Over at National Review, Michael Brendan Dougherty says he's surprised that progressive anger over the Dobbs decision has been relatively modest:
There were some loud marches through major cities over the weekend, but hardly the wave of riots, vandalism, and sacrilege promised by the group Jane’s Revenge. I think many of us prepared for our churches to be harassed over the weekend, only to come back Monday and see reports of a little graffiti at a crisis pregnancy center and the burning of an unused but historic church in Virginia.
I expected worse. And I suspect that the leak of the drafted Alito opinion stole some of the spontaneous energy from what could have been an explosive moment in public demonstration.
Dougherty obviously hasn't been reading the same Twitter feeds as me. I've seen plenty of anger.
But yes, the leak of the decision probably took away some of shock. And there's another thing too: Dobbs mainly affects red states, where state legislatures have already made abortion so difficult to get that it's been all but banned already. Conversely, it has no effect in blue states where legislatures have no intention of banning abortion. Hell, California has decided to strengthen abortion protections in response to Dobbs.
So if the response to Dobbs really has been modest, I'd propose several reasons:
- The leak.
- The laws already in place in red states.
- That fact that, in practical terms, there's little that progressives can do.
One of my guesses, by the way, is that Republicans are going to blow it. One of Dougherty's colleagues, for example, asks what's next?
Now that the Dobbs decision has come down, we must ask the question: What does final victory look like in a post-Roe country? It means an America in which abortion is not merely illegal — it’s unthinkable.
A large majority of Americans disapprove of Dobbs, and according to Gallup hardly anyone approves of a complete national ban on abortion. In fact, after the leak of Dobbs that went down seven points to 13% from an already low 20%.
The obvious conclusion is that Republicans should tread carefully. They got Dobbs thanks to a perfect storm of luck in Supreme Court appointments, and it's pretty unpopular. Pushing further would be really unpopular, but I'll bet they won't be able to help themselves.
Plus the coming campaign against Liz Cheney and Cassidy Hutchinson isn't going to help.
There's not much to say. A lot of people who are basically outsiders (AOC, Elizabeth Warren, Josh Marshall, Ezra Klein, etc) have urged the Democratic leadership and candidates to pledge to take specific actions in respect to reproductive rights if only the Democrats are allowed to retain control of Congress. To date, none of the leadership has done this; there's no specific pledges of action if the Democrats retain control and every single specific proposal that might address the problem has been vetoed by the Democratic leadership, which has simply clung to to "vote harder" messaging.
Expand the court, make PR and DC states; have abortion or family planning clinics on federal land; federal legislative protection for medical records and for obtaining abortion drugs safely, pledges to protect reproductive rights with specific legislative commitment are all vetoed by the leadership. It's all just "vote harder", give us 10 more senators and 30 more representatives and then, maybe, we'd do something.
The Democrats seem to be going out of their way to do nothing except endlessly, relentlessly raise money. The message seems to be that the Democrats are helpless but hoping nonetheless that the referees or somebody will act so that they don't have to.
I think this sort of sentiment has become fairly common in certain circles, but I don’t personally find it very convincing.
After all, “voting harder” probably IS the single most important thing for DEMs to do if they want to take the Supreme Court back; but it’s not going to happen anytime soon.
I think it’s fairly obvious that if the DEMs are given enough votes in Congress, they will pass federal legislation codifying a right to abortion and put judges on the Supreme Court who will support that right. Those are the most important steps that can be taken. Can Dem leadership improve its rhetoric on those points? Sure. But, yes, voting harder really is the whole ballgame.
Also, the Dem leaders don’t talk about some of the ideas you propose (such as packing the Court) for the simple reason that they’re bad ideas. I think there’s a disconnect between “progressives” and Dem leadership because progressives are still largely in denial. But the truth of the matter is that this situation isn’t going to be resolved or fixed any time soon.
There WAS a recent summer where the Supreme Court and the right to an abortion could have been protected, That was the summer of 2016. At that time, one summer could have actually made a difference. But “progressives” blew it by failing to “vote harder” for Clinton.
Progressives, of course, will blame Dem leadership for not nominating a better candidate. But that’s kind of what I’m getting at: the progressives are always blaming someone else.
Meanwhile, the Republicans voted for Donald Trump even after that access Hollywood tape came out. The progressives got a Revolution after all, just like Bernie promised: but it turned out to be a Revolution that they gift wrapped and delivered to their opponents.
So while Republican voters seem to start with the assumption that they’ll vote for the eventual Republican Presidential candidate no matter what, we seem to wait around for the Dem candidates to give us reasons to do so. But those reasons are already obvious. The Dem leadership can improve its messaging, but if the DEMs don’t learn to vote harder then there just isn’t going to be much point.
If Democratic leadership and candidates are truly, irrevocably committed to doing these things there shouldn’t be any hesitation about saying so. If they’re not committed, then I have to say that I’m not sure that there’s anything that’s going to be accomplished by sticking with the party.
It’s also not as clear to me that simply voting for Democrats with nothing more than vague assurances or assumptions is going to achieve much. After all, the Democratic establishment routinely moves heaven and earth to defeat pro choice Democrats and to defend very conservative anti-choice Democrats. It’s hard to reconcile all the outraged rhetoric with the scorched earth defense right wing, anti choice Henry Cuellar.
Finally “vote harder” rings hollow when that appeal is never accompanied by actions which are well within the power of Democratic leaders. After Biden urged everyone to “vote harder” he was clear that his administration intended to do nothing to protect reproductive rights. Every specific proposal was shot down in favor of someone else “voting harder”.
