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Elite complacency and Roe


I have a piece up at the Prospect about how elite complacency helped pave the path to Roe v. Wade. The Savvy pundit consensus has long been that it was hysterical scaremongering to point out that Republicans said they wanted to overrule Roe v. Wade because they wanted to overrule Roe v. Wade:

One striking example of this comes from the 2014 midterms, a crucial step in the overruling of Roe, because Republicans were able to take the Senate that year. When Justice Antonin Scalia unexpectedly died in February 2016, Republicans held the seat open until after the presidential election, which was ultimately won by Donald J. Trump. Looking back, the 2014 midterms, derided as meaningless at the time, were just as consequential as any in recent memory.

One candidate who stressed that one potential consequence of the election was that Roe could be overruled if the GOP prevailed was Colorado Sen. Mark Udall, who was in a tough re-election fight with Republican candidate Cory Gardner. Udall’s forceful advocacy on the issue was prescient, but for his pains he was derisively labeled “Mark Uterus,” not only by Republicans but by multiple ostensibly neutral reporters. Gardner won, and voted to confirm all three of the justices nominated by Trump who are part of the anti-Roe majority.

The mocking of Udall as a hysterical scaremonger for talking too much about abortion rights is revealing in multiple ways. First of all, there is the transparent sexism in suggesting that it’s overreaching to emphasize rights that mostly protect women, made especially apparent by the puerile nickname. The idea that it’s somehow gauche to focus too much on reproductive rights is particularly remarkable given that coverage of the 2014 and 2016 elections was dominated by Republican-generated pseudo-scandals about a virus that killed zero Americans and one candidate’s email server management, respectively.

Also implicit in the “Mark Uterus” incident, however, were two additional forms of complacency. First of all, the survival of Roe, despite longtime control of the Court by justices nominated by Republican presidents who nominally opposed it, created a narrative that was enormously beneficial to Republicans trying to win elections in purple or blue states, like Gardner and Maine’s Susan Collins. The theory went that Republican elites didn’t really want to overrule Roe, but were merely pretending to for the sake of pandering to their base. This narrative was always false; the survival of Roe was always a highly contingent fluke, the product of several mistakes by Republican presidents. (Ronald Reagan didn’t want or expect Robert Bork’s nomination to be defeated.) We know this now, although it’s too late to change the outcome.

The related complacency about what the material effects of overruling Roe will be I’ll leave that to another post. But anyway, Alito’s ipse dixits about how the Court would never, ever apply the logic of the majority opinion to any other case are directed at the kind of pundits who asserted that the Court would never overrule Roe in the first place, and they’re all completely full of shit.

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