation that pro-lifers have used to protect human life (unborn and born). Second, it would be a strong indication that the Court will be unwilling to consider more aggressively pro-life laws, like the heartbeat laws passed in several states, and even fairly routine medical regulations will be subject to years-long judicial review by partisan judges before coming into effect. Third, for the Louisiana regulations to be struck down, the Court would have to reaffirm Hellerstedt, a narrowly decided precedent from just a few years ago — a far weaker precedent than Roe itself. That would mean that, fundamentally, nothing has changed on the Supreme Court with Justice Kennedy’s departure. Abortion would still be an unlimited constitutional right trampling over state laws and regulations of all kinds, and there’d be not a damn thing we can do about it short of revolution. The past twenty-five years of pro-life campaigning to rescue the judiciary would have all been for nought.

I don’t think it’s especially likely the regulations will be struck down like this, but pro-lifers have been burned before: nobody expected Planned Parenthood v. Casey to loudly reaffirm abortion rights, either, but that’s exactly what happened. Justice Kavanaugh’s judicial philosophy remains unclear to me, and everyone should be nervous about Justice Robert’s deep desire to preserve so-called “respect for the Court” among a left-wing press that holds him in complete contempt regardless. I’m nervous about this outcome.

This is the only outcome where the media won’t completely freak out, although they will still write Very Very Angry pieces about how horrible it is the the Court, in upholding Hellerstedt, failed to actually affirm the so-called constitutional right to an abortion.

REGULATIONS UPHELD BUT HELLERSTEDT PRESERVED (MINOR VICTORY): The Court could do what the Fifth Circuit did: obey the Hellerstedt precedent (keeping it on the books) but in a really narrow way (making it much less of an obstacle to pro-life regulations). This would give states considerable flexibility to regulate abortion clinics while allowing the Court to say that they respect precedent. Personally, I think this is the one of the most likely outcomes, because it’s one of Justice Roberts’ very favorite moves, especially if he can bring over a vote from the other side to support him.

And, you know what? It’s an okay outcome. Not great, because it signals they are still too concerned about political considerations to actually uphold the Constitution. Also not great, because the Hellerstedt precedent involves a laborious and highly subjective legal test, which will be applied by ideological judges on both sides every single time a clinic regulation is passed… but, still, upholding the Louisiana regulations should give states a free hand to regulate abortion clinics (many of which cannot survive adequate medical regulation), and suggests at least the possibility that the judiciary will allow cautious, well-considered moves toward other abortion restrictions.

The media will completely freak out if this happens, but it will be mostly hype. A small victory for pro-lifers that enables us to sometimes enact broadly popular measures like the Louisiana regulations will continue things on their current trend (clinic closures are up, abortions are down), but won’t fundamentally alter the trajectory of the American abortion debate. The media is just used to the Left controlling the Court, as it did for the entire period between 1938 and 2018, and is taking the transition very badly.

DISMISSED FOR LACK OF STANDING (BACKDOOR VICTORY): Pro-lifers have advanced the very interesting argument that the plaintiffs in this case (abortion clinics who are suing on behalf of the women they serve) do not have legal standing to sue over this regulation, because the interests of the clinics and the interests of the women they’re supposedly representing are too divergent. (And women who oppose the regulations could just file lawsuits themselves.) If the Supreme Court agrees, the case would be dismissed without ruling on the underlying question of whether Hellerstedt was correct. The Louisiana laws would be upheld by default… although some individual Louisiana woman (or women) could file a future lawsuit, sending the case through the entire court system all over again. (This case was originally filed in August 2014, so… see you in six years!)

It would not be a bad outcome for pro-lifers, though, because abortion clinics have used the “we are suing on behalf of women” excuse to challenge every abortion law we’ve passed in every state for thirty years, bringing their massive reserves of cash and organization to bear on our ragtag movement. Forcing them to at least recruit actual clients who are actually able to claim some kind of legally cognizable injury from abortion regulations could make suing against every pro-life law a bit less legally feasible. And it is sort of weird that abortion clinics seem to be an exception to regular court rules about standing. Still… while many pro-lifers are cheering for this outcome, it doesn’t seem worth it to me, when, really, Hellerstedt needs to go.

I think there’s a very good chance of this outcome. It’s probably the most likely outcome. Roberts will be looking for an out on this case (as discussed above). He may be able to win somebody on the other side over to this opinion, maybe Kagan, therefore showing a bipartisan consensus, which he loves. And pro-lifers are actively campaigning for this in recent legal briefs, so it won’t be interpreted as a betrayal the way either of the lesser outcomes would be.

The media will moderately freak out if this happens, but it will be mostly hype, and they’ll be mostly too confused about the implications to really let loose about it.