I'd like see one of two commitments out you before you write anything here again:
1). I'm never voting again because there's no difference between the two parties and my voted is wasted and I refuse to stand in line to do so.
2). I'm calling on the Left to form a new political party or I myself intend to become an activist in an existing Left-wing or center-left political grouping (and believe me you have plenty to choose from) to replace the Democrats
Because either one would be a lot more honest and or more productive than anything you've written so far.
So make a decision my friend instead of just using these comboxes a your own personal whine session about how you get nothing out of voting for the Democrats. That's fine, but one would think you would have some new material by now.
First, I have never said that there’s no difference between the parties. That’s entirely a straw man of your creation and has nothing to do with anything that I’ve written. Clearly, the differences are immense: the Republican Party is an authoritarian anti Democratic Party. But the question is whether the Democratic leadership is up to the job of opposing that party and preserving our republic. My conclusion is that the Democrats are constitutionally incapable of taking effective action.
As a practical matter, the Democrats strategy of doing nothing except waiting for the Republicans to flame out has been disastrous for both the party and the country. And then continuing doing nothing once they’re notationally in power has feed Republican extremism and brought us to our present crisis.
I’m a third-generation Democrat. With the exception of my vote for Buddy Roemer to be governor of Louisiana, I have always the straight Democratic ticket. I have never said that anyone should abstain from voting or vote for a third party, which would obviously be disastrous in 2022 and 2024.
What I have said, however, is that the Democratic Party seems irrelevant and doomed as was the Whig Party and for much the same reasons. The Democratic Party seems determined to demonstrate time and time again that it’s too timid and too feckless to be of much use in addressing the problems which confront the country.
Nevertheless, there’s no time between now and November of 2024 to build a new party and no matter how pessimistic one’s assessment of the Democrats abilities to win elections and turn the tide against the relentless onslaught of Republican authoritarianism that is a reality which cannot be denied. This not the moment for change of parties by liberals, minorities, and young people—we are, for the moment, tied to the Democratic Party.
The question is whether we should do something different in 2025, whether the party retains control of the White House and congress or not. It seems vanishingly unlikely that the party will become more dynamic by expanding the court, protecting reproductive rights, adding additional states, and so forth. Yet I believe that these are the only ways forward. Consequently, 2025 is the moment to consider alternatives and that’s particularly true if, as I think likely, the Democrats will be wandering in the political wilderness.
That is what I’ve consistently advocated. Not remotely this straw man you’ve created. I challenge you to address what I have actually said rather than who you want me to have said. What is your road forward to achieving liberal goals and defeating authoritarianism?
"What I have said, however, is that the Democratic Party seems irrelevant and doomed as was the Whig Party and for much the same reasons. The Democratic Party seems determined to demonstrate time and time again that it’s too timid and too feckless to be of much use in addressing the problems which confront the country.
Nevertheless, there’s no time between now and November of 2024 to build a new party and no matter how pessimistic one’s assessment of the Democrats abilities to win elections and turn the tide against the relentless onslaught of Republican authoritarianism that is a reality which cannot be denied. This not the moment for change of parties by liberals, minorities, and young people—we are, for the moment, tied to the Democratic Party.
What a lovely motivational speech! Do you do TED Talks too? The party is doomed and will go the way of the Whigs. But hey! Vote for it anyways "because we're for the moment tied into it?" That's encouraging You're saying a person's vote for the Democrats, presumably the party of pro-choice is meaningless ultimately but you have no choice! It sounds like you want the party to be smashed in 2024 so a new party can arise. All I can say is that's at least a plausible position to take. I wish you had the guts to take it.
I know, you can start a new party called "The Effective Party". The Effective Party has the same positions as the Democrats except they will be "more effective". How do we know this? You don't. You'll just have to trust Mitch he and his fellow party members will somehow get elected after splitting up the Center-Left vote in 20 different ways and show how they'll be more "effective" I guess.
I challenge you to address what I have actually said rather than who you want me to have said. "
Well, I just quoted what you wrote and I think it sounds pretty damning to me as defeatist. If you ask me what my solution is, it's this: "vote harder". Yeah, so sue me. What other choice is there to get what you want? Violence? Enjoy prison or death. Civil disobediance? Fine, as far as it goes, if you're willing to pay the price sometimes (many people aren't). Clandestine networks? I get it, and they're as American as apple pie. But ultimately, most people would like to operate within the law and that means electing lawmakers like it or not and far as it goes, when it comes to policy and judges, the Dems have been effective in terms of abortion policy where they've had a chance to make it (California for example). It find it funny when members of Congress propose solutions which run afoul of the Hyde Amendment and then somehow blame Biden instead of looking at themselves for not trying to repeal it!
If your beef is against the leadership of the party I won't argue that point. Suffice to say one thing I do know is this: Leaders change. Pelosi isn't going to be there forever nor is Schumer. They're both old. Biden too. And new leaders will no doubt will more-than-likely, if they wish to be chosen, will have to support codifying abortion rights Federally in Congress and have to get rid of the filibuster to do so. Democrats are more likely to do this than Republicans, that we can both agree on.
Trust me when I tell you the conservatives I tried to convince in the aughts to join the Constitution Party or some kind of non-major conservative political, are probably pretty happy right now they stuck with the GOP to get Roe repealed and didn't engage in dead end politics. If you wish to do so be my guest but leave the rest of us in peace.
