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?
On a federal role on abortion I don’t know what legal scholars think. I do know the GOPs will push for a federal ban on abortion.
This so if we force the Court to put the feds out of the abortion business that's helpful on these assumptions. I assume they will not allow a federal law like Josh is arguing for to stand, but that's not Josh's point.
All he's saying is that Democrats need to keep it simple and this is one issue to run on. Literally no where in his op-ed or on his extensive writing on this topic does he say "this will save abortion rights forever."
Under the federal power to ban growing a ingle marijuana plant for self use as falling under interstate commerce, clearly the feds can ban abortion. But yes Alito would simultaneously hold that the feds can ban abortion but not positively regulate it to have uniform standards under interstate commerce.
The key word in "con law" is "con" because Constitutional legal scholarship is just a big con job with the Supreme Court Justices being the con artists and people who still act like they aren't the shameless hacks they are and still take seriously opinions from people like Alito are the marks. Maybe it wasn't always so, but it most certainly is for the Robert's Court.
Not saying you are doing this, but I just don't think it matters what legal scholars think about this because Alito, Thomas, Boof, ACB, and the vast majority of the time Roberts will just literally make up whatever likely contradictory justifications for Republican policies being constitutional and Democratic ones being unconstitutional.
The easy way to deal with this, override the Hyde Amendment, make Abortion a required covered insurable event covered by Medicaid with travel to a Legal state and lost work benefits into a budget reconciliation bill. Also expand eligibility to all women in the USA regardless of age, income and citizenship.
Good grief. Democrats can certainly run on making it a federal policy because, you know, campaigns, how do they work?
Trying to glean anything remotely logical in Alito's opinion is a fools errand, so it literally doesn't matter what it says. Because, I guarantee at least some Republicans will run on a federal ban on abortion. Most likely won't want to go there in a campaign, but some very surely will and promising to outlaw at the federal level will likely work for those folks. And I also guarantee you that if a federal ban passes, at a minimum, Alito, and almost certainly at least 4 others will rule that a federal ban is "Constitutional". Now, I also would bet that they would rule that a federal guarantee is unconstitutional because they are shameless hacks who don't care at all about consistency and logic.
This so much. *Of course* the Supreme are likely to strike it—or any other liberal legislation down. So this means we don't run on it?
This is why Democrats lose.
"Trying to glean anything remotely logical in Alito's opinion is a fools errand, so it literally doesn't matter what it says."
Yup.
You know since the filibuster exists we should stop putting bills in the hopper.
Three thumbs up on this one; this is exactly what would happen. The specific details as to any given particular will just be so much talking head fodder to fill up time slots.
But if Kevin's right that the Democrats can't deliver on abortion rights because the Supreme Court won't let them, it's hard to see what the six Republicans justices will permit beyond arcane tweaks of things like bankruptcy rules or non-political trivialities. That being the case, what exactly should the Democrats campaign on since they can't deliver anything meaningful? Maybe they should reconsider expanding the court, which is something that would allow them to bypass the USSC entirely.
I imagine Democrats are fine with making abortion an issue in state-level elections as well. And with trying to legalize it on a federal level, whatever the hurdles. And with making sure voters understand the presidency and Senate must be held in order to control the courts going forward.
Not sure why you think the pedantic federalism point you made is some kind of gotcha. Republican extremism is a political win for Democrats regardless of the nerdy details.
"My sense is that the Court majority very clearly expects abortion to become a state issue, and only a state issue."
It won't stay that way for long. When GOP does try to enact a national ban through Congress or when state decides to sue another for its abortion policies, then no longer does this remain a "state" question.
I used to believe this too Then I saw how radicalized the GOP and the pro-life movement had become. They are not going to stop with "Ok Calfornia, you allow the abortions we don't want here in Texas even though we're against the practice," any more than the abolitionists were happy to leave slavery alone in the South (even though many Republicans at the time supported this position).
Why do you think a radical GOP will necessarily get what it wants? The voters still have a say, both at election time, and in state referenda. As an example of the latter: even in very conservative states like ID and MO ACA Medicaid was approved by the voters in the teeth of GOP opposition. Abortion isn't even something (for the most part) that opens of closed the wallets of the GOP donor class so I wouldn't expect the party to burn significant political capital on. Overall I suspect the stable point will be the Lifers will have their laws (where they can get them) and the Choicers will have their abortions (where they can get them).
"...opens or closes the wallets..."
No, some rights have been recognized as covered by the U.S. Constitution, and no state may interfere in said rights.