(UPDATE: A lawyer friend of mine, whom I greatly respect, and who is routinely involved in national abortion litigation (including before the Supreme Court), thinks I am underselling the effect of this outcome. If clinics don’t have standing, certain kinds of regulations, including these regulations, could become very difficult or even impossible to sue against, because few/no individual mothers would have standing. The Obama Administration used this “nobody has standing” trick a few times to violate the Constitution, as in the suspension of the employer mandate, so it would be nice to see this used to prevent constitutional shenanigans in the judiciary for once. She spoke of other benefits to the pro-life legal movement as well. I’m still getting a handle on what exactly this outcome would mean, but I trust this friend implicitly. A backdoor win on standing might be terrific.)

HELLERSTEDT OVERTURNED (MAJOR VICTORY): As I’ve mentioned, the Court ruled 5-4 in Hellerstedt (technically 5-3 because Scalia died) to strike down clinic regulations. The 5th vote was Kennedy. Roberts strongly opposed the decision at the time, and he joined a scathing dissent.

Kennedy is gone now. If Kavanaugh is the man we think he is based on his lower-court opinions, and Roberts isn’t a coward who abandons his own published opinions, they really should overturn Hellerstedt. Under any reasonable analysis of stare decisis, Hellerstedt just doesn’t have many of the elements that make it a strong precedent, so even fear of overturning precedent shouldn’t hold Roberts and Kavanaugh back.

Practically speaking, overturning Hellerstedt would not just deliver a victory to women and children in Louisiana; it would also make it much easier for other states to pass these medical regulations on abortion clinics, without fear of a court striking them down. It would signal to pro-life activists that the Court is willing to reconsider and overturn various non-Roe abortion precedents. That would encourage states across the country to pass new legislation finding new ways to push the envelope, eventually undermining Roe and Casey to the point where it becomes “unworkable” and they’re overturned, maybe ten or fifteen years from now. So this wouldn’t be the perfect outcome, but it would be very good.

It had better be! It’s why our side put President Trump in office, and God knows the cost of doing that has been terribly high. Based on Kavanaugh’s testimony about precedent in his hearings (before the rape allegation consumed everyone’s attention), I think this is how he would like to approach it. I don’t think Kavanaugh is opposed to overturning Roe, but he wants to build a lengthy judicial line of contrary precedents before finally acknowledging Roe‘s incompatibility with the Constitution. So I consider this the last of the three most likely outcomes, and the only one I would be really, really happy with.

If this happens, the media will completely freak out, with some justification. They’ll call it the imminent end of Roe, when really it’s more like pro-lifers have finally found the first chink in Roe‘s judicial armor plating since we won Gonzales v. Carhart 13 years ago. (The media had a nice solid freak out about that, too… but here we are, it’s 2020, and Roe is still on the books.) It will adjust the trajectory in the abortion wars in favor of life, but only modestly… at least for now.

CASEY OVERTURNED (DECISIVE VICTORY): The Court could go further than overturning Hellerstedt. Hellerstedt is built on Casey, the 1992 precedent that made “undue burden” the standard by which all abortion regulations are judged. It would not be shocking for the Court to revisit Casey, 27 years later, and modify its central holdings. The “undue burden” standard has repeatedly proven vague and unworkable for an entire generation now, with courts swinging back and forth on its meaning based on their partisan makeup, and that’s the kind of thing that ordinarily invites Supreme Court re-review (at least outside the bizarro world of abortion law).

Casey is the worst Supreme Court decision of all time (as Michael Stokes Paulsen has correctly argued elsewhere), so it’d be great to see it gone. Killing off Casey and imposing some new set of rules on abortion would be incredible, and, depending on what the new rules are, it might be effectively the same thing as killing off Roe without the Court actually admitting that’s what they’re doing. This is probably the best we can reasonably hope for from Roberts and Kavanaugh… but, again, depending on how they write the opinion, they could use this to kill Roe in all but name, so we wouldn’t really have anything to complain about.

ROE OVERTURNED (TOTAL VICTORY): Obviously, the Holy Grail. In this outcome, the Supreme Court just comes out and admits what we’ve all known, on all sides, since 1973: there is no constitutional right to abortion. Harry Blackmun made the whole thing up. Abortion would be thrown entirely back to the states, and all of a sudden the pro-life movement, having won a great victory, is thrown into battle on 50 different state fronts, in a huge variety of ways. (After all, those states with heartbeat bills and trigger bans on the books suddenly have no abortion — do they have enough crisis pregnancy centers to take care of the sudden surge in mothers with crisis pregnancies?)

For either of these last two outcomes, the media freakout would be justified. The media in this country is deeply committed to the constitutional right to a dead child, and overturning either Roe or (depending on how it’s done) Casey would effectively end that supposed right. (States could still protect it, and many would.)