I’m not sure what your snarky objections really are and perhaps if you were more focused we could have a meaningful discussion. There is a widespread belief among knowledgeable observers that even after Roe was overturned that the Democrats are in serious trouble ahead of the November election.
We’ve seen widespread criticism of the leadership’s approach. There’s discussion about the clear disconnect between the leadership’s rhetoric and its interest in taking even modest actions You seem to feel that these criticisms should be ignored but you do not in any way refute them or argue why you think the party is on the path to victory rather than the widely predicted crushing defeat. You fail to address my (or others) substantive issues with the path chosen by the party’s leadership.
Similarly, I have set forth my reasons why I believe that the Democratic Party is no longer a viable political party that is capable of addressing perhaps the gravest internal crisis since the civil war. Over the past months I have laid out my reasons for comparing our situation to the pre-civil war situation and why I’m drawing analogies between the Whigs and the Democratic Party. You don’t seem to have any refutation beyond saying that we shouldn’t have a defeatist mentality. But a plan for building a better party that is capable of campaigning and governing more effectively is hardly defeatist.
Snark is reserved for those who continually make ridiculous and in many cases untrue statements. You reap what you sew.
The Whig Party died because it was irrevocably split on slavery. Northern Whigs like Lincoln, Seward and Weed abandoned the party in 1854 because of the Kansas-Nebraska Act and Southern Whigs support of it. They decided they could not be in the same party and decided to form a new one. The Democrats are not irrevocably split on abortion and the number of anti-abortion Dems you can now fit in a phonebooth.
You have no plan for "building a better party." If the party you build (The Effective Party, remember) is really no different than Dems on most if not all topics and your only difference is "better leadership" or "fight harder" that's hardly to start a new party any more than fans of the New York Knicks start their own pro team because they're dissatisfied with the one they support. Over time, and as I said before, leadership changes and tactics change as the results of conditions and or events or any other shifts. New parties are started (as the Republicans were) because of clear differences within existing parties or a new party captures a need within the body politic not being provided by the existing parties. Nothing you have written in my opinion comes close to even meeting that standard which leaves you as nothing more than a disgruntled fanboy. If funding appeals bother you that much, just don't give as fan doesn't pay to watch their team lose. In your context, it's the same thing.
Exactly. The only way forward is massive GOTV in purple states so that women can travel for services they need. States without trigger laws and aren't immediately moving to ban abortions are the ones we need to hold in order to keep serving women in need.
The long game is keeping Republicans from gaining office starting at school boards and up. It took them nearly 50 years of grassroots organizing and winning small local elections to get to June 24, but they didn't have the social connectivity that today's young people do. We can't fix the situation in deep red states, we have to take care of the immediate need (serving women) and play the long game ....but we have to play it super efficiently to slow down the rate at which SCOTUS is decimating rights.
Hillary didn't lose because of a lack of progressive votes; she lost because of a lack of centrist aka moderate aka swing voter votes.
The brilliant move of nominating a candidate for whom the other side had a two-decade head start in demonizing didn't help, either.
That isn't just wrong, it's WRONG; it's WRONGWRONGWRONG!
Jill Stein was a "vanity candidate" for President in 2016. She had no chance to win the Presidency. She had no chance to influence any policy decisions within the Democratic party. She had no chance to do anything of import. Meanwhile, she attracted votes from disenchanted Democrats who rationalized their stupidity by thinking to themselves that they were casting their vote for somebody who stood for something they believed in, and ignored the slightly inconvenient truth that they were sabotaging the country.
There was not one single Stein voter anywhere in the USA who, if Jill Stein was not in the election, would have voted for Trump. So every vote Jill Stein got was siphoned out of the Democrat totals. If Jill Stein's "vanity voters" had the good sense to realize how important it was to be realistic, Hillary would have won Michigan, Pennsylvania and Wisconsin. Hillary would have been President, and all those Progressives could have gone on wishing Bernie had gotten the nomination, but the rest of us would not have had to deal with the mess we got, a mess that will last beyond the end of my lifetime, thanks to that one unthinking idea that it didn't matter, they were going to vote for the candidate they liked.
My anecdote of a Stein voter fits your thesis. She refused to vote for Clinton because Clinton would not "permanently shut down" the Dakota Access pipeline. She mentioned this to me after the election. I responded with "doing that is illegal for a president to do, and now there is no hope. The pipeline is definitely happening."
I think she honestly did not understand that Trump could end the environmental studies, which were the only hope of stonewalling the pipeline long enough to hope for a change in profitability, but a president could not simply stop a pipeline because they said so.
Now she posts a lot about things people can do now that Roe is gone. Voting is not on her list at all.
The art of politics is persuading people to vote for you. If you can do that, you win. If you can’t, you loose.
What, all six of them?
Also, the Dem leaders don’t talk about some of the ideas you propose (such as packing the Court) for the simple reason that they’re bad ideas.
Expanding the court may or may not be a political winner for Democrats. But your claim that it's a "bad" idea on the merits doesn't seem supported by the evidence. I think the country would be better off right now if Democrats could expand the court to, say, thirteen members, thereby given reasonableness a 7-6 majority. You disagree?
I know a possible retort is: Republicans could just do the same thing next time they have power.
And that's exactly right. They could. And so we'd have a situation where the prevailing judicial philosophy explicitly follows the electoral returns. Under the extremely damaging status quo, we're in a situation where the prevailing, governing judicial philosophy flows substantially from dumb luck, and chance timing. And right now these factors have cemented potentially many years of rule by an unelected, parallel legislature hand-picked by hard rightists.
