More thoughts on the abortion wars
In my piece last week, I discussed the state of where things are in the abortion wars. Plenty of ground was covered, but there were things I didn’t get to, which I will cover here. There was also some big news this week in Florida, which I will get to in a bit. First, it’s worth discussing the pyrrhic victory achieved by the forces pushing to reverse Roe v Wade.
For the better part of fifty years, the driving force behind the anti-abortion movement has been the religious right. There is no central group with that name, but it refers to conservative religious groups and leaders who first became well-known during the 1970s and 1980s in part because of their efforts against abortion. I will use the phrase “religious right” as shorthand here.
Before going any further, some caveats are necessary. Not everyone in the anti-abortion movement is part of the religious right. Among the general public, there are plenty who are opposed to abortion, but are not part of the religious right or particularly religious. There are also plenty who are religious, conservative and are pro-choice. All that said, the energy behind the anti-abortion movement is heavily religious and it's rare to find a major figure involved in it who is not religious.
I will necessarily be making some generalizations here because I’m writing a blog post, not a book. There are plenty of groups and individuals who are part of the religious right, but this piece is not about specific groups or individuals. It’s about an entire movement.
There have been conservative religious movements in the US for centuries. In the past, there have been individuals associated with those movements who have been discredited because of scandals. What is unheard of is for nearly the entire movement to become discredited overnight. That is what happened when the bulk of the groups and individuals associated with the religious right threw their support behind Trump.
Today, the influence of the religious right is a fraction of what it used to be. In retrospect, their influence was at its zenith in 2004. That was when Bush was reelected in part by campaigning heavily against gay marriage and identifying himself as part of the religious right. During the 1980s and 1990s, the religious right was very strong on the cultural front. Their rhetoric about morality in particular held fairly wide sway. Few people were more up in arms over Bill Clinton’s scandal. Even as someone who was 11 and 12 at the time, I remember that episode well.
It was common to find religious right leaders writing books on morals, giving lectures on the moral way to live and railing against celebrities for their alleged lack of morals. When the Lawrence v Texas decision came out in 2003, which struck down laws against sodomy, it was not uncommon to hear cries of our morals going by the wayside. I remember that very well. I was 16 when Lawrence was decided.
Supporting gay marriage was a fringe view when I was in high school (2001-2005). Republicans enthusiastically supported banning it with a constitutional amendment while Democrats were also against it though not in favor of enshrining that in the constitution. As strange as it may seem today, the religious right was arguably the most dominant cultural player at that time. Republican candidates frequently emphasized how religious they were while Democratic candidates tried to play catch up.
As we all know, the battle for gay marriage didn’t go the religious right’s way. It’s now legal everywhere and is widely popular. I mention all that because it was often religious right groups and leaders who warned that allowing gay people to marry would destroy the sanctity of marriage. It was also religious right groups and leaders who denounced many new social trends, including the rise of single parenthood, the acceptance of premarital sex, nudity and bad language on TV, etc. All of those things were eroding the moral fabric of our society in their view.
Fast forward to today and it’s that same crowd who tends to make up the most committed Trump supporters. At the risk of stating the obvious, Trump’s lifestyle and character are everything the religious right claimed to be against. In one fell swoop, they knowingly and willingly threw away all of their credibility. Why would they do that? Largely, though not entirely, because of abortion.
The religious right was so committed to reversing Roe v Wade that they were willing to do whatever it took to accomplish it. That included putting their credibility through a woodchipper and setting their reputations on fire. The good news is they got what they wanted. The bad news is everything else.
Since the Dobbs decision, very little has gone right for the anti-abortion movement. Every single ballot initiative has gone against them. A vast majority of elections where abortion has been a big issue have seen the pro-choice candidate win. Public opinion, which was stuck in neutral for decades, has swung heavily in favor of the pro-choice position. Even in red states, abortion bans are unpopular.
Prior to Dobbs, the anti-abortion side had almost all of the enthusiasm. Now, it’s just the opposite. The pro-choice side is now the side that is fired up, better organized, has more resources and pro-choice voters are more likely to prioritize abortion. Because of abortion being prioritized, many people who would otherwise vote for Republicans are voting for Democrats.
To add insult to injury, the abortion bans in place have proven to be ineffective. As I mentioned in my last piece, the number of abortions performed in 2023 is as high as it has been in a decade. In the days when Roe v Wade was decided, abortion access required physically going somewhere. Today, abortion access just requires an internet connection and a mailing address. Enforcing laws against abortion pills is all but impossible and efforts to do so are toxically unpopular.
