No, Congress Won’t Create an Abortion Right
At least not right away. But it's quite possible by 2040.
Earlier this week, a draft opinion leaked showing the Supreme Court will reverse Roe v Wade and thus take away the Constitutional right to abortion the body had created half a century earlier. The natural response in our system is for Congress to pass a law creating a national abortion policy that protects a woman’s right to abort a fetus until it reaches viability. That probably matches the opinion of the American people and almost certainly reflects a majority position among Members of Congress.
It will nonetheless not happen anytime soon.
The press is focusing on the moderate Republican Susan Collins’ statement that she will not vote for any such law that doesn’t exempt Catholic hospitals. And the fact that neither of the two fly-in-the-ointment Democrats, Joe Manchin and Kyrsten Sinema, will vote to lift the filibuster for an abortion bill. Quelle surprise.
But, to continue banging the drum, the larger issue is that our system of government simply doesn’t—and was never designed to—represent the will of the majority of Americans. As noted here ad nauseam, the Senate and the Electoral College, in particular, radically overweight the preferences of rural voters. And, since Presidents and Senators are the lynchpins to filling vacancies on the Supreme Court, ditto that institution.
Even with those built-in advantages, which redound to the benefit of Republicans, the deck is further stacked by the filibuster. So, even if there were 51 Democratic votes (counting Vice President Harris) for an abortion rights bill—and I’m not sure there are—they would need to find 9 Republicans to go along with them. For reasons of party sorting and internal pressures to maintain parliamentary discipline, there are likely 0.
Ah, but what if President Biden, using the oratorical skills for which he is famous, uses the end of abortion rights to rally the base and, shocking us all, gave us a filibuster-proof Democratic majority after the November midterms. Then—then!—such a law could pass. Assuming Manchin and Sinema didn’t kill it just because. Abortion rights would be restored!
Unless, of course, the same Supreme Court that violated the core principle of the Common Law system, that longstanding precedents govern even if current judges don’t like them, decided that Congress lacked the authority under the Constitution of 1789 to pass such a law. Which they almost certainly would.
Well, okay. But what if pro-choice voters continued to be outraged election cycle after election cycle, keeping a Democrat in the White House and a filibuster-proof Senate majority. Why, over time, they could flip the Supreme Court. Clarence Thomas is going to turn 74 next month. Sam Alito, who wrote the offending opinion, is 72. Chief Justice Roberts is 67. So, it would take only 15 or 20 years to get a 5-4 majority back. Let’s split the difference and call it 2040.
Now, of course, it’s possible that our politics change considerably well before that. I’m old enough to remember when California was a solid Red state; it was a reliable Republican vote through 1988 and has gone Democratic every election since with no end in sight. In-migration has turned Virginia and North Carolina from Red to Purple-leaning-Blue states over the last 15-20 years. Georgia flipped this past cycle and could conceivably turn Purple. Texas is edging ever closer. And it’s possible that abortion loses its salience in Republican politics once Roe is gone.
Regardless, the fact that it takes this much sustained effort to enact the will of the majority of people into law is a strange thing, indeed. And even for those who lean toward these contentious social issues being handled at the local level, as I tend to do, our bizarre primary system allows the most extreme voters of the party that represents, say, 55% of voters to enact extreme policies that probably 70% of the state’s residents oppose.
I kinda think this is going to play out much like Prohibition did. Maybe there will be a nationwide ban, but it won’t last. But states will have their say, and some will stick to very strict policies for a long, long time.
I feel the Commerce Clause ultiimately will thwart efforts to stop women from leaving the state to get abortions. As well as substantive due process, and protections from unreasonable search and seizure.
The truly fascinating thing is that the most radical pro-life people believe that they are saving lives. But they don’t make that legal argument, since it is clearly a matter of belief, and this would run smack into the Establishment Clause.
Frankly, I think Hobby Lobby is going to empower LE and other officials in pro-choice states to ignore any mandate to enforce anti-abortion laws as it conflicts with their religious beliefs.
