Monday, July 2, 2018

Killing Roe

Republicans face a crisis. The new 5th Justice gives them the power to reverse Roe vs. Wade.  

Achieving their goal would be a disaster for Republicans. 

Republicans won't reverse Roe.  They will whittle it away. 

Women take Roe for granted.
Roe vs. Wade is the gift that keeps on giving for Republicans. Democrats think Roe vs. Wade is a great achievement for women's autonomy. It is. But it also energizes the GOP and gives them a rallying point. It is a far off moral goal, visible but un-achievable, like finding the fountain of youth or curing cancer. "If only someday," the politicians say, "we could stop the murder."

The worst thing that could happen to Republicans is to achieve their goal of banning abortion. They would have to live with a reality they would quickly find unpleasant. A nation without legal abortion would become a nation with abortion speakeasies. Republican politicians understand that a national ban--the only morally consistent position if, in fact, abortion is murder--would be a political disaster. Their daughters--or their mistresses, Click--nice white girls, might find themselves in a pickle. Good girls, daughters of donors, would always have the option of flying to Toronto, or, as in the early 1960's, to Sweden. Most abortion opponents assure voters that there are exceptions--we will let the states decide, or exceptions for various reasons--and so, actually, there will be  plenty of safety valves,  Don't worry, the ban stops other people, not you.

Talk of reversing Roe is great for Democrats, bad for Republicans.  A great many women understand the issue as one of privacy, autonomy, and government over-reach. Genuine threats to Roe energize women voters, but as it is now, women take abortion access for granted. White women vote their race, not their gender. 

But now, with the vacancy on the Supreme Court, they could reverse Roe. Republican majorities could ban abortion. After all, it is murder.

Republicans need not worry. Chief Justice Roberts plays the long game. He understands that reversing Roe would hurt Republicans, if it were done openly and forthrightly. There is a judicially justified, nicely disguised way to accomplish the same end. Say the Supreme Court's hands are tied out of respect for precedent. Then whittle it down, kill it slowly, and keep the safety valves.

A college classmate, an attorney, described how Roberts could do it:

"There are several possible ways to accomplish this, bearing in mind that the Chief Justice has a great deal of influence both because of his position and because Roberts is personally very savvy. 

One is in the selection of cases:  don’t take cases where you are going to be compelled to make a controversial decision, but focus instead on incrementalism. Thus, I would expect that we would see a continued string of cases limiting abortion rights (longer waiting periods, upholding defunding of Planned Parenthood, and other ideas that the anti-abortion movement will come up with) while paying lip service to preserving Roe. The net result will be a bunch of conservative states where abortion is constitutional but effectively unavailable and other, more liberal states, where it remains available - the same result that would flow from overruling Roe, but without the same degree of energizing the left.   

Another is choosing your grounds for decision - Roberts did that in the ACA case, where he made an important federalism decision but upheld the law, in my opinion and that of others in part because he recognized the consequences of striking it down. The fact is that cases come to the Supreme Court in part because they are difficult and uncertain, and there is a degree of flexibility in how they get decided."

Prediction: The "Abortion Issue" will move to the states, and the rallying cry will be "local control" or "states rights." It will exacerbate the rural-urban political divide, and the issue will be brought by both Democrats and Republicans to energize their voters. Alabama will want a statewide ban; Birmingham will want local option. Middle class women will have access to abortions, poor women will struggle and suffer. There is not change here. Poor women have always struggled and suffered. The equilibrium that emerges will be a patchwork of abortion providers, most legal and some under cover, somewhat like the current situation for marijuana growing, where what is a felony in one place, will be a legitimate small business in another.

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