• Who is to Blame if Roe is Overturned?

    May 13, 2022 // 2 Comments »

    With bad things accumulating like Ukrainian mud around Democrat midterm chances, nobody seems to be talking about the elephant in the room. Its name is Roe, and if national abortion rights are overturned, it could help destroy the Democratic party. A Supreme Court decision is expected soon.
    The signs of significant change are clear. Texas is already effectively restricting abortions after six weeks (Idaho passed similar legislation.) Florida restricts most abortions after 15 weeks. If Roe is gone, 26 states are expected to ban or limit abortion. Four states support the Mississippi law the Supreme Court is now reviewing in Dobbs v. Jackson Women’s Health Organization. The Mississippi law is a direct challenge to Roe v. Wade, the landmark 1973 Court decision which made abortion a woman’s right through the second trimester. The Court will likely announce this spring a decision to overturn or significantly weaken Roe, clearing the way for each state to create its own restrictions. It will also signal the end of an era dominated by Democratic party social policy.
    Politically the loss could be part of a death spiral for Dems. “Protecting Roe” has been a central Democratic talking point for decades and if that protection fails, especially under a Democratic president and with Democratic House, it will not go down easy. The decision may have as much effect on the midterm elections, and possibly 2024, as any other factor. A lot of Democratic support from educated women is tied to abortion rights, as well as many progressive votes in general. With the party already losing/lost working class voters and many Hispanics, they cannot afford to jettison too many more blocs. And somebody is going to be blamed.
    The most likely gambit by the Dems will be self-destructive, to scold voters, saying if the dumb rednecks hadn’t elected Trump we would not have three new conservative judges on the Court. Scolding and mocking voters was a signature of Hillary’s campaign and look where it got her; “deplorables” is forever an American election meme now. And even if the Democrats were to 3-D print a viable candidate for 2024 out of soy-based beef substitute, it is unlikely he could bring enough new blood to the Court (only Justice Breyer was the obvious candidate to retire) to change the balance quick enough to rally Roe. So the most obvious Dem slogan, elect us and we’ll repack the Court with liberals, is at best a solution decades away even if everything goes well. There is no will to expand the Court outside of the NYT Op-Ed pages.
    Dems will not mention it, but the real blame lies in 50 years of Congress refusing to codify Roe’s judicial creative writing into actual law that could withstand a conservative court. Over the decades the Democrats when in the majority treated abortion, as they did same-sex marriage for many years, as a third rail. They supported it but would never risk the votes by actually touching it. It will beg the question in many Blue voters’ minds of why bother to elect Democrats at all. The Democrats of course don’t see it that way; “I think the country hasn’t seen the rage of women speaking out,” said Representative Jackie Speier. Representative Pramila Jayapal said “I think it’s going to mobilize people to go to the polls. You will see an outcry like you’ve never seen before.” Righteous anger? Maybe. But Democrats will have quite a battle convincing these angry voters that yes for sure this time promise they’ll actually do something to protect abortion rights other than talk about losing them and holding Handmaidens Tale watch parties.
    The other question Democrats will need to confront is what do Americans really want? In a nationwide survey, 56 percent said they would support restricting abortions after 15 weeks, what the Mississippi law at the center of Dobbs aims to do. Hispanic voters, who Democrats are already losing, are divided on the issue of abortion and vote Red in notable numbers. Same sex marriage finally became so widely supported that even Democratic candidates in purple areas could safely jump on the bandwagon. Not so with abortion.
