Heartbeat of the matter: Texas’s draconian abortion law

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Hello and welcome to the Intelligence from the Economist. I'm your host Jason Palmer. Every weekday we provide a fresh perspective on the events shaping your world. In some states in Brazil, police killings account for a third of all homicides. Our correspondent visits the site of a recent raid that resulted in 27 deaths, finding that the law seems anything but colorblind. And olive oil used to be a universal in Lebanese cuisine. But the swings of the country's currency have entrenched imported vegetable oil. We look into the push to revive Lebanon's love affair with its olives and to share their oil with the world. First up, though.

It'S called a heartbeat bill, but that's really a misnomer.

Stephen Mazzy is our Supreme Court correspondent.

At six weeks, there is no heart in the pomegranate seed sized fetus. There is, however, an electrical impulse that an ultrasound machine can pick up and that in Texas is now the trigger for when abortion is banned. The there is no exception for incest or for rape.

Last week, the Supreme Court allowed legislation in Texas to stand the most restrictive abortion law in America. It's far beyond the boundaries of the landmark 1973 judgment of Roe v. Wade.

And later decisions that say abortion for any reason should be accessible to women until the fetus is viable, which is at about 24 weeks courts have previously.

Blocked these heartbeat bills before they could even be implemented.

But Texas law is now very much in force, and it's the most draconian in the country.

Since the presidency of Donald Trump put three conservative judges on the court, the fate of that foundational Roe vs. Wade decision has been in doubt. The court is due to hear a case on a Mississippi law later this year that restricts terminations after 15 weeks. So its sudden blessing of the far more restrictive Texas law was as surprising as its acceptance of the unique way it'll be upheld.

Most criminal laws are enforced by the state. Not so with this Texas law, which outs resources enforcement to anyone who sees people, quote, aiding or abetting an abortion in the state.

Any bystander can sue those aiders and abettors for damages of $10,000. And they could be almost anyone.

Well, healthcare providers, of course, the ones performing abortions, but also anyone who helps to pay for the abortion. Drive a woman to a clinic or even clergy.

It's a gambit designed to insulate the law from preemptive court judgments. On signing the bill, Texas governor Greg Abbott praised the legislature's work.

Our creator endowed us with the right to life, and yet millions of children lose their right to life every year because of abortion. In Texas, we work to save those lives.

But President Joe Biden worried about the implications of its means of enforcement.

The most pernicious thing about the Texas.

Law, it sort of creates a vigilante system where people get rewards. And it just seems. I know this sounds ridiculous, almost un American.

The court's decision, even on a slim 5 to 4 margin, is a powerful signal that abortion rights thought to have been enshrined under Roe v. Wade are in danger. And as Stephen Mazzy says, it's a signal that states will do quite some legal wrangling to get around them.

The court admitted with an understatement that there are, quote, serious questions regarding the constitutionality of the Texas law, unquote. But it said, basically, sorry, there's nothing we can do about it to block it at this point. And that's due to the special kind of finagling the Texas legislature undertook to craft an enforcement mechanism for the law. So the Supreme Court said the clinics challenging the law have not necessarily identified proper defendants. We therefore don't have enough to go on to block the law.

Well, it was a 5 to 4 decision. What did the justices in the minority say, Jason?

They said quite a lot. Each of the four dissenting justices filed an opinion. Stephen Breyer warned of imminent and serious harm, which seems accurate as clinics immediately stopped providing abortions to most women. In a Fort Worth clinic on September 1, 50 of 55 women seeking care were turned away. The most bracing dissent came from Sonia Sotomayor, who said the majority had opted to bury their heads in the sand in blessing what she called a flagrantly unconstitutional law. And even Chief Justice John Roberts, a conservative who is no fan of abortion but saw this law as unprecedented, said it was worthy of at least preliminary judicial consideration.

But in the meantime, do you think other states will move to copy this law?

