The Roe Disaster — And What To Do About It

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The right is on the verge of achieving what it has promised to accomplish for decades: the destruction of a federal, constitutional right to an abortion.

Democrats have for years raised small donor cash off of the perpetual conservative threat to reproductive rights, and then evaded opportunities to protect those rights, even when they had control of the White House and congressional majorities.

There are obvious lessons: Don’t lose winnable presidential elections to reality TV show hosts, don’t protect the ego of aging celebrity judges when it could cost liberals Supreme Court seats, don’t permit billionaires to anonymously buy lifetime appointments to the high court, and don’t mobilize the party’s electoral apparatus in defense of anti-choice politicians.

It’s also a reminder of how minoritarian the United States government is. While the vast majority of Americans support the right to an abortion in at least some circumstances, five Supreme Court justices appointed by two presidents who lost the popular vote are positioned to overturn that right — and the judges’ draft opinion scoffs at the idea that they have any responsibility to represent what the public wants.

Indeed, they declare that “we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction” to the end of basic reproductive freedoms.

Democrats, presumably the pro-choice party, still control the executive and legislative branches, as well as many state governments across the country. If there’s one lesson to act upon right now, it’s that they must actually use the power of the government to fund abortion access and protect basic freedoms — something that, incidentally, might be more encouraging to the party’s base than telling them to just keep voting blue, but even harder.

The Right-Wing Dark Money Takeover

Yesterday’s leaked draft opinion by Justice Samuel Alito is a radical document, based on reasoning that questions the fundamental rights to same-sex and interracial marriage, contraception, the right to not be forcibly sterilized, and more. The opinion “relies heavily on a 17th century English jurist who had two women executed for ‘witchcraft,’ wrote in defense of marital rape, and believed capital punishment should extend to kids as young as 14,” according to reporting by Jezebel.

While still in draft form, these extreme legal arguments are the culmination of decades of efforts by the American right to capture the Supreme Court.

They have done so by using the shadowy money and influence network run by Trump judicial adviser Leonard Leo, an anti-abortion zealot and longtime executive at the Federalist Society, a conservative lawyers group in Washington. Leo helped select President Donald Trump’s high court picks while simultaneously leading a dark money operation to boost their confirmations with TV ads and contributions to conservative groups that promoted the judges, too.

Leo and his colleagues have been building their dark money network since 2005, beginning with efforts to confirm Justices John Roberts and Alito.

In 2016, Leo’s Judicial Crisis Network led a successful campaign against confirming Barack Obama’s Supreme Court nominee Merrick Garland, before aiding the confirmations of Trump Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Through it all, these power brokers have been quiet and efficient — we still know very little about who’s been financing Leo’s network.

This might be one of the most powerful political coups in U.S. history. Leo and his anonymous donors helped flip control of the court and build an ultra-conservative supermajority that could last for decades — and they managed to accomplish this using two presidents (Trump and George W. Bush) who lost the popular vote.

Leo’s success was a product of lockstep unity between his network and Republican senators. While liberals have recently built their own well-funded pressure group focused on the courts, the group has effectively no influence, because party leaders have refused to consider taking aggressive actions to counter the GOP’s maximalist strategy.

For much of the past two decades, the right-wing takeover of the courts was at best ignored, and at worst aided and abetted by Democratic politicians and pundits who sanitized the reputations of radical, right-wing judges. (Of course, you never see a prominent Republican politician or talking head praising pro-choice judges.)

There was Neal Katyal, Obama’s Solicitor General, making the case for “why liberals should back Neil Gorsuch.” There was liberal pundit Noah Feldman declaring that “Amy Coney Barrett deserves to be on the Supreme Court.” There was liberals’ favorite MSNBC regular, Steve Schmidt, boasting about his work leading the Bush administration’s campaign to install Alito and Roberts on the high court.

Liberal pundits also defended Justice Ruth Bader Ginsberg when she declined to retire under a Democratic president, even though it threatened to hand another Supreme Court seat to the right in the future. That is exactly what happened — and now Ginsberg’s legacy has been tarnished far more significantly than it would have been by the personal sting of an early retirement.

The good news is that after a bit of preening and delaying, Justice Stephen Breyer seemed to learn the cautionary tale and decided to retire under a Democratic president. The bad news is that there were still liberals insisting that justices shouldn’t be pressured to retire when it might help the principles they purport to support.

