The Politics of Abortion
What happens if the Supreme Court overturns Roe v Wade?
Yesterday, I noted the possibility the Supreme Court would overturn Roe v Wade, thus reverting abortion to a matter for state legislatures. Many commenters on yesterday’s oral arguments think it’s a fait accompli, but the questioning from Justices is often misinterpreted.
Regardless, given that abortion rights has been a partisan lightning rod for at least four decades, the decision will have significant impact on the 2022 elections and beyond.
At WaPo, Sean Sullivan and Seung Min Kim argue the “Potential collapse of Roe shakes up political landscape.”
Democrats immediately signaled they would aim to make abortion rights a central focus in next year’s midterm elections, where their prospects have been viewed as dim, while many Republicans sought to keep the focus on inflation and other problems facing President Biden.
“This is an attack on women to make their own health-care decisions. Their families, it’s up to them,” said Sen. Patty Murray (Wash.), a former chair of the Democratic Senatorial Campaign Committee. “To have politicians decide to me is just frightening, and I expect a lot of voters will react to that.”
Leaving aside the oddity of someone who has been in the Senate for eighteen years being frightened by the prospect of politicians, rather than appointed judges, deciding our laws, she’s certainly right as to how the issue will be framed.
Sen. Rick Scott (Fla.), chairman of the National Republican Senatorial Committee, in contrast demurred when asked whether he believes abortion will be a motivating issue for Republican voters.
“They’re talking about inflation. They’re talking about the border. They’re talking about the Afghanistan debacle. They’re talking about parental involvement in education,” Scott said. “If you look at the polls and what people are caring about, that’s what they’re focused on.”
Scott elides the obvious point: Republicans really, really don’t want elections decided on abortion, which is a losing issue for them. The prospect of appointing judges who will overturn Roe is a wonderful mobilizing tool for the coalition but actually doing it not only takes away that mobilizing tool but hands the opposition an issue. (Although one would think four decades of failing to overturn Roe—which really wasn’t a big issue until the 1980 election—would have dampened the enthusiasm, anyway.)
At least one notable Republican wants to do the thing Murray fears: pass a law.
MSNBC (“GOP Sen. Susan Collins supports codifying Roe v. Wade abortion protections into law“):
Sen. Susan Collins, the moderate Republican from Maine, favors passing legislation to enshrine the protections of Roe v. Wade into law, her office said Wednesday.
“Senator Collins supports the right to an abortion and believes that the protections in the Roe and Casey decisions should be passed into law. She has had some conversations with her colleagues about this and is open to further discussions,” a spokeswoman, Annie Clark, said in an email.
But, naturally, she doesn’t favor any law currently under consideration.
But Collins opposes the House-passed Women’s Health Protection Act, which Senate Majority Leader Chuck Schumer, D-N.Y., has promised will get a vote in the Senate.
She favors a more limited version.
“Unfortunately, the House Democrats’ bill goes far beyond codifying Roe and Casey. For example, their legislation would severely weaken protections afforded to health care providers who refuse to perform abortions on religious or moral grounds,” Clark said.
And, of course, we have a system that’s not actually designed to pass laws supported by a majority of Americans.
Even if the Senate finds a majority of votes to codify abortion rights, such a bill would be subject to the 60-vote rule. There aren’t 50 Senate votes to weaken the filibuster, nor are there 60 votes to enshrine abortion protections into law.
Which would return us to the status quo ante if the Court does what many expect: abortion would be regulated by the 50 states, with most Red and some Purple states making it all but impossible to get a legal abortion without traveling to another state.
“A partisan lightning rod” – ???
I guess slavery could have been described that way too
If our representative government was working properly, I’d have more faith in politicians deciding our laws–and in this case, protecting our rights.
The simple fact is that the structure of the Senate, along with extreme partisan gerrymandering of the House, have left us with a setup that doesn’t really represent the desires of the public. According to the Pew Research Center, nearly 6 in 10 Americans say that abortion should be legal in all or most cases.
The public’s views on this topic are being subsumed by Republicans fighting for a minority interest, and they aren’t paying a price for it because most Americans are not single-issue voters.
About the only bright spot I can see is that if Roe is overturned, Republicans are likely to lose a major fundraising issue.
