5 Thoughts on the Supreme Court Overturning Roe vs. Wade

I frequently point out that this is not a blog that talks a lot about the issues of the day, but about politics.  I make a point of this for two reasons.  One, while conversations about issues can be illustrative & important, frequently online conversations about issues devolve into split sides, and that's not something that is particularly interesting to write about.  Second, and more importantly, while I have opinions on most major issues, I don't have expertise on them.  My expertise is on electoral politics, and understanding how situations & polling might impact upcoming elections.  I make a point of not talking about stuff I don't know, something we all should make a maxim of from time-to-time.

That being said, I couldn't let the leak from the Supreme Court that the nation's highest court will (seemingly) unilaterally destroy fifty years of judicial precedence by overturning Roe vs. Wade, the nation's landmark 1973 decision that has made abortion legal in the United States for the past half century.  Doing this, despite decades of precedence, this is staggering if not entirely surprising given the makeup of the Court.  Donald Trump's three judicial nominees, two of which succeeded champions of Roe (Anthony Kennedy & Ruth Bader Ginsburg), were ardently anti-choice, and while they didn't say otherwise in interviews, about the only person naive enough to think they wouldn't overturn was Susan Collins.  This will have an enormous impact on American life, and I want to say before I discuss the electoral impacts of this, that the biggest change here is simply the change in policy-abortion has been the law of the land for my entire life-in fact it's been the law of the land for the majority of Americans' adult lives.  That this is overturned will cause massive unease and will disproportionately impact the most vulnerable Americans.  With that caveat put out there, this is my (certain-to-evolve) perspective on what this might do electorally, particularly as we look to the November midterms.

Associate Justice Samuel Alito

1. We Are in Uncharted Territory Electorally

The first thing that I want to point out is that no one knows anything here.  First off, it's possible given that this judgment won't come down until June, that this won't be the eventual result.  This was a leak (a morally justified leak, in my opinion, despite Ted Cruz's protestations to the contrary-the Court is deeply partisan and it's time we step pretending otherwise), and so one of the five conservative justices (it appears from CNN that Chief Justice Roberts sided with the Court's three liberal justices in defending Roe though he was open to limiting it to the first 16 weeks of pregnancy) could change their mind.  

Assuming they don't, though (this likely wouldn't have leaked unless the perspectives had calcified), no one can say with all honesty what will happen.  Generally, people are more likely to vote on pocketbook issues like inflation, healthcare, & taxes than they are on social issues, including abortion.  But reproductive rights have never been so obviously under threat like they are right now, and it's worth noting that most public polling shows that the majority of Americans oppose unilaterally eliminating abortion rights.  Given that, it's probable that if there is an electoral change, it's likely to help Democrats, though as I said-we don't know what kind of impact a decision like this would have on November because abortion is not usually an issue that drives people to the polls.

Sen. Kyrsten Sinema (D-AZ)

2. Could Congress Intervene Before November?

The question that is coming up a lot on Twitter is-if the Democrats have control of the White House, Senate, & House, why can't they just codify abortion into national law?  This is a decent question, but it's not a simple one.  For starters, the filibuster means that the Democrats would need 60 votes in the Senate, which they don't have, to codify abortion into law federally.  Over the past year, Sens. Kyrsten Sinema & Joe Manchin, both Democrats, have been resistant to overturning the filibuster, and it's possible that even given this turn-of-events, they wouldn't move even given the gravity of the situation.  A House that would pass the bill (probable) and a Joe Biden that would sign the bill (certain) mean nothing without the Senate.

But more important, it's not clear that even if the filibuster didn't exist if the Democrats could rescue Roe in a 50/50 Senate.  While Sen. Sinema is very pro-choice (and has a voting record to prove it), Manchin is not (neither, it should be noted, is Sen. Bob Casey but his voting record on abortion is so mixed I suspect Chuck Schumer could twist his arm if it came down to it).  This would mean that there's no reason for Manchin, who doesn't want to pass Roe into law, to want to break the filibuster over it, and while there are a couple of Republicans with mixed records on abortion (specifically Lisa Murkowski & Susan Collins), it would be completely out-of-character for one of them to want to carve out an exception in the filibuster, even for a bill they might support without the filibuster exemption.  As a result, federal laws will certainly get votes but are unlikely to pass.

