There is no avoiding the culture war fight the Republicans are going to wage in 2022. So the Democrats might as well bring the fight to their own turf. That means run against the putative 2024 front-runner Donald Trump and his minions, pushing hard on January 6th and — fighting for abortion rights.
President Biden is eager for a fight over abortion — an issue he sees as politically advantageous after the conservative Supreme Court left in place the near-ban in Texas, senior officials tell Axios.
Why it matters: The Supreme Court appears to be barreling toward giving red states significantly more power to restrict women’s access to abortions.
State of play: The White House sees abortion as a potent issue ahead of next year’s midterms, with Biden under huge pressure on Afghanistan, inflation, crime and the border, Axios’ Sam Baker, Jonathan Swan and Alayna Treene report.
The Texas law, SB8, allows strangers to sue doctors, nurses, or even Uber drivers — anyone who performs or facilitates an abortion.
“I want to see the GOP defend the idea that your nosy neighbor can sue your aunt for driving you to the hospital,” a senior White House aide told Axios.
Biden announced “a whole-of-government effort to respond to this decision,” including his new Gender Policy Council, the White House counsel’s office, HHS and the Justice Department.
Part 2: All three branches of government engage on abortion
The White House wants to elevate the Texas abortion case even though aides know a high-profile fight over abortion rights will also energize Republicans.
That’s because Democrats say the sheer sweep of Texas’ law, and the highly unusual way it’s written, make it a juicy political target.
Democrats think the issue will especially help them with suburban voters, who hold the key to the House majority.
“This is a massive political gift to Democrats,” a senior House Democratic aide said.
Reality check: On the actual issue of abortion, Dems are losing.
They’re unlikely to stop this trajectory, no matter how well they do in midterms.
What’s next: A more straightforward abortion case — a Mississippi case that’s a likely vehicle for the conservative court to chip away at Roe — is teed up for the term that begins next month.
The other side: “I would be careful if I were them,” said an influential conservative legal figure, referring to Democrats.“The Texas law makes the Mississippi law look very reasonable,” the conservative said. “The more play the Texas law gets, the easier it is to uphold Mississippi. Because the Mississippi law is no longer the end of the world.”
🚨 Breaking: Florida Gov. Ron DeSantis said he might support a law that bans abortion after a fetal heartbeat can be detected, much like the Texas law. The details.
I very much doubt that the Texas law will make overturning Roe look good by comparison, which is what will happen with the Mississippi law would do. But who knows? A lot of people in this country are willing to believe anything. And if I had to guess, other states that are in the grip of this wild radical Trump base will follow the Texas law. How can they help themselves?
Here’s right winger Matthew Continetti on the issue, which I think is the more honest assessment of Republican concerns (as reflected in the fact that they have been noticeably silent about the Texas gambit.)
This first-term (one-term?) president hasn’t exactly inspired confidence with his handling of the coronavirus pandemic, inflation, illegal immigration, crime, and withdrawal from Afghanistan. To the contrary: President Biden is remote, inept, out-of-touch, and out-of-step. He’s on a downward political trajectory. His best chance of recovery is a break from the onslaught of bad news. He needs the media to shift topics.
And the state of Texas is ready to assist him.
Late in the evening of September 1, the Supreme Court decided 5-4 not to enjoin a Texas law that bans abortions after a fetal heartbeat is detected at about six weeks of pregnancy. The Court found that the law, Senate Bill 8, “presents complex and novel antecedent procedural questions on which they [the abortion providers appealing to the Court] have not carried their burden.” The most basic “complex and novel antecedent procedural” question is this: When the Court issues an injunction, it doesn’t unilaterally put a law on pause. It tells officials not to enforce a law.
But Texas officials don’t enforce the abortion restrictions in Senate Bill 8. Private citizens do. The law authorizes them to sue abortion providers or individuals promoting abortions in Texas after the six-week limit. How, then, can the Court enjoin a law that no one has enforced? And how can the Court judge the constitutionality of a statute that hasn’t been challenged correctly? Until that happens, the Court wrote, the Texas law remains in place.
Which might help Biden. The president, the vice president, Democrats in Congress, progressive activists, and their allies in the media denounced the Texas law with incredible speed. Why? Not just because they are passionate defenders of abortion. Because they sense a political opportunity. Biden said that he would “launch a whole-of-government effort to respond to this [i.e., the Court’s] decision.” Nancy Pelosi said that she would bring to the floor the “Women’s Health Protection Act,” which would eliminate practically all restrictions on abortion nationwide. Former acting solicitor general and al Qaeda lawyer Neal Katyal tweeted that Senate Democrats should break the filibuster to codify abortion rights. The disaster in Afghanistan vanished from the front pages. Stories on the Texas bill appeared instead.
These are stories that Democrats want to see. For the fact of the matter is that the Texas heartbeat law cuts against public opinion on abortion. “Most Americans do not want to overturn Roe v. Wade, but they have long supported restrictions on its use, including solid opposition to second and third trimester abortions,” wrote my American Enterprise Institute colleague Karlyn Bowman in 2020. The restrictions in the Texas law are imposed during the first trimester. They don’t include exemptions in cases of rape or incest. Abortion clinics say they are turning away women for fear of litigation.
What better material for a Democratic president and progressive movement eager to change the subject from their own incompetence to the fanaticism of their opponents? The subtleties of Senate Bill 8—the fact that its text says Roe may be a valid defense against it so long as Roe is controlling precedent—won’t be mentioned in the media firestorm. The media doesn’t do subtlety. It’s not their bag.
The politics of abortion are crosscutting and complex. I make no claim that the 2022 midterm or 2024 presidential elections will turn on the Texas heartbeat law or on the Court’s forthcoming decision in Dobbs v. Jackson Health—in which the Court could overrule Roe or weaken it beyond recognition. But I do not doubt that Republican candidates will have to take on this difficult and uncomfortable subject. Every Republican running for office will be asked whether he or she supports the Texas law and others like it. They better have an answer ready. And that answer better not sound like it came from Todd “legitimate rape” Akin, whose abortion-related gaffe in 2012 cost the GOP a Senate seat.
That was another election Republicans thought they had in the bag. They were disappointed. Will history repeat? Few people in 1973 understood the ways in which Roe would warp our constitutional system. Few people today can predict the fallout from either the Texas law or a potential reversal of Roe next summer—much less all of the events, scandals, and crises that will unfold in the coming year.
Let’s hope the Democrats handle this right. Lives depend upon it.