Non-majoritarian abortion policy
By Digby recently made a great point about the provision attached to a spending bill to allow organizations (federal and state, but of course) to accept government funding but refuse to provide counseling or referrals for abortions:
This clause sounds like something the GOP would tell us Real Americans would all be thrilled with. So, why are negotiators tucking it in a spending bill in the dead of night? Why not pass it separately and bask in the glow of Real American approval? This bill, of course, is going to pass. But, an opposition party might vote against it en masse in order to bring the issue to the attention of the American people. “They are hiding anti-choice legislation in spending bills at the last minute in order to secretly enact their radical agenda.”
Yes, that’s interesting, isn’t it? We keep hearing that–despite the mountain of public opinion evidence to the contrary–reproductive freedom may have to go if the Democrats are ever going to win national elections again. But if anti-abortion politics are so popular, why bury a provision like this in an omnibus bill? The question answers itself.
But, at the risk of beating a dead horse here, there’s another lesson: should Roe be overturned, we cannot count on majority preferences to stop Congress or many state legislatures from passing draconian anti-abortion legislation. As I’ve said, there’s something about abortion politics in particular that makes otherwise sophisticated progressives make claims about how legislative politics work that would be too naive for a Grade 7 civics textbook. But legislative politics–particularly given the effectiveness of computerized gerrymandering–are isolated from majority opinion in many respects. (This is pretty obvious if you look at the legislation Bush got through in his first term.) It’s not a question of whether, given the current political configurations, post-Roe legislation would be more restrictive than majority public opinion; it’s just a question of how much.
As to the question about whether there’s any chance that Roe is vulnerable, I’ll have a couple posts this week about the new legislative order and its implications for judicial appointments, but to give the short version we’re in a rare perfect storm where there’s a governing coalition with a coherent ideology and power centralized in the White House. The best analogy of the past century is FDR after 1936, and if you look at most of the justices he appointed–Black, Douglas, Murphy, Stone, Jackson, Rutledge–well, trust me, it’s not promising. Hope that Ginsburg and Stevens stay healthy, because it’s going to be very, very ugly. (And if you think Specter surviving means anything, please refer to the previous paragraph.)