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From Vox

The fact that even many leading Republicans oppose bans on abortions when a patient’s life or health is at stake may seem like good news for those patients. But it also contributes to the void of case law explaining when such abortions are permitted.

That’s because a prosecutor, confronted with a case involving a doctor who performed an abortion on a woman like Amanda Zurawski, is likely to conclude that this abortion was legal and choose not to prosecute. But if no such prosecutions occur, then no court will ever hear a case that will allow it to definitively establish that such an abortion is, in fact, legal.

It’s a Catch-22. The sorts of abortions that are most widely viewed as legally and morally justified are also the sorts of abortions that are least likely to result in litigation.

That said, the fact that politicians like Abbott, who is himself a former Texas Supreme Court justice, believe that the health and life exceptions to Texas’s abortion bans need to be clarified is a hopeful sign for the Zurawski plaintiffs. It suggests that even Texas’s current slate of justices, all of whom are Republicans, may agree that someone with a life-threatening medical condition shouldn’t have to wait until they go into sepsis before they can receive medical care.

What’s less clear is whether the Texas courts will provide clarity that helps patients with less drastic cases to obtain abortions. Recall that the Zurawski plaintiffs seek a legal rule allowing doctors to perform abortions when “in their good faith judgment and in consultation with the pregnant person” they determine that their patient has an emergency medical condition that endangers the patient’s life or health.

Texas’s lawyers have not yet proposed an alternative standard, but the Texas legal team will be led by the virulently anti-abortion Attorney General Paxton. So, even if Paxton’s office doesn’t oppose this effort to clarify Texas law altogether, it is likely to propose a rule that will be much less friendly to doctors and their patients.

We have miles to go, in other words, until Texas physicians will know when they can safely treat their patients. And it is likely that similar legal fights will need to play out in every state with strict abortion laws.

“Most people fleeing war and persecution are simply unable to access the required passports and visas,” the UN High Commissioner on Human Rights said in a statement responding to the bill’s announcement. “There are no safe and ‘legal’ routes available to them. Denying them access to asylum on this basis undermines the very purpose for which the Refugee Convention was established.”

Migrants arriving in small boats — many from Albania, Afghanistan, Iran, Iraq, and Syria, according to the Associated Press — are often those with the least access to conventional, safe routes to access the asylum system. But the UK’s legal asylum system is overwhelmed, too, according to the Migration Observatory at Oxford University, with a backlog of more than 100,000 cases affecting nearly 150,000 people, some of whom are applying with family members.

Sunak’s plan comes as the UK attempts to iron out its post-Brexit relationship with the European Union and France in particular after a blowup over a defense pact between Australia, the US, and the UK, which France saw as a betrayal. France had resisted the UK’s proposal to return migrants to France and have them claim asylum in the first safe country they enter, insisting that such a policy couldn’t be decided bilaterally and must be a decision between the UK and the EU.

Should Sunak’s plan and Braverman’s proposal fail to address the number of people coming to the UK via irregular channels, some Conservative members of Parliament are insisting the UK withdraw from the European Convention on Human Rights, which guarantees people the right to access asylum procedures and prevents countries from sending migrants back to countries where their lives are at risk or they would be subject to torture.

The new plans won’t fix the UK’s immigration system

It’s far from clear, however, that the Conservative bill will significantly curb migration to the UK. According to Peter William Walsh, senior researcher with the Migration Observatory at Oxford University, “to date, there is surprisingly little evidence that asylum deterrence policies put people off in large numbers, for the simple reason that asylum seekers often have little understanding of what policies will face them after they arrive.”

As Sunder Katwala, head of the think tank British Future, told the Guardian’s Hannah Moore, the number of boat crossings picked up during the Covid-19 pandemic because other methods of travel weren’t available. Now, channel crossings “are an established and institutionalized route,” Katwala said. The best available option for these migrants is to pay a smuggler or group of smugglers to take them across the English Channel in unsafe and sometimes deadly voyages to try and claim asylum in the UK or find under-the-table employment opportunities.