Griswold said Connecticut and other states can't interfere in a decision by a married couple to use contraception. Roe said no state can deny a woman bodily autonomy. Lawrence said no state can decide to make felons of same-sex couples. Obergefell said no state can deny a marriage license to any couple that so chooses.
When SCOTUS throws out Roe, women's rights to their own bodies will revert to whatever any state says ... because federal law is currently silent on the subject. Ditto all the other rights.
That doesn't mean the Court couldn't at some future date throw out a federal law that gave women the right to elective abortion; it only means the court would have to cook up another reason for doing so.
I believe that day will be Thursday or possibly next week. The basis of the opinion overruling Roe very clearly applies to Griswald and, equally clearly, this court has signaled that federal regulations on reproductive rights will unquestionably be upheld.
So, either expanded the court or accept what’s coming. There’s nothing in between now.
IAAL and I would say that while there's nothing in the Opinion as leaked on this topic, that is the likely outcome.
But.... so what?
Stop being such a Democrat!
I don't care what the SCOTUS wants. And neither should you. Maybe this issue is ultimately going to be lost, but Kevin wants to give up before even fighting.
Fuck that.
Fight, for a goddamn change.
Have we always been this bad at politics? I remember thinking so 20 years ago in comparison with Bill Clinton, but it just seems like this party can't stop stepping on its own dick with all of these ACKSHUALLY takes.
Abortion like any other medical procedure can be regulated by the federal government under current law. That said, this court is extremely likely to find that a pro-abortion federal law is beyond federal power, and an anti-abortion law is well within federal power.
Nevertheless, the Dems should pass it if they have the votes. Yet a other anti-abortion opinion will make court reform much more salient. Do it!
I wrote Josh after his op-ed saying I agree 1000% with what he's saying but our party is too resistant to simplicity and always has to point out the answer the professor wants they won't accept this, not least because it's not the maximal bill Schumer tried to bring up. Roe status quo ante proposals will open a wedge between the left and center-left and we won't be able to unify on this.
I'm just sad that Kevin is Exhibit A in why I'm right. I would have expected Big Media Matt or some preening DSA blue check to do it.
I don’t there will be a significant rift; Democrats overwhelmingly consider themselves ‘pro-choice’; a tiny minority favor making abortion illegal - https://news.gallup.com/poll/246278/abortion-trends-party.aspx
If the 4% anti-choice Democrats were single-issue voters, they would be Republicans, so I think any votes lost from that group would be outweighed by gains among pro-choice independents (over half of them)
I know it’s Monday, but how about some cat blogging?
He's too busy showing that he's pissed that the other Original Blogger from Irvine is in the NYT.
I think the best the Democrats could do would be to pledge a fight at all levels over abortion. It's not clear to me what could be effective: overturn Dobbs v Jackson? That would be a long fight. Would Democrats be able to raise the passion and have the endurance for 40+ years of organizing and protesting? I'm not confident of that.
Well then give up and go grow petunias or something.
Anyone on the left side of the isle who talks like that should quit. politics. Seriously.
I mean, Why the hell is does someone get involved in politics only to spout a constant litany of why their team is doomed?
The anti-abortion people had the institutional support of the Catholic Church to build on. They've picked up support from other socially conservative groups--evangelicals and Latinos. They had more passion on offense than the Dems have had on defense. They had Leonard Leo and the Federalists. I don't see comparable assets for the pro-choice cause.
Show me a strategy to reverse Dobbs or craft alternatives and I'll support it, but so far the best I've seen for Democrats to do is lock in abortion rights in the minority of states we control and play defense against efforts by the anti-choice people to expand beyond Dobbs.
If history is any guide, if the Republicans genuinely thought that court expansion was a possibility, my guess is that they’d find a way to restore abortion right or maybe even expand them. I think if the Republicans on the court were looking down the barrel of an additional bunch of 30-something angry and vengeful liberals, you’d see another switch in time to save nine.
These people are there for ideological reasons, yes, but their own power is meaningful to them as well and they’ll act to preserve it. Just as the justices did once before.
Court expansion could be accomplished in considerably less than forty years.
There is also the little matter that Congress decides which court has jurisdiction in which case and has the power to simply make particular statutes non-reviewable. Congress can pass an abortion law and insert a binding clause saying that no court shall review it.
Citation needed. Seriously needed.
"My sense is that the Court majority very clearly expects abortion to become a state issue, and only a state issue."
I don't really think that at all. It's clear they don't think there's any constitutional right to protect abortion from state law. I also don't think they believe the fed could prevent states from banning it. But I think Alito and the others would uphold a federal ban if it passed.
