The Coming Electoral Tsunami Over Abortion
Compromises Have Been a Part of Abortion Politics Since the Beginning. The GOP Needs To Make One or Risk Getting Wiped Out in 2024 and Beyond
On Friday night, women across America (and many Republican candidates) breathed a temporary sigh of relief as the Supreme Court blocked the 5th Circuit decision on banning or limiting the FDA-approved use of the abortion pill mifepristone, the most common way women receive an abortion. But the justices, for now, left the case in the hands of the 5th U.S. Circuit Court of Appeals, which has scheduled oral arguments in the case for May 17. However the 5th Circuit rules, the case will almost certainly end up back at the Supreme Court, with the potential for a decision in the case next term. This is not a fight Republicans want right now.
In the Wisconsin Supreme Court election this last month, Republicans looked at the precinct level map and freaked out. The state was showing blue in areas all across the state, including areas that should be ruby red. The WI-03 Congressional District, the last Congressional District in the country represented by a Democrat in 2022 that Trump won in 2016 was blue up and down the district. Now represented by Republican Derrick Van Orden,1 he was quick to say the state of Wisconsin should do something about its 1849 law banning abortion, which gives the impression he is softening his position on abortion without having to actually vote on it.
The abortion issue is toxic for Republicans at the grassroots level. The more that regional evangelical pro-life Republicans push anti-abortion positions, the more they face a giant blue tsunami crashing down on them. It is clear, that millenials/Gen Z, and also women of all ages, will vote specifically on this one issue alone, and will empower the Democratic Party so long as it is an issue. If Republicans were smart,2 they would seek to create some form of compromise to diffuse the issue as soon as possible. While I would understand if you think a compromise on such an ideologically divisive issue would be impossible, I would point out the history of abortion as an issue has been full of compromises.
Roe v. Wade, and Planned Parenthood v. Casey
Roe v. Wade3 was decided in 1973, and was authored by former general counsel for the Mayo Clinic, Harry Blackmun. If you’ve read it, you can see it was a well thought out, well organized, historical, scientific-oriented decision. Blackmun was very deliberate in laying out the structure he was thinking and why. The result was a 7-2 decision that people at the time didn’t think was all that controversial4, and that is because inherent in the framework is a compromise.
Roe does NOT stand for the unencumbered abortion on demand that many Republicans claim or many Democrats declare it does.5 What it stands for is that 1) It is a protected right through substantive due process, and therefore a federal issue, and 2) the rights of the mother are balanced against those of the fetus as potential life and the state interest in protecting life. To do this, Blackmun split up a pregnancy into the trimesters that most prenatal physicians did.
In the first trimester, the rights of the mother supercede the rights of the embryo as potential life. The embryo is not yet viable and the procedure is actually at that point safer than childbirth. The only state interest in regulating abortions at this point is only on medical safeguard grounds to protect the mother, such as requirements that abortion providers be licensed doctors.
In the second trimester, the Court ruled that evidence of increasing risks to the mother's health gave states a compelling interest that allow them to enact medical regulations on abortion procedures so long as they were reasonable and "narrowly tailored" to protecting mothers' health.
From the beginning of the third trimester on—the point at which a fetus became viable under the medical technology available in the early 1970s—the Court ruled that a state's interest in protecting prenatal life became so compelling that it could legally prohibit all abortions except where necessary to protect the mother's life or health.
