Justice Alito's leaked draft goes a lot further than ending the right to an abortion. What can Democrats do to mitigate the damage?
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In the aftermath of the leak of Associate Justice Samuel Alito’s decision in Dobbs v. Jackson, which ends a right to abortion and the implied right to privacy under the 14th Amendment, I was uncomfortably reminded of 2016 and the election of Donald J. Trump. I wrote about that moment in time in the introduction to my book American Fascism, where days before the election I had the horrific realization that no one in LGBTQ leadership circles knew what to do if Hillary Clinton lost, and never developed a viable plan. Their answers amounted to debrouillez-vous (“We’ll muddle through somehow”), a tacit admission that there were no good options on the table.
Similarly, Roe v. Wade is dead, and a Pandora’s Box of devastating decisions are nearly sure to follow because the right to privacy is being extinguished. Republicans are already looking to pass laws banning birth control like IUDs and Plan B, assuming that the court will now be willing to overturn Griswold v. Connecticut and Eisenstadt v. Baird. Sources I have spoken with tell me that Texas is primed to overturn Obergefell v. Hodges, causing same-sex marriage to become illegal again overnight in 34 states. If conservative states succeed with Obergefell, Lawrence v. Texas will assuredly fall next, making homosexual conduct, even in the privacy of your own home, illegal again in 12 states.
Justices Alito and Thomas have dropped big hints in their dissents, opinions, and public statements that they’re champing at the bit to overturn all of these. Given a textualist reading of Alito’s decision in Dobbs v. Jackson, Kavanaugh, Barrett, and Gorsuch will have to follow suit. What is abundantly clear is that SCOTUS will happily turn the U.S. into two countries: one where people routinely die of ectopic pregnancies, that jails them for seeking abortions in other states, and imprisons lesbians and gays; and the other one representing the rest of the modern world.
Almost needless to say, this state of affairs doesn’t end well.
What no one has delved into is how woefully unprepared Democrats are for this. To some extent, it is their own fault for not preparing for this day. However, the bigger issue is the fact that the situation itself favors Republicans who have captured the system and are in a position to block any efforts to restore the status quo. Sure they’d like to do things, and have put forward bills and proposals, but functionally none of them have a prayer of coming to pass.
At a federal level, Democrats don’t have the votes to pass a law protecting abortion rights: The Women’s Health Protection Act failed 49-51 in the Senate in a purely symbolic vote. This falls far short of the 60 votes needed to bypass a filibuster, which is effectively impossible to overcome. Democrats would have to win several election cycles in a row by margins in excess of 15 points (and probably closer to 19) to get a filibuster-proof majority. Conversely, Republicans would only need to win the popular vote by a few points to do the same. This is due to the Senate having non-proportional representation, where numerous lightly populated rural red states have as much power as large populous blue states like California and New York. Republicans also hold narrow advantages in closer states like Texas, Florida, and North Carolina.
Sure, Democrats could end the filibuster, but that’s not happening either. They’ve unsuccessfully lobbied Senators Joe Manchin (D-WV) and Krysten Sinema (D-AZ) since the beginning of the Biden administration to end the filibuster, without any effect. Thus, there’s effectively zero hope of reversing trends with the Senate we have.
What’s worse is the Congress we’re going to have. Most forecasters are predicting a wipe-out in the November midterms, where parties with an incumbent president historically have done very poorly. Generic ballot polling shows Democrats heading towards what Barack Obama called a “shellacking” in 2022. Once Democrats lose the House or Senate, no pro-women or LGBTQ bills can get through, filibuster or no.
Losing the Senate has other consequences. Senate Minority Leader Mitch McConnell has already indicated he will not allow votes on Biden nominees to the high court if Republicans regain control of the Senate in 2022. This means that changing the composition of the court to overturn disastrous, country-destroying Dred Scott II–like decisions becomes impossible once the Senate is captured.
At a state level, things are just as grim. While Vice-President Harris told reporters after the failed, meaningless, waste of time vote in the Senate, “I would urge folks to vote for pro-choice candidates at a local, state, and federal level,” this is akin to telling a person without boots to pull themself up by the straps. The states where abortion is being criminalized are subject to a GOP which has gerrymandered elections to the point of making voting nearly meaningless. In Wisconsin, the state legislature is super-majority Republican, despite Republicans consistently losing the popular vote.
