As the Democratic Party’s prospects in the midterms crash and burn, no one seems to be talking about the elephant in the room. Its name is Roe, and if national abortion rights are overturned, it could help destroy the Democratic party.
Some states are poised to restrict abortion if the Court overturns Roe. Texas already effectively restricts abortions after six weeks. Idaho recently passed similar legislation. Florida passed a law restricting most abortions after 15 weeks. If Roe goes, 26 states are expected to ban or limit abortion. Four states support the Mississippi law being challenged at the Supreme Court inDobbs v. Jackson Women’s Health Organization.
The Mississippi law in question is a direct challenge to Roe v. Wade, which made abortion a woman’s right through the second trimester of pregnancy. The Court will likely announce later this spring a decision to overturn or significantly weaken Roe, clearing the way for each state to create its own restrictions. It may also signal the end of an era dominated by progressive social policy.
The loss of Roe could be part of a death spiral for the Democrats. Protecting Roe has been a central Democratic goal for decades. If they fail to do so, especially under a Democratic president and with a Democratic House, the base won’t take it easily. The Court’s decision may have as much effect on the midterm elections, and possibly 2024, as any other factor. A lot of Democratic support from educated women is tied to abortion rights. As the party loses many working class voters and Hispanics, they cannot afford to jettison many more voting blocs. And somebody is going to be blamed.
The Democrats will likely try to blame the electorate, arguing that it’s the dumb rednecks fault for electing Trump who installed three new conservative judges on the Court. But that’s a self-defeating strategy. Scolding and mocking voters was a signature of Hillary’s campaign, and look where that got her.
And even if the Democrats were to 3-D print a viable candidate for 2024 out of soy-based beef substitute, he could not bring enough new blood to the Court (Justice Breyer was the only obvious candidate for retirement) to change its makeup. So the most obvious Democratic response to Roe being overturned—elect us and we’ll repack the Court with liberals—is, at best, a solution that won’t be realized for decades, particularly considering there is no will to expand the Court outside of the NYT op-ed pages.
Democrats will not mention it, but the real blame, from a progressive perspective, lies with Congress, for failing to codify Roe’s holding into actual law that could withstand the scrutiny of a conservative Supreme Court. When they were in the majority, Democrats treated abortion as a third-rail, like they did with same-sex marriage. They supported it in theory, but would never risk the votes by actually touching it.
A loss on Roe will raise a question in many blue voters’ minds: Why bother to elect Democrats at all? Of course, elected Democrats don’t see it that way. “I think the country hasn’t seen the rage of women speaking out,” said Democratic Rep. Jackie Speier from California. Rep. Pramila Jayapal said “I think it’s going to mobilize people to go to the polls. You will see an outcry like you’ve never seen before.” Righteous anger? Maybe. But Democrats will have quite a battle convincing these angry voters that this time they’ll actually do something to protect abortion rights other than whine about losing them and holding watch parties for TheHandmaid’s Tale.
The other question Democrats will need to confront: What do Americans really want? In a nationwide survey, 56 percent of respondents said they would support restricting abortions after 15 weeks, which the Mississippi law at the center of Dobbs aims to do. Hispanic voters, whom Democrats are already losing, are divided on the issue of abortion and are voting red in significant numbers. Same-sex marriage finally became so widely supported that even Democratic candidates in purple areas could safely jump on the bandwagon. Not so with abortion.
There are other players the Democrats might want to spread a little blame on as well. In case Dobbs case now at the Court, their champion Associate Justice Sonya Sotomayor failed to lay a legal glove on her opponents during the oral arguments. While the conservative and swing justices walked their colleagues through case after important case where precedent was overturned, she whimpered like an unprepared 1L that the precedents she supported were untouchable.
Sotomayor went on to chide her colleagues that if they overturned Roe the whole Court would lose credibility and take on a “stench.” She spoke like someone running for election in San Francisco, not a sober justice building a case her colleagues would sign on to. At oral arguments, she seemed to forget the justices aren’t really talking to the attorneys before them. They’re talking to each other through the lawyer at the lectern. But at least her forthcoming snarky dissent will earn her comparisons to the Notorious Ruth Bader Ginsburg.
Speaking of RBG, perhaps she deserves a dainty teaspoon of blame. Her hubris in refusing to retire and assuming Hillary would be anointed and choose her successor lead directly to Donald Trump’s signature political triumph, which turned the Court right.
Which also suggests Barack Obama, who failed to fight for his Supreme Court nominee Merrick Garland a few years ago, shares some blame from a progressive perspective. Claiming Obama could not effectively fight for his nominee because of Republican opposition again raises the question of why bother to elect Democrats at all if they just fail and blame the other party for their failure. You’re just not a very good politician if you can only get things done with a super-majority.
The feminist movement and the far-left of the Democratic party also bear some blame for the potential fall of Roe. They turned away many middle-of-the-road voters and “purple” women from their cause by tying abortion rights into all sorts of issues that do not enjoy consensus, like LGBT issues in general and transgender issues in particular.
As if to double down, many Democrats are claiming that if Roe falls, Obergefell and a broad slate of other cases will be next. This strategy, which insists on pairing the broad political spectrum among gay and lesbian voters with a narrow radical-feminist perspective, fails to account for the fact that there is much less political will to overturn Obergefell and Lawrence.
Any politician seeking to build support instead of acquiring virtue points would try to make the tent bigger. Instead, Representative Ayanna Pressley—saying “hold my beer” to Hillary “Deplorable” Clinton—stated “Pro-life laws hurt our lowest income sisters, our queer, trans and nonbinary siblings, black, Latinx, AAPI, immigrants, disabled and indigenous folks. And none of this is happenstance…These bans are rooted in a patriarchy and white supremacy.”
And no progressive commentary is complete without the now-obligatory Nazi reference. It was feminist has-been Gloria Steinem who added ahistorically, “You know, Hitler’s first official act was banning abortion.” The basic line “all men are pigs and rapists” did not build support for feminist issues in the 1960s, it did not build support for the Equal Rights Amendment in the 1970s, and it is not helping today.
The real problem for the Democrats? If the Republicans can claim victory in overturning Roe, they will empower their base. They will have delivered a signature victory for many social conservative and evangelical voters. Those evangelicals who held their noses and supported Donald Trump will have newfound reason to look past his vices; he came through for them on an important issue. For Democrats, “Vote for us, we lost Roe on our watch” is not an inspiring campaign slogan.
Peter Van Burenis the author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People, Hooper’s War: A Novel of WWII Japan, andGhosts of Tom Joad: A Story of the 99 Percent.