I wonder if those who are part of the religious right are starting to have second thoughts as to whether it was worth it. They probably aren't now, but let's check back in a little while. They got what they wanted and Roe v Wade was reversed. In return, their credibility is zero and their reputations are in tatters. Nobody will ever listen to anything they say when it comes to morality or any kind of behavior. Whatever persuasive authority they had with people who are not part of the religious right is gone.
Reversing Roe v Wade didn’t mean abortion became illegal everywhere. It meant the legality of abortion would be determined legislatively. Reversing Roe v Wade was the battle. The fight over abortion that has gone on since is the war and the pro-choice side is winning decisively. To make a World War Two analogy, the anti-abortion side looks like Japan after the Battle of Midway.
To win a (metaphoric) war, you have to persuade people to come to your side. To be able to persuade anyone who isn’t already on your side, you have to have credibility. When you prove yourself to be a complete hypocrite, you have no credibility. Talking about morality, character, virtue and family values is great, but you have to walk the walk. Throwing your lot in with someone who is the antithesis of those things shows that you don’t really care about them. You just want power and will do whatever it takes to get it.
Being committed to a cause is certainly admirable. I am committed to plenty of causes, including abortion rights. No matter how committed you are to a cause, there has to be a limit to how far you’re willing to go in pursuit of it. Otherwise, you’re going to find yourself in bed with bad people and it won’t end well. Because the religious right and others pushing to ban abortion are now firmly intertwined with Trump, that means their cause is, too. Anti-abortion and Trump now go hand-in-hand. A quick look at his history will tell you all you need to know about how those who have tied themselves to him in the past have fared.
You have to be willing to draw a line. There has to be a point where you say, “This is too much, it’s not worth it.” In the case of the religious right and Trump, there is no such line. They are firmly behind him now even after he finally gave them what they wanted on abortion. I don’t expect them to support Biden, but they could write-in someone or skip the presidential race altogether. That’s what happens when you throw your lot in with Trump. You won’t change him, he will change you.
Plenty of those in the religious right will argue that they didn’t want to support Trump, but had no choice. That’s no excuse. Everyone has a choice. Nobody is forced to throw their lot in with Trump or anyone else. Destroying your own credibility and reputation is something only you can do.
The deal between Trump and the religious right is a Faustian bargain if there ever was one. The way those deals work is you get what you want. It’s only later when you discover the price is much higher than you thought. When all is said and done, what you got is microscopic compared to what you lost.
Democrats and those on the left gleefully watching all this unfold shouldn’t get cocky. Craving power above all else is a pathology nobody is immune to. The way the Democratic Party coalition works today makes it unlikely that a Trump-like figure will be nominated, but that’s not guaranteed to last forever. The day may come when Democrats are faced with a situation like what Republicans faced in 2016. It’s easy to say now that you will make the right decision, but you have no idea what will be going when and if that happens. Let’s all have some humility and get off our high horses.
Trump and Florida
On Monday, the Florida supreme court upheld the state’s ban on abortion after six weeks. It will take effect next month. Six weeks is before most women even know they are pregnant, let alone have time to make a decision. For those wondering why Republican messaging about supporting a ban at fifteen weeks isn’t working, Florida is a case study.
Right before Dobbs, Ron DeSantis signed a law banning abortion after fifteen weeks. He refused to say if he would go further during the campaign. Had his position been the fifteen week ban, it probably would have been politically smart, but it wasn’t his position. After getting reelected and the Republican majority in the state legislature getting even bigger, he signed the six week ban.
That’s why Republicans haven’t gained traction with pushing the fifteen week ban. Nobody believes that’s where they really stand. Every chance a Republican-controlled state has had to go further than fifteen weeks, they have taken. By now, everyone knows they only talk about a fifteen week ban out of political expediency, not because they really believe it.
At the same time that the Florida supreme court allowed the six week ban to take effect, they also allowed an initiative to create a new constitutional amendment guaranteeing the right to abortion (the amendment) to be on the ballot in November. Florida is where Trump lives now and he says he will say something about it next week.
That’s certainly out of character. He’s rarely calculating about anything. We’ll find out what he’ll say next week, I guess, but it fits with the pattern he has followed since Dobbs. He has bragged about reversing Roe, but has also tried to wash his hands clean of any responsibility for unpopular abortion bans. He has at times tried to sound moderate in his rhetoric and even criticized the Florida six week ban after it was signed.
Try as he might to avoid the issue, it won’t happen. If he won’t talk about abortion during the campaign, Democrats will talk about it for him. As I mentioned in my last piece, those looking to staff Trump’s administration if he wins already have their plans in place. He can try to not talk about that all he wants, but the attack ads will make sure people hear about it.
