The Potential Return of Abortion Rights
An abortion rights rally. Photo by Fibonacci Blue from Minnesota, USA, CC BY 2.0
The liberal prediction of national abortion policy after the end of Roe v. Wade is turning out to be accurate. In red state after red state, Republican legislatures are enacting restrictions on the procedure as quickly as they can. Their original attempts at moderation are being demolished. In Florida, an original twelve-week ban has turned into a six-week ban following months of political pressure on governor Ron DeSantis. In North Carolina, the legislature is likely to pass a twelve-week ban following a stunning party shift by state senator Tricia Cotham. Other states are leaning towards legislative bans and shying away from popular referenda after a number of failures in 2022 and 2023.
The new landscape of abortion politics is immensely stressful for pro-choice advocates. They lament the millions of women now forced to travel to other states or risk prosecution for an abortion. Activists and most voters alike are outraged by the women whose lives are threatened because they may be unable to access medically necessary abortions in a timely manner. These feelings were greatly intensified in April when a federal judge threatened to restrict access to an abortion pill throughout the country, based partially on shoddy evidence he likely found in a brief Google search.
The sentiment in the pro-choice community is clearly one of pessimism. The Republican Party seems poised to restrict abortion access throughout the country. They have no interest in listening to women or even the large majorities who voice support for abortion rights in political polling. It seems to progressives like the GOP will simply spend all of its energy restricting voting and the electorate instead of moderating any of its policies.
But in their analysis of Republican policymaking, Democrats have ignored the primacy of winning to the party’s project. Republicans are zealous and authoritarian at an alarming level, but they are also politicians first and will act in their interest as a politician before anything else.
Republicans obviously want to please their activist base. Many of their members come directly from that base. The activist primary is the biggest political threat for many House members in particular. The party has passed unpopular legislation for decades that was directly supported by its base, particularly the evangelical wing. Even Donald Trump felt the need to pander to evangelicals with his famed quoting of “Two Corinthians” in a 2016 speech.
However, even this blatant support has limits. Evangelical support has gone hand-in-hand with Republican political victory for decades. Republicans have won six out of the past eleven presidential elections since 1980 and have controlled the House for far longer than Democrats during that time period. During that time, practically all of their political candidates have either been born-again evangelicals or have captured the hearts and minds of the evangelical movement.
But if that support were to change, the Republican Party would most certainly dump their evangelical credentials. Republicans are in the business of winning elections. They must hold political office or at least compete closely. The lodestar of any Republican candidate or party leader will be electoral victory on a regular basis. Without that victory, Republicans cannot please their wealthy donors or average voters who will quickly grow tired of more years of Democratic leadership.
The 2022 midterms may have been a sign that this connection is much weaker than in the past. In many ways, that election was a miracle for Democrats. The party actually gained a Senate seat and only lost a handful of House races. They accomplished this with an unpopular president and economic headwinds. A weak midterm could be swept away in the next Trump campaign, or it could be a sign of a substantial Democratic advantage in federal elections. If Republicans become convinced they cannot win without abandoning anti-abortion policies, they will make the shift and challenge the evangelical movement to either fight them in the primaries or defect to their hated enemies on the other side of the aisle.
The talk of a fickle legislature on abortion rights is nothing compared to the Supreme Court. The Court’s future on Roe and Dobbs could change tomorrow, and both parties need to be ready for the possibility.
All that action come in states where the GOP has secured majority or supermajority status legislatively by gerrymandering. They won. The national party can’t control them and isn’t going to. The GOP also has a raft of anti-choice judges below the SCOTUS level who, as you note, are all too willing to aid and abet the fight. And a set percent of GOP voters (numerically well above the evangelical portion of the base) approves of this turn. That’s how the table is actually set at present, and any analysis of the abortion fight which ignores this – as yours does – inevitably leads to the wrong conclusions about what’s next.Report
Well, it’s true that Democrats can, and are, 1) using abortion rights as a rallying point in purple states, and 2) finally learning the importance of the judiciary.