FearlessCynical prediction. Abortion rights will have no effect on the upcoming election or a small effect on the margins. For or against access to abortion, access means little to most citizens in their everyday lives.I would worry about whether the Colorado elections in 2014 are a lesson. Incumbent Democratic Sen. Mark Udall ran an entire campaign around abortion: the Republicans will ban abortions, then they’ll come for your contraceptives. He lost to a charming farmer/Representative from out by the Kansas border who smiled at the camera and said, “I’m not that kind of Republican.” He was lying, but the media never called him on it. That same year, incumbent Democratic Gov. John Hickenlooper ran a traditional jobs, water, and environment campaign and won.
We who believe that abortion is a medical procedure and as such should be left to the pregnant woman to decide can, and should, have more than one message. I am not hearing enough about how this is the religious radicals imposing their mystical views about ensoulment happening at conception on the rest of the population.
Seems to me that for both sides, it’s more about the fight than the right. Well, the fight and the fundraising off that fight.
Just look at the rhetoric. It is very unlikely that what is left of Roe, the right to medical privacy will be discarded, although it is directly impacted by the vaccine mandate and passports.
Casey is the controlling precedent for the viability line set in Roe for when the state has an interest and therefore can enact laws to protect the new human from intentional killing. Sounds like that could get overturned with the court vacating the likely “survival outside the womb” requirement. This will open up the question of when the “clump of cells” becomes a human, because as you know, there are laws against intentionally killing humans. There are also laws against intentional infliction of pain during the slaughter of animals. So the question arises, when does the developing fetus become a human being under the law and therefore come to enjoy the protections of the law against being intentionally killed by another human. And that may be opened up by this decision.
@Sleeping Dog:
I think you’re fooling yourself. Roe is THE issue for evangelicals. It has been THE single motivating point to keep that crowd engaged and donating cycle after cycle.
Given how precarious the GOP coalition is these days, seeing Roe disappear could finally cause the party to split apart fully.
That won’t happen before the 2022 election of course, but there’s every reason to believe that the conservatives on the SCOTUS are about to hand the Dems a huge advantage next year.
@Michael Cain:
There’s a huge difference between “they WILL take away your rights” and “they HAVE taken away your rights”. Unfortunately, human nature is to be far more motivated by anger than fear. Further, in your case the right was just as motivated as ever whereas post Roe a whole huge segment of Republicans will stop caring about politics.
@Sleeping Dog: No one worries about their access to air until they don’t have it anymore.
Especially if the Republicans are stupid enough (cough, Ohio) to try human-life-from-conception. And then go after birth control. Oh, they’ll say “mumble mumble this interferes with the zygote’s implantation thus must be banned”, but it’s really birth control that they want to get rid of as well.
This is the States Rights argument. And notice that the proponents of leaving up to the states always say “the people and the state legislature”. That is another sleight of hand. The “people” won’t have a say.
And OBTW, they won’t stop at states, it will be federalized quickly.
And explain to me how people’s rights in this country can depend on where they live.
Abortion existed before Roe v Wade. Actually, it was fairly unregulated throughout the nineteenth century. Then the professionalization of medicine began with the 1910 Flexner Report. The early twentieth century saw great advances in scientific medicine, but it also turned medicine into a male predominant profession. Reproductive medicine remained a holdout of female providers, and the early AMA was anti abortion which can be seen as part of the process of turning medicine into a male preserve. Of course, abortions were performed during the illegal period often by female practitioners. Currently, medical school classes are 50% female. I think that this fact means that abortion practices will change very little.
The best sign that the GOP has been taken over by stupid people is that this is actually happening. For decades Republicans were smart enough to use the fight against “baby killing” as a way to get their voters to the polls but also smart enough not to actually do anything to stop it. Now how are they going to motivate the God-botherers? The Democrats will have the get-the-bastards momentum on their side for this issue. The crazy has won.
@Tlaloc:
Roe or no Roe, evangelicals are enthusiastically voting R. Abortion has become only one in a panoply of grievance that they have.
@Michael Cain:
+1 A data point that supports your concern. In the wake of the Virginia debacle, a centrist (nee, corporateist) Dem group did some polling, and the results indicate that the Dems missed the voters concerns, that were the economy and schools. While the economy may have been a cri du coeur, that state Dems couldn’t address, McAuliffe certainly butchered the schools issue and defined himself in a manner from which he could never recover.
