The Return of Roe

For months the GOP has played a game of Calvinball in Ohio. The rules of Calvinball are unpredictable, by definition. The outcome of this particular game was not.

My colleagues at the Morning Dispatch covered the ins and outs of last night’s referendum in today’s edition. Months ago, fearing that the pro-choice side is likely to win an upcoming ballot initiative on adding abortion rights to the state constitution, Republican lawmakers in Ohio hit upon an idea: They would raise the bar for victory. They scheduled an election for August seeking voter approval to lift the threshold for ballot initiatives to amend the constitution to 60 percent, up from 50, as has been the law in Ohio for more than 100 years.

Pro-choicers are quite capable of mustering simple majorities on initiatives related to abortion, as they’ve proved recently in places like Kansas and Michigan. But a supermajority? That’s a heavy lift in all but the bluest states.

The Ohio GOP played Calvinball, in other words, aiming to change the rules in the middle of the proverbial game to produce an outcome it desired because it no longer believes it can persuade a majority to prefer that outcome on the merits. Result: In a state Donald Trump twice won comfortably, the raise-the-bar referendum went down in flames, 57-43. Ohio counties that have voted Republican reliably (or almost reliably) in presidential elections for a century joined the majority in opposition.

There was blame to go around afterward.

Some grumbled (insincerely) about outside special interests pouring money into the state to meddle with Ohio’s pristine political process. Some blamed the GOP’s obsession with Trump’s legal travails as a perpetual distraction from consequential policy fights. (Trump is a moderate on abortion relative to the rest of the Republican presidential field, ironically.) My colleague Sarah Isgur noted astutely that the timing didn’t work in Republicans’ favor either. Voters who are so engaged with politics that they’ll turn out for a ballot referendum during the sleepiest month of the year aren’t naturals to support an initiative that would weaken their own democratic power.

Others pointed to the deceptive and Very Online ad campaign run by supporters of the referendum focusing on the pro-trans agenda, never mind that widely publicized comments by Republican officials made clear that the measure was all about thwarting the coming ballot initiative on abortion. “It’s not a good sign for the anti-abortion movement when the gaffe of the year was saying Issue 1 was about abortion and the ads supporting it were about totally unrelated issues,” Semafor’s Benjy Sarlin observed in the aftermath.

It’s a fiasco. Republicans lost badly; they handed Democrats a morale booster in a year that’s been full of them at the polls; and they showed the national pro-choice majority that they’re willing to change the rules on the fly to try to entrench the minority’s favored policy, a bad look in a republic. If you want an angry, energized liberal base, that’s the way to get it.

I have mixed feelings about all of this, as readers who remember this column from April know. 

Conservatives generally abhor direct democracy (anti-populist conservatives all the more so!), believing that law shouldn’t be made by popular passion and collective impulse. We need moderating institutions like legislatures to deliberate over the wisdom of policy before millions of citizens find their lives upended by it.

In theory. In an age when our “moderating institutions” include characters like Matt Gaetz, the civic benefits of legislatures are more … aspirational.

Even so, representative democracy is superior to direct democracy, broadly speaking. But representative democracy needs to work by giving the majority a realistic opportunity to impose its will via regular elections. In Ohio, ruthless gerrymandering and the governing party’s willingness to play Calvinball on behalf of its policy preferences left the apparent pro-choice majority with few ways to do that. Direct democracy is better than a representative democracy that’s given up on representation.

And so here we are, with both parties now facing strategic dilemmas.

There’s a saying in marketing about the limitations of the industry, reflecting that good advertising can do only so much to boost sales of a product that’s disliked. “Sometimes the dogs won’t eat the dog food,” it goes.

That’s the GOP’s dilemma. To all appearances, with respect to the sort of strict six-week bans favored by red states like Ohio and Florida, the proverbial dogs of the national electorate just won’t eat the dog food. There’s no clever advertising that will change their minds, I fear. Changing the recipe of the dog food might do the trick—if a 12- or 15-week ban were to become the standard ask among Republicans, giving women a reasonable chance to discover their pregnancy and act early before the law ties their hands, public opinion might shift to the right. But it’s hard to imagine pro-life activists, a key conservative bloc, ever agreeing to a compromise like that on moral grounds.

And so the search for a way to persuade a majority of dogs to eat the dog food they don’t like continues.

Democrats’ dilemma is different, the sort any party would like to have. It’s this: Do they continue to let Republicans bleed politically state by state, losing one abortion referendum after another? Or do they go for broke and seek to re-legalize abortion at the national level?

