Monday, June 27, 2022

The Outlook for Roe v. Wade .’s Recovery

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Shreya Christina
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If the leaked draft of the Supreme Court’s opinion is quashed Roe v. Wade final, the near-term prospects for restoring national abortion rights protections are bleak.

However, the medium and long-term outlook is… still bleak, but slightly less so.

Judge Samuel Alito’s draft opinion would lift the Court’s ban on state laws prohibiting abortion and end a status quo that has lasted nearly 50 years. The Court’s conservative majority appears to be entrenched for the time being. But the political situation can change over time and in unexpected ways, although it may take years or even decades for the right conditions to emerge.

There are three basic scenarios that: roe‘s protection could be restored – none of them are particularly likely, but none of them are downright impossible.

One goes through the Supreme Court: Future Liberal appointees should just, well, roe back. A second goes through Congress: A larger Democratic majority could either overcome the filibuster (if they have 60 votes) or vote to eliminate it by a majority, paving the way for codification roe in the law or even the courts pack.

Both paths require Democrats to win more elections. The appointment of any judge is likely to require control of the presidency and the Senate. Passing new laws would require a larger Senate majority and also keep the House.

It may sound banal to say: as President Joe Biden has done, that’s the best hope abortion rights advocates have for recovery roe‘s protection keeps Democrats in control of the presidency and Congress, with the largest possible majority. But it is quite clearly true.

It’s also easier said than done. The current electoral coalition of the Democrats is at a disadvantage in the electoral college and the senate map. And when new court appointments or new laws restore roeThe next time Republicans regain power, they would have the same tools — they could appoint new judges or even ban abortion nationally once the filibuster is gone.

A third scenario, however, would involve a change in the Republican Party. The GOP could calculate, as a result of public reaction or electoral defeats, that they should moderate on abortion.

That is certainly not going to happen in the near future; it should be a long-term transformation. But it’s really the only chance of national abortion protections being lastingly restored, because their apparent security over the past 50 years has always been an illusion as long as the GOP was after them.

Scenario 1: Fill naturally occurring vacancies in courts

roe will be overturned by a majority of five Supreme Court justices, and it can be overturned by another majority. To get there, Democrats would have to replace at least one, and probably two, conservative judges with liberal ones.

The problem is that conservative judges will try not to retire as long as the Democrats are in power. So this path would be partly coincidental (when judges happen to die or are otherwise unable to serve). Yes, these are the stark calculations that drive lifelong Supreme Court appointments.

But it’s not entirely a coincidence. It’s also about election performance – who holds the presidency and senate when judges die or resign. Thurgood Marshall, a liberal judge appointed in 1967, hoped to be replaced by a Democratic president. But Republicans won the 1980, 1984 and 1988 elections, he decided his health could no longer take it, and in 1991 he was replaced by Judge Clarence Thomas.

The more a party wins, the more likely there is an unexpected vacancy on the Supreme Court while they are in power. This means keeping the presidency, and probably now means keeping the senate too – Republican majority Senate leader Mitch McConnell blocked President Barack Obama from replacing the late Judge Antonin Scalia.

Republicans gathered their anti-roe majority by waiting for these vacancies to arise and acting aggressively when they did. They got Neil Gorsuch confirmed instead of Merrick Garland, got Brett Kavanaugh confirmed before the 2018 midterms could have lost them to the Senate, and voted Amy Comey Barrett just over a month after Judge Ruth Bader Ginsburg’s death.

But this is hardly a quick fix — it took Republicans nearly 50 years to get this five-vote anti-roe block. So the Democrats can wait too. After Judge Stephen Breyer steps down this summer, there will be no more people over 80 on the court, and the senior judges will be Clarence Thomas and Samuel Alito, aged 73 and 72, respectively.

Democrats can maximize their chances of coming to power at the right time by holding on to the presidency and senate for as long as possible, but there’s no guarantee these opportunities will materialize anytime soon. And the more elections Republicans win — allowing them to replenish their aging conservative judges with younger ones — the further this outlook will diminish.