It sure looks like it. Officials in at least seven states are talking about introducing similar laws. The governor of South Dakota, Christine Noem, has told her attorneys to review the new Texas law and current South Dakota laws to make sure we have the strongest pro life laws on the books in South Dakota. Florida Governor Ron DeSantis has also made positive noises. Well, we've been able to do pro life legislation. I'm pro life. I welcome pro life legislation. So. So we'll have to look. I'm going to look more significantly at it. And Arkansas state senator has shared a fill in the blank template law to limit abortion rights.

How have pro choice advocates responded to all this?

Furiously and with great alarm. White House press secretary Jen Psaki the other day was particularly fiery in defending the president's position to a reporter.

He believes that it's up to a woman to make those decisions and up to a woman to make those decisions with her doctor. I know you've never faced those choices, nor have you ever been pregnant. But for women out there who have faced those choices, this is an incredibly difficult thing. President believes their rights should be respected. Go ahead.

Pro choice advocates do have a couple of tools in their arsenal. First, there's the prospect of Congress doing something. Nancy Pelosi has said the House would vote to bring a right to an abortion into federal law. Codifying the right is, however, easier said than done given the filibuster rule in the Senate. And a lot of people worry that this approach would again fall victim to the conservative supermajority on the Supreme Court, which might say that passing this law would exceed Congress's power under the commerce clause of the Constitution. So second possibility is that as hard as they are to litigate, lawsuits against the Texas law are continuing and they have a chance of bearing fruit. Over the weekend, one state court did issue a temporary restraining order stopping one anti abortion group from suing Planned Parenthood clinics. The trouble is there are still many, many other potential plaintiffs. So clinics may be deterred from violating the law. Also, lawsuits take time. In the months or even years they take to litigate, thousands of women in Texas will have been denied their constitutional rights.

And as for the enforcement structure here, this vigilante bounty hunter method, what do you make of it?

The structure has the feel of something masterminded by a nefarious genius. It is the handiwork of a 45 year old law professor named Jonathan Mitchell who clerked for Justice Antonin's Scalia. And so it may take an equal and opposite bout of legal creativity to overcome that gambit. Over the weekend, Lawrence Tribe of Harvard Law School proposed that the Department of Justice use the federal Ku Klux Klan act from 1871 to prosecute any potential bounty hunters suing under the Texas law under the theory that these individuals are setting out to deprive Americans of their rights under the Constitution. So there's a possibility. Roberts and some other conservatives are worried that the same approach strategy could backfire if used to quash other constitutional rights in Democratic states. What if New York or California, for instance, banned handguns and empowered citizens to sue anyone who helped people buy guns?

But coming back to the general question of abortion rights in America, what do you think all this tells you about where things are headed?

Well, we knew Roe vs Wade was going to come under increasing pressure with three new Supreme Court justices installed by Donald Trump, but it's remarkable how quickly it's happening. Before we've even come to the one year anniversary of Justice Ruth Bader Ginsburg's death, five members of the court have allowed 7 million women to have their rights suspended. While Roe versus Wade is still on the books, it does remain to be seen how the court handles abortion rights when it more fully addresses the question on their regular schedule. In a case this fall involving a 15 week ban in Mississippi, if the court scraps Roe, many states have trigger laws which would almost immediately outlaw all abortions within their borders. But the picture for reproductive rights overall is not very bright. 90 restrictions have come into force in the first six months of 2021. Six states have only one clinic left in some women have to travel hundreds of miles to find a clinic. So even if Roe did miraculously remain untouched, it will still be very tough for many women to get in a in this country. The midnight order last week is an ominous sign of how much the current Supreme Court values a nearly 50 year old precedent protecting a woman's right to control her pregnancy.

Stephen, thank you very much for joining us.

Thanks, Jason.