But, if the Democrats want to actually do something to protect abortion, they would need to commit to removing the filibuster and expanding the Supreme Court. I doubt they would do this, and I'm pretty skeptical they could win on it, at least right now.
"change the filibuster rules to ensure that a majority vote would actually pass"
Will there be unicorns too? It's baffling that Democrats waste so much time playing "Let's pretend".
Democrats are pro-choice. Republicans are anti-abortion. If there's one issue on which attitudes were baked into voting intentions long ago, this is surely it. Hasn't Marshall noticed that Texas Republicans' mad race to turn their state into an abortion bounty hunter's playground hasn't shifted support for Greg Abbott one iota? If Democrats decide to "make an election into a referendum on an issue", at least choose an issue likely to change some voters' minds.
How many election cycles did R's run on abortion as an issue, even when there was no chance they'd be able to do anything meaningful about it?
For the time being. I'm skeptical the Court's conservatives would actually strike down a national abortion ban, if Republicans pass one.
In any case, best bet for Democrats and progressives might be to try referenda in states that allow them, to bypass Republican-dominated state legislatures. Get as many states as possible to protection abortion rights that way, so at least the impact of states banning them is blunted somewhat. Otherwise, there's going to be a huge region in the center of the US (plus the South) where abortion will be illegal.
1. Change Medicare-receiving states to require abortion access to all women. Set standards at a federal level for federal abortion facilities, using federally-licensed abortion providers, along with a repeal of the Hyde Amendment.
2. That said, most of the commenters are accurate in assessing that whatever law that the Democrats pass, there are 4-5 votes on the current Supreme Court that will overturn that law simply because Democrats passed it, regardless of context.
3. But the justification will get threadbare and support RBGFC #1-4 being added to the Court (Ruth Bader Ginsberg Favorite Clerks) as Conflict of Interest managers for Mr. Ginni Thomas, Sobriety checkers for Bretty-Boy Kavanaugh, etc.
"Change Medicare-receiving states to require abortion access to all women."
Oh My God.
I sense disapproval. It would be politically popular and fit in nicely with the strategy outlined by Josh Marshall, namely, let us keep the house, give us to senators so we’re not dependent on the assholes and we will deliver. Why not?
There’s also another thing which I’ve been stressing for some time. There comes a time when habitual timidity becomes fatal to a political party. You can’t continually tell them to be happy with bipartisanship as the guiding star because eventually your base becomes demoralized and stays home.
Another thing is that the party sends out desperate fundraising pleas but it’s now clear that the Democrats will do nothing. In the primary, the party’s leadership sent out fundraising emails about their commitment to abortion rights even as they were moving heaven and earth to support an anti choice representative against a good pro-choice Democrat. I’m still getting six or seven emails from different party organizations about how they need my money to fight for abortion rights—which is obviously a lie.
The TX law means one can sue people who have out-of-state abortions too.
Most people are fine with the status quo. They don't want abortion to be illegal. But most of all, they don't want to have to discuss abortions.
The winning strategy is to go with "the gov't shouldn't be forcing women to bear children against their will".
Use discussion on abortion to push for progressive goals. We need to improve maternity care, maternal mortality is way too high. Women need paid maternity leave--we should never tolerate "have a child. lose your home" incidents.
Article III, Section 2, Clause 2, if Congress has the nerve.
The problem isn't federal laws; it's Alito, Kavanaugh, and the conservative SCOTUS.
Alito -- Liberals should have used the time after the leak to eviscerate Alito and expose the deep flaws and consequences of the foundational changes to federal law. His misinterpretation of the Constitution has widespread, long-lasting effects despite his pathetically weak admonishment re the scope of the decision.
Had liberals done this loudly and regularly, we would have established a basis for a quick reversal under a different court or embarrassed Alito into new errors of interpretation of the Constitution by redrafting parts of his opinion. Either way, his legacy would be short-lived.
Kavanaugh -- Can't say this enough, but liberals should be making huge waves about Kavanaugh's deception in front of the Senate Judiciary. He did not "respect Roe"; he shat on it. He lied to Congress, flat out. If this is what he taught at law school, then the future of American law is shit. According to Kavanaugh, you can say whatever you want and claim that your intention was different than what others plainly understood. I would consistently claim that his actions were an impeachable offense: "HE LIED TO CONGRESS ABOUT ROE".
I would go full war on the conservatives on SCOTUS. Make the midterms about SCOTUS, noting that without changes to SCOTUS we cannot revive protections for abortions or protect LGBTQ+ rights or gender equality.