One of the only two justices who dissented on that case was William Rehnquist, who was eventually elevated to Chief Justice. The Roe decision fueled a growing constituency on the right, the “Moral Majority.” Abortion was the cornerstone of this movement and “pro-life” voters6 propelled Reagan and George H.W. Bush to the White House. It also created a right wing groundswell at the grassroots, shifting state legislatures across the country to the right. In that span, five new Supreme Court justices were appointed to the Court; Sandra Day O’Conner, Antonin Scalia7, Anthony Kennedy, David Souter and Clarence Thomas. Over this time, the Court chipped away at the rights and framework as described in Roe and pro-life supporters thought it was time to re-visit Roe now that they had an outright majority. In 1992, they had their chance with the case Planned Parenthood v. Casey.8 9
Alas, the Republican majority on the Court did NOT overturn Roe. Uneasy about the lengths the justices on the right wanted to go, and what it would mean for millions of women, a group of more moderate justices staked out a pragmatic compromise. Justices O’Conner, Souter and Kennedy upheld Roe, but scrapped the trimester framework and instead stated the dividing line was fetal viability. A woman’s right to abortion was fine up until that point, but once a fetus is viable outside the womb, its right as potential life supercedes that of the mother’s right to an abortion and the state has a compelling interest in protecting it subject to the life and health of the mother. Noting that technology helping premature delivery had improved since 1973 and would likely continue to improve, that viability line may change over time. They also noted that the state has an interest in abortion restrictions so long as they do not present an “undue burden” on the mother.10 They were joined by Roe’s original author Harry Blackmun and Ford appointee John Paul Stevens, who would have kept Roe (including the trimester framework) intact. The Republican dissents were outrageous, upset scathing commentary on being on the losing side of the case.11
The moderate betrayal led the GOP to scrutinize much more carefully federal judicial nominees, leading to the rise of the Federalist Society and fast tracking more ideologically conservative candidates to higher courts. For many Americans though, the Casey compromise defused what had been a divisive culture war issue.
Politics Since 1992
Following Casey, the Supreme Court had been in a kind of stasis for a period. Republican Justices were replaced by more conservative justices. Democratic justices were replaced by typically Democratic justices. That is, until Antonin Scalia died under President Barack Obama. This had the ability to change the Court from a Republican majority to a 5-4 liberal one. The Senate, led by Republican Mitch McConnell refused to have hearings on any candidate at all, keeping the seat open. Then, when Trump won the 2016 election, he had the ability to appoint a Supreme Court Justice right away, and put conservative Neil Gorsuch on the bench. Then, moderate Kennedy was replaced by Brett Kavanaugh. Finally, Trump changed the Court to a conservative 6-3 majority by replacing liberal Ruth Bader Ginsburg with conservative Amy Coney Barrett.12 The Court clearly had enough Justices to eliminate Roe if the case came up.
But what had happened in American society since 1973 was that three separate generations have grown up with abortion as an option, and the politics around the issue has shifted dramatically. Now, a full 3/4 of Americans believe abortion should be regulated but legal. The Casey framework since 1992 had taken root and been accepted by the majority of the public, and the inherent compromise (legal, but regulated), seemed practical and acceptable. This is in stark contrast with the growing ideologically rigid bent of the Supreme Court.
So when in 2022 Justice Alito gave his decision in Dobbs v. Jackson,13 it was roundly abhorred by most everyone except the most hardcore conservatives. Like a political call to arms, grassroots Democrats in typically GOP areas came out to vote. In a Presidential midterm, when the opposition usually wins big, Democratic turnout muted the results and the GOP actually lost a seat in the Senate. In special elections since then, women and young voters are driving out vote, and abortion is a major theme in these races.
The Pending Compromise
The Dobbs decision didn’t ban abortion outright. What it did was kick it back down to the states where they can (and will) ban it outright. It reads like a parody of Backmun’s original Roe decision. People genuinely don’t agree that abortion laws should be written at the state level, where on one side of a state border women have protections and on another they don’t. They’ve gotten used to this being an issue with a national framework. But now instead of fighting at the federal level, abortion is going to be fought at the grassroots state level all across the country. This kind of brushfire was evident in that Wisconsin Supreme Court race and if that happens in every state, Republicans have no chance in 2024 and beyond. A seismic realignment is about to occur unless they somehow eliminate it as an issue.
To that end, the most practical political compromise for Republicans is a Constitutional Amendment putting in place the Casey decision keeping abortion a federal issue and allowing states to regulate implementation and requirements. Democrats might actually even agree to that in that it would enshrine Roe’s original protections into Constitutional authority. Most importantly, it would put an end to the Constitutional question that we’ve been fighting as a society for the past 50 years, of which most voters are tired of re-litigating every few years.
Nonetheless, the current GOP seems intent going 180 degrees in the opposite direction, ensuring a complete wipeout in 2024. Much like pro-life forces drove much of the Republican realignment of the ‘80s and ‘90s, pro-choice politics are going to propel a Democratic one for the next several decades.