Sen. Maggie Hassan (D-NH)

3. Impact on Federal Midterms

So that basically means that Democrats need at least a net gain of two Senate seats and to hold the House in November to codify Roe.  I'm not going to say this is impossible, but it would require a pretty stunning about-face for the Democrats to be able to hold the House in November.  As I said, we're in uncharted territory here (pro-choice advocates outnumber anti-choice advocates), but I'd need to see pretty strong evidence that people would be more likely to vote or change their vote before I buy it's enough to get Roe codified in January.

That said, a lot of Democrats will run on doing this, and that could impact individual races.  Two key Senate contests I think you should keep an eye on are in New Hampshire & Nevada.  Both of these states host vulnerable incumbent senators (Maggie Hassan & Catherine Cortez Masto, respectively) and despite being swing states are famously pro-choice, disproportionate to their overall partisan balance (i.e. there are a lot of pro-choice Republicans in these states).  Given that their opponents will likely take the next obvious step (running on codifying a nationwide ban on abortion into federal law), these two senators could see a big change in their fortunes if pro-choice swing voters move their way in hopes of codifying abortion rights into federal law.

Gov. Gretchen Whitmer (D-MI)

4. Impact on State Races

The bigger question, though, is around state races.  It's worth noting that even if Roe were overturned, not all states would have it be illegal, at least immediately.  23 states have "trigger laws" that will go into affect that would immediately ban it, but many states like California, Nevada, Minnesota, Illinois, & Maine would not have it become illegal because it was already legal in those states prior to Roe going into effect.

If states become the next focus, though, a handful of governors' races are going to become very important.  It's easy to see a situation, for example, where if this had been announced last October, Terry McAuliffe would be the current governor of Virginia.  Democratic governors like Tim Walz (MN), Steve Sisolak (NV), Michelle Lujan Grisham (NM), & Janet Mills (ME) will (correctly) run in states with a similar partisan lean to Virginia stating "we are the last line of defense against abortion becoming illegal in our state," and likely will gain votes as a result.  Conversely, Democrats in states like Michigan, Wisconsin, Pennsylvania, Florida, Georgia, & Arizona will run on codifying abortion rights into their constitutions if they were to win.  It's also not entirely clear how much power the Attorney General's positions in these states might have, particularly if it becomes a situation where Democratic attorneys general simply chose not to enforce the law.  We could even see a situation where Democratic governors regularly pardon anyone who has or performs an abortion to circumvent this law.  All of this is to say, this totally changes the dynamics of these races, as well as the races for the state legislatures in these swing states.

5. What Comes Next?

The bigger question, and obviously the bigger practical question is around whether or not this will be the start of a conservative avalanche at the high court.  If Roe isn't safe, it's not clear what other freedoms explicitly granted by the Supreme Court (rather than by state courts or local/federal legislation) might be at risk.  The leaked decision by Samuel Alito strongly indicated that Lawrence v. Texas (which overturned all anti-sodomy laws nationally) and Obergefell vs. Hodges (which legalized gay marriage nationally) could be at risk of being overturned.  This would mean a total reversal of rights for LGBTQ+ people in states like Michigan, Texas, Utah, North Carolina, Virginia, & Florida where one or both of these rights are enforced due to Supreme Court decisions.  It seems certain that Republicans will begin to test this through legislation in the coming months.

How far this would go is unclear.  I'd normally say it'd be hyperbolic to state that decisions like Griswold (birth control), Loving (interracial marriage), and Brown (integration of public schools) would be at risk, but honestly, I think hyperbole is out-the-window in this case, given that there is no judicial precedence to overturn Roe other than the partisan leanings of five Supreme Court Justices.  That's the thing with this decision-there's no "what if?" too bold that it's clear this Supreme Court wouldn't cross.

And this is why, despite it being a cliche, the best thing to do in this situation, aside from donating to abortion funds & organizations like Planned Parenthood and Emily's List, is going to be to vote.  More Democrats, more pro-choice Democrats specifically, is our only way out of this.