Sorry to hijack this comment section a bit, but Steven said something about the politics of abortion that I can’t let go unchallenged. He said:
I feel this is wrong on just about every level. It is essentially saying that the rights of unpopular minorities should be violated until they can convince a majority to proactively amend the constitution or at least pass laws to defend them.
For once I would like to see the blue states ahead of the curve and put in place preemptive nullification laws stating that abortion will always be legal there regardless of what DC says. And follow it up with armed national guard standing outside the clinics protecting people exercising their rights. They need to show some spine on this.
Although I agree with your main point, I believe there will be a bigger issue the GOP has not taken into consideration. I believe any states that impose a ban on abortion will suffer a huge brain drain. Too many young, smart women and men, and their partners, will choose to leave the Oklahoma, Mississippi, and Alabama and the like to move to Colorado, Illinois, Connecticut, Maryland, etc, rather than stick around those red states. I see a massive brain drain. And I believe certain big companies are going to make a stink about any such legislation – especially when their female workforce starts speaking up.
It turns out, there’s a comment section on that post as well.
I seriously doubt it. For one thing, as we discussed yesterday, it’s really hard to move to another state over policy issues. But, beyond that, there are really good reasons to move to places like Texas and Florida that aren’t going to be outweighed by the relatively minor inconvenience* of having to travel to get an abortion. Indeed, companies like Amazon are already promising to pay for such travel.
*Edited to add: Minor for the sort of people who would be part of a brain drain. I don’t diminish the huge burden placed on the poor, undocumented, etc. But for upper-income singles, it’s not that big a deal to fly from Dallas to Chicago.
Except that it isn’t what I said (and, indeed I frequently make the opposite point and did so in the comments).
I was noting there that I believe this matter would have evolved in a more advantageous manner through a different process. I well could be wrong about that, but I very much think there is evidence to suggest that the incandescent polarization on this issue (which many conversation protestants were meh about pre-Roe) is at least in part because of the way the policy was made.
There are also various downstream effects on our politics that flow straight out of the matter being settled in the way it was.
I realize a more detailed explanation is warranted to fully get my point across, but I am decidedly not making a simplsitif argument about rights and majority votes, etc.
@EddieInCA: I think that these issues will influence some people’s decisions, it is simply not as easy for people to select exactly where they want to live.
To pick a narrow example: a very smart young woman works all her life to work at NASA. I would note that NASA has facilities in Alabama, Mississippi, Texas, and Florida.
@James Joyner: Indeed.
Speaking of the filibuster, it is going to be a real hoot when the GOP gets their narrow majority in the Senate and starts chipping away at the filibuster for whatever area of policy they see fit.
Indeed, it would hardly surprise me if, in 2024, they win the House, Senate, and WH, they will pass a fetal protection law and end up changing the rules in the Senate to overcome a Democratic filibuster.
@James Joyner: “But, beyond that, there are really good reasons to move to places like Texas and Florida that aren’t going to be outweighed by the relatively minor inconvenience* of having to travel to get an abortion. Indeed, companies like Amazon are already promising to pay for such travel.”
John, this has been covered, here and in the press.
Traveling to get an abortion is punishable. Amazon’s alleged policy would open them to vast lawsuits.
Companies are going to be the source of the brain drain. Right off the bat, insurance rates are going to SOAR in red states. Pregnancy and birth ain’t cheap and it’s going to get prohibitive expense PDQ, especially since they’ve all but written the decision on when BC becomes illegal. Prenatal care as well so it’s gonna get real pricey real quick. 1 in 4 at the workplace means you’re looking at tens of thousands of dollars in the next few quarters they weren’t expecting to have to shell out. For now, it’s illegal to fire someone for being pregnant (I expect that to change if the GOP gets power) so now the company needs to hire a replacement and deal with maternity leave. $$$ on top of $$$ for a small company can kill whatever profitability they have in post-COVID times. Expect this to cause a lot of small businesses to close in the first 2-3 year post-Roe.