Still, things can change quickly. It was not until early November 2016 that it seemed plausible, and perhaps even probable, that roe was safe and liberals were on the cusp of their first outright Supreme Court majority in decades. But Trump won, Republicans held the Senate, and Ginsburg died, so here we are.

Scenario 2: Trade through Congress by abolishing the filibuster

So instead of simply waiting, perhaps forever, the other way is for the Democrats to act through Congress by passing new laws. This could be an abortion-specific law codifying roe‘s protection (although that should survive this Supreme Court). Or Congressional Democrats could fill the Supreme Court, as some progressives want — expand its size and fill new places with liberals.

Democrats won’t be able to do either right away, though, for the same reason: the Senate filibuster rule and moderate Senator Joe Manchin and Kyrsten Sinema’s insistence on keeping that rule.

It takes 60 votes to get legislation through the Senate unless it’s a budget bill, which would be neither proposal. If the Democrats managed to regain a 60-vote majority in the Senate, as they did briefly in 2009 and early 2010, they could overcome the filibuster and pass new laws. (Probably 61 will be needed if Manchin, who probably isn’t a reliable voice on measures to protect abortion rights, is still around.) But it would be hugely difficult to win that many seats, especially since the party has a structural disadvantage in the Senate card.

Alternatively, a smaller Democratic majority could use the so-called “nuclear option” to change Senate rules and remove the filibuster by just their majority (50 votes plus the vice president). But this current Congress has failed to pull it off – Manchin and Sinema have declined pressure to do so since their party came to power.

Theoretically, if the Democrats managed to expand their majority by two more seats in the Senate, they would continue to change the rules unless another moderate suddenly gets a case of cold feet. Alternatively, if a future Republican Senate abolishes the filibuster, Democrats could pass abortion protections the next time they’re in power.

But if the filibuster is abolished by one of the parties, Republicans can also pass laws with a simple majority when they are in power. They could, at the very least, overturn any democratic law that provides abortion protection, and at the most try to ban abortion nationwide. If the Democrats expand the court, the GOP could expand it further.

So congressional action would not result in a sustainable recovery of… roe unless the Democrats manage to hold Congress. That will prove quite difficult, especially in the Senate. Democrats currently have the smallest possible majority in the Senate, but their voter coalition is not well-spaced for the Senate map, where they could fall deeply behind in the coming years. Again, their way of maximizing their chances of success is by winning more of these elections, but that’s pretty hard.

Scenario 3: Shift the GOP’s position by winning the public opinion war

While abortion rights activists have been well aware of the danger for many years roe was, less committed American liberals may have taken it for granted, assuming it would last forever. After all, it had survived for so long, so it would probably continue to survive, right?

But this security was an illusion because abortion rights never won the really broad public support that would be needed to anchor them nationally. Many conservatives continued to argue that abortion was deeply wrong and roe should be reversed, and one of the country’s two main political parties has committed itself to that position for decades.

Indeed, roe was overthrown nearly three decades ago, in 1992, but conservatives on the Court fell one vote short of a majority to do so because moderate Republican-appointed judges voted alongside their more liberal colleagues. Anti-abortion activists then spent the next three decades trying to make sure this never happened again. Their success in creating an anti-roe A court majority was certainly not inevitable – it took a very long time and took a lot of luck – but they seem to have achieved it now.

So the reality is that even if the Democrats somehow manage to recover roeNational Defense, all that would be reversed the next time the Republicans are in power. The court can wave back and forth on the basis of new appointments. Or, if the Democrats eliminate and codify the filibuster roe or pack up the Court, Republicans can roll back those measures or take further right-wing action (e.g., with a national abortion ban) the next time they’re in charge.

The only way out of this spiral would be for anti-abortion activists to lose their grip on the Republican Party, and probably the Republican electorate as well. Perhaps a national backlash against the GOP for going too far on abortion will materialize, and they will feel compelled to moderate their position or lose power. Or perhaps even the public in the red state, once abortion restrictions are in place and their effects become apparent, will become convinced that they are actually not desirable.

At the moment, such a scenario seems far-fetched, bordering on impossible. And maybe it is. But in the long run, this is necessary to enshrine protection against abortion at the national level. If public opinion doesn’t change, roe protection, even if they are restored, would never really be safe.

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