But it’s also true that without the religiously-animated voters powering the GOP’s rank-and-file votes, none of this would be necessary. The great trick there was GOP leaders convincing such voters that they (the personally immoral, corrupt, sexually licentious leaders) were irrelevant and what mattered were the judges they’d appoint, and they delivered on that promise. In exchange, the religious will deliver votes and money to whoever the Republicans nominate. And that’s a covenant that continues to thrive today.
The real trick there is to break the covenant. I don’t know how to do it but if it could be done, it’d break the GOP for a generation.Report
The Democratic Party has just learned the power of the judiciary? It’s been one of their primary tools ever since their inception. Dred Scott, Roosevelt’s threats, Brown v. Board of Education, Roe…the whole process of Senate approval was created by the Democrats, then further weaponized by them. And the Republican approach to the Court has been to promote neutrality, not conservative activism, so the worst you’ve had to deal with is a half-level playing field.Report
We needn’t pretend that the Democratic Party of 2023 is the same party it was 150 years ago any more than we need to pretend that today’s GOP is still the party of Abraham Lincoln. Such propositions are the sophistry I expect of a Dinesh D’Souza cheap-shot Tweet promoting his poorly-viewed cinematic screeds, but I take you, Pinky, to be smarter and more realistic than that.
The past fifty years’ worth of Republican federal judicial appointees, in particular, at the Supreme Court, have not been, as a group, neutral arbiters. They are advocates against bodily autonomy, voting rights, and religious neutrality, and for expansive powers of and deference to police officers and Christian religious institutions. A party whose champion of judicial appointment strategy sat inactive on the nomination of Merrick Garland for a year and raced Amy Coney Barrett’s nomination through in six weeks does not get to claim to be acting on principle nor pursuing a neutral playing field. They have been trying to achieve something, something ideological. They are ruthless about it, and they are succeeding.
For two generations, Democrats have acted like the Warren Court was somehow a national birthright and the Republican packing of the judiciary with overt opponents of abortion rights, overt dismissers of the Establishment Clause, deniers of the existence of a right to privacy, Fourth Amendment minimalists, and overrulers of voting rights legislation was anything but a historical aberration. For most of its existence, the Supreme Court has interpreted and applied the law to benefit the wealthy and powerful. We celebrate the Court in those increasingly-rare instances when it deviates from this dreary pattern. That is when the playing field of the law becomes more level, that is when our institutions bend towards the ideal of justice. (It happens enough that I don’t despair, but not enough to change my default mode out of “pessimism.”)
It has taken the overruling of Roe to awaken most Democrats from the luxurious dream that the courts will ultimately serve as a backstop against American democracy becoming effectively undemocratic, against their individual rights from being legislated away, and as a sentinel of equality before the law. And thanks to what they find themselves up against in the political branches, it is damn hard for someone like me to tell them they shouldn’t fight fire with fire and be every bit as ruthless and ideological as what they’re up against.Report
But it’s not that the Democrats see the Court as a protection of democracy. They’ve always seen it as *their* route around democracy. You may not like that it’s been true for 150 years, but it’s never not been true, so you can’t say they “just” learned the power of the Court.Report
Examples? I offered specific areas above where I propose conservatives (who are today embodied in the Republican party) have used the courts to thwart the will of the people and the effects of democracy. If you’re going to propose that liberals (who are today embodied in the Democratic party) are similarly guilty, the way to do that is to point to times that has happened.
What I’m going to do with whatever example(s) you come up with is look at the case law in which the liberal side won by way of getting the judiciary to overrule a statute (which presumably was enacted in accordance with democracy) and inquire as to whether the constitutional grounds invoked were done so in a good way or bad way. After all, it is possible and has happened often that things that are incredibly popular turn out to be unconstitutional and those statutes are overruled for the right reasons. E.g., Texas v. Johnson, 491 U.S. 397 (1989).
But you might find a counter-example to, say, Shelby County v. Holder, 570 U.S. 529 (2013), a partisan decision overruling a democratically-enacted statute at the urging of and to the cheers of conservatives, which was overruled for no constitutionally-principled reason but rather by naked judicial fiat.