Thus companies that can move will. The good ones will offer to help relocate but most will peace out to better business conditions if they can. The people will be left behind but any tax breaks offered will need to be substantial to offset 50% of your workforce now being at risk of racking up the medical bills. Oh wait – men with wives and girlfriends will also be needing that insurance for those pregnancies!! Make that nearly 100% of your workforce is now one sexual encounter from costing the company money. Honestly, the strain on the insurance and medical system alone with tens of thousands of new patients and payouts will be a major incentive for companies to consider if it’s worth it to relocate what they can.
Yep, right now there are apps tracking women to see if they’ve been near a PPP for any period of time. It’s so cute that some think there won’t be a massive monitoring of state borders to see who’s crossing and sell that data to bounty hunters who, as the new laws note, don’t even have to prove you had an abortion to cash in. If enforcement ever does come, all they have to do is pull up your data, see you crossed into a state where it would be legal and stay for longer then an hour or so (not travel straight through). They could come to your door weeks or months later with the metadata and arrest you since they don’t need concrete proof, not even that you were pregnant in the first place. Big Brother will be more then happy to help conservatives save dem bebbies and put into place civilian monitoring.
Many of these laws were poorly written on purpose – the bounty hunt on is an infamous example but how do you encode this into law without also encoding have proof of pregnancy and end? Now that enforcement is on the horizon, we’ll get restrictive travel laws that will essentially trap women in a state unless they can definitively prove they weren’t pregnant when they left….. and the laws don’t specify if you have to be a native of the state to count either. Can AZ detain a woman on her way from TX to CA to get an abortion if tipped off? Who’s law does AZ honor – we should know the answer but nowadays, you can’t say they’ll follow the Constitution.
Pandora’s Box is about to be ripped open. Karma’s got some stiletto heels for folks who do not understand the mess they are about to unleash.
@KM: I don’t want to demean you or make light of your fears, but the scenario you describe violates not just one, but many constitutional principles, including due process and the Commerce Clause in a very direct way. IANAL. Nevertheless, there are lots of red flags there. Lots of them.
That the government may not have access to, or use medical records in court, is very much enshrined in common law. Innocent until proven guilty is another one.
Yes, there are people who want to do the very thing you describe. I’m sure that’s true. I don’t see it happening, though. Maybe they will simply try to harass you and picket your residence or talk to your boss. There’s probably recourse to that too.
@Jay L Gischer:
It depends on how much those in power want something.
“Cease quoting laws to us who have swords.” Pompeii the Great.
The right comparison is to the war on drugs. It does not take much imagination to turn the war on drugs into a war on choice. And not only regarding abortion but birth control and the freedom for women to have sexual lives. Brett Kavanaugh called birth control an abortion-inducing drug. There’s no getting around that. These people on the right want to control women so badly they are foaming at the mouth.
The huge difference is that Americans are not in the same place they were when Nixon started the war on drugs. Nobody cares about birth control. But the right is furious about that indifference as well.
@Jay L Gischer:
I suggest you study what happens if you get pulled over and the police think that the cash you have is related to drugs.
Somehow, right now I am thinking of how Steven said, in another post, “Democrats will start losing faith in the system”
@Jay L Gischer:
Yes, it does. What exactly makes you think it won’t happen?
The GOP has shown it DGAF about rule of law when it benefits them. They are becoming quite brazen with their intentions of ruling as they see fit and that’s by the whims of their nutty base, not the law. If they have the power and nobody actually stops them, what is going to prevent them from doing what I described?
The law binds us not through it’s own power but our willingness to follow it. Constitutional principles don’t means a damn thing to a SC that won’t honor them or a Congress beholden to a minority that *wants* those violations. How many said “It won’t happen here. We have rule of law!” before it all goes to hell?
I dunno. Y’all sound pretty despondent, and I kinda get where that comes from.
And, I think we need to fight. If we are to fight, we must identify the weaknesses as well as the strengths in their own positions, as well as our own. We need to not cede any ground we don’t have to. We need to get stubborn, and defiant. I think it will probably hurt, but I think we can win this.
Really, that’s all I’m trying to say.
Other than Steven’s NASA example, I don’t really see it. There aren’t that many careers that are limited to a certain spot that only exist in red states, and the emotional and nuisance cost of putting-up-with-that-shit is higher than you expect.
