If the landmark decision is finally overturned after 50 years, it’s worth wondering why the hell we didn’t act in the last five decades to protect it.
Late Monday evening, Politico reported that the Supreme Court has taken a preliminary vote to completely overturn Roe v. Wade, publishing lengthy excerpts from a leaked copy of Justice Samuel Alito’s majority opinion tossing out the landmark 1973 decision guaranteeing the right to legal abortion. While it should be noted that abortion is still available everywhere until the decision is released officially, and the leaked judgment isn’t the final ruling, the draft opinion does speak to what Democrats have feared since Justice Amy Coney Barrett’s appointment to the Supreme Court in late 2020.
If the Alito decision as written does end up going through, it will represent the most spectacular liberal political failure in American history. Abortion access has been the third rail of American politics for decades, often popping up for conservatives to derail completely unrelated legislation if the Hyde Amendment provision banning federal funds for abortion wasn’t included in the bill language. And yet, though the Democrats have held majorities in Congress and the White House quite a few times over the last 50 years, they have never codified Roe into federal law. Not doing so left the door open to where we are today, where the right to abortion is all but dead, just waiting the last few weeks for its official SCOTUS funeral pyre.
The list of liberals who failed on abortion is long and exhaustive, but a few immediately come to mind. It’s not just the lawmakers — pundits in the allegedly liberal media grew fond of head-patting feminists and reproductive health advocates, assuring us that this day would never come. It was a starry-eyed and ultimately wrong and short-sighted political analysis, as Republicans slowly built up a sufficiently solid power base to force through enough conservative justices to make this day inevitable. The newswriters don’t get off scot-free either, having spent the better part of the last 50 years writing up scientifically inaccurate Republican talking points without questioning them — like the idea that six-week-old embryos have a heartbeat when they don’t even have a heart yet — which gave right-wingers a medical foundation for their crusade that doesn’t actually exist.
But all of that merely set the table for Republicans to pursue an anti-choice agenda with near-fanatical precision. It is the Democratic politicians who had a chance to pass a federal law protecting the right to abortion for nearly 50 years and never did who opened the door and welcomed them in. The Dems’ best chance was likely early in former President Barack Obama’s first term, when the party had nearly 60 votes in the Senate — enough to overcome any filibuster. But they declined. And even since then, anytime Democrats had a majority in both congressional chambers and simultaneous control of the White House, they could have taken action on the issue. All it would have taken would have been killing the filibuster. But no.
At this point, it could be argued that killing the filibuster would just lead Republicans to turn around and ban abortion again once they resumed control of the same levers of federal power. But why not make them make the unpopular vote? According to most polling, abortion access is politically popular by wide margins. As we’re seeing in the reaction to Politico’s report, the backlash to the court overturning Roe will likely be deep and negative towards conservatives.
Unfortunately there aren’t currently enough Democrats in the Senate who would vote to kill the filibuster, even to fulfill their most basic promises to liberal voters. A whole bunch of Democratic officials, in fact, can’t even bring themselves to say the word “abortion” in the first place. President Biden rather infamously avoids using the word, instead opting for euphemisms like “a woman’s right to choose.” Some in Democratic leadership even take it a step further, openly campaigning for anti-choice Democrats in campaigns against progressive counterparts. Such was the case for House Speaker Nancy Pelosi, who has donated to and supported the campaign of Democratic Rep. Henry Cuellar against progressive Jessica Cisneros in South Texas.
In a joint statement Monday evening, Pelosi and Senate Majority Leader Chuck Schumer raged at Republicans who appointed the five justices who will ultimately strike down Roe. “Every Republican senator who supported Senator [Mitch] McConnell and voted for Trump justices pretending that this day would never come will now have to explain themselves to the American people,” read the statement.
Notably absent from the statement was any mention of plans for continued action on the Women’s Health Protection Act, which would codify Roe if passed in the Senate. Nor was there any sense that Pelosi and Schumer, who have been in office for 33 years and 24 years, respectively, felt any responsibility to actually wield the considerable power they hold. It wasn’t until Tuesday morning that Schumer said he would call another vote on the WHPA, though he noted that he hasn’t yet spoken with potential swing votes on the issue.
Democrats have been caught flat-footed and action-less on abortion politics for five decades. Now, five ideologues with lifetime appointments will finally call their bluff.