This honestly could happen. It’s certainly not likely, I don’t even think it’s wise to get your hopes up… but it could. Indeed, I guarantee you that Justice Thomas will write an opinion calling for the end of Roe regardless of the outcome. I will bet you five dollars that that opinion is joined by both Alito and Gorsuch. That’s 3 votes to kill Roe in your pocket. But you need 5 for a majority.

Roberts is a sane man who knows that Roe is bad law, but he’s also intensely anti-confrontational and intensely worried about the Court’s prestige. And Kavanaugh is still something of an unknown quantity. So I am not holding my breath in hopes that June Medical Services v. Gee will herald the end of Roe. I’m hoping for — and expecting — a modest victory that helps us push the battle for unborn rights another step forward. But you shouldn’t be caught entirely flat-footed if, next June, Roe v. Wade suddenly falls on the ash heap of history where it belongs.

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A Bye-Ku for Amy Klobuchar, Thank Heaven

by James J Heaney Posted on 3 March 2020

A Bye-Ku for Amy Klobuchar

A 2020 guest series by Anne Maloney, inspired by James Taranto.

Minnesota Nice?
“Nope,” say staff and black Dems; back
To eating with combs.

Amy’s final rally was taken over by a BLM protest. Finally, Minnesotans who aren’t inexplicably enthralled by Amy.
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A Bye-Ku for Pete Buttigieg

by James J Heaney Posted on 3 March 2020

A Bye-Ku for Pete Buttigieg

A 2020 guest series by Anne Maloney, inspired by James Taranto.

Gay dude in White House?
Not this year, say Dems to Pete.
Dysarthrians Glad.

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Thomas Abjures Brand X

by James J Heaney Posted on 24 February 2020

I have written in recent years about the importance of net neutrality. Specifically, I have noted that net neutrality is legally mandated by the plain terms of the Telecommunications Act of 1996, and that the only reason it isn’t treated that way is because of a bizarre 2003 Supreme Court decision that allowed the unelected FCC to override Congress on a technicality.

That decision was called NCTA v. Brand X. Justice Scalia authored the scathing dissent, joining liberal Justices Ginsburg and Souter. The majority opinion was authored by Justice Thomas, who was joined by a number of justices who no longer sit on the Supreme Court. Thomas is ordinarily the soundest justice. However, when he and Scalia opposed each other, Scalia sometimes had the better of the argument. That’s what happened here: Scalia was right on. The FCC’s position was absurd.

It is difficult to overstate how important Brand X is to the FCC’s recent attempt to end net neutrality. The official “Restoring Internet Freedom” order provides legal justification for its decision between pages 10 and 40, and you can largely boil it down to “nannie-nannie poo poo Brand X says we can.” The ongoing court case about net neutrality has boiled down to judges saying, “Yeah, this isn’t following the law of Congress, but Brand X requires us to allow it anyway.” (That is a paraphrase.)

Justice Gorsuch has long been the biggest critic of Brand X on the federal courts. I wrote about this when he was nominated for the Supreme Court. But Gorsuch was replacing Scalia, who also opposed Brand X, so it didn’t change the balance of the court. Kennedy and Thomas still supported Brand X, while Gorsuch/Scalia and Ginsburg opposed it.

So it’s kind of a big deal that, today, Justice Thomas took time to write separately, in a routine cert-denial order, that Brand X, a decision he authored, was completely wrong and should be overturned. His dissent begins on page 49 of this document, and quickly gets to the meat:

Although I authored Brand X, “it is never too late to ‘surrende[r] former views to a better considered position.’” Brand X appears to be inconsistent with the Constitution, the Administrative Procedure Act (APA), and traditional tools of statutory interpretation. Because I would revisit Brand X, I respectfully dissent from the denial of certiorari.

And that’s just in the opening! The whole thing runs 11 pages.

We now know that there are 3 votes on the Supreme Court to overturn Brand X: Thomas, Gorsuch, and, if she hasn’t changed her views since her original dissent, Ginsburg. We know of zero votes in favor of keeping it. (Kennedy retired in 2018.)

Unfortunately, the Court turned aside an invitation to kill Brand X today; Justice Thomas was writing to encourage the Court to hear Baldwin v. United States, which directly targeted Brand X, and the Court refused. This may mean that the Court overall still supports Brand X, but I consider it more likely that the Court is awaiting a more suitable vehicle for interrogating it, potentially the net neutrality case itself.

Although we can’t know what will happen next, net neutrality supporters have good reason to take heart from Justice Thomas’s change of mind today. The net neutrality case, Mozilla v. FCC, was denied rehearing just a couple weeks ago, which opens Mozilla’s path to appeal to the Supreme Court.

Fingers crossed, folks.

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