For a good chunk of women who grew up knowing they could get an abortion if they needed one, this is going to piss them off. You need a lot to balance that, and a love of armadillos ain’t it.
These are the same states attacking education at every level, so tenor-track college positions won’t be a draw.
What other jobs are very restricted in location?
I don’t think every professional woman will leave, but some will and migration in will definitely slow. (Which then locks in an anti-abortion Senate, which makes a national fix harder…)
The way 1/6 played out was scary. Lots of R politicians seemed to be willing to toss out the rule of law. But many others weren’t, and did their duty. Yes, the one side is trying to get rid of the other.
Do purges like this make Democrats stronger? Not that I’ve ever seen.
I see more evidence every day of a giant rift in that party. This is weakness, not strength. This is gonna hurt, but I think we can win it.
By the way, one of my pet policy hobbyhorses is that we should make relocating for job reasons easier, as a matter of federal policy. Don’t know how to implement it, but I think it’s valuable.
What if plant closings came with some “relocation funds” for those laid off? For instance.
In before-Roe times, they didn’t have the abiltiy to track you like they do now. You could disappear for a day or two and be back with no one the wiser. Now? Now your phone and a dozen other gadgets keep track your location within a feet as part of your daily life and cameras can be anywhere. If a state decides abortion is murder – prosecutable go-to-jail murder – then those tools are now in play the same way they’d be for any other murder case. In fact, your data and privacy are even less protected because those gathering the data can willingly sell it in batches to anyone and that can then be mined for relevant info. Think of the cold cases being sold by Ancestry.com DNA and understand that if info is there, they will find a way to use it. The app already exists, it’s only a matter of when it gets used.
Thinking the antigovernment or paranoid nuts will object? OMG the government is tracking us, how dare they!?! Nope, you’ll see as much of a peep from them as you did after 9/11 when giant invasive government was good because it was being used on the “bad guys”. It will be “what do you have to hide” rather then “stop spying on us!”
They try it. If there’s large backlash, they’ll back down and try again once everyone forgets. As long as the nuts have power, this is in the cards
@Steven L. Taylor:
Depends on what you want to do at NASA. Space probes have mission control at the Jet Propulsion Lab in California. Manned spaceflight outside of NASA will increasingly shift to SpaceX and Boeing. The former has mission control in CA, too.
So, there are options.
And, also, who knows as climate change gets worse, NASA might have to move out of Houston if it becomes unlivable.
One of the reasons Roe was decided in 1973 was the growing media coverage of botched abortions and gruesome bodies. Once the forced birth regime is firmly in place I would expect to see similar media coverage and such result would increase the pressure to do something. Now, all this is just sheer speculation and the the fact that half the states and the availability of the the abortion pill may change this dynamic. Nevertheless I would expect things to revert back to how things were sooner than later.
@Jay L Gischer:
Think of the maxim by Vegetius; “If you want peace, prepare for war.”
@Jay L Gischer:
Please don’t take this the wrong way but it’s really condescending to tell someone who’s had their rights taken away that they should fight back. We KNOW that but we’re having a moment watching the tanks roll by as we ready the Molotov’s. Our world has changed on a fundamental level. We lost the war and the guerrilla action has begun. This is a bigger deal then an man can truly grasp because you cannot directly suffer from it, only the consequences of it harming another.
Not a slight against you but try not to do the “we need to fight” thing. It implies we weren’t going to because we’re having a human reaction to being downgraded as citizens and human beings. At best it sound tone-deaf and at worst it comes across as mansplaining our pain and fear to us.
A big part of the despair is there’s no real way for the GOP to back away from where they are. They won. They scream we’re murderers and now can actually punish us for it. The base will be expecting them to follow through. They can no long blame Dems from keeping them from protecting dem bebbies and punishing those wicked women. Murderers should not walk free, right? Well how does the GOP walk back on decades of messaging about bloody murder when they now have to make good on their word? They’ve even taken away their wiggle room of exceptions since they doubled down on the logic; the cause of the pregnancy shouldn’t matter because then it implies murder is conditional. They well and truly screwed themselves as now they cannot back away from their logic without admitting its BS. Whoops, turns out we exaggerated and it’s not so evil we should prosecute?? Eh it’s only a bebbie so no need to track down those that killed it?? They committed a heinous crime but we shouldn’t hold them accountable for it??
