The Empty Promise to Protect Roe

Politicians saying they support abortion rights isn't enough. What's their plan?

If you’re reading this post, I think we at least broadly agree on the disastrousness of the Supreme Court overturning Roe v. Wade, and who the main villains are in this story. It’s the result of a decades-long conservative project to turn the judiciary into a blunt partisan instrument, chipping away at established rights in the name of an extremist interpretation of Constitutional law. The ambiguity about how this aligns with the Republican Party’s goals — I keep wanting to write that this is the work of a fringe ideology within the party, but by definition that’s clearly not the case — is not whether they have long sought to criminalize abortion, but how many other marginalized groups they intend to attack too.

It might be harder to acknowledge the Democratic Party’s role in why we are here. At the very least, the sober reality is that they got outplayed by the GOP to the point where they suffered a generationally crushing defeat despite holding trifecta control of the federal government. If you see political decisions in terms of impacts and opportunity costs, you might point to Joe Manchin and Kyrsten Sinema causing Senate Democrats to act like they are in the minority; Barack Obama breaking his day-one promise to codify Roe despite coming into office with large legislative majorities; Hillary Clinton boosting Donald Trump in the Republican primaries when she wrongly assumed she could beat him; Ruth Bader Ginsberg declining to retire and ensure a liberal successor; Joe Biden discrediting Anita Hill in the service of confirming Clarence Thomas to the Court. A more establishment-friendly view could lead you to the usual bogeymen of near-miss elections: Ralph Nader, Susan Sarandon, the concept of “defund the police,” and of course the voters themselves.

However you divvy up the blame, it’s crucial to understand the fall of Roe not just as a national tragedy but as a colossal Democratic policy failure. Because, as is now clear for all to see, simply electing leaders who say they’re pro-choice isn’t enough to protect abortion rights.

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Let’s say we take it as a given that Democratic leadership sees securing abortion rights as a priority. I would argue that this is a generous reading of what we’ve seen over the last several years, or the past few months, or even the intervening time since the draft ruling overturning Roe leaked. But let’s go with it for now. What is their plan to enact protections for reproductive health?

It's Your Turn to Do Something

Based on party leaders’ public statements — mostly encouraging us to make our voices heard at the ballot box, as though their promises to protect Roe weren’t a large part of why we already voted for them — there is no clear plan to fight for abortion rights in the short term. (Everything else aside, note that there are still six months left in the current Congressional session.) As best as I can tell, their plan is to wait it out. Eventually, two conservative Justices will vacate their seats, so if the Democrats maintain continuous control of both the White House and the Senate until then, they can rebalance the Court, reimpose Roe, and staunch the creeping judicial clawback of our rights.¹

To use one of our President’s favorite terms, this is malarkey. Even if the Democrats can expect to keep control of the federal government for an indefinite number of consecutive terms — a farcical notion for any modern American party — this could take many, many years. There’s no non-macabre way to speculate on how long this will take, but suffice to say that it will be a while, and that in the meantime people will die in the roughly half the country where abortion is or will soon be illegal.

So what else can the left-leaning politicians who insist they are fighting for us do? The simplest option would be for the Democratic-controlled Congress to pass a law codifying the protections of Roe legislatively instead of judicially. In fact, Joe Biden promised to do this multiple times during his Presidential campaign.

Joe Biden @JoeBiden

Roe v. Wade is the law of the land, and we must fight any and all attempts to overturn it. As president, I will codify Roe into law and ensure this choice remains between a woman and her doctor.

washingtonpost.comSupreme Court agrees to review Louisiana’s abortion law that could limit women’s accessThe 2014 law, which has not gone into effect, requires doctors at abortion clinics to have admitting privileges at nearby hospitals.

Obviously this has not happened. Such a bill was passed in the House of Representatives but has stalled in the Senate. The Democrats do not have the votes to either bypass or eliminate the filibuster in this session, nor is the party planning to fight to change that — Biden has declined to use his bully pulpit to call for ending the filibuster even to save Roe. (Joe Manchin obviously deserves much of the blame for this, though when Biden vowed to legalize abortion through Congress, there was a strong possibility that he wouldn’t be working with Democratic majorities at all.)

