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The “Sending the Issue Back to the States” Canard


I am up at The Prospect on Bart O’Kavanaugh’s very dumb idea that overruling Roe would actually be a moderate compromise because it would be a “neutral” outcome merely “sending the issue back to the states.” The first problem with claims that this would be “more democratic” is that in the most pivotal states Republicans have ended competitive multiparty elections for the state legislature:

The biggest potential danger for Republicans in a post-Roe world is that they would overreach, passing unpopular abortion bans in closely contested states, undermining their ability to compete in those states and to assemble national majorities. The confounding factor, however, is that many swing states have virtually abandoned competitive elections. States like Wisconsin, Pennsylvania, Michigan, North Carolina, and Georgia are so heavily gerrymandered that it is essentially impossible for Democrats to win control of the state legislature even if a clear majority of the state’s voters prefer them. In the wake of the Supreme Court’s appalling decision to refuse to stop even the most extreme partisan gerrymanders, these maps are about to become even less fair. By simply winning a single gubernatorial election, Republicans in those states can enact abortion bans that are beyond the reach of the state’s voters for the foreseeable future even if they prove to be highly unpopular. This is not “democracy” in any meaningful sense. Admittedly, the prospect of abortion being banned will be a powerful argument for incumbent Democratic governors, but increased odds of victory don’t guarantee winning every election irrespective of the political context, particularly in an era of high polarization and a relatively small number of swing voters. In addition, 22 states (including several purple ones like Arizona, Michigan, and Wisconsin) have “trigger” laws or old laws on the books that would restore abortion bans as soon as Roe is overruled, and these bans would remain in place as long as Democrats don’t control the state legislature.

The combination of gerrymandering in the House and malapportionment in the Senate also makes it less likely that Republicans will pay a price at the federal level:

The same issue exists at the national level. Overruling Roe on a party-line vote after playing constitutional hardball to secure a 6-3 majority will be a net negative for a Republican Party that has already lost the popular vote in seven of the last eight presidential elections. But the problem is that under the increasingly anachronistic American constitutional system and exacerbated by aggressive gerrymandering, Republicans don’t need majorities to win the House of Representatives or the Electoral College. And with educational polarization increasing, Republicans don’t need close to a national majority to win control of the Senate. The same anti-democratic mechanisms that produced a Supreme Court that represents a very unpopular political agenda insulates Republicans from much of the potential backlash.

And, needless to say, abortion policy post-Roe won’t be “left to the states” — Republicans don’t care about federalism at all, and will pass the most draconian national regulations/ban they can find the votes for as soon as they can:

There’s also no reason to think that abortion will actually be left to the states. Kavanaugh actually departed from the usual party line when he asserted at oral argument that overruling Roe would “leave the issue for the people of the states or perhaps Congress to resolve in the democratic process” (my emphasis). Despite rhetorical feints at the virtues of federalism, Republicans have passed national abortion bans before and they will again. No House Republicans support abortion rights, and only two Senate Republicans (Susan Collins and Lisa Murkowski) do. With Republican dominance of rural areas making a substantial Senate majority possible, Republicans are likely to pass national regulations of abortion and perhaps even a national ban when they get the chance, and they need only to hold onto the Senate to stop these laws from being repealed. Democrats may hope that the filibuster will stop major national regulations, but everything about Republicans in the Mitch McConnell era suggests that they will not let procedural norms stop them from doing something a majority of the Republican conference is strongly determined to do.

Roe will be overruled, but there will be nothing neutral or democratic about it.

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