Now the debate moves into the political realm, where it should have been all along.
Now the debate moves into the political realm, where it should have been all along.
Y ou’ll notice that when Democrats fail to get their way, we end up hearing a lot about how our institutions are “broken” and “politicized” and how the country is dangerously “polarized.” Should the Supreme Court overturn Roe, however, our system — and that includes the legislative filibuster — is finally working as it should: ending an unconstitutional judicial overreach, hindering centralized majoritarianism, and returning a political issue to the states.
Yet democracy’s purported defenders are not only conspicuously perturbed by the idea of handing the abortion issue to voters, they also, incomprehensibly, argue that the Court should mandate abortion by fiat because of the ruling’s alleged popularity among voters.
Liberals can grouse all they like about the eroding trust in the Court among their constituents. SCOTUS’s job is to faithfully uphold the Constitution, not mollify voters or bow to the vagaries of political pressure. There was a time when even liberals conceded Roe’s weaknesses — Ruth Bader Ginsburg once called it “heavy-handed judicial activism,” and Laurence Tribe argued that “behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found” — but today’s Democratic Party only sees legitimacy in the success of its policy preferences. Though liberals are big fans of the imaginary “super precedent,” they have no compunction crusading to overturn the court’s First Amendment protections via Citizens United or the Second Amendment protections via Heller, or any other protection they dislike.
Democrats know that the political dimensions of the (possible) overturning of Roe via Dobbs v. Jackson Women’s Health Organization are opaque. Indeed, while most polls find the public opposed to overturning Roe — as they likely would be to any 50-year-old decision that our media and culture have treated as sacred writ — they also embrace a mess of contradictory opinions on the matter.
As a NPR/PBS NewsHour/Marist poll found, a majority support Roe, yet 75 percent also claim to be “either somewhat or very dissatisfied” with Roe, including 66 percent of those who self-identify as “pro-life” and 62 percent of those who self-identify as “pro-choice.” One imagines that a majority of voters have little idea what overturning Roe entails.
Once voters get past the question of whether Roe should be overturned, they may find out that establishment Democrats have staked out a maximalist position — one the media have largely obscured. The specifics of recent bills, such as the one passed in Colorado, which make abortion legal on demand into the ninth month, are deeply unpopular.
On the other hand, Florida’s 15-week abortion ban, likely the template for many other red states moving forward, aligns with the middle ground. Gallup finds that 67 percent of American believe abortion should be either completely banned (19 percent) or in place with limitations (48 percent) after the first trimester. The 20-week ban that House Republicans supported a few years ago also polls well. A Hill-Harris poll found that 55 percent of registered voters thought heartbeat bills were either “too lenient” (21 percent) or “just right” (34 percent).
Democrats such as Congressional Campaign Committee chairman Patrick Maloney, who promises to make abortion the central issue in the 2022 midterms, are probably misjudging the priorities of the American people. As long as Democrats fail to nix the filibuster, abortion becomes a state-level issue should Roe be overturned. It’s the Left that argues for a national abortion mandate through judicial fiat. Once voters realize that very little will functionally change in their states, in the short term at least, they will likely turn back to worrying about inflation and energy prices.
Then again, even if Maloney is right, and the Dobbs decision hastens a Republican loss in the midterms, then so be it. The point of politics isn’t merely to populate Washington with elected officials who have Rs next to their names. One of the main policy goals of social and constitutional conservatives — and perhaps the issue that won Donald Trump the presidency — is to appoint textualist judges who would limit state power and treat decisions such as Roe as a judicial overreach and abortion as a concocted right. Now the debate moves into the political realm, where it should have been all along.