Today’s retirement announcement by Justice Sandra Day O’Connor, aside from ruining the vacation plans of the people who work for advocacy groups on both sides of the judicial divide, created two immediate political questions. The first is what Bush will do now that he finally has the opportunity to make an appointment that could reshape the Court. I did an extensive post over at TPMCafe predicting he had little choice, and probably even less inclination, to do anything other than give the Cultural Right what it wants: a sure vote to overturn Roe v. Wade. So I won’t recapitulate the whole argument here.But the second question remains open: exactly how much should Democrats, and particularly pro-choice Democrats, invest in trying to stop Bush from doing what he’s probably going to do? More to the point, do Senate Democrats launch a filibuster, risk triggering the “nuclear option,” and pretty much shut down Washington for the rest of the year?Scanning the Left and Center-Left blogosphere today, I was a bit surprised to discover more doubt on this question than I expected.The main reason for debate is the recognition that replacing O’Connor with a Justice determined to reverse Roe would still leave right-to-lifers one vote short, based on the lineup in the last big case where the Court reaffirmed basic abortion rights, Casey v. Planned Parenthood (1992). The confusion on this subject probably flows from a misunderstanding over Justice Kennedy’s dissenting vote in the 2000 Stenberg case, which struck down a state “partial-birth” abortion ban. The decision of leading abortion rights activists to make the “partial-birth” issue a litmus test for qualifying as “pro-choice” led to a lot of commentary after Stenberg that Kennedy had flipped to the dark side. But while Kennedy may support some erosion of Roe on the margins, it’s hard to imagine him contradicting his position in Casey, which flatly accepted abortion rights as a matter of settled precedent.So: the O’Connor replacement is not necessarily a direct threat to abortion rights. But for the same reason, this appointment truly is a crisis point for those who want to overturn Roe. They need to flip the O’Connor vote, maintain Rehnquist’s anti-Roe vote (assuming he’s forced to retire at some point), and then hope John Paul Stevens, who’s 85, will quit before Bush’s second term ends. Otherwise, they’ll have to count on another Republican president to get the job done, and right now, 2008 is hardly looking like a GOP slam dunk.The asymetrical stakes of the two sides on the abortion issue with respect to this particular nomination provides Democrats with several options. They can simply spot Bush a fourth vote to overturn Roe, and focus on the broader constitutional issues particular nominees might pose (this may well be Harry Reid’s strategy in suggesting several anti-abortion Republican Senators that Democrats could accept). They can play rope-a-dope by opposing Bush’s appointment and dragging it out, without resorting to a filibuster. Or they can go to the mattresses.I have no settled opinion at this time about what Democrats should do. But it’s nice for once to have our side enjoying some tactical flexibility, while the all-powerful GOP is lashed to the mast of its alliance with the Cultural Right.
TDS Strategy Memos
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By Ed Kilgore
As part of the continuing discussion about the impact of the Supreme Court’s Dobbs decision, I warned at New York that the pressure to ban abortion will only intensify:
The U.S. Supreme Court’s decision to eliminate the right to an abortion in Dobbs v. Jackson Women’s Health Organization was the culmination of the Republican Party’s long and powerful partnership with the anti-abortion movement. This is key to understanding the potential impact of the Court’s ruling; now, that alliance will likely drive even more extreme efforts to eliminate abortion access across the country. For the anti-abortion movement, overturning Roe v. Wade was a starter’s gun, not the finish line.
Prior to 1973, Republicans were about as likely as Democrats to support the decriminalization of abortion. But within three years of the Roe v. Wade decision, both leading candidates for the GOP presidential nomination favored a constitutional amendment overturning Roe. There were a lot of reasons for this sudden change of direction, including the GOP’s effort to win over previously Democratic southern conservatives and Catholic voters, and the emergence of abortion bans as a top priority of conservative evangelical leaders. After 1980, the die was cast; while pro-choice politicians and voters lingered in the GOP for some time, the Republican Party as a whole never wavered from its anti-abortion stance.
Yet for decades, the GOP couldn’t deliver. By the time the profoundly irreligious and previously pro-choice Donald Trump won the GOP presidential nomination, simmering resentment toward Republicans for failing to produce a reversal of Roe was close to boiling over; the marriage between party and movement had become loveless. So in a great irony, the unprincipled Trump made a straight transactional offer to get ’er done if the anti-abortion movement supported his candidacy. They took the deal.