    There are other players the Democrats might want to spread a little blame on as well. In the case of Dobbs now at the Court, their champion Justice Sotomayor failed to lay a legal glove on her opponents. While the conservative and swing justices walked their colleagues through case after important case where precedent was overturned, she whined like a 1L that precedents she supported were untouchable. She chided her colleagues if they overturned Roe the whole Court would lose credibility and take on a “stench.” She spoke like someone running for election in San Francisco, not a sober justice building a case her colleagues would sign on to. She seemed to forget at oral arguments the justices aren’t really talking to the attorneys before them; rather, they’re talking to each other through the lawyer at the lectern. But at least her no doubt snarky dissent will earn her comparisons to the Notorious RBG.
    Speaking of RBG, perhaps she deserves a dainty teaspoon of blame. Her hubris in a) thinking she would live forever and b) assuming Hillary would be anointed and choose her successor lead directly to Donald Trump’s signature political triumph, turning the Court right. The blood of the martyr Breyer waters RBG’s grave site.
    Which also suggests Barack Obama, who failed to fight for his Supreme Court nominee Merrick Garland, shares some blame. Claiming Obama could not effectively fight for his nominee because of Republican opposition again begs the question of why bother to elect a Democrat at all if they’re just going to fail and blame the other party for their failure. You’re just not a very good politician if you can only get things done with a super-majority.
    More broadly, blame should Roe fall lies in part with the feminist movement and the far-left of the Democratic party. They long ago insisted on including the contentious issue of abortion in with the basket of more broadly supported women’s issues, such as equal pay. They then turned away many middle-of-the-road voters and “purple” women by tying abortion rights into all sorts of issues which do not enjoy consensus dealing with LGB and incessantly, trans people. “America’s anti-abortion agenda is also anti-trans” announced one queer media outlet matter-of-factly. “Banning trans people from public life and banning abortion are all about installing a regime of gender roles.” For those whose idea of “a regime of gender roles” means basic biology not same-sex toilets the argument is as non-inclusionary as an NFL locker room.
    As if to double-down on the idea, many Democrats are ginning up scare tactic ploys, saying if Roe falls same sex marriage is next along with a slate of basic civil rights. This strategy, which insists on pairing the broad political spectrum among gay and lesbian voters with a radical feminist perspective, fails to account for the fact the Roe was a cobbled together compromise using the 14th Amendment to create a “right” to abortion, which really made no one feel things were settled. Cases like Obergefell v. Hodges, which made same-sex marriage legal, and Lawrence v. Texas, which overturned laws criminalizing same-sex relationships, rest on much different and sounder precedent.
    Any politician seeking to build support instead of acquire virtue points tries to make the tent bigger. Instead, Representative Ayanna Pressley, basically saying hold my beer to Hillary “Deplorable” Clinton, stated “Pro-life laws hurt our lowest income sisters, our queer, trans and nonbinary siblings, black, Latinx, AAPI, immigrants, disabled and indigenous folks. And none of this is happenstance… These bans are rooted in a patriarchy and white supremacy.” And no progressive commentary is complete without the now-obligatory Nazi reference. It was feminister has-been Gloria Steinem who added ahistorically “You know, Hitler’s first official act was banning abortion.” The basic line “all men are pigs and rapists” did not build support for feminist issues in the 1960s, it did not build support for the Equal Rights Amendment in the 1970s, and it is not helping today.
    In one article of so many on such themes, the writer begins by asking why more men don’t overtly support women in the abortion fight. She then calls any opposing views from hers “Taliban-adjacent,” claims the government is over-represented by men, and cites the need to destroy the patriarchy. She goes on to mock men who claim they understand women’s issues because they have daughters. Hmm, sister, if you don’t see why you’re not building up support among us dudes after that, I can’t mansplain it.
    The real problem for the Democrats is if the Republicans can claim victory in overturning Roe, they will empower their base in new degrees; a signature victory for many social conservative and evangelical voters was delivered. Those evangelicals who held their noses and supported Donald Trump will have new found reason to look past his gross person; he came through for them on an important issue. In response, “Vote for us, we lost Roe on our watch” is not a very inspiring Democratic campaign slogan.