I'd prefer volatility to such dangerous, calcified rule by antebellum MAGA.
I think you make perfectly good points, and, of course, there’s a limit to how much detail (regarding our thinking) any of us will put in a blog post. In a conversation we could say more.
So let me just expand on my earlier assertion that packing the courts is a bad idea. Certainly, I still believe that. But, to clarify a bit, I would also say that I honestly don’t see any particularly good options when it comes to dealing with certain issues such as the Supreme Court in this country.
You state: “And so we'd have a situation where the prevailing judicial philosophy explicitly follows the electoral returns.” In other words, when Dems have full control they appoint Dem judges to the Supreme Court, when Repubs are in control they appoint Repub judges. But, to put it mildly, I don’t think your observation even begins to scratch the surface of the potential (and mostly unintended) consequences of expanding the Supreme Court.
I was not, to be honest, really thinking that far down the line. I was thinking that in the immediate moment it’s a bad idea for the Dems to announce, or take any action towards, a plan for expanding the Supreme Court. Perhaps some see that as a way to motivate their base and give people a “reason” to vote for Dems. But based on historical trends, the Right has shown much more commitment to vote based on Supreme Court concerns than the Left has. And announcing a plan that is likely to motivate your enemies more than your supporters, and doing so just before an election, just doesn’t strike me as smart.
But, getting back to the long-term consequences, ultimately, and I say this with all sincerity, I think the packing of the Supreme Court at this moment in our history could potentially lead to some level of dissolution for the country. Of course it’s very much in vogue to speak of the USA as having already dissolved into a sort of nascent Civil War, and many people express hopes for such a process to continue. But I do not share those hopes. I do not personally want the USA to be further weakened, and, quite frankly, I do not want our influence in the world to wane and thereby open a pathway for authoritarian governments like China and Russia to expand.
Of course, I’m well aware that the influence of the USA in the world is not always benign. But, does anyone really want to imagine what the situation in the Ukraine might be like right now if the USA had not stepped up to lead an international coalition to help them out? And, of course, the Ukraine would’ve been just the first step for Putin. For China, they very likely would’ve swooped in to grab Taiwan if the rest of the world had not put its foot down in opposing Putin.
No matter how flawed we actually are, and no matter how flawed the Left and Right extremes like to claim we are, the world is still very likely worse off without the USA in it. And if we toss the equivalent of a nuclear bomb into our already simmering tensions (by expanding the Supreme Court) then we are only hastening the forces pulling us apart. The Court would ultimately, I believe, devolve into a meaningless institution and the rule of law as well as the extent of our democracy would greatly erode as a result. I am not at all certain that we would ultimately remain one country.
So, yeah, not a very good idea to expand the court.
But, as I said, there really aren’t any particularly good options available. It really is ultimately up to voters. That’s why I don’t personally have much of an issue with the “vote harder” response from Dem leadership. That really is what it comes down to. It is finally the responsibility of the American people to save their own country, and the best means they have of doing that is voting. Peaceful protests are also good. Supporting various interest groups (at least the ones that aren’t self-destructing) can also be helpful.
If we want to make progress without blowing the country up, we need to persuade, not dictate. We need to get more votes, win more seats in the Senate, and appoint more judges. No matter how much we find fault with our current system, any changes need to be adopted carefully and with as much public support as possible, not with half the country seeing our actions (such as packing the Supreme Court) as a declaration of war.
Anyway, that’s enough, I’ll stop now !
I think the packing of the Supreme Court at this moment in our history could potentially lead to some level of dissolution for the country.
I believe perpetual rule by a non-elected right-wing High Council that seeks to actively drag the country back to the 18th century is more likely to lead to national dissolution than, you know, coming up with an alterntaive arrangment. The suggestion I mention above would formally empower our bipartisan politics again, and both sides of the aisle would possess robust powers to formulate policy when they succeed at the ballot box. You may have noticed Democrats rode majoritarian election wins last cycle to control of all three political branches. And yet here were are, lurching sharply toward a GOP-centric policy universe. It hardly seems worthwile holding elections in such an environment.
And in the off change the country does have to disolve, that may be better than a new Dark Age for all 340 million Americans.
Finally, most high income democracies do perfectly fine without an unelected defacto third legislature. The framers and their immediate succesors got this part wrong. Full stop. They weren't omnicent. It's time to rectify their mistakes.
PS—Expansion of the court is only one of the myriad suggestions out there for reform of the judiciary. I'm open to various ideas. Perhaps we need a combination of several. But we do need to change things.
Regarding this:
"that may be better than a new Dark Age for all 340 million Americans."
We are not in for a new Dark Age for 340 million Americans. I think you've been making some good points, but you clearly veer off into hyperbole here, and that's often where the extremes of the Left and the Right (or those who simply sound like those extremes) lose me.
One of the most important things to do in highly charged and disappointing historical moments is to keep one's own cool. Everyone, in my opinion, would be better off right now if they avoid whatever twitter or Facebook groups they typically hang out with.
And one of the reasons why I think a lot of people are disappointed with Dem leaders (such as Biden and Pelosi) right now is because those Dem leaders do, so far, seem to be keeping their cool while everyone else is losing it. Good for them. I realize that nothing gets on our nerves more than a person or group who remain level-headed while we feel like burning everything down. But the sad fact of the matter is that, no matter how frustrating it is, the battle to re-establish abortion rights is going to be long and drawn out. There are no quick solutions for restoring the rights we just lost that don't risk inflicting a great deal of harm in the process.
