Negligent on Protecting Roe, the American Left Needs a Concrete Plan to Codify Abortion Safeguards
Clutching their laurels since the ’73 decision, Democrats have allowed the conservatives to slowly strip Roe v. Wade of all its potency. In light of Alito’s draft opinion, its past time they begin to fortify the legal justifications surrounding the landmark case.
Lacking any coherent legal strategy regarding abortion protections, Democrats and the American left wing more broadly have outright failed to coalesce around the need to oppose the incrementalist approach that conservatives have taken up in the courts and in state legislatures to test the stringency of the original 1973 Supreme Court ruling. As it stands now, Roe may still formally be the law of the land, but the ruling has been functionally defanged after almost 50 years of steady attacks from the legal right wing. And now, as the conservative wing of SCOTUS appears poised to strike it down altogether, millions of women nationwide will be hung out to dry in the absence of any action on the part of the Democratic Party.
One hindrance that the left has frankly brought upon themselves is the co-opting of blatantly conservative rhetoric that posits the question of if Roe was decided with the proper legal reasoning- i.e the Constitution’s implicit right to privacy, which the Supreme Court has derived from explicit language in the First, Third, Fourth, Fifth, and Ninth Amendments. Conservatives for decades(and even liberal legal giants, like, say Ruth Bader Ginsburg) have argued that this reasoning is faulty, that perhaps it was decided too abruptly and should have been a more gradual approach that included state legislatures and lower courts. Allowing this idea to infiltrate the modern legal zeitgeist is a failure of epic proportions, perpetuating and legitimizing the idea that Roe rests on weak case law and enabling conservative legal activists to work towards its ultimate demise.
Let me be entirely clear — Roe is actually very soundly argued for. The failure here worth pointing out on the part of the legal left is the absence of any effort to build up its legal protections in the face of conservative recalcitrance, including but not limited to the Fourteenth Amendment’s Equal Protection Clause. It can certainly be argued that restrictions on abortion unduly place a normative standard on women as being bearers of children first and foremost, which is an archaic and traditionalist idea and one that is misaligned with modern strides in eliminating these conservative gender roles. The law, of course, should reflect these changes.
Another area in which the left has reneged on their promise to protect Roe is their losing battle in the messaging war with conservatives. For all their shortcomings, of which there are many, conservatives have been an incredibly organized unit when it comes to certain issues, abortion being at the top of that list. Democrats have failed to construct any semblance of a PR strategy that destigmatizes the procedure as necessary healthcare, as a completely normal and safe practice that must be upheld at all costs. For the large part of the half century since the original decision, the only coherent messaging the Democrats have been able to construct is in the interest of fundraising for their candidates, and not in the interest of actually safeguarding the practice itself. That needs to change, and quick.
In no uncertain terms, the person responsible for the leak of the draft opinion to POLITICO is heroic, and the handwringing by Republicans to investigate the leak highlights their perpetual victim mindset approach. While it is essentially unprecedented for an entire draft opinion to leak before the official decision is handed down, what does it matter if these Justices are carrying out the fair and impartial will of the law?
Despite garnering perhaps the largest victory in legal conservatism in multiple generations, they are immediately pushing to oust the leaker in order to uphold an illusory veil of legitimacy of an institution that has almost none left — an institution that holds within it a man credibly accused of attempted rape; another man who is credibly accused of sexual harassment of a former clerk; and a partisan zealot associated with a religious cult, all of whom appear ready to vote in concurrence with Justice Alito’s opinion to reverse a half-century of jurisprudence on bodily autonomy. For a party that claims to be so concerned with upholding precedent, they seem to be guilty of the extreme judicial activism that they so often accuse liberal judges of.
In the face of an Orwellian post-Roe reality, the legal left and the left more generally do have room to inspire an overwhelming movement- a movement that can energize their base in a way that we have not seen in quite some time, and one that can propel them across the finish line in 2024. But that movement must start from the top, with the captain of the ship. Joe Biden’s lukewarm centrist approach to governance is not going to move the needle on this issue. I have written previously about the massive need to eliminate the filibuster and go nuclear on codifying Roe, on voting rights and a host of other issues facing the American public. This draft opinion represents a potential inflection point in his presidency, another issue that he can lean into with a full-throated commitment to protect abortion at the federal level as a constitutional liberty and avoid the draconian reality where trigger laws in conservative states will criminalize the practice almost immediately.
Alito’s draft decision in many ways is only the beginning of the conservative war on the right to privacy and all of the previous jurisprudence that rests upon it. This includes Griswold v. Connnecticut, the Supreme Court case that protects the right to purchase contraceptives without government interference; Lawrence v. Texas, the case that decriminalized same-sex intimacy, and Obergefell v. Hodges, the case that legalized marriage between gay couples. It is all on the table for the conservatives, which is exactly what they have been telling us for decades. For being the party of “small government,” the Republican Party seems all too willing to extend the immense power of the federal government into the homes and most intimate part of the lives of the American public, doing away entirely with previous court’s interpretation of an implicit right to privacy within the Constitution.
The two distinct realities that exist for Democrats going forward are simply allowing this minority rule and theocratic fascism to take hold of the country, or to make the easy decision to go all in and fight the Republican’s fire with more fire. That means first and foremost confronting Senators Manchin and Sinema with an ultimatum, an ultimatum that makes them choose between voting to eliminate the filibuster and joining the fight with the rest of the party, or be primaried out of office at the first possible juncture.
Biden’s bully pulpit can go a long way here, one of the most powerful tools he has to rally his troops in Congress behind the uphill battle to codify Roe v. Wade. He must fully back a federal law that preempts any state laws restricting access to abortion services, and push for its passing with haste so as to prevent the inevitable suffering of millions nationwide in the event of criminalization. This is no pipe dream in a current political reality where the Democrats control every single lever of elected government.
There is quite literally no more time to wait, as the bench seems ready and willing to strike down the law of the land in mid-June or early July, when it delivers most of its decisions before the end of the term in October. In the absence of much needed court expansion, a federal codification would be a good launching point for an unassailable right to abortion. It wouldn’t even be politically treacherous, as almost all polling done on the issue shows an overwhelming support for abortion, transcending age demographics, gender, and even political affiliation in many instances. The majority of people in red states want this, too. But to begin this fight takes courage from the top, something that seems like its too much to ask from our status quo, center-right president.