The Democrats seem to be a bit uncertain about how to respond to the Dobbs ruling overturning Roe. This isn’t surprising. They face enormous pressure from their voters to “do something”, but there is, in fact, little they can do that will materially improve the situation of pregnant women in the short term. Despite the moral urgency of the situation, they are forced to (mostly) play a long game, hardly an enviable position to be in. Let’s take a deeper look.
Progressives are upset
As Paul Waldman notes, progressives are upset:
Not surprisingly, liberals were contemptuous at how ineffectual their party’s leaders looked at this moment of crisis.
In Congress itself, progressive members are exasperated with the White House for not having a more aggressive response. The party’s base doesn’t see their elected representatives “fighting,” said Rep. Cori Bush (D-Mo.). “We can’t just tell people, ‘Well, just vote — vote your problems away.’ Because they’re looking at us and saying, ‘Well, we already voted for you.’ ”
As for President Biden, he and the White House appear more focused on what they can’t do than what they will do. So the frustration and anger are perfectly justified.
Even more here, Dems “f***ing useless”.
What should Congress do?
OK, so what exactly should Democrats in Congress do? (We will return to Biden later.) James Surowiecki had this suggestion:
Speaker Pelosi published a letter yesterday outlining her legislative strategy:
Following the release of the draft decision, our pro-choice House Democratic Majority has been hard at work preparing for the possibility of this tragic outcome. Our Caucus has been exploring avenues to protect the health and freedom of American women. Among them is legislation that:
Protects women’s most intimate and personal data stored in reproductive health apps. Many fear that this information could be used against women by a sinister prosecutor in a state that criminalizes abortion.
Makes clear that Americans have the Constitutional right to travel freely and voluntarily throughout the United States.
Once again passes the Women’s Health Protection Act: landmark legislation to enshrine Roe v. Wade into the law of the land.
In his disturbing concurrence, Justice Clarence Thomas confirmed many of our deepest fears about where this decision may lead: taking aim at additional long-standing precedent and cherished privacy rights, from access to contraception and in-vitro fertilization to marriage equality. Legislation is being introduced to further codify freedoms which Americans currently enjoy. More information to follow.
Imagine you are a moderate Republican
To evaluate these options in a systematic way, put yourself in the position of a Republican-leaning voter with moderate views on social issues. You are not a political junkie or a committed ideologue. You support gay marriage and contraception. You support abortion rights early in pregnancy, partly because you dislike the idea of the government meddling in private decisions, but you are uncomfortable with abortion past the first trimester unless the health of the mother is at risk or the fetus has significant health issues. You know that Roe has been overturned, and you are somewhat concerned by this, but you have not thought a lot about how this will affect women. You also share, to some extent, the belief that Democrats are out of touch American values.
Now suppose that Democrats in Congress bring the following pieces of legislation to a vote. What will happen, and how will it affect your likelihood of voting Republican in November?
Legislation creating a right to abortion in cases of rape, incest, or when a pregnancy goes awry.
If this legislation is defeated by Republicans, it will increase the likelihood that you (our hypothetical Republican leaning voter) will vote Democratic or stay home. If this legislation is passed (and it might well pass, especially after the Republican primaries are over) it would reduce the salience of abortion to you by moving policy towards your preferred outcome. It would also reduce horror stories about teenagers forced to bear the children of their rapists and women dying from ectopic pregnancies. This would make it less likely that you will vote Democratic or stay home.
From the point of view of electoral politics, it may make sense not to bring this bill up, since it will defuse the abortion issue. Perhaps this is why it is not on Pelosi’s list.
Legislation allowing abortion as of right in the first 15 weeks of pregnancy, and then when a pregnancy goes awry.
If this legislation is defeated by Republicans, which seems likely, it will increase your likelihood of switching parties or staying home, because you do support a meaningful right to abortion. Democrats will demonstrate a willingness to compromise by moving this legislation forward, and they will allay your fears that Democrats will act unreasonably if they remain in control of Congress.
If this legislation is passed, which seems unlikely today, it would largely diffuse the abortion issue, at least for the upcoming election, and possibly for an extended period (this is the bipartisan settlement that I have discussed).
Legislation codifying Roe (abortion as of right until viability, then when pregnancy goes wrong).