In the medium-term, there’s a chance that the legislative outlook will improve next year — but it’s not a very good one. The combination of the typical midterm backlash against the incumbent party and Biden’s deep unpopularity means there’s a strong chance of a red wave in November. Betting markets currently give the Democrats about 10% implied odds of maintaining trifecta control in 2023, and around a 7% chance of gaining a Senate majority large enough to eliminate the filibuster without Manchin and Sinema’s help. (There’s also a nonzero chance that the swing vote in the House is Henry Cuellar.) In other words, this is likely the best chance the Democrats will have to legislate on this for quite some time, yet they’re already looking ahead to the next campaign.

Of course, a radical judiciary that’s willing to throw away decades of legal precedent in order to strip millions of people of their rights would probably strike down such a law too. Which is why the only real solution may be to expand the Supreme Court.

For the moment, this is still a fringe idea among Democratic leadership. While some liberal voices in the party have called for such a response, it does not appear to have anywhere near consensus support among party elite; Biden’s pledge to consider it has led to nothing. If the party cannot coalesce around eliminating the arbitrary procedural rule that stops them from getting anything done in the legislative chamber they control, it seems unlikely that it will have the appetite to effect significant change to a nominally independent branch of government.

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It’s true that the rights of uterus-havers, as well as other marginalized groups, are on the ballot in November. Having leaders who believe in safe reproductive health care beats having legislators who don’t — I’m well aware that Pennsylvania will be better off represented by John Fetterman than Dr. Oz, and governed by Dr. Frankenstein Josh Shapiro and not the monster he helped create. Yet there’s something dishonest about framing subsequent elections with the generic veneer of protecting abortion rights without explaining how you’re going to make that happen. (To say nothing of how gross it was for the party to pre-write email templates asking for campaign donations ready to send in the wake of a tragedy that happened under their watch.)

The question that every purportedly pro-choice Democratic politician needs to answer — and that every citizen who cares about reproductive rights needs to demand from them — is what they are prepared to do.

What is your plan to pressure the Senate into eliminating the filibuster? How can the deeply unpopular party regain the trust of the public and prevent conservatives from regaining power? Do you support packing the Supreme Court, and if so how will you build consensus among your norm-and-decorum-obsessed colleagues for taking such a measure? What other ideas do you have to reimplement the protections of Roe? No platitudes; only specifics.

It’s been apparent for a while that simply electing politicians who say they support abortion rights is not enough to protect them. That truth is now undeniable. We need to expect bold action and concrete plans from our leaders. Trusting that our representatives’ hearts are in the right place is not an acceptable Plan B.

UPDATE: Biden has since affirmed that he does not support either removing the filibuster or packing the Court. You can spin this however you like, but the result is tantamount to condoning the end of federal protection for abortions.

Mike Valerio @ValerioCNN

AIR FORCE ONE (@CNN) — Speaking to reporters aboard Air Force One, press secretary Karine Jean-Pierre said Biden **does not** agree with calls to expand SCOTUS, or eliminate the filibuster, throwing cold water on steps some liberal Democrats have called for in the wake of Dobbs.

ANOTHER UPDATE: Almost a week after the ruling came down, Biden changed his mind and said he now supports eliminating the filibuster:

Peter Alexander @PeterAlexander

NEW: President Biden says he would support changing the filibuster rules to codify Roe v. Wade.

Whether he intends to use his bully pulpit and famous legislative dealmaking skills to make this happen remains to be seen.

1. Whether you think this necessitates two seats opening up or just one depends on how much stock you put in John Roberts’ vote to uphold Mississippi’s abortion restrictions without overturning Roe. I am not a Court expert, but I can’t say I’m confident that a conservative jurist who is affirmatively comfortable with restricting abortion access would vote to re-legalize it now that it is no longer the clear precedent.