Sarlin offers this prediction: 

The next Democratic trifecta in Washington seems more likely than not to reinstate Roe v. Wade via legislation, whether it’s two years or twenty years from now. And once that happens, there may not be a Republican majority with enough political will to ever fully reverse it—at least not if elections keep looking like they did in Ohio on Tuesday night. Those are the stakes, and as one social conservative put it as the votes came in, it’s “a five-alarm fire for the pro-life movement.”

It’s hard to argue that he’s wrong considering that, er, Democrats have already tried this.

Last year after the Dobbs decision, the Reproductive Freedom for All Act was introduced in the Senate proposing to “codify the essential holdings of Roe v. Wade and related cases protecting women’s rights to access abortion and contraception.” It had bipartisan buy-in courtesy of pro-choice Republicans Susan Collins and Lisa Murkowski.

What it didn’t have is 60 votes to overcome a Republican filibuster or 50 votes to eliminate the filibuster with respect to abortion legislation. The two institutionalists in Chuck Schumer’s caucus, Joe Manchin and Kyrsten Sinema, refused to go that far.

The next time a Democratic Senate majority is seated and in position to take a serious run at Roe, it’s likely that neither Manchin nor Sinema will be part of it. Instead, the political salience of abortion all but ensures that the new majority will consist of liberals who got elected vowing to nuke the filibuster and reinstate Roe when given the chance. Look no further than Sinema’s would-be replacement in Arizona, Rep. Ruben Gallego, who’s criticized her repeatedly for prioritizing the filibuster over abortion rights.

Soon, if not already, it’ll be impossible to win a Democratic primary in all but the reddest states without guaranteeing the return of Roe by any means necessary. In fact, that guarantee is worth making in red states too, as it might give the minority of pro-choice Republicans who continue to join hands with the left on abortion measures like Ohio’s referendum a reason to consider voting Democratic for once. Case in point:

Allred is likely to be the Democratic nominee for Senate in Texas next year, tasked with somehow defeating Ted Cruz in a general election in which the state’s Republican majority will be out in force to vote for president. There aren’t many issues where Allred better represents public opinion in his home state than Cruz does. But there is one.

Relatedly, imagine how useful this issue might be to Democrats in Florida, a state where they’ve been left for dead electorally but where Ron DeSantis recently signed a six-week abortion ban over the objections of the majority there. Floridians need 60 percent support, not 50, to overturn that ban, which is unlikely—unless they help Democrats sweep to victory nationally in 2024, whereupon the new liberal Congress could enact new federal abortion rights that trump the state’s six-week law.

It’s unlikely that Democrats will regain total control of government next year. The 2024 Senate map favors Republicans overwhelmingly, so much so that it’ll be hard even for Donald Trump’s GOP to fumble a majority away. (Hard, not impossible.) But if Democrats do pull a rabbit out of their hat, they’ll almost certainly owe it to abortion politics. That being so, how could they not try to codify Roe?

“But if the next Democratic majority codifies Roe, the next Republican majority after that will just un-codify it,” you say. Is that so?

The pro-life base might insist upon it, it’s true. And if Democrats end up eliminating the filibuster in order to pass federal abortion rights, the new GOP majority will have no procedural excuse for failing to repeal those rights. But the polling on this issue being what it is, Sarlin is obviously correct that Republicans will be highly—highly—reluctant to proceed. Arguably that’s another reason for Democrats to codify Roe: Once they do, the GOP will be thrust into a bitter internal debate about whether to enrage swing voters by de-federalizing abortion rights (again, per Dobbs!) or to enrage stalwart pro-lifers by refusing.

Even if pro-lifers win that debate and muscle the Republican majority into moving forward with repeal, GOP lawmakers might feel obliged to placate pro-choicers by eschewing a federal 15-week ban of the sort many anti-abortion activists desire. That in itself would be a victory for the left, getting Republicans to revert to a federalist model of regulating abortion instead of using federal power to enact national restrictions. States could continue to pass pro-choice ballot initiatives without fear of the GOP Congress interfering with them.

There’s simply little downside to being an uncompromising supporter of federalizing abortion rights if you’re a Democrat in 2023, and that’s likely to remain true for years.

Except …

There is, of course, the small matter that Congress lacks constitutional power to legislate on abortion. Only under some very creative readings of the Commerce Clause or the 14th Amendment might states be deprived of their rightful authority to regulate the subject.

Those readings are too creative for my federalist heart but not, I imagine, for believers in the “living Constitution.”

There are also strategic reasons for a Democratic Congress to keep its mitts off abortion, though. If you’re a liberal who’s eager to wreak havoc among Republicans and you’re willing to be patient, why not hold off on enacting federal abortion rights and instead let the GOP be strangled slowly by various state abortion referendums?