This legislation will obviously fail (it already has).
If Democrats try to pass it again, they make it easier for you (our hypothetical Republican leaning voter) to continue voting Republican. You have doubts about abortion later in pregnancy, and by insisting on a relatively “maximalist” position on abortion that does not recognize your concerns, this legislation will reinforce your belief that Democrats do not share or respect your values. Of course, it is also the case that, on this issue, you do not agree with the Republicans or share their values, but given that you are a Republican leaner you are likely to stick with Republicans if both parties stake out what you consider to be extreme positions.
Remember that many people who say they do not want Roe overturned in opinion polls do not support abortion past the first trimester except when pregnancies go awry (see here). Many of these people are cross-pressured Republican voters Democrats need to win over.
Legislation codifying the right to travel that would apply when women seeking abortions need to go to another state.
You may support this, but likely not until women are actually harmed by an abortion ban with a travel restriction. You just lack the interest in politics to think carefully about the possibility that something bad may happen in the future. You may not even be aware that states are considering travel restrictions.
Legislation protecting other rights that may be threatened by the conservative Justices in the post-Dobbs legal world.
You support gay marriage, contraception, and related rights. However, as with the right to travel, you may not see protecting these rights as an urgent priority. You can easily rationalize continuing to vote Republican until the Court actually takes these rights away.
What about motivating Democrats?
Motivating Democratic turnout is important, but taking turnout into account is unlikely to change the calculus above significantly. Pushing for full codification of Roe will fail and make Democrats look weak. It will focus attention on their internal divisions rather than on Republican extremism.
Consider the quote from Cori Bush above: “We can’t just tell people, ‘Well, just vote — vote your problems away.’ Because they’re looking at us and saying, ‘Well, we already voted for you.’ ”
Voters can say the same thing and react the same way if Democrats in Congress try and fail to codify Roe. In fact, we have seen that some progressives are doing just this, demotivating Democratic voters by blaming Democrats for failing to pass policies that are overwhelmingly opposed by Republicans. Bush’s rhetoric encourages this attitude.
So, what about the executive branch?
Progressives are also angry at President Biden:
In a speech after the rollback of the Roe vs. Wade decision on Friday, President Joe Biden slammed the “extreme ideology” of the conservative-leaning Supreme Court, but said then there are few things he could do by executive order to protect women’s reproductive rights.
Since then, lawmakers including Senator Elizabeth Warren and Representative Alexandria Ocasio-Cortez have suggested Biden limit the Supreme Court’s jurisdiction or expand its membership, end the legislative “filibuster” rule, build abortion clinics on federal lands, declare a national emergency and establish Planned Parenthood outposts outside U.S. national parks, among other options.
More than 30 Senate Democrats signed a letter to Biden, urging him to ‘fight back,” take “bold action” and “lead a national response to this devastating decision” after the court overturned the right to abortion.
The article states that Biden has decided against advocating for Supreme Court reform and filibuster reform, despite pressure from some progressives. But what would his advocacy accomplish, other than making him look weak and shifting the focus from Republican extremism on abortion to Democratic infighting? This is exactly what happened on Build Back Better. [Apparently Biden has decided to endorse ending the filibuster. I don’t think this is the end of the world, but I don’t see the point.]
Biden has also expressed doubts about having abortions performed on federal lands. I haven’t studied this issue, but it’s not hard to see why he is concerned. (One possibility that seems more promising to me is having VA hospitals perform abortions for the general public, since the property is government-owned and the medical staff are – I assume – mostly federal employees. However, the VA does not perform abortions. I am not sure why, but even if there are no legal barriers, my understanding is that most hospitals refrain from performing routine abortions because of resistance from staff. (It’s not just doctors; you also need to get nurses, people who check patients in, clean ORs, etc., on board.) I imagine this could be a big problem in the states where help is most needed.)
The bottom line
Republicans seem prepared to go for harsh, punitive, even deadly abortion bans. This will be a disaster for pregnant women, and it will be highly unpopular. Democrats need to keep the focus on Republican intransigence and extremism. They should not make the mistake of staking out maximalist demands which are not necessary to make abortion care widely available, will not help with turnout, and will drive away potential cross-over voters. And progressives should not demoralize their own voters by pretending that Democrats could easily fix this problem if only they cared enough.