Democrats Have Failed To Use Their Power

But the likely end of Roe v. Wade isn’t just due to careful conservative plotting to overturn the law. It’s also courtesy of Democrats’ refusal on many occasions to safeguard reproductive rights from such political dismantling — despite being a party mostly comprised of pro-choice politicians.

Roe v. Wade has been the law of the land since 1973, but its standing has always been tenuous. Democrats at the national level have not prioritized codifying reproductive rights and expanding abortion access during the periods when they’ve controlled the presidency and both houses of Congress — just as they do now.

In 2009, when Democrats held the presidency and large majorities in Congress, Obama was eager “to straddle the abortion divide,” according to reporting from The New York Times:

But even as Mr. Obama has delighted abortion rights advocates, he has dialed back some earlier ambitions. In 2007, he promised Planned Parenthood that “the first thing I’d do as president” would be to sign the Freedom of Choice Act, which effectively codifies Roe v. Wade. Now he says the bill is “not my highest legislative priority,” as he put it at a recent news conference.

The legislation to codify Roe sat in committees during that Congress, before Republicans swept the 2010 midterms.

Today, for the first time since 2010, Democrats once again control Congress and the presidency. That means they still have the power to pass legislation codifying Roe into federal law.

Here’s catch: They would have to end the Senate filibuster, which requires 60 votes to pass most legislation, and doing so would require them to apply real pressure on lawmakers in their own party amid the anti-choice movement’s ongoing campaign to preserve filibuster rules. Democrats would need to have support from the entire Democratic caucus to end the filibuster and pass their abortion rights bill, since the Senate is split 50-50 and no Republicans are likely to support either move, even though Republican Sens. Lisa Murkowski (Alaska) and Susan Collins (Maine) claim to be pro-choice.

After the House passed the bill to codify Roe last fall, Sen. Joe Manchin (D-W.Va.) in March joined every Republican senator in voting against it. Corporatist Sen. Kyrsten Sinema (D-Ariz.) says she supports codifying Roe, but it’s all meaningless spin, since she still opposes ending the filibuster. (Manchin opposes ending the filibuster, too.)

On Tuesday, President Joe Biden — who once supported letting states overturn Roe — wouldn’t even endorse ending the filibuster to protect abortion rights, even though he previously endorsed a plan to make an exception to the filibuster to try to pass voting rights. (As a senator, Biden diverged with his party numerous times to vote in favor of the so-called Hyde amendment, which prevents federal funds from being used to pay for abortions.)

And while Biden has been intervening in primaries against progressive candidates, he has shown no appetite for using the most powerful office in the world to pressure the corporate holdouts in his party to help him protect abortion rights. That includes anti-choice Manchin, who even recently taped an ad bragging about blocking Biden’s domestic agenda.

Democrats have further sabotaged their ability to reify reproductive rights by continuing to welcome anti-abortion politicians into their caucus.

For example, Democratic House leaders — Speaker Nancy Pelosi (Calif.), Majority Leader Steny Hoyer (Md.), and Majority Whip Jim Clyburn (S.C.) are supporting the re-election bid of Texas Rep. Henry Cuellar, the last anti-choice Democrat in the House, against a progressive, pro-choice challenger. Clyburn is even scheduled to campaign with Cuellar Wednesday.

In 2017, Pelosi suggested that abortion was “fading” as a political issue, and insinuated that Democrats were too focused on the matter.

Then there’s the fact that Biden has appointed a Democrat who has undermined abortion access to his own cabinet. In January 2021, he appointed former Rhode Island Gov. Gina Raimondo (D) as Secretary of Commerce. As governor, Raimondo negotiated a budget agreement which required some plans on the state insurance marketplace to exclude coverage for abortions.

“I don’t think voters in Rhode Island really know what Governor Raimondo’s done that has really violated the reproductive rights of women and threatened their health,” former longtime NARAL Pro-Choice America leader Kate Michelman told UpriseRI about that deal. Michelman and Gloria Steinem, among other prominent abortion rights activists, endorsed Raimondo’s primary opponent Matt Brown in 2018 due to her record on abortion rights.

What Can Be Done

Despite Democrats squandering opportunities to protect reproductive rights, there’s no reason they can’t change right now. Biden can use his executive authority to improve abortion access, blue states can move to entrench abortion rights, and Democrats can take on the minoritarian institutions that are stripping away fundamental rights against popular will.

