I’m not feeling super-strong “norms” vibes here, I must say.
Note that Pelosi misstates the Court’s view on fundamental rights. The five justices in the Dobbs majority accept that a right can be constitutionally protected despite not appearing in the text of the Constitution. But it needs some historical provenance in American law. Marriage isn’t mentioned in the Constitution but because it’s been recognized legally before that document was written, the Court will recognize it too.
Is eliminating the filibuster in order to codify Roe now the key plank in the Democratic midterm platform? I’m not sure how else to read the end of her message.
It’s not like the party has anything else to run on.
Thomas’s concurrence won’t end up being a major liability for the GOP but it is a liability, as Pelosi’s reference to it in her message confirms. Democrats would be arguing either way today that the end of Roe means the end of contraception and gay rights, but the fact that Thomas explicitly called the constitutional underpinnings of those rights into question in his opinion was a gift to the other side. Without that concurrence, congressional Republicans could have accused Dems of being hysterical about the implications of Dobbs. But because Thomas laid it out in black and white, they’ll be answering awkward questions about it from now until November.
The truly interesting part of the message isn’t the detail about ending the filibuster, which is transparent turnout bait for disaffected younger Democrats before the midterms. (Although it is kind of interesting that Pelosi seems to have given up on convincing Manchin and Sinema to go nuclear, stressing that the party needs to add to its majorities to make change happen.) Nor is the interesting part the fact that she continues to misstate what the Women’s Health Protection Act would do. Contrary to what she says about codifying Roe, it would go beyond Roe by effectively authorizing abortion on demand for the duration of pregnancy. That would expand abortion rights in red states dramatically, not merely return the country to the Roe status quo.
The interesting part is that she’s already lining up bills to force the House GOP to take uncomfortable votes, something I predicted would happen yesterday. I think she has the right idea politically with the bills she’s choosing too, zeroing in on restrictions that the average American would find onerous or intrusive to a weird degree. Do House Republicans agree that red states shouldn’t be allowed to bar their residents from traveling to other states if they’re suspected of wanting an abortion? Do they agree that red-state law enforcement shouldn’t be able to conduct “digital dragnets” of women’s Google histories, etc, for evidence that they’ve aborted? Do they agree that the cops shouldn’t be looking for ways to probe people’s mail in hopes of intercepting abortion pills sent from out of state? Do they agree that women shouldn’t be criminally liable for abortions performed on them?
How much of a woman’s personal privacy are Republicans willing to violate in order to police abortions? That’s what Dem legislation in the House and Senate should be aimed at discovering. The scarier Republicans look, the more disaffected lefty voters may feel motivated to turn out in November.
Especially if they have reason to believe that Republicans might eventually nuke the filibuster themselves in order to pass a federal abortion ban. Watch Michael Steele, who ran the RNC several lifetimes ago:
I, uh, do not share his opinion that Democrats have a “very good chance to hold the House.” (What?) I also do not share his opinion that ending the filibuster is the first thing the GOP will do if they take back Congress. It would be pointless to do so until they control the White House too.
I do share his opinion that McConnell’s assurances that the Senate GOP won’t end the filibuster to pass a national abortion ban are less sturdy than maybe even McConnell appreciates. It won’t be easy for pro-lifers to overcome that — they’ll need more than 50 Senate seats to make it happen, as pro-choice Susan Collins and institutionalists like Mitt Romney won’t go along. But if the GOP ends up with 56 seats, say, in 2025 (which isn’t out of the question) and a Republican president, and the base begins demanding that they put blue-state abortion mills out of business, it’ll be hard for Republicans to say no. You don’t pass on an opportunity to own the libs as special as that without guaranteeing a primary in your next election.
Does McConnell want to be in the position of having to defend Gavin Newsom’s authority to turn his state into a big abortion theme park? Even if he tries to do so by reminding righties, correctly, that ending the filibuster to ban abortion nationally means Democrats will be able to legalize it nationally once they’re back in power, I doubt pro-lifers will be deterred. “Let’s just do it and be legends,” they’ll say.
I wouldn’t bet heavily against it happening.
I’ll leave you with Peggy Noonan celebrating the end of Roe and calling on the GOP in the aftermath to become a party that “helps women.” I wrote about that yesterday too. There *is* a faction of Republicans who want to follow up Dobbs by passing new laws to make child-rearing financially easier on women who may now end up having to carry to term. But I suspect it’s a smallish faction. You can’t help the libs and own them at the same time, and of those two priorities, we know which one must yield.
WATCH: Republicans should “use this victory” of the Supreme Court overturning Roe to “change” and become a party that "helps women," @Peggynoonannyc says.@KimberlyEAtkins disagrees and says the party has "set their tone" by placing “litmus tests” on Supreme Court nominees. pic.twitter.com/GUD2lJtl2f
— Meet the Press (@MeetThePress) June 26, 2022