Why insist on codifying Roe in Washington when the states seem poised to do it piecemeal?

Ohio is a Trump +8 state. Abortion is very likely to be legal  there again come November. Kansas is a Trump +14 state. Abortion is legal there right now. In time, it seems, all but the most conservative states will see abortion rights enacted locally, by the people via referendum or by legislators who eventually grew nervous about resisting the tide of public opinion.

It’ll be one defeat after another. And insofar as Republican lawmakers in the reddest strongholds continue to resist public pressure to loosen abortion laws, Democrats will finally have a compelling electoral pitch in those states that might loosen the GOP’s hold on power.

All of that is up in smoke if Democrats pass federal abortion rights in Washington. In effect, they’d be bailing out the Ron DeSantises and Greg Abbotts who have tempted electoral fate by enacting unpopular bans. If you’re a pro-choice Republican in Texas who’s torn about voting for Abbott again, having a Democratic Congress codify Roe would resolve your dilemma for you. You could safely vote to reelect Abbott knowing that he’ll deliver the conservative policies you like and will be barred by federal law from delivering the one you don’t.

Why would congressional Democrats do him that favor? Better to do nothing and hope that outrage over Texas’ abortion ban gradually pits Abbott against pro-choicers in his own party, putting the state in play for the first time in decades.

There’s another reason congressional Democrats should lay off abortion, although not one about which they care much, I suspect. Namely, legitimacy.

Abortion is morally fraught to an unusual degree, and so arriving at a policy that the majority is apt to deem “legitimate” is unusually difficult. (Allowing unelected judges to set that policy by diktat seems like an especially poor way to do so, which explains much of the agitation around the issue over the past 50 years.) That’s another reason why I have more patience for using direct democracy to settle abortion disputes than I do for other subjects. It may be that only a vote of the people themselves, the hallmark of legitimacy in a democracy, can maximize the extent to which abortion outcomes are viewed as “legitimate.”

Agree with that or not, though, we should be able to agree on this: A vote of Ohioans to choose the abortion regime that will govern Ohio will certainly be seen as more legitimate in Ohio than a vote of national lawmakers who meet hundreds of miles away in Washington, only a small percentage of whom reside in Ohio.

Americans tend to resent being ruled from afar, quite understandably. (It’s in our colonial DNA.) Pro-lifers in a state as Trumpy as Ohio would, I suspect, really resent being ruled from afar by Chuck Schumer and his merry band of D.C. living-Constitutionalists after their own state legislature had enacted a six-week abortion ban. The nationalization of all politics over the last 20 years or so has had a deranging effect on the electorate, making every presidential election an existential contest. It would be healthy if more policy fights were conducted locally, among neighbors, boosting their sense of legitimacy and giving the losing side hope that they can get the policy changed eventually without needing to build a national movement to do so.

If all of that fails to convince you, consider this: Because states are likely to continue enacting the left’s preferred policies on abortion piecemeal, it would be foolish for Democrats to set a precedent in Congress that Republicans might exploit later to undo those victories.

Activists in both parties like to believe that the other side is so ruthless that it’ll surely shatter all extant norms once it takes power, in which case their own side should shatter those norms immediately and do some good while it can. It’s not true, though. Witness the many liberals who argued for eliminating the filibuster last year on grounds that the next Republican Senate majority will certainly do so once it has the chance, never mind that the last Republican Senate majority didn’t do so when the GOP controlled Congress in 2017-18.

Mitch McConnell didn’t want to end the filibuster, knowing that his party and his institution would suffer from its elimination for years to come. But if Democrats had insisted on eliminating it prior to 2017, McConnell would of course have declined to reinstate it once his own caucus gained a majority. Republican voters wouldn’t have stood for their party playing by the rules after Democrats had tossed the rulebook out the window. The fact that that particular norm was intact when the GOP took power gave McConnell political cover not to shatter it himself.

Democrats should bear that in mind when thinking of codifying Roe. Once one party uses federal authority to legislate on abortion, the other party will lose its procedural and normative excuses not to undo that legislation. If the left wants to maximize the chances of McConnell and Senate Republicans resisting demands from pro-lifers to pass federal abortion restrictions, they should take care not to set a precedent that would all but oblige him to do so. If they can get what they want on abortion rights through individual state referendums, they should pocket those victories and dare the GOP to do something about them. McConnell very well might decline to do so on federalist grounds, as infuriating as that would be to anti-abortion activists.

I doubt Democrats are wise enough—or principled enough—to let the states lead on this subject. But that would be best for them long-term, and for the country.