Neither a misogynist dystopia nor a family-friendly utopia has arrived.
On the menu today: As momentous as the overturning of Roe v. Wade is, the number of abortions in America may not decline all that quickly in its wake; numerous Democrats, fresh off arguing that Trump fans who claim that Biden isn’t a legitimate president threaten the entire country, now contend that the Supreme Court is no longer a legitimate institution; and some grim new economic news came in on Friday that no one noticed.
The Landscape after Dobbs
Saying this won’t be very popular, but I think what may surprise people in the coming weeks and months is how little will change surrounding abortion. Blue states aren’t going to be restricting abortion at all, and in fact their governors say they intend to use taxpayer dollars to cover the costs for women traveling from other states to get an abortion. Fourteen states have “trigger laws” that have already banned or will soon ban all or most abortions — Alabama, Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, North Dakota, South Dakota, Utah, Tennessee, Texas, and Wyoming. (Wisconsin has a ban dating to the 19th century that its Democratic governor says will not be enforced.) In most of those states, abortion clinics were already few and far between. The abortion rate in places such as Alabama (6.3 per 1,000 women) and Arkansas (5.1) is significantly lower than the rate in places such as the District of Columbia (23.9) and New York (20.3).
Bans are going into effect in the places where the fewest abortions occur already — meaning the national abortion rate may not decline all that much in the coming years.
The U.S. Centers for Disease Control and Prevention reported that in 2019, 629,898 legal induced abortions occurred in 47 states, the District of Columbia, and New York City. The data do not include California, Maryland, and New Hampshire, whose state health agencies chose not to share their abortion numbers with the CDC. One analysis estimated that with Roe overturned, about 100,000 fewer abortions will occur in the U.S. each year.
You will see a lot of intense arguments about enacting bans or additional restrictions in “purple” or swing states, but if those states had legislative majorities and governors who intended to enact far-reaching restrictions on abortion, they likely would have passed those restrictions by now.
Abortion via pills will be exceptionally tough to regulate or eliminate. Telehealth, which accelerated during the pandemic, will allow those who want chemical abortions to consult doctors in other states. And we may well see abortion clinics set up shop near state lines in abortion-permitting states that border those where it’s banned.
The end of Roe may well launch a new era where America has somewhat fewer abortions, and those who seek to terminate their pregnancies travel to the nearest pro-abortion state or obtain abortion pills through the mail after a telemedicine appointment. This vision is neither The Handmaid’s Tale–style misogynist dystopia that the pro-choice crowd warns about, nor the child-welcoming, family-friendly utopia that pro-lifers wish to see.
There will be an effort to enact federal legislation superseding all those differing state laws, but it is difficult to see either pro-lifers or pro-choice forces attaining the necessary legislative majorities to do so while also controlling the White House. Assuming this year’s midterms shake out as expected, the U.S. will have divided government until at least January 20, 2025, and abortion legislation from one side would obviously face a filibuster from the other. To enact a uniform national policy on abortion, either pro-lifers or pro-choice lawmakers would need not merely legislative majorities in both houses and control of the presidency, but majorities who think imposing policy changes on other highly resistant states is a good idea.
If you think America’s current political and social tensions are bad, envision a pro-life Republican Congress attempting to ban abortion in New York and California, or a pro-choice Democratic Congress attempting to require legal taxpayer-funded abortion throughout the South and Midwest.
The fight to preserve unborn life is a cultural effort, as well as a legal one. The number of abortions in the U.S. declined significantly from the late 1970s and early 1980s to today, without that many legal restrictions in place. Year by year, more and more women facing unplanned or unexpected pregnancies have realized that they have options beyond terminating their child.
‘Legitimacy’ Is Not a Synonym for ‘I Agree’
You don’t have to look far to find prominent Democratic officials who do not merely disagree with the Court’s decisions in Dobbs, but who argue that the Supreme Court is no longer “legitimate.”
Yesterday on Meet the Press, New York Democratic representative Alexandria Ocasio-Cortez argued:
This is a crisis of legitimacy. We have a Supreme Court justice whose wife participated in January 6th and who used his seat to vote against providing documents that potentially led to evidence of such to investigators in Congress. This is a crisis of legitimacy and President Biden must address that.
Over on ABC’s This Week, Senator Elizabeth Warren of Massachusetts contended:
This Court has lost legitimacy. They have burned whatever legitimacy they may still have had after their gun decision, after their voting decision, after their union decision. They just took the last of it and set a torch to it with the Roe v. Wade opinion. I believe we need to get some confidence back in our Court, and that means we need more justices on the United States Supreme Court.