     

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy, Trump

    Sotomayor and End of Roe v. Wade

    December 20, 2021 // 11 Comments »


     

    I don’t know the right answer on abortion. I do know based on the oral arguments recently heard by the Supreme Court regarding Mississippi’s abortion law that our country has problems that cut deeper into our national fabric than the specifics of any abortion law.
    The out-of-the-box role the Founders had in mind for the Supreme Court, basically a check the other branches of government were consistent with the blueprint laid down in the Constitution, did not last long. Almost from the get-go the Court claimed additional authority for itself to strike down laws (Marbury v. Madison, 1803,) the doctrine of judicial review.
    In the years since the Court has used its power to wrestle with Americans over how their country should work. The Court once confirmed slavery (Dred Scott v. Sanford, 1857), later pulled a reluctant public by the ear away from segregation (Brown v. Board of Education, 1954 but only after it had earlier endorsed segregation in Plessy v. Ferguson, 1896 ) and trailed public opinion on same-sex marriage only to finally confirm it (Obergefell v. Hodges, 2015.) As for precedent mattering, the underlaying laws supporting slavery and marriage had been in place much longer than Roe‘s 48 years and in their time were more broadly supported.
    But whether leading public opinion or trailing it, the Court assumed a role unthought of by the Founders, one in the absence of common agreement and/or laws passed by Congress, to decide how Americans would live with one another. Should we be a slave-owning nation? Should our schools be segregated? Should same-sex partners be allowed to marry? In case after case the Court took it upon themselves to determine a solution to a social issue, seeing the need for a nation-wide answer to a contentious question once left to each state.
    And that leads us to abortion. Abortion exists at the raw edges of human existence. It is a religious issue, it is an issue intimately tied to liberal and conservative politics. It can decide elections. In cases of rape, incest, or the health of the mother, it is a moral issue. It is a states rights issue. It is women’s health issue and a societal burden issue. It is a socio-economic issue, with the population of women who seek abortions skewed by economics and race. It is healthcare or murder.
    The Court tried in 1973 to pry Americans from one another’s throats over abortion via Roe v. Wade. When the case was first heard, 30 states had complete bans on abortion. Sixteen states had full bans except for rape, incest or the mother’s health. Three states allowed most abortions, but only for residents. Only New York allowed abortions for out-of-state women, but capped them at 24 weeks unless the mother’s health was in danger.
    With Roe the Court took it upon itself to create a kind of compromise out of all that: during the first trimester a state cannot regulate abortion beyond requiring the procedure be performed by a licensed practitioner. During the second trimester a state can regulate abortion if the regulations are reasonably related to the health of the pregnant woman. And during the third trimester, the state’s interest in protecting the fetus outweighs the woman’s rights, so a state may prohibit abortions unless an abortion is necessary to save the life or health of the mother. Roe v. Wade did not legalize abortion per se. What it did was change the way states can regulate abortion.
    Roe also said abortion was a constitutional right, a claim which forms the basis for many who claim the case was wrongly decided. Critics acknowledge while the Court tried to do its best with an impossible problem, nowhere does the Constitution say anything close to abortion being a right, alongside say freedom of speech or due process. They argue the Court should never have essentially written via Roe the law Congress would not. The basis of the right to abortion seems to rest in the 14th Amendment, which otherwise is concerned with equal protection for freed slaves. This bastardization, which allowed the Court in 1973 to create an abortion policy for the entire nation without any democratic input, may prove the basis for Roe‘s undoing. Even one of the Court’s greatest liberal justices, Ruth Bader Ginsburg, knew Roe was bad law, writing “Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”
    Roe‘s other shortcoming is in saying states could not outright ban abortions in the first 24 weeks of a pregnancy. The number was something of a compromise; Justice Harry Blackmun, the author of the majority opinion in Roe, once called the line arbitrary. The question of where to draw the line for abortion, at Roe‘s 24 weeks or Mississippi’s 15 weeks begs the question of why a line exists; aren’t the legal interests (aside from religious/moral ones) basically the same throughout a pregnancy?
    In subsequent cases, Planned Parenthood v. Casey, 1992 and Whole Woman’s Health v. Hellerstedt, 2016, the Court modified Roe in response to many states imposing laws trying to limit abortions by making the process too complicated, expensive or cumbersome. The Court said in the cases above “such laws could not impose an undue burden,” defined as one having “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
    For all that is unclear, three things are clear: 1) Roe always allowed for regulation; it was never abortion without restriction; 2) if the Court can reverse itself on the issues of slavery and segregation it can reverse itself on abortion, and 3) almost no one thinks Roe forever settled the issue of abortion in America. America will ask, and answer, the question anew.
    The current vehicle for asking and answering is Dobbs v. Jackson Women’s Health Organization, which concerns a 2018 Mississippi law banning almost all abortions after 15 weeks. Its version of regulation is a direct challenge to Roe‘s (Texas’ latest attempt to restrict abortion, SB8, will be heard separately.) The Court heard oral arguments on Dobbs in late November. A decision will be announced in 3-6 months, and will likely have more affect on the midterm elections than any other factor.
    The Court can decide to keep Roe as it is and tell Mississippi to get with the program, it can accept Mississippi’s version (i.e., no abortion after 15 weeks) and upend Roe, or it could ignore Mississippi’s version and re-write Roe to create new rules for each trimester. Any of the three would be consistent with the way the Court has acted for some 220 years.
    What is troubling are some of the statements made during oral arguments by the so-called liberal judges, particularly Justice Sotomayor. Sotomayor went as far as to question whether the legitimacy of the Court itself would endure if it overturned abortion rights. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” She accused Mississippi of moving forward with abortion restrictions only “because we have new justices,” referring to the three Trump appointees, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. “If people actually believe that it’s all political, how will we survive?” Sotomayor continued.
    The other liberal justices, Stephen Breyer and Elena Kagan, were equally vehement in their support for abortion as a constitutional right. Alongside Sotomayor, they continually claimed that Roe was “settled law” and was thus somehow above being re-examined. It was left for Justice Kavanaugh to point out to any first year law students in attendance the long line of celebrated cases in which the Supreme Court overruled precedents. If the court had adhered to stare decisis in those cases, he says, “the country would be a much different place” (to include segregation and slavery.) Kavanaugh finished his lecture by noting every current member of the Court has voted to overrule constitutional precedents in various past cases.
    I don’t know the right answer on abortion. Since Congress has steadfastly refused for decades to legislate on the issue, the Court has been left to glean the boundaries among religion, public policy, and individual rights. The compromises and weaknesses in Roe are because of what Congress has avoided doing. Any decisions the Court has made in the past, and the decision they will make in the instant case, will be imperfect. But that’s only the beginning.
    The deeper problem is the Court has taken such an overtly political, partisan turn. Sotomayor in particular embarrasses herself with a fan-fiction quality take on settled law, and her claim that a decision which does not fit her political beliefs will destroy the legitimacy of the Court. She believes in precedent when she agrees with it and does not believe in it when that suits her better. She has suggested the last president’s appointments to the Court are somehow wrong because their mere presence allows Mississippi to challenge Roe. Americans have been trained to claim anytime a court decision or an election goes against their personal preference that means the system is unfair. Shame on Sotomayor for fanning those flames by suggesting her fellow judges are biased and she alone is not.
    Sotomayor is a zealot who sees politics above justice. In that sense it is unclear Sotomayor actually understands how the Supreme Court works. If Roe falls, its supporters may wish to re-examine their champion’s role in so poorly defending it.

       

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy, Trump