The only way for them to save face is for liberals to do the heavy lifting and restore rights. Otherwise, the GOP cannot soften their rhetoric and back off for a very, very long time. Decades likely.
@Jay L Gischer:
Let me frame this a slightly different way. Texas already knew where a lot of Trans kids were when Abbott and Paxton started their BS. They didn’t need location or tracking data cause a lot of those kids were already fighting (or meeting with them). They sent the DFS agent to start the process to remove those kids from their families and didn’t give a crap about anything else. They will use period tracking data, menstrual spreadsheets and anything else they can get their hands on to punish as many women into compliance as they can. And who is going to stop them.
Also, about the moving issue, look how many parents of Trans kids in TX knew something bad was coming and were either unable or unwilling to move. They knew/know their kids are threatened and they’re not moving in droves.
The bitching that I’m seeing from my lefty friends is that the democrats are useless and voting for them is pointless and we’re gonna win because of something something. I don’t know what they expect to happen if then don’t keep voting for Democrats, but it’s not going to be some miraculous victory.
I think they are putting themselves in a position that they are going to have to treat every miscarriage as a potential abortion. I think a lot of them have forgotten how difficult and deadly childbirth is. They’ve deluded themselves and don’t understand women’s bodies.
So many women are going to needlessly die. So many women are going to be punished for nothing.
The options are voting, violence, denial, and being wealthy enough to personally avoid the consequences.
I expect your lefty friends are a mix of the latter two.
I suppose secretly agreeing with the policies is also a possibility. A lot of people are squishy on the subject of pro-choice.
Yep. The logic is that since pregnancy is natural, childbirth naturally follows and problems are expectations and rare. A baby just happens and you are virtually guaranteed a child in 9 months. Instead 8-10% have complications so 1 in 10 women will naturally have issues that require medical attention …. and this is with modern medicine and the system we have now. Add stress and x2 or more patients to the system (already under *huge* stress from COVID) and we’ll see that number jump. Miscarriages alone would go up because prenatal care will be lower then normal and if it happens to be in a state that bans abortion, it will looks like something nefarious is going on. After all if NY is only reporting x% why is KY at zz%?? Must be women having illicit abortions instead of shitty care and conditions!
The best case scenario still has such much suffering and death.
From one of my online newspapers (www.thestranger.com), comes this little tidbit:
Because of course they are: Louisiana Republicans voted to advance a bill that would classify abortions as acts of homicide, which is the natural conclusion of these proto-fascists’ decades-long campaign to roll back the bodily autonomy of people who can get pregnant.
I think it’s misunderstanding and denial. A lot of people seem to think just because Democrats managed to win one election, they can just clap their hands and get all they want. As a Democrat its very frustrating to have to explain that over and over.
I know it’s not wealth, because a lot of them are younger and just starting IT careers. It’s so dumb.
I had been thinking the same thing, that JPL does the robotics, sensors and science are done at Goddard in Maryland, getting data back from orbit and beyond is at White Sands in New Mexico. My suspicion, though, is that the NASA work in Alabama is at larger risk from the senior Senator (who has fought very hard to enforce “the US manned space program will go through Alabama” for many years) retiring than from NASA being unable to attract talent. Still, I would concede Prof. Taylor’s point that there are people for whom moving out-of-state carries a big price.
I don’t hide that I believe there will eventually be a partition of the states, either explicit or by some heavy-duty regional devolution. I expect it to happen when enough states are saying, “Those states are why we can’t have nice things.” For different definitions of what’s nice, of course.
Academia in general–because the job market is already terrible for those jobs and unless one is an utter superstar, one does not choose where one lives.
But beyond that, Disney has huge operations in Florida, there are massive companies in Houston and Dallas. I think people are getting a bit over the top on this, because it just isn’t as easy as many think to just live where one wants and maintain the economic, familial, and social ties that go into such choices.
