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Democrats can’t promise to restore abortion rights this fall

Because the Supreme Court is likely to overrule Roe v. Wade this summer, Josh Marshall says it makes sense for Democrats to turn the 2022 midterms into a referendum over abortion. But only if they can make it into a serious issue:

You can’t make an election into a referendum on an issue if you can’t point to anything winning the election would accomplish. To make the 2022 elections a referendum on Roe, Democrats have to put protecting Roe and abortion rights on the table.

Here’s one way to do that: get clear public commitments from every Senate Democrat (and candidate for Senate) not only to vote for the Roe bill in January 2023 but also to change the filibuster rules to ensure that a majority vote would actually pass [a bill protecting Roe] and send it to the White House for the president’s signature.

IANAL etc. etc., but my reading of Justice Alito's draft opinion overturning Roe made it fairly clear that it took courts firmly out of the abortion picture and placed states—and only states—in the driver's seat. In the text of the opinion there is no positive mention of the federal government having any authority over abortion. There is no mention of the Constitution giving the federal government any such authority. And there are several holdings that explicitly suggest that abortion regulations of any variety have not been federalized by the 14th Amendment.

As with many other things, the federal government would have authority over abortion in areas normally recognized as federal in nature: interstate commerce, federal funding, and so forth. But given the aggressive tone of Alito's opinion, I imagine that he expects even those exceptions to be sharply limited.

My sense is that the Court majority very clearly expects abortion to become a state issue, and only a state issue. They believe it is no more a legitimate area for federal preeminence than, say, murder, which is governed by state law unless you do something like kill a postal carrier or conspire across state lines.

Am I missing something here? Do legal scholars have a different reading of Alito's opinion than I do?

80 thoughts on “Democrats can’t promise to restore abortion rights this fall

  1. Mitch Guthman

    For what it’s worth, I think this is an important observation that reinforces my problems with the way that Democrats use and over rely on polls to guide their policy choices.

    Emmy Bengtson
    @EmmyA2

    It's very simple, you see.

    Democrats poll and conclude that issues we care about aren't breaking through to voters.

    Republicans make issues they care about break through to voters.

    1. Yikes

      Look at this thread. On it are a bunch of Dems, or at least people who vote Dem.

      If this was a Repub thread on abortion, AT LEAST HALF of the posts would be about what DEMS WILL DO IF THEY ARE ELECTED.

      You don't have to only run on what you will accomplish. You can run on the disaster that will occur if the other side wins.

      Nothing is a better example than had a bunch of people, who otherwise hated her, voted for Clinton we would not even be having this discussion because it was beyond obvious that McConnell was holding back on Garland so that some Roe-overtuner might be nominated.

      Trump has given the gift of a lifetime in that its not even possible to ignore what will happen if Repubs win any election.

      Yet, there is some hesitancy on accepting this gift, it seems to me.

      1. KenSchulz

        “Trump has given the gift of a lifetime in that its not even possible to ignore what will happen if Repubs win any election.”
        Keep in mind that 40%+ of voters think that, if Trump wins again, illegal immigration will be stopped, Socialism will be defeated and America will be Made Great Again, again.

      2. Mitch Guthman

        One problem with that strategy is that it’s becoming clear that either the Democratic leadership doesn’t believe Trump’s really a threat or else there’s a problem of learned helplessness among them which makes it impossible for them to function either as a governing party or any sort of opposition party. Remember in 2018 when the Democrats promised accountability and delivered bupkis; for example, they couldn’t get Trump’s tax returns because Richard Neil didn’t want to alienate his Republican allies or that the first impeachment had neither an investigation nor witnesses or when the second impeachment floundered because the House wanted to take a vacation and had no witnesses in the Senate trial because it was Valentine’s Day and everyone was ready to party.

        Voters take their cues from people like party leaders, who seem to think Trump’s good for fundraising but not a real threat. A serious threat demands a commensurately serious response. That’s not been forthcoming from the Democrats.

        The other thing is that there is a limit to the value of not being Trump. And that value is further reduced by the Democrats fetishization of bipartisanship and the notion that except for a few bad apples, Republicans are basically good people who can be trusted to do the right thing when the chips are down.

        And the lack of a commitment to go to the mattresses for Biden’s agenda means that Democratic electoral politics is reduced to advocating for entropy. The main accomplishment of Biden’s presidency has been a bipartisan highway bill. The danger here is the if you keep taking people for granted and treat them like chumps, eventually they become demoralized and stay home.

        1. jvoe

          The Democratic leadership is so old. They are living in the 1980s when Republicans still had some respect for institutions. I don't think they have the energy to face what is coming.

  2. PeterE

    Marshall doesn't cite polls to justify the feasibility of his advice. Does he have a Nestor to advise him? Jeremy Corbyn, perhaps?

  3. tomtom502

    I love Kevin Drum, I have read him for 20 years. But shrugging defeatism is not good strategy here.

    Will the Court will dump a federal law? Maybe! They are out of control Republican hacks. From that we conclude we should stop passing federal laws?Crazy and unpopular anti-democratic rulings won't last forever, eventually the public will see them for what they are. Court reform has already moved from unthinkable to thinkable, eventually it will move to popular. The Court is that bad.

    How does NOT passing a federal law help?
    How does NOT creating a salient issue before the election help?
    To use Josh Marshall's analogy, how does NOT connecting the wires 'you give us this and we give you that' help?
    How does a Democrat Party that shrugs its shoulders and says nothing we can do win?

    Suppose the Democrats follow Josh Marshall's lead and pull it off: We hold the House and pick up two senators. We pass a federal law codifying Roe and kill the filibuster (at least for that law). At least until it is overturned it is in force. Democrats have shown votes do lead to laws. If a reactionary and anti-democratic Court overturns it that is terrible, but it also will also be enraging, a necessary step on the long path to desperately-needed Court reform.

    Suppose the Democrats follow Josh Marshall's lead and fall short: The Democrats did their part (two senators and hold the House and we will pass the law). If the voters don't do their part we lose, but we know the solution, next time vote! Voting has consequences.

    How is it better to shrug and say nothing to be done here?

  4. dausuul

    Most abortions today are medication abortions, which means they can and often do involve interstate commerce and the U.S. Post Office. So the federal government can in fact make a big difference even with a narrow reading of its constitutional authority.

    Now, that doesn't mean SCOTUS won't find some excuse to block a federal law protecting abortion rights no matter what it contains. But it's also possible some of the conservatives might balk at some point. Right now, talk of court-packing is speculative, but it could turn serious if the court is too aggressive about overturning every precedent under the sun.

    1. tomtom502

      Interesting point on the commerce clause. Agree on packing the Court. It has gone from unthinkable to thinkable. The Court is extreme and on a collision course with public opinion. With enough anti-democratic decisions thinkable will become doable. The counsel of despair leads to more failure.

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