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The End of the Democratic Defensive Crouch on Abortion Rights

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WASHINGTON, :  US Representative Henry Hyde, R-IL, Chairman of the US House Judiciary Committee conducts impeachment hearings 01 December on Capitol Hill in Washington, DC. The Committee is hearing testimony on the consequences of perjury and related crimes.  AFP PHOTO/Luke FRAZZA (Photo credit should read LUKE FRAZZA/AFP/Getty Images)
WASHINGTON, : US Representative Henry Hyde, R-IL, Chairman of the US House Judiciary Committee conducts impeachment hearings 01 December on Capitol Hill in Washington, DC. The Committee is hearing testimony on the consequences of perjury and related crimes. AFP PHOTO/Luke FRAZZA (Photo credit should read LUKE FRAZZA/AFP/Getty Images)

Tim Kaine coming out against the Hyde Amendment is a yooooge deal:

Kaine did indeed sign some bad anti-abortion legislation and take some bad anti-abortion stands when he was governor of Virginia. He’s a Roman Catholic who has said that he’s personally pro-life. But as Caplan-Bricker and Robin acknowledge, he has also had a flawless pro-choice record since becoming a U.S. senator, earning A grades from both NARAL and Planned Parenthood. Should we be concerned that Kaine will backslide—that the state-level politician is the real Kaine?

This is not actually a difficult question: Kaine’s record as a senator is far more relevant.  “[I]t’s hard to know,” says Caplan-Bricker, “whether Kaine’s new look reflects his own changing attitudes, or the changing shape of the Democratic Party.” But since he is the party’s nominee for vice president, the distinction doesn’t actually matter. He is going to represent the party’s strong consensus on the issue, which is reflected in the most strongly pro–reproductive justice plank in the history of national Democratic platforms. To what limited extent the vice president can influence abortion policy, he will follow this party line. What he “really thinks” about abortion isn’t relevant to how he’ll act in office.

To underscore this, before speaking at the DNC on Wednesday, Kaine came out in opposition to the Hyde Amendment, which prevents public funding from being used to obtain abortions (and hence represents a substantial barrier to poor women attempting to attain them). He’s not just defending Roe v. Wade, in other words, but coming out in favor of broadening abortion access. Representing a national Democratic constituency, Kaine is going to act differently than he did representing a state constituency in Virginia. He’s not going to change back unless the national party itself changes dramatically.

It’s worth pausing to reflect on how remarkable and welcome this change is. During the Clinton and Bush years, pro-choice national Democrats were often on the defensive, defending abortion rights in cautious rhetorical terms. There was a national epidemic of pundits calling on the Democratic Party to deemphasize abortion rights, and perhaps even give up on upholding Roe v. Wade altogether. The fact that supporting the restoration of federal public funding for elective abortions is now the minimum acceptable position for someone on the Democratic presidential ticket is a big deal—and the fact that Kaine had a prior history of compromise on the issue just makes the transition all the more striking. It’s hard to imagine NARAL’s Hogue’s quietly radical speech from Wednesday—in which she openly talked about having an elective abortion—being given at a national convention 20 years ago.

Unlike Kaine, Hillary Clinton hasn’t changed her positions, but she has changed her rhetorical emphasis in ways that show the power of the movement for reproductive rights within the party.

This is how politics works. In general, ambitious national politicians follow their coalitions rather than impose their will on them.

As anyone who was around then knows, this is really just a major step forward from where abortion politics were in the 90s. Remember when almost every pundit in America attacked the Democrats for not letting a governor who had literally sued to get Roe v. Wade overruled denounce abortion rights at the Democratic National Convention? That was really stupid. (Oddly, I don’t remember anyone arguing that the Republicans are obligated to have speakers denounce upper-class tax cuts.)

And to echo what I said about the death penalty yesterday, doing away with the Hyde Amendment is very doable. Obviously, it’s not happening with Republican control of either house of Congress, and even with a Democratic Congress it would be a heavy lift. But the Democratic president coming out against it is the kind of thing that signals to judges on the Democratic team that overruling the Hyde Amendment should be on the agenda of liberal constitutionalism. If Hillary Clinton is able to replace Scalia’s vacant seat, the Court could and should rule the Hyde Amendment unconstitutional. Over to you, Justice Stevens:

The federal sovereign, like the States, must govern impartially. The concept of equal justice under law is served by the Fifth Amendment’s guarantee of due process, as well as by the Equal Protection Clause of the Fourteenth Amendment.

When the sovereign provides a special benefit or a special protection for a class of persons, it must define the membership in the class by neutral criteria; it may not make special exceptions for reasons that are constitutionally insufficient.

[…]

These cases involve a special exclusion of women who, by definition, are confronted with a choice between two serious harms: serious health damage to themselves on the one hand and abortion on the other. The competing interests are the interest in maternal health and the interest in protecting potential human life. It is now part of our law that the pregnant woman’s decision as to which of these conflicting interests shall prevail is entitled to constitutional protection.

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