@Sleeping Dog: 1 in 4 women have had an abortion. another large percentage considered it.
You think that telling them that they, or their children/friends/family, won’t have the right to make their own decisions going forward isn’t a big deal? That isn’t fearless or cynical, its delusional.
C’mon…You’re not that naive. Collins doesn’t want to pass a law. She knows that’s impossible without a filibuster claw-out, which she rejects. In spite of her protestations, she voted for Kavanaugh and Barrett because she knew they would take rights away from women.
Again, incredibly naive.
The evangelical zealots now have the SCOTUS doing their partisan bidding. Soon they will have the Executive and the Legislative back in their control. When that happens they will make abortions illegal, in all of the US, by federal law.
@SKI:
Certainly women in Mississippi, Texas and the other states that have trigger laws in place that will outlaw abortion don’t have abortion access at the top of their list of concerns. If they had, there would have been push back from those voters already.
I think a lot of Americans are way less supportive of abortion than the polls would suggest. Do they want to be associated with the Christian right? Probably not. But the Clinton view–safe, legal, and rare–is based on a similar type of propriety, where good people might need–because of ‘crazy’ circumstances–an abortion, but other people deserve what they did. The conventional view on the therapy or marriage counseling is similar–unless you’re nuts or having a marital crisis what do you need help with?
There’s a reason why everyone is so old in American politics. You can’t have young people under 45 talking frankly about their private lives and how that ties into policy. A women who is a Senator or Congressperson talking about having an abortion without making it into a three-act moral drama would freak the hell out of the American electorate.
Under the States Rights concept there is no reason this won’t happen:
El Salvador ‘responsible for death of woman jailed after miscarriage’
@Slugger:
Nineteenth century newspapers advertised abortifacients on their front pages. To be fair, most advertising appeared on the front page, but even so…
If only we could have this energy directed toward preventing abortions rather than trying to keep poor people from having safe procedures conducted by actual doctors.
@Scott:
The only time I got a “Conservative” friend of mine to actually consider the effects of his bullshit was with this argument. Ironically, he was forced to come out to me as queer a couple years later because he didn’t take Covid seriously.
I think the problem is that people only think of Roe as being abortion only. Roe, Griswold, Loving, Obergafell stand for so much more than that. Those are the cases that say that we have the authority and rights to define our own existence. How we relate to and control our bodily autonomy. How we structure our families. How we are in control of our bodies, our minds, and our lives.
Trans rights rest directly on Griswold and Roe. Does the government get to deny me life saving medication because they think I shouldn’t exist? Does the state of Texas get to annul my marriage if I ever have to go there?
What happens when a woman miscarries? Do those have to be investigated?
This is about so much more than abortion. This is about who gets to define and control our existence. All of our existence.
First, Susan Collins is absolutely full of it. Or rather, she knows she can virtual signal that she would support legislation to protect abortion rights because she also knows without changing or eliminating the filibuster, there is no possibility of any abortion rights legislation making its way through the Senate.
Depending on how wide or narrow the decision is, things could get really chaotic very quickly. A number of states, like Wisconsin, never eliminated the abortion restriction laws that Roe v. Wade overturned. So those laws could potentially go back into effect.
Likewise, I could easily see future legislation that attempts to restrict the ability of residents of a state to travel outside the state for an abortion.
@Beth:
This is about so much more than abortion.
Conservative rhetoric is only focused on the progressive left as a deep other out to destroy America. Their explanations rely upon a thought crime entering the body politic and corrupting everybody. They don’t have any explanations for why–say–trans people exist except modernism. They don’t seem to believe that anything bad existed before leftism. It’s a dangerous path they have gone down, and abortion is probably the beginning.
@Modulo Myself: Yes, it’s always “I’m pro-life, until I’m the one who needs an abortion.”
I suspect that what will happen is that abortion will be outlawed, middle-class women will segue over to a mixture of discrete vacations to locations that do the act sub rosa and chemical abortificants, while poorer women will try to make do with DIY abortions (chemical or otherwise). The latter will be the ones getting chewed up in the legal system while the middle-class women will be left alone (aside from zealous young prosecuting DAs who want to start their political careers.) And for the most part, it will turn into kabuki implementation: basically, as long as it doesn’t come out in public, have your own DIY abortion and we’ll close a blind eye to it.