As Trump’s Supreme Court appointments cleared the path for the reversal of Roe, GOP governors and state legislators went into an anticipatory frenzy. Twenty-six states passed abortion bans with provisions violating Roe and Planned Parenthood v. Casey, ranging from laws hassling providers to pre-viability abortion bans, like the 15-week Mississippi standard that led to Dobbs. When the ruling came down on Friday, 13 states had “trigger” laws designed to take effect the minute Roe died.
For decades, Republican politics have been about working with anti-abortion constituencies to set the table for the end of abortion rights in America, but now GOP politicians face a very different situation. As far as what they’ll do next, here are three things to keep in mind.
Republicans leaders will now face even more pressure to enact extreme abortion bans.
You might think that having won this huge victory in the Supreme Court, Republican anti-abortion activists would give it a rest for a bit. But that isn’t happening.
Having been invited by the Supreme Court to set abortion policy without any inhibitions, the true goal of the anti-abortion movement — a ban on all abortions from the moment of conception, with few if any exceptions — will become an immediate priority for Republican lawmakers. Where there are 15-week bans like Mississippi’s, six-week bans like Georgia’s will likely emerge. Where there are six-week bans, total bans from conception like Louisiana’s and Oklahoma’s will be pursued and likely enacted. Rape and incest exceptions will be challenged. The pressure on GOP lawmakers to grow more radical will go up, not down. This isn’t a political game anymore. Republican lawmakers have been handed the power to force every pregnancy to full term, and their most powerful religious constituencies expect them to use it.
GOP tactics will become more radical.
For most anti-abortion activists and their Republican vassals, overturning Roe was never anything more than an interim step toward a total abortion ban. Now they can publicly advance more audacious goals and impose new litmus tests on GOP politicians.
The states-rights and pro-democracy rhetoric that anti-abortion activists routinely deployed to challenge what they deemed federal judicial tyranny over abortion policy will instantly vanish. Republican elected officials and candidates will begin calling for a national abortion ban by congressional statute. It won’t happen so long as there is either a Democratic president or a Senate filibuster, but Republicans with aspirations for high office will line up to pledge to make it happen someday. Mike Pence took the vow minutes after Dobbs was announced:
“Now that Roe v. Wade has been consigned to the ash heap of history, a new arena in the cause of life has emerged, and it is incumbent on all who cherish the sanctity of life to resolve that we will take the defense of the unborn and the support for women in crisis pregnancy centers to every state in America,” Pence told Breitbart News. “Having been given this second chance for Life, we must not rest and must not relent until the sanctity of life is restored to the center of American law in every state in the land.”
Meanwhile, at the state level, Republicans will do whatever they can to interfere with actions by citizens in blue states to aid people in red states. Even though Justice Brett Kavanaugh warned in his Dobbs concurrence that bans on travel to secure an abortion would represent an unconstitutional restriction on interstate commerce, that won’t keep those determined to “save all the babies” from trying to do so by hook or crook.
Most of all, you will hear more and more talk about the goal the GOP first formally embraced in its 1980 platform: an effort to convince the Supreme Court to recognize fetal personhood as a constitutional right, or to pass a fetal personhood constitutional amendment in Congress.
Anti-abortion fervor could shift the GOP’s election strategy.
Ice-cold Republican tacticians looking no further than the 2022 midterm elections or the next presidential contest will welcome the new climate as a base-energizing tonic for the troops. After all, the GOP kept its promises to its culture-war wing, and there will be much MAGA/Christian right excitement about acting on the new freedom to impose forced birth. State legislative and gubernatorial elections in November and beyond are going to be lit.
But as it happens, Republicans were already cruising toward major midterm gains thanks to economic worries, Democratic discouragement, the GOP turnout advantage in non-presidential elections, and the historical pattern of midterm losses by the party controlling the White House. All things considered, they want voters to go to the polls thinking about inflation, not abortion; about their grievances with Joe Biden, not their grievances with Samuel Alito.
Democrats have been thinking that Roe’s demise could change the dynamics of the midterms by encouraging high turnout from young voters and suburban women and giving Democratic voters something to feel more passionate about than a bipartisan infrastructure bill. Many Republicans may fear that outcome too, but they are in no position to tell their own base to stop thinking about abortion policy, which in turn means GOP candidates won’t stop talking about it. And that could complicate the anticipated GOP midterm victory, while also changing the landscape going into 2024. Potential Republican presidential candidates could go into a competitive frenzy of anti-abortion extremism, and that’s exactly what Democrats need to hang onto swing voters.