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And how. Pointing out at every possible opportunity that Kavanaugh lied to the Judiciary committee has got to be some of the cheapest bang for the buck you can get.
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Great idea. If only the Democrats could get control of the House of Representatives and they could hold long running, hard hitting hearings.
Awesome comments, especially about Kavanaugh. Such a strategy would make our Democrats actually seem to have purpose.
conservatives started fighting to overturn roe the moment it was decided and kept fighting for 50 years. they never said "well, SCOTUS will probably overturn this legislation" or "this can't pass the senate". they pushed every scheme under the sun, no matter how ludicrous or odious or illegal. and even though they failed for 50 years, it kept their voters motivated and engaged for 50 years, winning elections and SCOTUS seats. and they got it done. declaring pre-emptive defeat is not a winning strategy with voters.
Someone correct me if I heard incorrectly, but wasn’t there a report that Roberts was trying to get one or two of the newer justices to back a less-radical opinion (as he did with Obamacare)? Which the liberals would back only to save the country from Alito? Could be that opinion would allow the feds to take action, not just states.
They can promise and they should. Pass the law and let SCOTUS strike it down and then use that to argue it is hopelessly corrupted and further the ball on court reform. Show everyone right there what Dems want to do with power.
To concede right now, before an election without any effort at all is begging your voters to stay home. Hell you might as well be shooting them in heart.
The issue, obviously, is to get people out to vote for Democrats and against Republicans. Let the Democrats promise whatever they can, in good conscience, and if the Republicans and the Supreme Court would like to attempt to sabotage things, then so be it. What would be most desirable would be for the Democrats to win control in both houses with enough votes to get past Manchin and Sinema in the senate, and then to set their own rules and expand the Supreme Court and pass the needed laws. They don't have to make promises to the voters about the filibuster or the size of the Court. They just have to win elections. But in addition, the Democrats have to do some punishing and getting even with the red state Republicans, particularly in the senate, for violating all the standard norms and customs when they wanted to seize power (which included the Merrick Garland nomination). Let the Democrats take back that steal by creating two new seats for every one seat the Republicans stole, which would merely take the country back to the plus one for Garland that we should have enjoyed.
Kevin is being naive again if he thinks that SCOTUS wouldn’t uphold a federal ban on abortion. States rights arguments only apply when it benefits Republicans. As soon as a state uses state rights arguments to support something Democrats want, SCOTUS will find some reason to toss it out the window. Kevin really needs to get a clue sometimes.
Maybe Kevin is just being the devils advocate. Or incredibly naïve. Or willfully ignorant. Take your pick.
I vote for Panglossian.
Perfect word to describe Kevin alas. He has been rather lucky in life on the whole so he has a blind spot in how others experience some facets of life.
I noticed in one of Kevin's charts a week or two ago that abortion was way down the list of the most important issues facing the United States, and it was way down for both Republican and Democratic poll respondents. It's not going to help Democratic candidates a whole lot to focus on abortion rights. If they want to hold the Senate, I'm afraid they're going to need to put more emphasis on other causes to motivate voters.
I don’t mean to be critical but I think your comment shines a light on one of the Democrats real weaknesses. It used to be that Democrats had beliefs and stood for things. My dad used to call himself a Hubert Humphrey Democrat and everyone knew pretty much what he meant because Humphrey had ideas and beliefs that he was proud of and genuinely cared about. Whether you liked and supported him or not, the guy was genuine.
There’s a real schism between the base of the party who have beliefs and its political class which believes in nothing (including, apparently, winning elections) and is always trying to reflect public opinion rather than shape it. It’s why so many of our candidates are performative centrists who get swamped in every Republican wave. If abortion rights is what we believe in as a party, that’s what we should stand up and fight for.
You can be critical, that's fine. I'll criticize this a little:
"There’s a real schism between the base of the party who have beliefs and its political class which believes in nothing (including, apparently, winning elections) and is always trying to reflect public opinion rather than shape it."
One thing I believe is that reflecting public opinion is a big part of winning elections. You can always try to shape opinion, but you can't always win votes that way.
"The base" seems mythical to me. What are their beliefs? How do they shape public opinion? Do they not care about the price of gasoline or groceries?
I don’t entirely disagree about doing popular things. But, fundamentally, a political party needs to be more than an empty vessel that’s filled each electoral cycle by pollsters and consultants. It needs to have an identity and a core of genuinely held beliefs. Parties and candidates who just have a finger in the wind tend not to do well in the long run.
