What Did We Just Learn?
If at first you don’t succeed, try try again.
That is the take home lesson from the religious right’s victory in Dobbs. They have finally succeeded in putting three rabid religious right “antis” on the Supreme Court who joined the other religious right Catholic justices to overturn a fundamental constitutional right women have relied on for nearly fifty years. The plotting and planning and money paid off. It took getting in bed with a sociopathic liar who wants to destroy our democracy, but the religious right sucked it up and became Trump’s whore to get the result they got with Dobbs. Apparently that’s how much they want to save fetuses and force women back into lesser status– barefoot and pregnant like they were before the Women’s movement.
The rabid right also has gained control over 30 state houses in the past 40 years and has packed them with flame throwing religious right lawmakers. In the short term our country should brace itself for even more horrible decisions and laws that will deconstruct years of human rights progress. But this fight ain’t over, baby!
We are the majority and we need to act like it!
What Can Be Done?!
Joe Biden is urging our federal government agencies to do everything they can to insure women have access to contraceptives (yes, the rabid right is going after that too!), morning after pills, pills that are used for medical abortions and available over the internet (you take two different kinds of pills early enough to produce an early miscarriage). Biden is limited in what he can do but has asked every federal agency to get creative.
What else?
- Use the Equal Rights Amendments and Language in State Constitutions to Battle Back in Every State
Dobbs says the states have the power to make decisions about abortion rights. States can now choose to treat women as equal citizens by letting them make their own choices about their bodies or limit their freedom and equality with restrictive abortion laws. Equal Protection clauses in state constitutions or in amendments to state constitutions can and should be used to battle back. If women do not have the right to make decisions about their own bodies they are no longer equal to men under the law in states across the country. The right to reproductive rights needs to be on the ballot in every state in the nation.
2000 female attorneys and 1000 male attorneys at law firms across America have stepped up and signed a letter decrying the Dobbs decision on the basis of Equal Protection under the law. These lawyers are volunteering to help women in their legal battles on a pro bono basis. Here is part of what they say in their letter:
“Today’s court … does not think there is anything of constitutional significance attached to a woman’s control of her body and the path of her life.” We find that disregard—and the disregard for half a century of precedent—both astounding and reprehensible. We also know that the burdens of this decision will fall disproportionately on those with the least access to healthcare, particularly on women of color, those in rural communities, and those without ample financial resources.
The effects of this decision are profound. The majority in Dobbs has cleared the way for states to commandeer a woman’s body from the very moment of fertilization and “force her to bring a pregnancy to term even at the steepest personal and familial cost.” Indeed, a girl too young to consent to sex under state law—or to drive, drink, or vote—may, under the majority’s ruling, be compelled to carry a pregnancy to term because a state takes a greater interest in the possibility of a life other than her own. This is contrary to the Constitution’s fundamental promise of free and equal citizenship under law.
In sum, with the Supreme Court’s decision in Dobbs, women’s fundamental rights to liberty and equality have been drastically abridged. Women’s right to make choices about our reproductive health and when and if to have or expand a family is now subject to the control of state legislatures. The court has failed to uphold the promise at the very core of the Constitution: the promise of liberty and dispassionate, fair and equal treatment for all under law.
Many state constitutions and amendments have language that supports equal protection under the laws of the state. The fight for abortion needs to be engaged in every single state. The states in blue in the map below already have equal rights amendments. The yellow states are ones where the ERA has passed one chamber. State abortion bans and restrictive laws should be challenged using the state’s own constitutional language wherever it exists. This fight is already happening. Judges in Florida and other states are staying abortion bans but that might only push back the abortion ban to a later time after these court battles are over. California just put a state constitutional amendment on the ballot in November that would explicitly protect reproductive rights in California. Illinois already has a Reproductive Health Act signed by Governor Pritzker thanks to the combined efforts of Personal PAC, Planned Parenthood of Illinois and the ACLU. Other states should follow suit.
What else should the Democrats do to counter the Court’s ruling in Dobbs?
2. Attorneys General Can Opt Out of Enforcing Abortion Bans!
Only vote for Attorneys General who vow they will not enforce laws that force women to carry an unwanted pregnancy to term and deprive women of the right to control their own bodies. Over 80 Attorneys General are already publicly saying they will not enforce these draconian anti abortion laws getting passed by Republican state houses. They need to win if they are up for reelection. https://www.vox.com/policy-and-politics/2022/6/25/23182868/district-attorneys-trigger-laws-abortion-ban-roe
What else?
3. Carve Out a Path to Pass the National Women’s Health Protection Act that Codifies Roe
The most direct solution for our country would probably be to pass the Women’s Health Protection Act in the Senate. It was already passed by the House in 2021. The Women’s Health Protection Act would make the right to abortion the law of the entire nation. The Dems need two more Senators with the balls to do a filibuster carveout. Joe Biden is finally on board with a filibuster carve out for reproductive rights, thank goodness.
Passage of the Women’s Health Protection Act in the Senate will currently run into the filibuster 60 vote buzz saw unless Democrats have the numbers to overcome the filibuster by creating a carve out. To do that the Dems need two or more stand up Senate Democrats who will be on board with carving out an exception to the filibuster.