I’m willing to listen, to see whether the other side has done it too. You’ll have to trust that I’ll be fair in so doing, but you have my word that I shall keep as open a mind as I can.Report
I have to catch a bus. Roe?Report
We can continue this at some other time, that’s fine with me.
I’m not so sure that it’s clear that prohibiting abortions was particularly popular in 1973.
But by all means, catch your bus, we can do this another time.Report
Roe shouldn’t even be a close call. It’s like I have to admit that the Republican Senators did the wrong thing with the Garland nomination. It wouldn’t be a fair conversation otherwise. But the whole legislating-sex-from-the-bench thing, from Griswold to Obergefell? The only argument you can make is that the population eventually caught up to where the Court led, and that’s a strange definition of democracy.
And going back to an earlier point, as a matter of historical study, you can’t simply claim that things used to be different without demonstrating it, or at least pointing to a moment when things changed. About 60 years ago the Democrats changed which racial group they were going to unconstitutionally protect, but the SCOTUS protection of government overreach has never changed.Report
Legislating sex from the bench. It does indeed sound like the title of a bad porn movie.
The problem with your framing is those decisions did no such thing. They took human consensual activity, recognized it wasn’t an existential threat, recognized the underlying humanity and dignity of the people involved, and told us to grow up and get over it because we as a nation were doing real harm to the people protected by those decisions. That whole
Loving your neighbor as yourself thing.
Cause here’s the secret Pinky. The US isn’t a theorcracy. So as a matter of secular law the people protected by those decisions – including the women protected by Roe – are as equal and deserving of that protection as the white conservative heterosexual men who are now trying to take those protections away.
And yes, liberals do like that sort of judicial activism because protecting all Americans from oppression is a core tenant of modern liberal democracy. It expands both freedom and liberty. Two concepts that conservative snowflakes crow about even as the seek to take it away from the people who aren’t “real Americans.”Report
School busing comes to mind. We had years where Judges were attempting to micromanage school systems and prisons and what not. Affirmative Action is another example.
It’s very popular with elements of the left, it’s by definition not neutral, it’s also unpopular with the general public.
Neutrally calling balls and strikes is the opposite of social engineering.Report
A federal judge micromanaged my schools in the 1980’s because the local school system told the Department of Justice to take a flying leap when it found evidence of discriminatory practices in school Funding allocations. White flight then followed of course, resegregation the public schools there and causing further harm.
None of that however is the fault of the DoJ or the judiciary. All of it is the fault of white local Louisiana politicians and parents who were and are still afraid to share resources and power for everyone else’s benefit.Report
The issue isn’t “whose fault this is”, the issue is “how’d it work out?”
One judge micromanaging the executive branch runs into problems.
Ignoring the constitutional and separation of powers considerations, he’s going to lack the expertise, the time, the staff of enablers, and responsibility to the voters.
That’s not a setup that suggests “success”.
If the summation of the experience is: “Didn’t turn out well but it wasn’t the judge’s fault”, then that means you think he had good intentions when he was overreaching.Report
“The Great Trick” of… oh, Jebus Crhist.
Can you at least read some Christian Theory before you conclude that “personally corrupt sexually licentious” leaders aren’t PART of that theory???
“I have no idea why these people keep on electing morally horrible people.”
How about listening?Report
Oh, I am. I know why they do it. And it isn’t theological at all.
ETA: You might think Pharoah’s cruelty was a part of God’s plan to bring the Hebrews to the Promised Land, but that doesn’t mean you cheer for the Pharoah like he was the good guy when the lash comes down on the laborer’s back.Report
Religion has survived having personally immoral, corrupt, sexually licentious leaders from day one. It continues to function despite having them right now.Report
Rape and incest survivors, including a woman who was sexually abused by her grandfather for the first ten years of her life while her grandmother filmed it, testify in favor of reproductive freedom in Louisiana only to be ignored by the Republicans as in they couldn’t even bother to pay polite attention:
https://jezebel.com/republicans-ignored-rape-and-incest-survivors-at-louisi-1850430102Report
The Republicans couldn’t be bothered, because they were in a hurry to get in front of a tee vee camera to whine about not being given enough respect and therefore they were supporting Trump.Report