That being the case, I don't think your hyperbole is helpful; it weakens your argument and it distorts our current moment. We're dealing with a tragic setback, not a new Dark Ages. And we need to formulate a response that's constructive, not destructive.
The problem is that now that abortion is a state-level issue, there's not a ton of direct action that we can take at the federal level, unless its something like guaranteeing that women in the armed forces continue to have reproductive care regardless of where they're stationed or that the US Postal service will deliver fda-approved abortion pills, that Biden or Schumer or Pelosi can take. I'd like to hear your take on whether this court would let a federal abortion statute stand or not. Naturally the long game has to be to ensure Democatic majorities in the Senate for at least another generation so that when Alito, Thomas (may their days be short) and maybe Roberts kicks it, we're there to rebalance the court.
In the meantime, the states are the battlegrounds and that's where we need to focus. From dogcatcher on up, voters have to turn out these radical Republicans if they want their rights back.
The problem is that now that abortion is a state-level issue, there's not a ton of direct action that we can take at the federal level,
That's not remotely true. Dobbs means there's no longer a Supreme Court precedent curbing state restricions on abortion. But this doesn't mean Congress couldn't curb state restricions on abortion, perhaps by citing the Commerce Clause, or the 14th amendment, or both, or some other constitutional justification. Congress also possesses the power to narrow the court's jurisdiction.
Perhaps it's likely the current six rightists on the court would srike down a federal reproductive rights bill. But that might take a while. And even if it were to happen quickly, at least it would be an example of taking action, which seems likely to raise the political price Republicans will pay for dragging the country back to the 18th century.
As could the executive branch by renting space on federal land to abortion or family planning clinics. Technically, it’s bulletproof but it would be controversial and might precipitate conflict between red state governments and the feds. VP Harris was asked about it and said no but people should “vote harder”.
I understand being conflict adverse but, yet again, there’s a huge divergence between the party’s fundraising claims of a serious threat to all kinds of rights and the feckless response of refusing to use executive power to deal with this great crisis.
Apparently someone hasn't heard of the Hyde Amendment
Mitch -
What do you make of this story:
A lawsuit brought by a Florida synagogue claims reducing access to abortion is not compatible with Jewish law, making it a violation of the constitutional right to freedom of religious expression. In the wake of the Supreme Court decision to overturn Roe v. Wade, does the lawsuit offer a template for other legal challenges?
A lawsuit filed on June 10 by a synagogue in Florida has challenged plans to limit abortions in the state on the grounds that it would violate religious rights and therefore be unconstitutional. The Jewish faith holds the right to an abortion to be inviolable.
The Florida bill is set to lower the maximum threshold for abortions from 24 weeks down to 15 weeks from July 1, with exceptions in instances where the medical procedure could save the life or prevent serious injury to the mother. It offers no exceptions for victims of incest, rape or human trafficking.
But these restrictions would infringe upon Jewish women’s right to abortion as guaranteed by their faith and are thus incompatible with the Florida constitution’s right to privacy and religious freedom, says the lawsuit, which was brought by Rabbi Barry Silver on behalf of the roughly 150 members of Congregation L’Dor Va-Dor in Palm Beach County.
“If a fetus poses a threat to the health or emotional well-being of its mother, at any stage of gestation up until birth, Jewish law not only entitles but requires the mother to abort the pregnancy and protect herself,” the suit argues.
The suit was filed in advance of a long-expected ruling by US Supreme Court, which on Friday struck down the 1973 law that legalized abortion nationwide.
As the court overturned the Roe v. Wade ruling, it increased individual states’ powers to enforce their own abortion laws, with 26 conservative states now expected to introduce restrictions or outright bans on the procedure.
In Florida, for example, Governor Ron DeSantis quickly promised more restrictions to expand “pro-life protections” in the wake of the ruling, in addition to those already set to come into effect in July 1.
While some have celebrated the Supreme Court’s decision, others have bitterly opposed it. The US National Women’s Law Centre described it as an “extremist attack” on women’s rights, and US President Joe Biden has pledged his administration will do all it can to protect remaining abortion rights.
However, reversing the court’s decision would be practically impossible. According to Emma Long, associate professor of American history and politics at the University of East Anglia in the UK, there are only two ways to rescind a Supreme Court decision.
The first is to convince the court to overturn its own decision, something it has rarely done, which makes the decision to overturn Roe v. Wade extremely unusual. The second is an amendment to the US Constitution itself, which has only happened 17 times since 1791. And as Long says, “particularly on an issue this divisive, it’s just not going to happen”.
A single lawsuit brought in Florida against the state’s constitution (rather than the US Constitution) might thus seem like feeble resistance. But it draws on deep-rooted legal precedents: freedom of religious expression is a First Amendment right. Meanwhile, there is no mention of abortion in the Constitution, meaning constitutional laws around the practice are always interpretative.
Citing such an inalienable right as religion establishes the suit on “stronger legal ground” than trying to push for the creation of new laws to re-legalize abortion, Long said.
“Bringing a constitutional case is literally the only option, but it’s also a very clever legal move.”
A question of religion
Broadly speaking, Jewish law stipulates that life begins at birth and that until that point the mother’s life is prioritized. “So, in order to protect the health of the pregnant person, abortion is permissible and sometimes mandated,” said Samira Mehta, associate professor of women and gender as well as Jewish studies at the University of Colorado at Boulder.
The definition of what counts as a health threat varies between Jewish communities, with the congregation of L’Dor Va-Dor in Florida at the liberal end of the spectrum. But, Mehta said, there is agreement on the principle that abortion is a right. “And that it is a religious matter, not a decision for the state.”