Biden, for example, could use his sweeping executive powers to increase access to abortion. Yes, such a move could be overturned in the courts — but that development would represent an embarrassing about-face for the Roberts court.

In January, the court ruled in an unsigned opinion in Biden v. Missouri that the administration’s vaccine mandate requirement for workers in health care settings was legal, saying: “The rule thus fits neatly within the language of the [law]. After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm. It would be the ‘very opposite of efficient and effective administration for a facility that is supposed to make people well to make them sick with COVID-19.’”

That language could be reasonably applied to an executive order from Biden mandating that virtually all hospitals with the capability to do so provide medically necessary abortions. All Centers for Medicare and Medicaid Services providers  — effectively all hospitals — could be bound by such an order. While the Hyde Amendment could present a difficulty, since it specifically bans the authorization of federal funds for abortion, nothing in its language limits the administration’s ability to ensure abortion access.

Less controversially, Biden could use the powers of the Food and Drug Administration (FDA) to ensure access to the so-called “abortion pill,” mifepristone. He could do so by seeking to preempt state regulations that limit access to the pill, since drug approval is the FDA’s sole domain.

At the state level, meanwhile, 16 Democratic-controlled legislatures have moved to codify Roe into state law in recent years — but there is more they could do to expand access. Rhode Island, Delaware, and Nevada are the only three states with Democratic trifecta control or veto-proof legislative majorities that do not use state Medicaid funds to ensure abortion access. Those state laws could pass laws to do so, expanding coverage for low-income people seeking abortions.

Blue states that already ensure Medicaid abortion coverage could also work to expand abortion access to people who will likely soon be arriving to access abortion and reproductive health care clinics within their borders.

For example, Illinois, which is surrounded by six red states set to enact sweeping abortion restrictions, could open public abortion clinics staffed by unionized state health care workers in towns and cities across the state. It could do so by leveraging its budget surplus of $444 million.

Billionaire Illinois Gov. J.B. Pritzker (D) said Tuesday that “no matter what atrocity of an opinion the Supreme Court officially rolls out this summer in regards to Roe v. Wade —– abortion will always be safe and legal here in Illinois. Illinois is and will remain a beacon of hope in an increasingly dark world.”

Likewise, Maryland, could do the same as a gateway to the South where abortion rights restrictions will be rampant. While the state has a Republican Governor, Democrats hold a supermajority in the legislature — and it has a “huge” budget surplus that is as high as $7.5 billion.

States could also provide modest assistance such as transportation, food, and lodging for those traveling from out of state to seek abortion care.

California could provide similar support along its Arizona border, as could Washington and Oregon along their shared border with Idaho.

The Lever reached out to top Democrats in California, Maryland and Illinois to ask what steps they are willing to take to ensure access to abortion care. None returned a request for comment. In New York, meanwhile, Gov. Kathy Hochul (D) recently thwarted a proposal to increase funding for women’s health centers.

Finally, there are important steps Democrats can take right now to chip away at minoritarian rule by the right. After all, if ever there was a case for expanding the Supreme Court to make it more reflective of the public’s desires, this is it. The approximately 100-member Congressional Progressive Caucus has endorsed legislation to add four seats to the high court.

Maybe the Roe v. Wade disaster will spur the party to action. The Washington Post said today that “Democrats finally have something they have lacked in this perilous midterm election year: a compelling message.”

But Democrats only need a new message because Biden and Democrats have failed to deliver on so many of their ambitious 2020 election promises. That includes implementing a public health insurance option to compete with abusive corporate insurers, aggressively investing in a green economy, passing a higher minimum wage, and expanding union rights.

Even with this supposed midterm gift — one that comes with tragic consequences — Democrats face a massive uphill battle in the 2022 elections. The potential Republican rout could result in even more abortion restrictions, including in key states like Pennsylvania, where Gov. Tom Wolf (D) is the only barrier against expansive abortion restrictions proposed by the Republican legislature.

That said, giving up is not an option. The recent union organizing win at Amazon’s colossal Staten Island warehouse — and the multi-century campaign for women’s bodily autonomy — prove that ordinary people do have the ability to make sweeping societal changes.

Perhaps this unconscionable decision will finally wake a sleeping giant — or at least convince Democrats to come back home from brunch.

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