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Birth control as a wedge issue

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This is extremely smart politics, and we need a lot more of it:

Dana Nessel is Michigan’s AG. She won a close election in 2018, which was a very good year for Democrats nationally, plus Michigan is one of a handful of states now that’s almost evenly divided between Democratic and Republican voters, so her re-election campaign this fall is going to be a tough one.

Her likely opponent is Tom Leonard, the former Michigan Speaker of the House, who is of course a Trumpist (in 2019 Trump nominated him to become USA for the Western District of Michigan but Senate Democrats successfully blocked it), but who is not really part of the Gilead-Taliban wing of the party: for example he opposes federal interference with Michigan’s legalization of marijuana on supposed states’ rights grounds, but really because revoking legalization would now be highly unpopular. Leonard lost that close election with Nessel four years ago, and is gunning for a rematch.

Republicans like Leonard are in a tough spot when it comes to Griswold, because it’s an article of faith among Federalist Society types that Griswold was the original jurisprudential sin that led directly to Roe. In fact there’s really no coherent legal basis for opposing Roe while supporting Griswold — not that having a coherent legal basis for anything matters in the Republican party these days, but more to the point for two full generations now Griswold has been a particular bete noire of the radical reactionaries who have taken over the Republican party.

The reason this is a tough political spot is that legal contraception is overwhelmingly popular throughout the United States, far more than legal abortion has ever been. For example, a 2015 Gallup poll found that 89% of Americans say they consider contraception morally acceptable, while I more than suspect that the actual percentage that are willing to use contraception to avoid getting themselves or somebody else pregnant is quite a bit higher than that.

Now politicians like Leonard can try to thread this needle by saying that while they themselves are of course not in favor of criminalizing contraception, there’s a Matter of Principle here, which is that the Activist Supreme Court ™ should not claim falsely that the Constitution, Blessed Be Its Name, bars states from doing so, even though of course he doesn’t want Michigan to criminalize contraception I mean that’s an insulting gotcha question from the biased liberal media to even suggest such thing etc. etc.

But that kind of hair splitting is a losing game for any politician: the bottom line is exactly what Nessel’s tweet emphasizes, which is that opposition to Griswold means you think states can legally criminalize birth control, which in the minds of not terribly attentive voters means you think states should criminalize birth control.

I realize that there are actual Republican voters, maybe even millions of such voters across the country, that think or at least claim to think that birth control should be criminalized, because there are a lot of radical white evangelical fundamentalists, along with a sprinkling of integralist super reactionary Catholics of the Adrian Vermeule-Sohrab Amari flavor, if you follow the river far enough to reach the Chief of the Inner Station.

But even within the floridly insane current version of the Republican party, I’m fairly confident this is very definitely a minority position.

On the other hand, I wouldn’t be surprised if the Furious Five were to actually overturn Griswold, if given the opportunity, although I’m having some trouble imagining exactly what sort of case would get in front of them that would give them that opportunity, given my supposition that no state is going to actually pass legislation banning contraception, since this would be the political equivalent of mailing yourself a letter bomb, even in the heart of fundagelical country. (Again, there’s really no legal basis at all for not overturning Griswold if Roe is overruled, which it’s going to be in about four months).

If this analysis is even close to correct, then every Democratic politician in the country should be doing what Nessel is doing, which is to demand that every Republican politician answer this question: Do you think it should be legal for states to make using birth control a crime? Just ask that over and over again, and let ChunkyReeseWitherspoonFan# et. al. whine about how terribly unfair that question is.

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