Traditionally, US courts have been sympathetic to legal arguments made on similar constitutional grounds. Historically, minority religious groups have benefited from rulings that protected traditions not accounted for in general law. For example, a 1996 ruling allowed the use of the banned substance peyote exclusively in Native American religious ceremonies.
More recently, the balance of power has changed. “In the last 15 years or so, the Supreme Court has used religious freedom language to protect the rights of majority religious groups, particularly white evangelical Christians,” Long said.
This has led to cases that question the concept of who is a majority and who is a minority, such as those against legalizing gay marriage on the grounds it discriminates against groups who do not support marriage rights for all. While those cases were dismissed, others – namely around religion in schools – have been passed.
In the national discussion around rolling back abortion rights, the National Council of Jewish Women said on its website that the conversation was so dominated by the Christian right that it had “ignored Jewish voices”. In Florida, the L’Dor Va-Dor lawsuit says that new laws amount to “imposing the laws of other religions upon Jews”.
“What we are seeing is a very powerful minority of conservative, Protestant and Catholic Americans dictating something that conflicts with other people's deeply held religious beliefs,” Mehta says. “But religious freedom is something that is enshrined in American law for all Americans. So, what happens when people's rights bump up against each other?”
‘Not much else to lose’
The L’Dor Va-Dor lawsuit challenges the state’s constitution, meaning a win would only have legal implications within Florida. But success could pave the way for similar lawsuits in other states. It could also set the stage for other suits claiming First Amendment violations that could have national implications.
“There is potential in an argument that says the theological teachings prioritize the person who is pregnant,” Long said. “To be legally successful it would have to be framed very carefully, which is what conservatives have been doing very successfully to achieve their policy aims for several decades now.”
In fact, part of the uniqueness of the Florida suit is that it is a rare example of liberals using tactics normally deployed by conservatives to try to sway the courts towards their own values. “This is certainly a different angle and it’s really clever, given the way the court has been thinking about issues of religious liberty in the last decade and a half,” Long said.
Nonetheless, even though the Florida suit contains “an argument that should be taken seriously”, Mehta said it is anyone’s guess what the outcome might be. Most probable is that there will be no quick or easy victories for those fighting to regain abortion rights. Instead, they are likely to face legal obstacles, state-by-state battles and bitter divisions on either side.
“It's a deeply polarized environment,” Mehta said, adding that Jewish activists are also facing rising rates of antisemitism.
And the price of failure in Florida may be high. A loss would give other courts grounds to rule against similar cases, and could feel like another nail in the coffin for reproductive rights in the United States.
“It's high stakes in some ways,” said Long. “But you could argue that, given that Roe v. Wade has now gone, there’s not much else to lose by trying.”
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This is interesting in that SCOTUS rightly ruled in favor of that Coach who prayed after a football game which was voluntary for the players. If it were mandated for all players yes it would have been wrong
Abortion is MANDATED by the Jewish religion, under certain circumstances..
Abortion is NOT mentioned in the constitution but freedom from religious persecution is
I’ve been following it. I think think the claim in tenuous but no more so than similar claims by Christians. My assumption is that the court will essentially hold that only Christians can make religious liberty claims and that Jews, Muslims, etc are Americans only on sufferance. I think it will be phrased in loftier, more “historical” language but I think that’s the gist of how the court will dispose of the claim.
I don;t think they will go that far Mitch
Membership in Christian religions has been declining for decades
They are NOT blind
But then again.........
The stuff about the US being a “Christian nation” with all kinds of unique historical or cultural that bind us to Christianity but not to other religions has been circulating for decades. I really do think that’s how the court will finesse infringements on “non-American religions.
The court and the party are already pot committed to minority rule. The number of Christians in the county isn’t the relevant thing. What matter is the number of Christians on the Supreme Court.
They'll simply find some wingnut Jewish person who thinks otherwise and hang it on that happy to have the opportunity to define what's really Jewish, the same way conservatives are always eager to tell people who is or isn't a 'real' Black person.
The answer is that as of August 31, a majority of justices on the Florida Supreme Court will have been appointed by Ron DeSantis. The remaining three were appointed by Charlie Crist when he was still a Republican. The Chief Justice (one of the Crist appointees) is credited with having coined the term "partial-birth abortion" during a meeting with the National Right to Life Committee.
So, if I were a betting man, I'd say the suit faces some long odds.
I don’t think there’s any expectation of success. I think the idea is to drive a wedge between the bland, abstract language of “religious freedom” and the courts commitment to Christian dominance. Which, in turn, would drive a wedge between Republicans and other religious groups by making it clear that Muslims, Hindus, and Jews are Americans only on sufferance. Everyone but Christians are second class citizens with second class rights.
IANAL, so I'm just spitballing here, but I presume something like this would require a pregnant woman who is Jewish to actually seek an abortion and be denied care based on state law, and then sue said provider based on a violation of religious liberty. My assumption is that courts will find that having an abortion, while *permitted* by Jewish law, isn't essential to freely practising Judaism in the way, say, that plaintiffs were able to argue using peyote was essential to Native American spirituality, therefore outlawing abortion isn't a violation of religious liberty. Were a state to, say, outlaw circumcision, that might be a different case.
But if that same Jewish woman's life were at risk?