There is also the issue of voter-initiated laws and state constitutional amendments. Most southern red states don’t allow voters to create ballot initiatives to change state law or the state constitution. In GOP-controlled states, Republican-led legislatures in Florida, Idaho, South Dakota and others have passed laws limiting the use of voter-initiated laws and amendments. According to the New York Times, “in 2021, Republicans have introduced 144 bills to restrict the ballot initiative processes in 32 states … Of those bills, 19 have been signed into law by nine Republican governors. In three states, Republican lawmakers have asked voters to approve ballot initiatives that in fact limit their own right to bring and pass future ballot initiatives.”
When voters in states that (still) allow voter initiatives manage to bypass gerrymandered legislatures that no longer care about what the public thinks, these same legislatures simply ignore the voters and the laws they passed. In Ohio, where voters passed a State constitutional amendment banning gerrymandering, Republicans successfully ignored the will of the people and their own state constitution by producing a series of gerrymandered maps, then having them upheld in federal district courts, where a bench full of Trump appointees decided that legislators can ignore the state constitution if they stall long enough.
Similarly, Floridians overwhelmingly voted to restore the voting rights of felons. However, the gerrymandered state legislature turned around and passed a law requiring felons to prove they have paid all court fees before rights can be restored. The problem is records in Florida are so sloppy that it is effectively impossible to do so. Thus, almost no former felons actually regained the right to vote. A conservative-dominated 11th Circuit court upheld this clear thwarting of the desires of voters and the state constitution as well.
The result of this is that even if most people in most states oppose banning abortion, there is almost nothing they can do about it. At the federal level, the Senate’s 6-7 point GOP tilt, plus the filibuster, prevent positive change from happening. At the state level, most legislatures are so heavily gerrymandered that there is zero chance of electing a pro-choice majority. Most states banning abortion do not allow voter-initiated efforts to codify abortion rights, and those that do simply ignore the voters and the law.
Which is to say, there is almost zero chance we don’t end up a completely fragmented country where human rights vary dramatically from state to state, as they did just before the Civil War and the Civil Rights movement. Given that people react even more violently to their rights being taken away than never having them at all, that the direction the country is going under the Roberts court, American ideas about freedom, and the 400 million completely unregulated firearms floating about the US, the results are likely to be explosively violent.
But, notice that I wrote almost. There are some highly unlikely, but plausible off ramps.
The first would be if Democrats manage to retain the House, win all five of the toss-up races in the Senate for a 52-48 majority in the 2022 midterms, and then end the filibuster, and pass the Women’s Health Protection Act and the Equality Act. This requires midterm results that go against all the polling data we have, and every historical norm that says this is next to impossible. It also ignores the fact that Republicans will do the same, but in reverse, in 2025 if/when they hold the trifecta again. Mitch McConnell has indicated that he will pursue a national ban on abortion. Thus, while this scenario is vaguely plausible (but incredibly unlikely), it might actually worsen the situation: Imagine, for example, if in California people were being tried for murder in federal court for having a miscarriage because of a federal fetal personhood law.
The other possibility is that Democrats hang onto the Senate, and either Alito or Thomas leaves the court. This would allow Democrats one more seat on the Supreme Court. They would then have to convince Chief Justice Roberts that he needs to overturn Alito’s decision in order to preserve the union and the judicial concept of stare decisis. In other words, you’d need the unlikely series of events of hanging onto the Senate in a bad year, have a conservative justice leave the court, and then convince Roberts that he must destroy respect for precedent in order to save respect for precedent.
Basically, this scenario requires three Black Swan events in the space of a few years to get abortion rights back. But, given every other scenario here, the worst part is that it is the most plausible one. The others are either flatly impossible or require things to happen which happen less than once in a century and go against the polling data that we have.
This doesn’t mean that people shouldn’t turn out to vote: We absolutely should. To use a pop culture metaphor, yes, trying to blow up the Death Star with a bunch of snub fighters is a lousy idea and it’s probably not going to work, but it’s the best option we have. But, unlike the 2016 election, people need to start looking at this realistically: If Democrats don’t retain the Senate, none of these long shots are happening. Roe is dead, and so are a lot of people being forced to carry unwanted or unhealthy pregnancies to term. Democratic leaders holding sham votes and protests have zero actual effect on the system. The U.S. will be going down a path that becomes ever more divided, and more perilous, as red states and a GOP-dominated federal government and judiciary work to make the entire country look like the American South.
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