Braverman’s proposal hinges on the idea that they can simply be deported, taken elsewhere, or detained. But that’s a fairly simplistic premise, Walsh said, and one that might not stand up to reality.

“On paper, the bill effectively opts the UK out of the global asylum system as we know it, by preventing people from claiming asylum if they arrived through irregular routes,” he told Vox via email. “But when these people can’t be removed because there is nowhere for them to go (and this is expected to be the case for most asylum seekers arriving by small boat), what happens to them? On the face of it, the bill appears to leave them permanently in the UK with no rights, financially dependent on the state because they would not have the right to work.”

Sunak has pledged to cut backlogs in the UK immigration system by “radically re-engineering the end-to-end process, with shorter guidance, fewer interviews and less paperwork,” and “introducing specialist caseworkers by nationality,” as well as doubling the number of case workers focused on asylum claims, which numbered around 117,000 applications awaiting an initial decision from the Home Office as of September 2022, according to the Migration Observatory.

The Tories have a track record of extreme immigration policies

The new immigration measures are not the first hardline immigration proposals from the Tory government; they’re just the latest in a series of increasingly drastic, hardline immigration measures pushed by Sunak’s Conservative Party.

Last April, the government put into place a program to deport irregular asylum seekers to Rwanda to apply for asylum there. That plan, introduced under then-Home Secretary Priti Patel, was deemed legal by the UK’s High Court; however, the European Court for Human Rights intervened and prevented the first flight of migrants from taking off for Rwanda last June, and no migrants have been sent to Rwanda under the plan.

Braverman took over Patel’s position, first under former Prime Minister Liz Truss and then again under Sunak, and took up the torch for the Rwanda plan, although she conceded that it wouldn’t happen “for a long time.”

The legality of that measure is currently being debated in court, but “even if the proposed Rwanda scheme gets up and running, this barely changes the picture because capacity in Rwanda is low,” Walsh said.

Ultimately, Walsh tells Vox that for as draconian as the bill is, it’s fundamentally also “a gamble: that the UK won’t actually need to impose this penalty on many people because the deterrent effect will be so strong.”

That’s something of an untested proposition, though. As Walsh told Vox, there’s no way to tell how effective the policies will be, “since they are more extreme than polices adopted in most other high-income countries where the evidence comes from.” And in the US, immigration policies such as Title 42 have done little to slow the pace of arrests at the southern border, which were reported at a record high in 2022.

If Braverman’s bill passes and “people continue to arrive in the UK by small boat in substantial numbers, not being able to process and resolve their asylum claims could create considerable operational chaos and financial costs,” Walsh said.

Despite the potential problems, however, recent polling shows that small boat migration is a priority for a crucial constituency: Brits who voted Tory in 2019. According to a new poll by Public First for Universities UK, stopping illegal migration via small boats has become the second-most important issue for these voters more important than reducing wait times for surgeries with the National Health Service. That polling also indicates voters are less concerned about legal migration and fixing the immigration system, which could help explain the extreme proposals Sunak’s government is pushing, without corresponding investment into the immigration system.

After 12 years in power, the Tories are at a low point; in a recent YouGov poll, only 17 percent of respondents said they’d vote Conservative if there were a snap election, compared to 30 percent who said they’d vote Labour. As such, recapturing people who voted in a landslide for Boris Johnson to “get Brexit done” is undoubtedly a priority for British Conservatives after the troubled tenures of Johnson, who stepped down after investigations into his administration’s flouting of Covid-19 restrictions, and Truss, whose administration lasted only six weeks.

Appealing to those 2019 Tory voters concerned about illegal migration and rekindling the UK’s relationship with France and the EU in the post-Brexit era are both crucial priorities for Sunak’s government. With the UK-France migration deal and Braverman’s migration proposal, the Tory party may have secured a short-term victory, without fixing the immigration system for the long term.

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