THATs the problem along with the fact that they believe life begins at birth
From the story
But these restrictions would infringe upon Jewish women’s right to abortion as guaranteed by their faith and are thus incompatible with the Florida constitution’s right to privacy and religious freedom, says the lawsuit, which was brought by Rabbi Barry Silver on behalf of the roughly 150 members of Congregation L’Dor Va-Dor in Palm Beach County.
“If a fetus *************poses a threat to the health or emotional well-being of its mother, at any stage of gestation up until birth***********, Jewish law not only entitles but *******requires******* the mother to abort the pregnancy and protect herself,” the suit argues.
So a Jewish woman finds out she's pregnant and her emotional well being is compromised. How is the state going to impose it's will AGAINST her faith?
Keep in mind the SCOTUS argument by Thomas was that abortion is NOT mentioned in the Constitution but freedom from religious persecution IS mentioned.
It's an interesting question that SCOTUS will have to affirm based upon how our antiquated constitution is written.
In THIS case Trump was/is right. Overturning Roe will hurt republicans.
The ONLY question is - when
I think they expected violence and destruction because that is what the right would do. After all it was the anti abortionists who murdered Dr George Tiller in church and fire bombed multiple clinics. It's not that the left isn't capable of violence, it's that the it's the left fringe and it's just far less likely. The left abhors the violence and intimidation of the right, they are hardly going to lower themselves to that level.
And it's mostly women after all.
Also, I think it's due to the right wing bubble these folks live in. They believe there are thousands of left wing agitators that are just itching to burn down churches and shoot Supreme Court justices and that overruling Roe v. Wade is overwhelming popular. All the evidence to the contrary is disregarded.
Your way off. Abortion choice has plenty of right wing support. Different branches of the tree.
Why not go for the brass ring? It only gets better for them from here: they might take the House, they might take the Senate. If enough Dems leave Red and Purple states in disgust, their locks on state houses and gerrymandering gets even tighter. I imagine they'd even be fine with widespread flouting of a national abortion as having 'safe havens' gives their elite donors and upper class supporters an out if they need it but continues to allow them to be "Pro Life!" We've already seen that slaughtered school children doesn't faze them so why would black and brown women dying of botched abortions (or ectopics)? Heck even a couple white women dying would just be "G-d's Will." It's frightening but seems pretty plausible to me.
Next to go: religious based discrimination in business, housing and employment. I don't think they'll kill gay marriage but maybe bring back sodomy laws, if only to give them something to target The Gays with. Dark times ahead.
I mean, its more than pretty plausible.
They believe life begins at conception, and it follows that if you have to chose between the pregnant women's rights and the rights of the innocent unborn they are going with the innocent unborn.
I don't get why this is even a discussion. Its the anti abortion base that drives this, not the common sense contingent.
They will never give up, regardless of argument or even if a Roe-type right is reinstated.
If you really believe that life begins at conception then there are hundreds of thousands of people being killed yearly by abortion. Making abortion illegal would not eliminate it, but would probably cut it down by hundreds of thousands. That saving would presumably outweigh a lot of deaths from botched abortions and other problems.
Of course whether many people really believe that life begins at conception and really believe that life is always sacred is another question. At this point "beliefs" are largely a matter of partisanship.
Allowing family planning clinics to rent space on federal land and using federal marshals or troops to protect the people and places. That’s what I’d say is the absolute bare minimum and it doesn’t take any new legislation; just Joe Biden saying the word.
Opps! Wong place. Was a response to ScentofViolets comment below. Sorry.
Lol, some idiot could post this. When debt liquidation comes and said states go bankrupt, what then???? Gerrymandered crap you mentioned is lolz dumb. A nostril detachment and eye gouge would serve you well
Would someone please give a specific description of what they would consider the lowest level of non-muted response?
Judging by the rage of the millennial women in our household and their friends, Republicans have seriously miscalculated. All of these women are now lifelong D voters with a scathing hatred for all things Republican.
Unfortunately the effect on lifelong D voters is of little importance, unless those people can convince others. Results will have to come from swing voters and non-voters who are activated.
And also the people affected would have to be in swing states.
I think there are a lot of young women in particular -- and hopefully young men out there too -- who may not have been politically engaged before who now have gotten a major wakeup call. Millions of people in red states across the county now have to answer the question "what if I accidentally become pregnant/get someone pregnant and [they] can't get an abortion?"
"Before you have to answer that question for real, vote Democratic." Is what billboards and tv ads across the country should be blaring for the next six months.
I think it's because everyone is aware that this has been coming for a long time -- not just the leak, but since Trump's election and the creation of a 6-3 conservative majority on the bloc.
Before that. Roberts refused to pull the bandaid off.
I'm hard pressed to see how the Republicans keep their coalition in one piece now. Some want to press harder, which will be politically disastrous, I think.
Others want to let well alone. This adds to the MAGA/NeverTrumper split. Maybe its the same people, but maybe not. Lots of MAGA are that because its expedient. They want to win elections.
In addition, there are lots of people out there who ought to vote Democrat, but haven't because abortion. What do they do now?
The other reason is that systems are being put in place to counteract the decision…no reason to call attention to such organizations….this a major fight back..guerilla tactics are necessary.
I think that the right wing of the GOP is so dominant and so extreme now that we can expect continued agitation to push the abortion issue whenever and wherever possible. There are hardly any moderates left in the GOP. The result will be bad politics, and that will be good for the Dems, I think.
Just keep asking Republican candidates about rape.
Raping Republican women is fine with me.
I'm angry too, but that's fucked up.