At dawn on May 6, residents of Jacarezinho, a favela in Rio de Janeiro, awoke to the sound of helicopters and gunfire. During an operation against drug traffickers. Police officers broke down the doors of homes and opened fire. Ten hours later, 28 people were dead, nearly all of them black men. It was the deadliest police raid in the state's history. The killings sparked anger in the streets. Protesters complained of the police's brutality and disregard for human life, especially Black lives. Between 2013 and 2020, police killings in Brazil tripled. In some states, they now count for around a third of all homicides.

I recently spent some time in Jacquesinho, the favela in Rio where the raid took place in May.

Sarah Maslin is our Brazil correspondent.

Its nickname is Rio's blackest favela because, like many favelas, it was originally a haven for former slaves who were too poor to live anywhere else. They built these informal settlements on the hills, and because it's so crowded, homes are packed like Lego bricks, and people expand upward instead of outward, building one floor after another. But there's no proper sewage system. A lot of people are out of work. And throughout the favela, there are open air drug markets guarded by teenagers with AK47s. When I visited, people were out and about doing shopping, and there was really little sign of this raid except graffiti to commemorate the victims and bullet holes on a lot of the walls.

And tell me more about that raid. What was the purpose and how did it end up being so deadly?

Well, according to the police, the goal was to arrest 21 people suspected of recruiting minors to drug gangs. But in the end, they only arrested six people and killed 27. One of the people who died was a police officer. Most of their victims were not on the suspect list. Some were minors themselves, and it really looked like a revenge operation. After the officer was killed by drug traffickers early in the raid, the police declared it a success, as if there was nothing out of the ordinary. And I mean, really. In Brazil, the police's encounters with favelas consist mostly of military like operations with heavy weapons and hundreds of men.

So these kinds of raids, these kinds of spates of killings, are not uncommon.

Yeah, the numbers are really staggering. In 2019, Brazilian police killed more than 6,000 people. And for comparison, in the same year, police in the US killed about 1,000 people. And just like in the US police violence disproportionately affects black people. Eight out of 10 Brazilians killed by the police are negro, which is the term that combines preto, black, and pardo. Meaning brown or mixed. Innocent people get caught up in these kinds of police raids all the time. In the past five years, eight children under the age of 12 were killed during police operations in Rio. And in Jacarezinho, I met a young accountant named Mariana dipaola, whose childhood friend was killed by a stray bullet. A month after the raid, Mariana told me that her friend Cathlini was 24 years old and 14 weeks pregnant. With a degree from interior design school and a new flat in a safer part of Rio. She returned to a favela near Jacque Resinho to visit her grandmother, when, according to witnesses, she was shot by the police.

And what do Brazilians more broadly make of this level of police violence?

Well, like much of Brazil, Rio de Janeiro is very divided. On the one hand, you have the rich, predominantly white neighborhoods. You see on postcards places like Ipanema and Copacabana. And then on the other hand, you have the mostly black favelas, where poverty and violence go hand in hand and where these kinds of raids take place. A lot of upper and middle class Brazilians see police killings in poorer neighborhoods as a natural response to the overall violence in Brazil. For example, I interviewed the head of Ipanema's residents association, And he told me he couldn't say if what happened in Jacquesinho was right or wrong. But he emphasized that drug traffickers there are heavily armed and said, you can't go in there with roses. He also said something else you often hear in Brazil, Which is that racism doesn't exist here. There's no such thing in Brazil. This argument is based on an idea that's been around since the 1930s, when a famous sociologist said that because Brazil didn't have formal segregation laws after the end of slavery or laws against interracial marriage, it's a racial democracy where everyone is equal. But the statistics show that it's really impossible not to talk about race. Black Brazilians are 56% of Brazil's population, but 70% of the poor. White Brazilians earn almost twice as much as black ones do. And the statistics on police violence, of course, show that it's mostly black people who are dying.

And whether or not all this violence is actually racially motivated, is there accountability for it?

No, not much at all. A study in 2008 found that 99% of cases against Rio police officers are dismissed without charges, often without even a serious investigation. And not much has changed since then. In the Jacque Resino case, the police sealed the internal investigation for five years. So we really don't know anything about it.