As for Florida, it’s still a red state. Having a pro-choice amendment on the ballot will ensure more Democrats show up than would show up without it, but they’re vastly outnumbered now. Florida has shifted heavily towards Republicans in the last few cycles. Even though it has plenty of big cities and suburbs, the gains Democrats have made in many states in suburban areas have not happened there.
The Biden campaign has talked about spending money in Florida, but so far it has been a token amount. As of now, nobody in the campaign plans on changing that. They may just be trying to scare the Trump campaign into spending money there. Biden doesn’t need Florida to win, but Trump absolutely does.
To help the amendment pass, it’s best for it to not be associated with Biden and his campaign is aware of that. Florida is not just a red state. What makes it particularly challenging for the amendment is that it must get 60% of the vote to pass. Most states only require a majority, but Florida is different. That means the amendment will have to have broad, bipartisan support. If it does pass, it will be because a substantial number of people who voted Republican voted for it. The key to maximizing the amendment’s chances of passing is to decouple it from partisan elections.
If only a majority was required I would say the amendment will have no trouble passing. Getting to 60% is going to be much tougher. It can happen and Florida has approved amendments that were heavily supported by Democrats such as raising the minimum wage to $15 per hour in 2020. The 60% threshold means it’s going to take a big effort and will require overcoming organized opposition, especially from the state GOP.
Sotomayor should step down
Over the last month, there have been calls by some for Sonia Sotomayor to step down this year. I think it would be a prudent decision on her part. You don’t have to look far back to know what the risks are when a justice doesn’t strategically step down. Granted, the urgency for her to step down is not nearly as great as it was for Ruth Bader Ginsburg (RBG). She’s 69 while RBG was 80-81 in 2013-14.
It’s entirely plausible Sotomayor could be around for a lot longer. John Paul Stevens was on the Supreme Court until he was 90 and lived to be 99. Still, I don’t think it’s a risk worth taking. Biden could win in November, but that isn’t enough. Democrats will have to keep the Senate, which is going to be tough this year.
We already know what the worst case scenario is. That’s what happened with RBG. She died when there was a Republican president and a Republican-controlled Senate. Her being replaced by someone well to her right guaranteed a big shift in Supreme Court jurisprudence.
Predictably, there have been Democrats and people on the left saying Sotomayor should not step down. I find their arguments to be very unconvincing. One argument is that Democrats could just win the White House and keep the Senate and should focus on that. Sure, they could win both. They could also lose both or win only one. If the only way Sotomayor won’t be replaced by someone well to her right is for Democrats to win every election forever, we’re doomed.
Sotomayor stepping down now would probably have little to no impact on Democrats’ electoral prospects. To the extent it had any effect it would be to highlight the importance of abortion, which is Democrats’ best issue right now. Her stepping down would ensure she would get a successor just like her who would remain there no matter what happens in November.
Another argument has been that it would be bad to pressure the first Hispanic woman on the Supreme Court to step down. In Democratic Party elite circles, there is a big emphasis on symbolic representation. I don’t have any problem with it per se. I think it’s good for a diverse party to have diversity among its most powerful officials. The problem I have with many of those in Democratic Party elite circles is that they use symbolic representation as a shield for specific individuals, as one writer I follow has pointed out.
If the concern is having a Hispanic woman on the Supreme Court, there are plenty of Hispanic women who could replace Sotomayor. I understand the admiration many have for her and I am a fan, too, but she is an individual and individuals come and go. What matters most is not having her become another RBG. Causes are much more important than any individual and encouraging her to stay on is a great way to setback causes for the sake of one person.
It has been good having her on the Supreme Court, but there is no need for her specifically to stay on. The worst possible thing would be for her, encouraged by her fans, to think she’s irreplaceable. Nobody is irreplaceable. She’s a member of the Supreme Court, not a cult leader. She has no magic powers and is not the only person who can do the job.
Sotomayor is certainly aware of what happened to RBG and her legacy. I really hope she is thinking hard about not repeating that and is more far sighted than her defenders are. She’s a very accomplished person and has made her place in history. She doesn’t need to risk tarnishing that by sticking around any longer.
For those who don’t think she should step down, do you think it’s worth risking the Supreme Court going from 6-3 to 7-2? Is it really that important that she stays on? Do you not think anyone else can do the job? Was it worth RBG sticking around only to be replaced by Amy Coney Barrett? If your answer to any of those questions is no, then you should reconsider your stance.
I wish we had a different system for appointing people to the Supreme Court and lower courts. Lifetime tenure for judges should be abolished, but that’s not going to happen today. The need for Sotomayor to step down is not about how things should be. It’s about how things are. The reality is one justice being replaced by an ideological opposite can mean jurisprudence shifts radically in the other direction for decades. That’s not theoretical, we have proof of it from RBG. Let’s not take that chance again, especially when we can prevent it from happening now.