"Luck"
Misuse of left/right again. For the real left wing, abortion choice is not a bell curve issue. For centrist and female libertarianism, it is. When the degrowthers come, a wake up call for cultural conservative morons it will be. Ah, so your the real left wing.....as markets crash into nonexistent universe.
You call McConnell's rejection of the POTUS's right to choose SCOTUS appointments "a perfect storm of luck in Supreme Court appointments"???
That's disgusting.
Thank you. I was hoping someone would bring that up.
Kevin's right to point out the GOP had luck going for it. That's a fundamental flaw of the system: if a justice has the bad sense to die during a right wing presidency, the righwards tilt of the law gets more pronounced. Dumb luck. We should change that system.
Also, Obama didn't have the "right" to "choose" a Supreme Court appointment. The constitution does give the president authority to nominate a justice, that's true. And the president did so. His name was Donald Trump. McConnell was well within his authority as majority leader to use his scheduling prerogative to refrain from scheduling hearings or a vote in 2016.
McConnell doesn't respect shit that's not specified in writing by Madison/Hamilton. Because unlike a lot of Democrats, he's not stupid. Maybe someday Democratic political leaders no longer will be. Or maybe they just don't care, because unlike Mitch McConnell they don't believe there's very much at stake.
Every democratic system of government relies on unwritten norms and practices to which every party adheres, Westminster systems even more so than presidential ones. Some can be modified without harm; changing others may have unforeseen consequences. I think the norms being violated in recent Congresses could well be putting us on a path to (more) chaos.
Actually, it is America's unhealthy obsession with the rule of (written) law—the country's hyper legalism—that has played such a strong role in eroding our norms. It doesn't strike me as the least bit surprising that democracies that are less reliant on codified constitutions evince greater respect for norms: they're more important in such systems. The latter is a better arrangement in my view, because at the end of the day paper is just paper. Attitudes are more important.
(It's been frequently pointed out that no country ever possessed a more elegantly perfected democratic constitution than the Weimar Republic).
Anyway, our particular constitution is a cumbersome clusterfuck, and has been for a long time. We just had enough natural advantages to make this not so apparent. Now Madison's chickens are coming home to roost. In a big way.
(PS: In my view, the most reasonable reading of the constitution is that the executive branch does indeed require the agreement of the Senate to fill judicial vacancies, which logically implies the latter can withhold said agreement. What really cheeses people off is that McConnell sought to minimize the political price his party would pay for exercising this perfectly legitimate power.)
"That fact that, in practical terms, there's little that progressives can do."
They do bitch and moan a lot. I mean against their own allies not against the people that actually harmed them. That would be too easy.
President Biden can no more wish away Dobbs with a magic wand any more than Nixon would could cast a magic spell to get rid of Roe. And once again instead of focusing on trying to flip a state legislature to help their cause all they can do is scream for the Executive Branch to DO SOMETHING! when they can only do so much. Even doing that, as the Biden Administration has been isn't good enough for them.
Can we please stop watching West Wing for once and understand that what happens in state capitals is just as important, as Kevin will tell you in California. What are you doing to help with the abortion referendum in Kansas? Hmmm? The election is only a month away.
These people are weaklings; they can never, ever admit they were wrong in any particular on every issue with even minimal import. The fact that they know this yet are so disrespectful as to post anyway marks them as trolls.
No kidding! As I said at the time, that was the obvious reason to assume the leaker was one of the Trump Republican judges.
That's why the "leaker" will never be caught.
That was not luck.
It was Mitch McConnell cynically ignoring his Constitutional duty.
+1
"The obvious conclusion is that Republicans should tread carefully. They got Dobbs thanks to a perfect storm of luck in Supreme Court appointments, and it's pretty unpopular. Pushing further would be really unpopular, but I'll bet they won't be able to help themselves."
Except that's not who they are today. They've already tried to literally overthrow the country after losing the election and they've hijacked the Supreme Court to their own, sloppy ends.
They're not going to stop because something "isn't popular." The do not care for any "norms." Time for more people to wise up to this reality.
The National Review guy thought there was no anger because there wasn't a "wave of riots, vandalism and sacrilege (?)." By and large, liberals haven't done riots and vandalism for many decades (and sacrilege is usually a victimless crime). The right wing is where the armed paramilitary action is.
To some degree, I lament this. They are scum, but having thousands show up armed to the teeth tends to squelch the counterdemonstrations, and intimidate public officials. The violent thugs get ridiculous levels of coddling.
Just once, I'd like the wingnuts to cater to preferences of the left wing because they are terrified for their lives and those of their families. It's a terrible way to run a country, but if only one side does it (and gets the attendant benefits), it only emboldens them. We need to find a way to send the neo-Birchers the message that there is no free lunch.
Apparently you are too young to remember the 1960s. Violence from the left, and from people in urban ghettoes got us Richard Nixon on a platform of ‘law and order’. I wouldn’t expect any better outcome in the current century.
I think the relatively muted response from the Fauxgressive Left to the Roe overturn is because the dirty little secret of #OurRevolution is its leader, Bernie, is a man of his era, at best, but straightup misogynist, more likely, married to a Trad Cath, Jane O'Mara Sanders, who adheres to church doctrine on infanticide.
Pair this with Faux thought leaders like Peter Daou, David Sirota, Walker Bragman, Briannah-Joy Gray, the residents of CumTown & habitues of Chapo Traphouse, Nina Turner, Susan Sarandon, et. al., who softpedal social issues, particularly those relevant to women, & it's a perfect storm for a blase, if not supportive, response to Alito SAVING THE CHILDREN.