“Legitimate” does not necessarily mean popular, widely liked, or admired. The Internal Revenue Service is not those things, and yet the institution is legitimate; the IRS still has the legal authority to collect taxes and audit your returns and press criminal charges if it sees evidence of fraud or evasion. The Supreme Court’s job is not to be popular; the Court’s job is to interpret whether laws violate the U.S. Constitution, regardless of whether its decisions are popular or not.
“Legitimate” is defined by Merriam-Webster as “accordant with law or with established legal forms and requirements.” All of the justices on the Supreme Court were appointed and confirmed in accordance with established legal forms and requirements, nominated by duly elected presidents, and confirmed by a majority of duly elected senators. A justice does not get any more or less legitimate depending on the number of confirmation votes that justice received.
According to some of this weekend’s social-media tirades from progressives, it was inappropriate for George W. Bush to make Supreme Court nominations because he didn’t have a popular-vote majority in 2000; never mind that he did win a popular-vote majority in 2004, and Bush made his nominations of John Roberts and Samuel Alito in 2005 and 2006. Apparently, it was inappropriate for Donald Trump to make Supreme Court nominations because he didn’t have a popular-vote majority in 2016; no one seems to care that Bill Clinton won 43 percent of the popular vote in 1992 and then nominated Ruth Bader Ginsburg and Stephen Breyer in 1993 and 1994.
All of this is nonsense, of course. If you win 270 electoral votes, and if you are sworn into the presidency, you have the authority to nominate justices to the Supreme Court — full stop. And the Senate is free to confirm or reject those nominees — or, in the case of Merrick Garland, to decline to hold hearings. (For what it’s worth, I think the Senate GOP should have held hearings and then voted to reject his nomination.)
If you argue that Joe Biden was not legitimately elected — an argument that is nonsense, unsupported by the facts and numerous court decisions, no matter how many times Sidney Powell points to Venezuelan hackers and the Arizona MAGA crowd warns about bamboo in the ballot paper — many Democrats will react with outrage and contend that this belief is an attack on democracy and the American government itself. But if you argue that the Supreme Court is illegitimate, you are qualified to be a leader in the Democratic Party.
It is now time for the difficult question of whether the previous perception of the Supreme Court’s legitimacy was driven by the fact that its decisions often affirmed the preferences of American political, cultural, and legal elites. The moment the Supreme Court started making decisions that a lot of political, cultural, and legal elites didn’t like, they didn’t merely disagree; they contended that the Court was no longer legitimate.
If every time the party you oppose comes into power you call it illegitimate, or if every time those you oppose assert their authority you decry their actions as illegitimate, you don’t actually believe in democracy. You only believe in democracy as long as your side wins.
Psst! Consumer Confidence Just Hit an All-Time Low
No doubt many Democrats think they have their message for the midterms: January 6, gun control, and abortion.
And who knows, maybe that messaging focus will mitigate the coming “red tsunami.” No doubt many grassroots progressives feel more fired up and enthusiastic to vote now than they did a few months ago.
But even if the national news media are thinking a lot about January 6, gun control, and abortion, those issues aren’t necessarily on the mind of the average voter. Friday was a great day to release bad news, because everyone was focused on the end of Roe v. Wade, which means probably not many people noticed the crash in consumer confidence:
U.S. consumer sentiment hit a new record low in June amid growing concerns about inflation, according to a closely followed University of Michigan survey released Friday.
The final index reading of 50 in the monthly Surveys of Consumers was just below the preliminary reading of 50.2 released two weeks ago. The final June index — a 14.4 percent drop since May — represents the lowest recorded level since the university started collecting consumer sentiment data in November 1952.
“Consumers across income, age, education, geographic region, political affiliation, stockholding and homeownership status all posted large declines,” said Joanna Hsu, Surveys of Consumers director, in a statement. “About 79 percent of consumers expected bad times in the year ahead for business conditions, the highest since 2009.”
No matter what topic is dominating the discussions of the New York Times editorial board or the water-cooler chatter at MSNBC, the issue of the economy isn’t going anywhere.
ADDENDUM: Whether or not abortion supporters want to fight among themselves or alter their view of the late justice Ruth Bader Ginsburg, the fact remains that if she had retired in 2013, as President Obama and Senator Patrick Leahy had subtly urged her to do, it is unlikely that Roe v. Wade would have been overturned. In a strange way, the notorious RBG helped bring us to this point.