@Sleeping Dog: That presumes they thought SCOTUS would overturn Roe. Given how little the average citizen pays attention to SCOTUS, that is a poorly-based presumption.
@grumpy realist: You are probably correct, but it leaves the medical aspect of this in a desperate gray area.
There are plenty of women out there who partially miscarry who need D&C procedures that could well become outlawed. I fear that we’re creating the same climate in this country that Ireland just got rid of–situations like the case of Savita Halappanavar–these are the women who will end up dying because of an in between area.
In Texas your rapist can earn $10,000 if he discovers you’re having an abortion.
@SKI:
I agree. But if you are going to argue that overturning Roe, or gutting it, but leaving it in place is going to cause some outpouring of support for politicians that support abortion rights, you’re making the assumption that the voters are paying attention and will act.
The mid term elections are in 11 months, we’ll see then if turnout is effected and how, in state legislative and congressional elections.
Till then we can agree to disagree.
The abortion battlefield shifts to state legislatures, and governors’ mansions. If Democrats can resist being idiots, they can make progress there.
@JKB:
So the question arises, when does the woman become a human being under the law and therefore come to enjoy the protections of the law against being forced to bodily contribute to another human.
We don’t require people to donate blood, or organs. We don’t even require dead people to donate organs. Women have less bodily autonomy than corpses.
(Or, we can look at it from a housing perspective: Why are we giving fetuses squatter’s rights?)
@Michael Reynolds:
According to the late Todd Akin, it shouldn’t be necessary for a rape victim to have an abortion. After all, her body will “shut down,” won’t it?
@Michael Reynolds: And as you know but to be perfectly accurate, your rapist doesn’t even need to be in Texas to collect. Assuming the abortion is in Texas.
@JohnMcC:
I think this also assumes that some court in Texas won’t entertain a suit involving an out of state doctor performing an abortion on a person from Texas. I understand there are jurisdictional issues now, but a quick change to the TX long arm statute would probably fix that.
Limiting abortion is ultimately tied to wanting a lot of expendable young people to sacrifice in war.
How can you conscript hundreds of thousands of young men to die in a few weeks of battle (like in say Verdun or the Somme) is they’re all aborted before they can be turned into cannon fodder? Or have millions of them living in muddy, rat infested trenches for years while the leaders direct battle from luxurious chateau’s far from the battle lines?
The right not only wants to control women’s bodies, but also young men’s bodies (controlled to the point where they’re forced to run into machine gun fire). Preserving life means preserving it long enough for it to become useful battlefield causalities. Can’t be a major world power if you’ve got a small population.
@grumpy realist:
Just want to keep this straight in my head – the kids of the wealthy will get their abortions, while the poor and middle class will get hammered by the uterus police? In other words, just like when Cracker and I were wee laddies?
Dr. J, she’s been watching her fellow kongress-kritters for 18 years — OF COURSE she’s frightened of her fellow politicians. Anyone locked in the asylum should know who to be frighted of.
I wonder if there is a niche market for abortion “resorts”?
All the rich people in the redneck states could send their kids and mistresses there, which would allow the facility to do pro-bono procedures for poorer patients, or victims of rape and incest.
@Daryl and his brother Darryl:
I suspect this may be an evolving niche market. Time to get in on the ground floor? Franchise opportunity?
@flat earth luddite:
“RESORT ABORT”
@flat earth luddite: I figure it really does boil down to “those who do not learn from history are doomed to repeat it.” Except that it’s even worse–we’ll be blowing off the totally unnecessary deaths connected with illegal abortion the same way we blow off the deaths from school shootings and other mass shootings. Gotta get that Jayzus-lovin’ in there and show how holy we are….heck, if the gals hadn’t had sex they wouldn’t have gotten pregnant, right? So it’s all their own fault….
The one slight silver lining I can see is we don’t make as much of a stink about unmarried women having pregnancies as we used to. And maybe we’ll finally stop the incessant whining from the adoptees’ rights organizations complaining that Birth Mommy Didn’t Keep Me. (Note that none of them ever complain about the fact that the father usually walked out as well.)
My guess is the Republican brand getting labeled as the party that’s not just hoping to, but is, banning abortions could tip the scales in purple states. I believe Collin’s action was prompted by that fear. Won’t change things in red ones though.
