Democracy After Dobbs: Dems’ Greatest Fear, Greatest Hope

With the widely disseminated (but, I suspect, seldom read) draft opinion in Dobbs vs. Jackson Women’s Health Organization, progressives and Democrats have plumbed new depths of emotional confusion.  They couldn’t be more enraged; they couldn’t be happier.

So far though, they’ve said barely a word about the majority’s opinion.  (For purposes of this post, I assume the draft is the final decision.)  In the event they actually read it, what they’ll find is a very convincing set of arguments for why Roe should be overturned as one of the worst of all legal precedents.  Roe always appeared to have been decided solely to reach the desired result, with facts and legal arguments recruited willy-nilly for the purpose.  Dobbs demolishes Roe (and, in passing, Casey).

But Roe is worse than simply bad history, bad scholarship, bad argument and bad logic, although it is surely all those.  It does what the Court should never, and constitutionally cannot, do.  It legislates.  Time and again, Justice Alito points out that the salient features of Roe – pregnancies divided into trimesters with individual rights and governmental powers varying with the trimester – are not only disconnected from the Constitution and all precedent, but exactly something a legislature might do.

Which brings us to democracy and why pro-choice Democrats are simultaneously so enraged and so happy. 

As the opinion says, its result will be to return the matter of abortion to the states for their elected legislative officials to be lobbied on, pass or defeat bills, be lobbied again, pass or defeat other bills, retain or lose their offices and eventually come to reflect the general will of the people of the state.  It’s the very thing that Roe prevented from happening for 49 years, one important result being the non-stop conflict over abortion that remains today unabated.  Letting elected representatives decide the matter is the only thing that will turn down the heat under the simmering issue of abortion rights in this country.  All should note that, in Europe, where abortion is solely a creature of the statutes of each country that are significantly more restrictive than in the U.S., there isn’t even a fraction of the turmoil that there is here.

The current anguish of those who favor abortion rights reflects their terror of participating in the democratic process.  It’s as if they believe that, contrary to every survey on the subject, they have little power to convince state legislators of their position.  Those surveys demonstrate extremely widespread backing for some form of abortion rights.  Indeed, the Dobbs case itself came to the Court from Mississippi, one of the most conservative states in the nation.  The statute in question, that allows abortion up to 15 weeks of gestation and in various cases thereafter, looks much like those of various European countries and is in fact more permissive than most.

So what are pro-choice folks so upset about?  The only thing I can imagine is that they’re unsure about whether support in surveys will also mean support at the ballot box.  When issues of immigration or the economy or taxes weigh on voters’ minds alongside abortion rights, what sway will abortion really have. 

At this point, it’s the great unanswered question.  The process of answering it will consume, I predict, several electoral cycles as officeholders feel their way to exactly where voters stand.

We’ve had pretty much unfettered abortion rights for 49 years.  That’s meant that officeholders were free to crow about their opposition to or support for abortion and never fear the consequences of doing so.  After all, how important could the issue be when it had been placed constitutionally beyond the reach of those elected officials?  Conservatives could bow to their constituents and pass laws limiting abortion secure in the knowledge that the Supreme Court would strike them down.  Pro-choice legislators could oppose those laws, knowing the same thing.

What legislators on both sides will now have to do is the far more difficult work of figuring out exactly how important abortion is to voters when it’s stacked against other issues.  And if they can do that, they then will have to figure out what level of abortion rights is the right one.  Twelve weeks?  Twenty?  How to word the exceptions to those time limits?  Etc., etc.

So of course pro-abortion forces are upset; having a nice, unassailable constitutional right is much easier and far more certain than the tedious nitty-gritty of democracy in which your opponent actually has a voice.

Which is in turn why pro-abortion forces are so happy.  For the past several months, prognostications about the November elections have, for Democrats, been dire and getting worse.  With every jump in the CPI and every decline in President Biden’s approval rating, pollsters and others have reached virtual unanimity in their predictions of a bloodbath of Democrats in November.

Now?  That may change.  As if by some deus ex machina, the Supreme Court has handed Democrats a hill, perhaps their only one, on which to plant their flag.  How much hope can they have?  How many, if any, races will the issue of abortion alter?  We don’t know, but hey, an issue’s an issue and if you have no others, the one you’ve been given is the one you have to use as best you can.  They already are.

So Democrats are simultaneously enraged at the prospect of democracy and positively giddy about the same thing.  No wonder they’re confused.

This November we’ll start to see the impact of abortion on electoral contests.  Prior to the leak, the Democrats looked historically weak.  The issues on which they’re vulnerable - inflation, immigration, crime, their embrace of progressive madness, the general embarrassment that is the Biden Administration, etc., aren’t going away.

How will abortion stack up against them?  Will it save a few Democratic seats?  Many?  Any?  Whatever happens, state legislators will be paying close attention, because the issue’s influence this November will provide an indispensable lesson for everyone in the years to come.

2 comments

Lenona

“We’ve had pretty much unfettered abortion rights for 49 years.”

Try telling that to any woman whose state has only one clinic – and who has to drive hundreds of miles, come up with the funds for gas, food, lodging, put up with the waiting period – and not get fired from her job for taking time off.

And, this is by Charles P. Pierce, political blogger, sportswriter, and author of four books, including Idiot America: How Stupidity Became a Virtue in the Land of the Free (2009):

https://www.esquire.com/news-politics/politics/a39891780/supreme-court-roe-v-wade-samuel-alito-draft-opinion/

Excerpt:

“…What Alito’s reassurance does remind me of is the claim within the decision in Bush v. Gore that it was ‘limited to the present circumstances.’ As ProPublica pointed out two years ago, Bush v. Gore has been cited as precedent in nearly 200 cases. Even if I had a scintilla of trust in Alito’s reassurance…he wouldn’t be able to follow through on it if a state, say, wanted to outlaw gay marriage, or restrict the sale of contraception…

“Remarkably, this blockbuster came at the end of a day that began with a story in the Washington Post about how the anti-choice forces in Congress were already planning to propose a nationwide ban on abortion should the Republicans carry the midterm elections this fall. That’s for any of you who believe that Alito and the apparent majority are sincere about letting the states make up their own minds.”

(end of excerpts)

And, does anyone here seriously believe that the 26 states or so that can’t wait to ban abortion are going to do the logical thing and make it easier for the poor, especially, to get safe, effective contraceptives? Or to get sterilized if they want to? Fat chance. I’ve seen a few op-eds by conservatives about the importance of giving more support to mothers and children – but they don’t say a word about helping women OR men with contraception. (60% of women seeking abortions already HAVE children.)

Maybe this will inspire certain men’s rights activists (MRAs) to rethink their dislike of male birth control. That is, those who say they can’t wait for the new methods to be available in the U.S. seldom or never say THEY will use them – they just want hordes of OTHER men to use them, so as to put women into a panic. Fat chance. Plus, if women were really so desperate to have babies, they wouldn’t be saying, over and over, “I wouldn’t trust a man to take a pill every day!” They’d be saying “NO! My clock is ticking!”

Don’t expect a supply without a visible demand – and a willingness to FUND male BC out of your own pockets.

Last but not least: If Roe gets overturned, a lot of men will be in a far worse position than before. There will be little or NO chance for legal paternal surrender.

Jeff Golden

“We’ve had pretty much unfettered abortion rights for 49 years.” … NO!
ALL abortion laws, rules and regulations discriminate against men. Its only women who have a “right to choose.” Shouldn’t fathers, the other half of the two parents who created and will be responsible for a child, have an equal say in what will become of that child and, in fact, will the child even be born or not?

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