If Mitch McConnell can create a carve out exception to the filibuster to bum rush his Supreme Court picks through the Senate (which is how we got this radical extreme Supreme Court), then the Dems should have no compunction about carving out an exception to the supermajority requirement for constitutional rights. So while they are at it, why not also pass voting rights legislation with a simple majority? Both issues target Constitutionally protected rights that a majority of Americans want.
Which senators will stand up for the majority in America that wants to codify reproductive rights?
Both Susan Collins and Joe Manchin claim to be shocked and amazed that these newly appointed justices are doing what everyone anticipated they would do once they were in power, namely overturn Roe no matter what mumbo jumbo garbage they said in their confirmation hearings in the Senate. So Collins and Manchin owe it to all of us to do the right thing and vote for a carve out from the filibuster for reproductive rights. But will they? Probably not!
If not, we need two more REAL Democrats in the Senate to overcome Manchin and Sinema who both refuse to alter the filibuster. In general, the Dems need more strong willed fighters instead of collegial statesmen to represent their interests in the Senate now that the anti-majoritarian religious right wing has become so powerful and so perverse. Who could we elect to stand up and fight in the Senate for the rights of the majority?
Here are the Democrats who will be fighters in the Senate:
Pennsylvania’s John Fetterman (running against Dr. Oz),
Wisconsin’s Mandela Barnes (running against Ron Johnson- need I say more?),
North Carolina’s Cheri Beasley,
Tim Ryan in Ohio (running against mega MAGA man JD Vance).
We must support their candidacies in every way possible- donate, send postcards, knock on doors. If just two of those Democrats win in 2022 and we keep the other Senate Dems, we will have enough votes to break through the filibuster impasse and get a carve out for constitutional rights.
How the Supreme Court Could Help Democrats Win More Congressional Seats
The Supreme Court’s overreach in Dobbs (and the coming attack on contraceptives) could be just what the doctor ordered to get the backlash energy Democrats need to win a larger majority in the Senate. In the suburbs there are a lot of outraged and fearful women who are Republicans, Independents and Democrats (and their suburban husbands who love them and need them to be happy and able to manage their reproductive lives). They will, I believe, vote for the Democrats come hell or high water in the midterms to counter oppressive radical religious right wing ideology that brought us to this turning point for our country. Modern American women are not willing to go back to 1800 to 1920 when most abortions were outlawed.
We can help get a blue wave by getting out the vote and making certain that voters in these states are well informed.
What else?
4. No Unopposed State House Races Where Voters in the District Might be in Favor of Reproductive Rights!
With the Supreme Court undermining the power of the federal government and granting more and more power to the states, the battle for state houses will be the key to future progressive advances. Many Republicans running for state legislative seats are running totally unopposed in red state districts. There is no Democrat in the race against them! Of course Republicans will win if there is no contest. This needs to stop. No more uncontested legislative races! We have to fight for every state legislative seat and flip state houses red to blue if there is even a chance they could win. If Democrats who are good candidates run good campaigns to be state representatives especially in suburban districts with narrow margins, the reproductive rights issue could be the game changer.
Now that Dobbs is a reality, there has been an almost instantaneous 10 point shift on generic ballots in favor of the Democrats. This shift is likely to grow even bigger as women hear about the abuses other women are experiencing in deep red states that are criminalizing abortion. These stories are already getting publicized. A 10 year old girl in Ohio who is 6 weeks pregnant and a victim of child abuse was referred by the physician who saw her for an abortion in Indiana because Ohio has an abortion ban. 56% of American women say the Dobbs decision will make their lives worse. I think that percent will increase as the reality sets in and American women in red states realize what Republicans in their state legislatures are doing to them.
What else?
5. Flip State Houses Red to Blue!
We need to flip state houses from red to blue. It is do-able and costs less than national races. Check out the States Project.https://statesproject.org/
This group has figured out how to effectively flip state houses red to blue. They look for the most electable people in key districts that have narrow margins and therefore the potential to elect a moderate, to run as Democrats, and then encourage and support their candidacies, with door to door campaigning to create relationships with the voters in the district with the goal of flipping red state legislatures blue.
Arizona is great example. Right now it is a red state legislature. But with just two more Democrats in each chamber, that state legislature would be controlled by Democrats instead. Even a narrow majority will make a huge difference in the laws that are generated. Yes, these districts have been gerrymandered, but when it comes to districts packed with motivated, riled up suburban women and Gen Zers who have had their constitutional rights shockingly removed by the religious right wing, I think all bets are off now. These will no longer be safe Republican districts because of the Dobbs decision.
6. We Cannot Let the GOP Win Back Federal Control of House, Senate and White House!!
This Republican Party has vowed to pass a national abortion ban. That would criminalize abortion, IVF, and contraceptives across the country in blue as well as red states. We cannot let that happen. This Republican Party cannot win back the House, Senate and White House if we hope to keep our democracy and our reproductive, civil and human rights.
Dobbs is not the last word on reproductive rights. This terrible decision must be the end of our complacency and the start of a new, smarter fight for our rights. This fight is about raw political power. Full stop. Democrats need to understand that and play that game instead of being nice guys who believe in bipartisanship. That boat has sunk. We are in a new world with a Republican Party that is out to undo democracy, our civil rights and reproductive rights– dragging America kicking and screaming back in time over 100 years. Vote like your freedom to live your life depends on it because it does.
P.S. In a future post we have to talk about how to change the composition of the Supreme Court. That needs to happen too.