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July 06, 2005

Choosing Choice

Michael Dorf's article darkly warning of a coathanger future seems deeply alarmist to me. Even assuming another pro-choice justice leaves the bench and Roe is overturned, Dorf's scenario, that Congress would pass a national abortion ban and the Supreme Court would uphold it using Raich (the medical marijuana case) as precedent, seems spectacularly unlikely. We're talking Lana Guinier unlikely.

1) There's a solid majority for some form of choice in this country. We're talking 75% of the country lining up behind "always legal" or "sometimes legal", with only 20% turning towards "always illegal". To put another way, more folks believe abortion should be "always legal" than "always illegal". You really think Congress is going to violently enrage 75% of the country?

2) And you think Senate Democrats wouldn't filibuster? Really? Why?

If choice was so maligned that a vast majority of Americans wished it gone, such a dystopia might be worth talking about. Indeed, we'd really have to think about why such an anti-democratic position should remain the law of the land. But choice is not unpopular, we've just let the Christian Right's volume fool us into thinking it is. If horrible things happened on the Supreme Court and Roe flipped, you'd see a variety of state legislatures try to ban abortions, but the federal government wouldn't be involved.

Moreover, after the first burst of anti-abortion zeal, the inevitable counterattack, launched as boy and girls everywhere digested the new reality of unwanted pregnancies coming to term, as adults watched their friends forced to have children they didn't want and couldn't care for, would rock the nation. Whether abortion would ever enjoy the same legality it does now I don't know, but it certainly wouldn't vanish from the scene. My hunch, in fact, is that it'd get stronger, that voters furious with the moralist's triumph would elect Democrats, and that the likeliest federal outcome would be congressional legislation guaranteeing the right to abortions under certain circumstances (over 18, etc), upheld by the federal government using Raich as precedent.

July 6, 2005 in Politics of Choice | Permalink

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» SINGLE-ISSUE VOTING AND THE NEW PROHIBITION from Legal Fiction
I think Ezra is overlooking the “single-issue voter” problem and how intensity of preferences affects the abortion debate. [Read More]

Tracked on Jul 7, 2005 12:06:28 AM

Comments

I agree that there isn't much risk of a national abortion ban, but that isn't my main concern. The real risk is of individual states banning abortions, a distinct possibility in some of the solidly Republican states. It wouldn't matter that some, or even most, states might still allow abortion; if a woman can't get to a clinic because there aren't any in her state, it's little consolation that she would've been fine if she lived in California.

Posted by: Matt F | Jul 6, 2005 1:51:26 PM

Lani Guinier.

Posted by: oogle | Jul 6, 2005 1:53:48 PM

Michael Dorf's article darkly warning of a coathanger future seems deeply alarmist to me. Even assuming another pro-choice justice leaves the bench and Roe is overturned, Dorf's scenario, that Congress would pass a national abortion ban and the Supreme Court would uphold it using Raich (the medical marijuana case) as precedent, seems spectacularly unlikely.

That's what I love about you, Ezra. On occasion, your express your ability to see through the partisan fog. Everyone else on the liberal blogosphere is chicken little and the "sky is falling, the sky is falling". I believe your assessment of these future events, if they come to pass, is right on target.

Posted by: Robert Zimmerman | Jul 6, 2005 1:56:20 PM

Well, if the Democrats lose more seats in the Senate (possible), they might not have the ability to filibuster. I agree that the article is alarmist, a worst-case scenario thing, but it's always good to prepare for the worst.

Remember, if Roe gets overturned it won't be for a few years yet, and we don't know what the political situation will be then. The smarter anti-abortion activists understand that they can't get abortion banned unless they get a popular majority in favor of that (politicians won't pass anything unless it's popular or they think it's popular), so they're counting on changing hearts and minds at the same time they change the Supreme Court. That's why it is important to win the battle to convince the public that abortion should remain legal, because a majority of public opinion on that score is the safest way to keep it legal (indeed, future Supreme Court abortion rulings will probably be influenced by wherever public opinion seems to be heading).

Posted by: M.A. | Jul 6, 2005 2:14:41 PM

The reason we have to harp on Abortion is that we are trying to create a rift between christianists and the Republican Leadership. We need to make it look like they are somehow “caving in” to all the lib-ur-al pressure so that the christianists get all disappointed and apathetic. Rove is in a no-win here and we should turn up the volume to punish him.

Posted by: TheJew | Jul 6, 2005 2:36:11 PM

it's little consolation that she would've been fine if she lived in California.

*sigh* I suppose. But I'm really starting to care less and less about the denizens of those red states. I'm almost to a point that if they want to ban abortions, fucking let them. They don't get to tell me what to do in my state or vice versa.

Posted by: Adrock | Jul 6, 2005 2:45:44 PM

Careful, Ezra, when Zimmerman is agreeing, perhaps you've got it wrong.

Just when did the public's position on an issue cause a behavior change in this Repub. Congress? Don't say Social Security, because that battle isn't won by a far cry. Bolton? Funding Veterans benefits? Judicial filibuster? Balanced budgets? Desire for bi-partisanship? Taking medical marijuana to court to enforce a ban?

The sky hasn't fallen yet. But who knows about tomorrow?

Even is the Congress couldn't get majorities to outlaw abortion, they could get majorities for even tighter controls and criminal penalties for certain acts.

Plus, we know that the TheoCons would go around state-by-state with Constitutional amendments and referenda to make it illegal. And they have the funds and energy to make that likely in many places.

Does anyone doubt that criminalization of same-sex behavior is a real possibility?

Posted by: JimPortlandOR | Jul 6, 2005 2:46:29 PM

Yes, Congress would "enrage" 75% of the nation, as they did with Terri Shiavo, stem cell research, and any number of other issues. The question is whether they would pay any significant political price if they did "enrage" the nation.

Yes, a Senate Democrat (or Republican) might attempt a filibuster. The question is whether that filibuster would be sustained. In 2003, only 52 Senators stated their support for Roe, and several of those seats when to anti-choice Republicans in 2004; now, I suspect 50 Senators remain who support Roe. Would 40 of those support a filibuster? Would the Republicans refrain from invoking "nuclear option?" I'm not certain that the answer to those questions is "yes."

Posted by: Drew | Jul 6, 2005 2:53:28 PM

I think that Democrats would be in a much stronger position if Roe was overturned. Roe allows Republican politicians to get social conservative credit by being against abortion but not having to do anything about it.

Roe froze the debate on Abortion, and it was a debate that liberals were winning at the time.

Posted by: Dave Justus | Jul 6, 2005 2:55:03 PM

Dave -- On this, we agree.

Posted by: Ezra | Jul 6, 2005 7:12:36 PM

I think the only way Dems can win in the face of Roe being overturned is if they fight the fight seriously, and fight to win. If the Dems lay down on the Abortion fight, it strengthens the growing dissatisfaction with the Dems on the liberal left, causing more Dems to stay home and more to go Green or whatever.

If Dems want to profit from the backlash against an overturned Roe, they have to fight against the overturn like they mean it now. If they lose without a fight to protect the women, why should any of their other core consituencies expect them to stand up for their rights later?

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