It also seems to me that if you run on an solving a problem, you also need to run on providing a solution to problem. If the Democrats run on bringing down gas prices, they need to have a plan that involves more than just saying what you’d do if only Joe Manchin would let you. Or that it’s too complicated or involves antagonizing the donor class, so it’s not something we’re actually going to do. And it has to deliver before the election.
By contrast, Josh’s proposal has the advantage of being simple and deliverable. The Democrats promise that if voters let them keep the house, give them two more senators so the assholes can’t block everything and we’ll pass a law. How the hand plays out from there would remain to be seen. And the formula is infinitely expandable.
The other thing is that independent “swing” voters are basically unicorns at this point. It’s vital to turnout your base. Instead, the Democratic political class is demoralizing the voters it needs the most. I think Josh’s approach is the right one.
Thanks, those points are well expressed. I'm still not clear how to say which voters Democrats need the most, because I think they need a lot of voters who won't all be aligned.
I think the voters the Democrats need most are the ones they've already got. The focus needs to be on turning them out to vote rather than on demoralizing them but assuming that they'll all hold their noses and "vote harder".
Whatever issues the Democrats eventually "settle on" won't make much difference to anyone if it's clear that there's simply no prospect that they're going to actually deliver anything and the Democratic political class doesn't really care one way or the other. A vote for a party that's simply bad at politics is basically a wasted vote because it's pointless.
But, whatever the issues, I think Josh's formula is the only one that offers the Democrats any hope of survival as a viable party.
There is a more obvious problem with Marshall's argument. Marshall wrote:
"... get clear public commitments from every Senate Democrat .."
Joe Manchin is a Senate Democrat.
As for what the Supreme Court would do. In 2007 in Gonzales v Carhart the Supreme Court upheld a federal "partial birth" abortion ban.
But you'll notice that he adjusts for Manchin and the other asshole by using the formula "let us keep the house, give us two more senators so that we're not dependent on the whims of two assholes, and we'll deliver protections for reproductive rights". If you can think of any other strategy which offers the slightest hope for Democrats in 2022 or 2024, I'd like to hear it.
As for what the Supreme Court will or won't do, it's a lot like the recipe for tramp stew ("first, steal a chicken"). First pass the law and worry about what the Republican courts will do later. We need to dare the Republicans on the court to strike it down and risk the backlash being exploited by the Democrats (not the actual Democrats, of course, but hypothetical ones who are good at politics). And remember, if the Democrats have a majority in the Congress, the court can be expanded and jurisdiction over voting rights and abortion can be assigned to a newly created court staffed by loyal Democrats.
Abortion is such a low totem pole issue. A few loud groups get all riled up by it. But it's never a large voting bloc. Abortion in that way could switch technically legal/illegal for years. It doesn't matter what ban is there, it will fail. Much like with guns in a open economy.
You people just don't think rationally. No different than the abortards.
It's a big voting block on the right. So far has been a non-existing voting block on the left. Doesn't appear that overturning roe will change that. One of the benefits of social progress is that having a baby out of wedlock is not considered as life destroying as before.
I agree that not-fighting is worse than losing.
Democrats need to build a simple counter narrative.
"Republicans want to control people's personal life decisions."
It would be effective because it is true.
Different things are important for different people. Polls typically do not show one issue dominating consistently, unless it is the economy, which is usually most important when it is bad. Issues may come to the front temporarily when the media feature them, which is happening now with abortion. The parties do not get to choose what issue dominates the non-right-wing media.
So why should Democrats concentrate on one issue, which may be most important only for a few percent? Remember that abortion in particular is important for both sides. Democrats can certainly make up a list of things that they intend to do, and which poll well. Maybe saving democracy would be one of them.
Alito's draft ruling has brought abortion to the fore for the moment, but interest may ebb - reporters and pundits will get tired of writing and punditing about it. The Court could also back off from using Alito's full draft, at least until after November.
how many decades have the republicans campaigned on reversing roe? even if the democrats can't deliver in '23, keep using the issue as a campaign battering ram until they do succeed one way or another.
Wasn't this the tack taken in the 1850's?
Yes, there's a lot of scary parallels between our current situation and the run-up to the Civil War. The current Democrats are on track for oblivion much in the same way that the Wigs dithering and vacillating gave rise to the Republican Party. And the court's expansion of slavery to free states was undoubtedly a proximate cause of the war.
That is my sentiment.
The only difference is the liquidation will hit everyone. You and them. Degrowth is Coming. The problem with ecological destruction, is the reversal will be ugly. When Alabama's bond spread blows out, as the state bankrupt's......don't think anybody will be worrying about abortion then. Losing faith in religion is more likely as famine sets in.