@Kathy: Sure, but the point remains that there are a host of considerations that go into job choices, and while in theory, we are all super-mobile, in practice, we are less so.
These issues will affect some people’s choices, but hardly the vast majority.
I think “brain drain” from red states as a result of policy x, y, or z is more wishful thinking than it is likely reality.
@Michael Cain: I think we all forget that a) the vast majority of people don’t think that much about politics, and b) that there are tons of Reps in Blue States and tons of Dems in Red ones. We overemphasize the starkness of the divisions at the scale we are talking here.
@Steven L. Taylor:
The magnitude of the drain is wishful thinking. Disney won’t abandon the HUGE operation it has in Florida. It’s a bunch of parks, lots of hotels, sports complexes, and who knows what else.
But some smaller companies may move, and both small and big companies may expand their operations more to blue states if other conditions are right. just keep in mind added medical expenses might not trump lower state taxes or higher state tax breaks.
On the other hand, do you see any Republicans leaving blue states because they permit abortion?
@Steven L. Taylor:
It is basically considered normal now if you’re educated that you will live with somebody before you marry them. That’s just how the world works. Republicans do not touch that at all because they know that people now believe that this ability to explore makes marriage better. Nobody–aside from the idiots and the insane–believes you should save yourself for marriage. And abortion goes along with it. Plain and simple. You can not give right-wing white Christians power and have a healthy environment for human relationships.
It’s very similar to not getting vaccinated–the educated Republicans don’t give a shit. The scam continues. But at a certain point, the jig is up. And overruling Roe might be that point.
@Steven L. Taylor:
Absolutely. What I think they’ll be thinking about in 2040 is the consequences of the internal migrations due to climate change (Great Plains population finishes crashing, parts of Florida and the Gulf Coast populations having to retreat from storm surge), 1995 Chicago heat/humidity wave becoming an annual thing, rivers full of rotting fish because the thermal power plants cooked them, the 100M external climate refugees who have decided to flee to the US, whether 150,000 tons of spent nuclear fuel generated in the eastern half of the country is actually going to get shipped to the West, etc. The divisions may or may not be just as stark, but a whole lot more people will be engaged.
(Warned you I’m out on the lunatic fringe on this topic. But it’s my story and I’m sticking to it.)
1] There’s nothing more frustrating to me than the assertion that these 5 conservative reactionary judges are Not Being Political And Just Being Originalist.
BS. They’re being 100% political. I happen to think it’s a stupid politics, but it IS nothing but politics. They have beliefs about how things should be.. and that makes it politics.
The framing of cult members wearing black robes as somehow apolitical Because We Said So is deeply counterfactual – and annoying.
2] Alito’s text referred to rights that weren’t “Deeply Rooted.”
If by Deeply Rooted we mean things in 1820, there’s quite a few more things not being talked about that are going to be eliminated.
Immediately on the chopping block are Same-sex marriage and Female voting.
@Gavin: Women voting is protected by a very clear constitutional amendment.
The rights of the minorities are always at the mercy of someone – why being at the mercy of the majority of the voters is worse than being at the mercy of 5 in 9 judges?
Long before Joyner’s scenario had a chance to play out, the Supreme Court will have issued a decision that a fetus becomes a person for the purposes of the constitution at the moment of conception. Any state laws purporting to permit abortion will therefore be invalid.
@KM: Did businesses flock to Connecticut after its abortion law was overturned by Roe?
Alito cited Hale. Hale was a 17th century English jurist who had two women executed for witchcraft, wrote in defense of marital rape, and believed capital punishment should extend to 14yo kids. To Alito, this guy was Deeply Rooted.
It’s cute that you actually think amendments are any sort of impediment to Alito’s theocratic reactionary “jurisprudence.”
@Steven L. Taylor:
Well, except they could have done that from 2016-18. Trump was screaming at them to do it. And they didn’t. So we’ll see.
@KM: This, just all of this. There will be a pretzel bending “ha ha whatever” when the ICC clause is brought up. The sacredness of the blastocyst outweighs the Constitution and women’s right to be treated like people, not birthing vessels: they’ve already shown us this.