None of these assertions is as certain today as it once might have been. And if the second claim turns out to be false – if the abortion issue lacks political clout or actually turns out to be a trump card for abortion haters – then the first claim may be on shaky ground.
To put it more bluntly, it is at least plausible that in early 2025 a Republican Congress will pass, and the new Republican President will sign, a law effectively banning abortion. all over the United States. Whatever voters in California, New York or New England want, it simply won’t matter. Also, these new laws would likely be much more restrictive than the laws that were in place before. Roe vs. Wade was never decided.
In his draft opinion leaked by POLITICO, Justice Samuel Alito adopts the most consistent and forceful view of the late Justice Antonin Scalia: the Constitution has absolutely nothing to say about abortion. Such a right, he says, is nowhere to be found in the document or in its amendments. Without deerthe decision rightly rests with the political class — legislators and elected executives.
This has always meant that the states are where the decisions have to be made. The federal government has adopted a fringe policy: the Hyde Amendment prohibits federal funding of abortion; Congress banned so-called late-term abortions nearly 20 years ago, and aid to groups offering abortions trickles down and down depending on the party in the White House.
But divisions in Congress, along with the ad hoc presence of many pro-abortion Republicans and anti-abortion Democrats, have made it nearly impossible to enact sweeping federal laws. Today, as Democratic leaders attempt to codify abortion rights protections, they face the same hurdles they faced when enacting sweeping social spending measures or voting rights laws; there are 50 Democrats, one of whom (Joe Manchin) is an enemy of abortion rights, and another (Kyrsten Sinema) who will not support setting aside the filibuster to pass such a law. The two Republican senators who support abortion rights — Lisa Murkowski and Susan Collins — also do not support a temporary pause in the filibuster.
The answer to this hurdle, the argument goes, lies in the impending political response to the Court’s pending decision. Citing polls that show a clear majority in favor of keeping deersome progressives see this fall’s midterms as a chance to elect more allies in the House and Senate to push a bill through President Joe Biden’s desk that effectively legislates the protections of deer — a process that even this Supreme Court might find difficult to undo.
Here is the problem: the reaction at the end of deer may not be what developers hope it will be.
First, abortion polls are murky; depending on how the question is asked, you get very different answers. Yes, most believe that the decision should be made between a patient and their doctor; most believe deer should be retained. In another poll, a majority think abortion should be more restricted; a fifth think abortion should always be illegal, a quarter think abortion should always be legal. Add to that the significant variations across states, and the political impact of the issue becomes even more clouded. The issue plays out very differently at the state level, which is why, even before the project deer decision was made, a near majority of states had either enacted restrictions, including outright bans, or passed “trigger” laws to come into force as soon as possible. deer is formally reversed.
Second, as a voting issue, abortion has tended to work on behalf of the party dissatisfied with the status quo. If you believe deer was misplaced or wrong, you want the policy to change. The most dramatic example of this came in 2016, when a Supreme Court seat was clearly at stake in the presidential race. Twenty percent of voters said the court was the major issue of the race; among those voters, Donald Trump beat Hillary Clinton 56-41. This is one of the main reasons Trump won the evangelical vote, despite his previous escapades and vulgar behavior.
If the energy behind abortion depends on who is most unhappy with the status quo, then shouldn’t proponents of abortion rights benefit from the reversal of deer? There are two reasons to be careful. First, the November issue may not be as motivating a political force as, say, inflation. Second, for the enemies of abortion, to reverse deer is only a first step; leaving the decision to the states still means hundreds of thousands of abortions each year.
In a prescient article, published just hours before the publication of Alito’s draft opinion, the Washington Post reported that national anti-abortion groups plan “to push for a strict national ban on the procedure if Republicans return to power in Washington.” … The discussions reflect what activists describe as an emerging consensus in some corners of the anti-abortion movement to push for sweeping measures that will truly end a practice they see as murder while rejecting any proposals seen as half measures.
The increasingly draconian measures enacted or simmered at the state level – outright bans, attempts to ban pregnant women from traveling out of state for abortions, attacks on the morning after pill – reflect militancy, or extremism, which is about to become a force across the Republican field. The same polarization that has effectively eliminated pro-abortion Republicans and anti-abortion Democrats in Washington means that GOP candidates will find it increasingly difficult to position themselves to win the support of social conservatives, for whom “leave it to the States’ will be light tea.
The argument here is not that abortion will sweep Republicans to power in Congress this fall; is that historic drag on Democrats, Biden’s low approval ratings and the possibility of tense voters on both sides of the abortion issue will produce a GOP convention in November whose members will be willing — out of conviction or political pressure — to vote for a nationwide ban.
This dynamic will likely be present in 2024. If Trump runs, he will run as the hero of the social right – the candidate who promised to appoint anti-abortion judges, and who did. If he doesn’t run, those who would be his heirs will seek to make the same kind of ground Trump did in 2016. A nationwide ban on abortion, at least in the Republican primaries, would be a powerful argument. As for its impact on a general election, Republican moderates have been predicting for 40 years that a hardline approach to abortion would be political suicide. The 1980 GOP platform called for an outright ban on abortion — and that fall Ronald Reagan won 44 states. It could be that the idea of a national ban is a bridge too far; but millions of New Yorkers and Californians won’t vote Republican anyway. To put it mildly, the expectation that abortion extremism will harm Republicans has been essentially unfulfilled for decades.
So if in 2025 a Republican Congress and a Republican President call for a nationwide ban, won’t the same filibuster who plagued the Democrats block the Republicans? Sure — unless you remember that the Senate’s biggest filibuster, Mitch McConnell, had no qualms about lowering the 60-vote threshold for Supreme Court nominees when Neil Gorsuch was in waiting for confirmation. If Democrats could spend years demanding an end to the filibuster, at least for the right to vote, then there’s no reason to think that mindless consistency would stop Republicans from abandoning it if it was to “protect innocent human life”. Indeed, depending on the nature of the GOP Senate caucus, this could be McConnell’s way to salvage his leadership. (All of this assumes Republicans won’t rack up a 60-vote majority after the 2024 campaign — a year with a daunting Senate map for Democrats.)
And make no mistake: such a law would not show many signs of accommodation. Roe’s The haters were keen to point out that prior to the 1973 ruling, a third of states changed their laws to make abortions available in a wide range of circumstances. (Reagan regretted signing a bill as governor of California making the procedure widely available). But a nationwide ban enacted by Republicans is unlikely to give much weight to the preferences of New Yorkers or Californians; rejecting liberals in blue states might even be part of the law’s appeal.
What I have described here is only one possibility. Now that Roe’s repeal is all but certain, removing a half-century-old right could spark a ballot rush that upends conventional wisdom that Democrats will be overwhelmed in November. If the Democrats can hold the White House in 2024, the idea of a national abortion ban is gone, at least for four years. There may also be institutional Republicans in the Senate who would refuse to remove the filibuster.
What is striking, however, is that the fundamental assumption of what a post-Roe world would look like – 50 states each with their own policies – could end up looking very different from what we might experience in a few years.