Sometimes I wonder if the Dems harbor the same fear about guns, and play lip service to the issue but fear the fallout of actually doing something major about it.
@Michael Reynolds:
True, despite Abbott’s contention that TX just won’t have any rape, by fiat. But I doubt SCOTUS will uphold the TX law. The whole – the state will force you to pay bounties to vigilantes who catch you doing something that we, the state, are not prohibiting – thing is too ridiculous for any but the most brainwashed to accept. Even Ginny Thomas’s husband should be able to see the unintended consequences of that one.
I expect them to overturn the TX bill without touching on abortion. That way the supposedly liberal MSM will say, “See, Republicans in MS passed a radical bill, but Republicans in TX passed an insanely radical bill. The Court came down squarely between the two. See how moderate and reasonable they are!”
Barrett tweaked my curiosity. She noted that safe haven laws, new since Roe, change the situation by taking away any burden of forced child rearing. I had never heard of them. A quick Google says all 50 states (and presumably DC) do indeed have laws allowing a mother to drop a newborn at a designated safe location and walk away without legal liability. They’re intended to reduce unsafe abandonment of newborns, and apparently they are effective at that.
Many states have had these laws for 20 years. As best I could find out, in 50 states over going on 20 years, these laws have been used about 4,000 times. Seems to me a less than adequate solution for the nation without abortion. But it’s a great example of the law trying to say as long as a solution exists on paper, no matter how inadequate and impractical in application, that settles the issue.
@gVOR08: I suspect that those numbers will be increasing rapidly in the future. Orphanages, anyone?
@gVOR08: there’s also the costs of having a baby delivered, and prenatal care, missed work…
We need the government to start buying babies to ensure the mothers are left fanatically whole.
The babies can then be sold at a profit, somewhere, probably. The healthy ones, anyway.
@flat earth luddite: Yeah, pretty much. One of the advantages for a young woman living in Seattle was that Vancouver was a driveable day away. Women in Bellingham had it even easier as they didn’t need a place to stay overnight.
But things weren’t particularly bad in Washington in the first place. Abortion became legal sometime in the 60s.
@grumpy realist: I’ll refer you to a line from an old episode of Cold Case I streamed a few days back.
Valens: Are there any orphanages left?
Lily: Don’t need ’em. We’ve got our wonderful foster care system now.
@Gustopher: Can’t the sickly ones still be sold to the adrenochrome factories?
@Gustopher:
If olive oil comes from olives, and corn oil comes from corn, where does baby oil come from…?
Bwahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahaha…
Gasp… wheeze…
James, you are such a comedian.
FTR: My religion says nobody can tell me or anyone else what to do with their body. Who’s religion is supreme?
Bwahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahaha…
Gasp… wheeze…
10,000 unemployed comedians and here I am giving it away for free.
James: “Leaving aside the oddity of someone who has been in the Senate for eighteen years being frightened by the prospect of politicians, rather than appointed judges, deciding our laws, …”
Think of it like SCOTUS eliminates First Amendment protections, ‘sending it back to the states’.
“At least one notable Republican wants to do the thing Murray fears: pass a law.”
Collins lies as much as Trump.
“Which would return us to the status quo ante if the Court does what many expect: abortion would be regulated by the 50 states, with most Red and some Purple states making it all but impossible to get a legal abortion without traveling to another state. ”
No, because those states will try and prevent that. Notice that Texas’ SB8 would penalize people in Texas assisting with a women travelling from Texas.
@Barry:
Oh boy, so as bounty hunters we get to go after the person at the airport selling prospective abortion client a ticket? The bus station? How about the cab driver taking them there? Wowsers, I’m gonna get rich, Cletus!
@Sleeping Dog:
I think of it as a litmus test, a simple easy way for politicians to show they are onboard with the whole fundigelical agenda. No Roe, they just find something else for the same function.
Abortion does not go away as an issue, as it is then something for partisan battles over laws restricting access.
@charon:
Anyway, we all know (or should) the GOP is now the Party of Jesus – just call yourself a “conservative” and folks can fill in the blanks.
(Corollary – “partisan politics,” USA style, is now mostly a religious war, with all that implies re people’s willingness to compromise). That is why the Democrats can not get traction on policy issues, people are voting mostly on cultural identity.