Access Denied

Was the Election Blue Enough to Save Abortion Rights?


The Dems took back the House, but with the GOP Senate packing the courts, it's up to the newly elected Democrat governors to secure reproductive justice state by state.



Tuesday’s elections were a bit of a mixed bag for those worried about the creeping threat of fascism and the United States’ continuing move toward Christian theocracy. Democrats won the House, meaning that if for once they manage to actually form a cohesive voting block, they have the potential to stop the worst of Trump’s extremist agenda. But the GOP expanded their majority in the Senate, making it impossible to pass any sort of meaningful legislation over the next two years and instead the two chambers will lock heads over their agendas.

Luckily, that’s good for those who are worried about abortion rights. If both branches of Congress had stayed in Republican hands, you could be sure some sort pre-viability federal abortion ban would be immediately introduced soon after the 2019 swearing-in ceremonies were complete. Even now, there is the possibility that something like a 20-week ban could be brought up in the lame-duck session—but it would be impossible to get through the Senate. The Republican majority is too small to overcome a filibuster, and any hope of assistance from Democrats was destroyed when the right decided to make ousting pro-life Democrats like West Virginia’s Joe Manchin and Indiana Senator Joe Donnelly their primary mission. And with pro-choice Democrats like Missouri’s Claire McCaskill and North Dakota’s Heidi Heitkamp on the way out the door, there is no longer a reason for those women to consider any sort of abortion restrictions—after all, it’s not like they have seats to hold onto anymore.

When it comes to actual federal abortion laws, well, if we could only get one chamber, we got the right one. It will be almost completely impossible for any restrictions to make it through the House since only three Democrats remain that oppose abortion rights: Minnesota’s Collin Peterson, Illinois’s Dan Lipinski, and Texas’s Henry Cuellar. That means there at least 219 pro-choice Congress members, maybe more, depending on how some of the final races shake down. While a Senate majority would have been nice, it never would have been enough to allow Democrats to move legislation to protect abortion rights. We may very well have a country so polarized now that there will no longer be any ability to pass any remotely “controversial” bills in the Senate in the future without one party having supermajority control. The GOP’s success in targeting vulnerable Democrats in red states inherently leaves the governing body with nothing but Democrats who are supported at home because of their abortion stances. Now there isn’t anyone who has any reason to compromise on abortion rights at all.

What the continuing GOP Senate majority does have, unfortunately, is another two years of ramming judicial nominees into lifetime appointments all over the federal bench. As I’ve been saying ever since Justice Anthony Kennedy started the ball rolling with his own retirement, you can be 100 percent positive Justice Clarence Thomas will be stepping down from the Supreme Court within a year. While not the oldest member of the bench (hang in there, RBG, we need you so much!) Thomas is the longest serving, and he will no doubt want to go before there is any possibility that Democrats may take back the Senate—or even more dire, the White House—and the right can’t insert another extremist religious conservative with a simple majority vote. Conservative activists and political pundits are already dropping hints about President Trump likely having another chance to appoint a Supreme Court justice on the deck. The foreshadowing isn’t accidental.

Then there are all of those circuit and lower court judges, too. Senate Majority Leader Mitch McConnell promised an ongoing effort to fill another 51 pending court seats in an effort to address over 100 judicial openings. This will be in addition to the 84 confirmations that have already happened in just two years, twice as many as President Barack Obama was able to seat in the same time period. Each and every one of these judges has been carefully vetted to ensure that they oppose the legal right to an abortion, creating a multi-level judiciary opposition ready to uphold any state restriction that gets challenged by abortion providers, patients and their allies.

If we are lucky, we may be able to oust Trump before he does any utterly irreversible damage to the country as a whole, but as for the judiciary branch? Unfortunately that is going to be a stain that may take decades to eventually remove.

While there won’t be any successful efforts on a federal level to restrict abortion rights, there won’t be any successes in protecting them federally, either. Once again, all of the action on abortion will happen at a state level, and even worse, with courts being packed with social-conservative judges, it will be harder to get these restrictions overturned. Plus, we will be treading the very careful minefield of suing to protect abortion access while also hoping to avoid the types of circuit splits and opposing rulings that eventually will lead a case up to the Supreme Court and offer a chance to overturn Roe v. Wade.

That’s the bad news—and trust me, it’s bad. But lost in the back and forth of which party had more successes on Election Night is the complete seismic shift on a state level of legislatures and governors’ races that all fell into the blue column. Until Tuesday night, Republicans had control of over two thirds of the states legislatively, allowing them to enact on a state level the types of abortion bans that would never be tolerated federally. Even worse, they were dangerously close to being able to move for a constitutional amendment to end abortion completely all throughout the United States.

Now that possibility is completely gone. Republicans were unable to flip a single governors race during the midterms—including in Minnesota, where the Democrats for the first time in decades kept the mansion for three terms in a row. And Democrats ousted Republicans in seven states, including a final removal of anti-union Koch-brother puppet Scott Walker in Wisconsin, and a complete surprise victory in Kansas, the very heart of Trump country, with a win by Democrat Laura Kelly.

These governors’ races—and a number of other legislative flips at the state level—are more important this year that at any recent point in history. A Democrat at the helm of the state means likely vetoes of new abortion restrictions in states where rights have eroded exponentially since the tea-party victory of 2010. In Michigan, Democratic Governor-elect Gretchen Whitmer pledged that if elected she would move legislation to protect abortion access in the state in case the courts eventually overturn Roe. Kelly, who ran as openly pro-choice and backed by Planned Parenthood and EMILY’s List, swore she would enact no new abortion restrictions while in office, a complete turnaround for a state that has served as the testing grounds for bans and restrictions from anti-abortion groups like National Right to Life. The win by Governor-elect Michelle Lujan Grisham means the opportunity to repeal a pre-Roe abortion ban for the state that was never struck down prior, and could come back into effect if Roe is overturned, as well as block the continuing efforts of local anti-abortion activists to try to close one of only three clinics in the country openly performing third trimester abortion.

Whether you believe this is a blue wave, a simple correction of shifting political power, or a missed opportunity to rebuke the Trump agenda as thoroughly as possible, there is much to be grateful for across the country when it comes to protecting the right to access a safe, legal abortion—especially on a state-by-state level. Now, we need to keep our national representative in line against federal restrictions, and demand each newly blue state do everything to reverse current bans and codify Roe while we have that opportunity.

After all, we are Democrats. We all know we aren’t very good at holding power for long.

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