So it sounds as if there's a lot of, well, resignation to this in some cases, indifference in others. Is there no pushback against this growing problem?

We're starting to see a lot more pushback, thanks partly to social media and also because Black Lives Matter protests in America have cast a spotlight recently on racism in Brazil. Still, though, I spoke to a human rights lawyer named Tiago Amparo who said that Brazil is quite a ways behind the level of organization and activism that you see in the U.S. first of.

All, I think it's racism that motivates.

That those lives simply do not matter.

And also that makes for the society at large also something that we can live with.

Brazilian societies has normalized the idea of.

This kind of policing against specifically black bodies.

A longtime activist who I met in Jacquesinho, a man named Jumba Gabriel, made a similar point. He said that in the US People killed by the police have a name. We know now that George Floyd was killed, but in Brazil, it's still just numbers. 28 in Jacquesinho.

Sarah, thank you very much for joining us.

Thanks a lot, Jason.

I recently visited an olive grove in a town called Basir, which is a small town just south of Beirut in Lebanon. And while I was there, I took part in an olive oil tasting session.

Margaret Khedifa writes about foreign affairs for the Economist. And then you have to have a taste.

Ibrahim El Kakour was an engineer, but four years ago he moved back to his family's olive farm and he decided to reinvigorate their olive groves and he launched his own olive oil company called Genco Olive Oil.

So you tried the extra virginal ones.

And we have six infused olive oils.

Olive oil used to be this key ingredient in Lebanese cuisine, but now locals don't use it all that much. And actually today the average Lebanese person consumes just a tenth of the olive oil that the average Spanish person consumes. But there's a few makers like Ibrahim that are trying to revive the industry.

So why is it that locals aren't using as much of it?

So a lot of Lebanese have replaced olive oil in their cooking with vegetable oil that's imported. Until recently, it was actually cheaper to to use imported vegetable oil than it was to use locally grown olive oil. And that's because the Lebanese pound was overvalued, so it made imports artificially inexpensive. On top of that, with the pandemic, a lot of the restaurants in Lebanon have closed. And those restaurants were kind of some of the big local buyers of high end Extra virgin olive oils. Now, this hasn't entirely discouraged people like Ibrahim. He actually has a bigger goal, and that is to export a really high end extra virgin olive oil internationally rather than try to sell it at home.

And what chance do you think that producers like Ibrahim have at doing that and breaking into the international market?

So they're hoping to build off of the model of Lebanese wine. Before the 1970s, not a whole lot of Lebanese wine was exported. But during the country's civil war, which started in 1975, a local producer started blending reds and selling them abroad. And that brand really took off after one of the reds got acclaim at the Bristol wine Fair in 1979. Today, about half of Lebanon's wine is exported. And there are beautiful family owned boutique wineries all over the country. So the idea is that if they can create a high end Lebanese olive oil that can also be exported, perhaps they can use wine as a roadmap to get there.

But it has to be high end. It has to be prize winning, as you say. I mean, you went to a tasting as part of the reporting here. How is this stuff?

So I'm no expert, but I thought it was delicious. So one of the olive oils that I tried was called the Suri, that's the name of the olive. And it's got an earthy flavor and it's quite strong. It really kind of lingers in your mouth and your throat after you try it. And it's not just me who thinks it tastes good. So the labels of Mr. Kakour and two other Lebanese olive oil producers that I talked to have won awards in international. And I spoke to one of the founders of one of those competitions and he said he's really seen a change in the way that the Lebanese olive oil has been tasting in recent years. The Lebanese know that they can't necessarily compete with the heavyweights like Spain and Italy in terms of scale. I mean, it's a tiny country, but they have a lot of hope that they can create a product that can rival them in quality.

Margaret, thank you very much for joining us.

Thank you for having me.

That's all for this episode of the Intelligence. If you like us, leave us a rating and a review and you can subscribe to the economist@examiner.com intelligenceoffer. The link is in the show Notes. See you back here tomorrow. Sam.