PurpleAmerica’s Recommended Stories
An excellent book on the Supreme Court during the time Casey was being decided is Edward Lazarus’s book, “Closed Chambers.” Lazarus was a law clerk for Harry Blackmun and had an inside seat for all of the politicking and issues coming up. Its an outstanding read.
https://www.amazon.com/Closed-Chambers-Future-Modern-Supreme/dp/0143035274
A more recent one is by Supreme Court watcher Joan Biskupic, and covers much of the history of the justices on the Court over the years, titled “Nine Black Robes.”
https://www.amazon.com/Nine-Black-Robes-Historic-Consequences-ebook/dp/B0B9SP225M
PurpleAmerica’s Obscure Fact of the Day
We are almost at 250 years in American history. In that entire span there have only been 17 different Chief Justices of the Supreme Court, and only 104 associate Justices, with the average Justice serving 16 years.
George Washington holds the record for most appointments to the Supreme Court with 14. This was also before the Court had any serious power and most saw it as a dead end job. It wasn’t until Chief Justice John Marshall wrote Marbury v. Madison that the Judiciary had any real power, and that happened when Jefferson was President.
Four Presidents (William Henry Harrison, Zachary Taylor, Andrew Johnson and Jimmy Carter) did not have the opportunity to nominate a single Supreme Court Justice.
William O. Douglas holds the record for serving on the Supreme Court the longest, a whopping 36 years and 7 months, from 1939 to 1975! John Rutledge served the shortest term at 1 year and 18 days in 1791.
PurpleAmerica Cultural Criticism Corner
One of the best movies about the ridiclousness of abortion politics is the 1996 movie, Citizen Ruth, starring Lauren Dern.
For a much more sobering and serious look at abortion, there’s the film “4 Months, 3 Weeks and 2 Days” about a woman seeking an abortion in Ceaucescu’s Romania. It’s not a pretty movie and speaks some horrible truths about societies where women are trapped in such situations.
Outstanding Tweet
Footnotes and Parting Thoughts
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The previous Representative, Democrat Ron Kind, retired in 2022. Van Orden barely eked out a victory against Brad Pfaff in a race many thought Pfaff could have won had the DCCC not pulled out funding for the race focusing instead on a disastrous collapse of the New York Democratic races that saw Republican George Santos win.
Given the current state of the GOP, that’s questionable at best.
Roe v. Wade, 410 U.S. 113 (1973)
The decision didn’t even appear on the front pages of most papers in the country at the time. This was because on the same day, Kissinger went to Paris to sign an accord ending the Vietnam War and also Lydon Baines Johnson died the same day.
An unissued press release of the decision by Blackmun stated “…the Court does not today hold that the Constitution compels abortion on demand. It does not today pronounce that a pregnant woman has an absolute right to abortion. It does, for the first trimester of pregnancy, cast the abortion decision and the responsibility for it upon the attending physician.” Likewise, Chief Justice Warren Burger stated, “I do not read the Court's holdings today as having the sweeping consequences attributed to them by the dissenting Justices…Plainly, the Court today rejects any claim that the Constitution requires abortions on demand.”
In a surprise reversal, the original Roe plaintiff, identified as Norma McCorvey, came out and protested in the 1980s and 90s as regretful of her abortion and had switched to become a pro-life advocate. In later years, she admitted that she had fallen on hard times and was paid well by conservative activist groups to compromise her beliefs.
When C.J. Burger retired, associate justice Rehnquist was elevated to Chief Justice and Scalia filled Rehnquist’s associate position.
Planned Parenthood v. Casey, 505 U.S. 833 (1992).
I remember watching CNN when the case was decided. The immediate reaction from both the Pro-life and Pro-choice positions were that each side HATED the outcome. Pro-lifers hated that Republican appointees would not overtly overturn Roe and Pro-Choice advocates hated that states could now create restrictions on abortions more freely. My political science professor once said you can tell a good compromise when everyone comes away unhappy; this always comes to mind when I hear that.
The phrase “undue burden” was undefined at the time but over the years has been flexibly applied by the Court and contingent on the Court’s makeup. The general idea is that if it is an obstacle that tends to prevent a woman’s ability to exercise her right in a meaningful way, but even that is kind of an amorphous description.
Some of the worst sour grapes I’ve ever read in a Supreme Court dissent.
It should not be lost on anyone that every reason McConnell used to keep Scalia’s seat open in 2016 he hypocritically ignored in the summer/fall of 2020 after Ginsburg died.
Dobbs v. Jackson Women's Health Organization, No. 19-1392, 597 U.S. ___ (2022).