Politico, ACLU: Hey, guess what we discovered post-Dobbs? Federalism and elections!

AP Photo/Jacquelyn Martin

Hey, guess what the pro-life argument has been for 49 years post-Roe? It’s great to see our elite media and academics catch up to the hoi polloi. In the wake of the Supreme Court’s Dobbs decision, and in the wake of the “democracy is dying!” claims by supporters of Roe, it appears that the realities and benefits of both federalism and democracy are dawning on the pro-abortion Left.

Let’s start with the Politico column from NYU law school official Alicia Bannon, who reveals that states have sovereign governments and constitutions, too:

The Supreme Court’s rulings, based on the U.S. Constitution and the justices’ interpretation of federal law, have long been viewed as the primary bulwark for the rights that Americans enjoy.

But the federal courts are only part of the story. The United States is also governed by 50 state constitutions, each of which can potentially offer greater rights protections than the federal constitution.

First, congratulations on discovering federalism and the Ninth and Tenth Amendments in 2022. Second, the “primary bulwark” for the protection of rights isn’t the Supreme Court, but the Constitution itself. The Roe court arrogated that position by discovering a supposed constitutional right for something not even mentioned in the Constitution, so the confusion is understandable — although maybe less so from the director of a Judiciary Program at NYU Law. Adherence to the Constitution by the judiciary is a constitutional responsibility, so even the “bulwark” efforts by judges still have their basis in the Constitution, not the subordinate offices it creates.

Having discovered federalism, Bannon becomes an enthusiastic advocate … now:

For more than a century, the public, the media and even the legal world have often treated the state-level part of our justice system as an afterthought. Instead, we’ve placed our bets on federal law and the Supreme Court as the best way to achieve justice and protect our freedoms. But now, with the increasingly radicalized Supreme Court, it’s time for American society — and the U.S. legal system — to turn more attention back to state courts.

That’s more a measure of the lack of effective education on American civics among the public, the media, and “even the legal world” over the last century. In fact, it’s an outcome of the project by Woodrow Wilson to create the nonsense “living Constitution” theory in order to centralize power in Washington and especially in the federal executive branch. Federalism was always available, and in fact both sides of the abortion debate have done considerable groundwork for decades on these efforts. If Bannon thinks that no one’s been paying attention to state courts and state constitutions, that’s a measure of the attention she’s paid to this issue.

And it’s also rather ironic and worth noting that the only reason that Bannon and her allies can now appreciate federalism is because the “increasingly radicalized Supreme Court” provided the opportunity for it by vacating Roe. The irony of complaining that the Supreme Court returned to the constitutional structure of state sovereignty and subsidiarity while celebrating federalism is *chef’s kiss* perfect.

Meanwhile, ACLU executive director Anthony Romero offered some legal advice at The Nation. Perhaps abortion activists ought to focus their efforts on elections rather than lawsuits and constitutional arguments:

Make no mistake, the ACLU and our partner organizations will litigate whenever and wherever we can to protect abortion rights. In the aftermath of the decision in Dobbs v. Jackson Women’s Health Organization, there will be hundreds of restrictive laws and statutes for lawyers to scrutinize. Litigation, even in losing battles, can be useful. It can focus public attention and galvanize popular opinion. Good litigators will bring smart litigation to keep abortion legal in as many places as possible for as long as possible. If opponents are trying to take away our fundamental rights, we should make it as difficult as possible.

But while it may sound strange coming from the lawyer who heads the ACLU, the real path forward is not through the courts. We must turn to the political process and increase pressure on elected officials—especially at the state and local level. …

Looking toward the 2022 and ’24 elections, abortion must be at the center of the public debate. With as many as 85 percent of Americans supporting abortion rights, candidates from either party who don’t unequivocally support abortion rights should have nowhere to hide. Politicians who mumble their answer to the question, “Do you support abortion rights?” must be forced to start their answers with a simple “yes” or “no,” and provide specific plans to restore and protect access to abortion care. And we need to vote based on those answers.

Huh. You know what that sounds like? Democracy! Naah, can’t be … I was assured that the Supreme Court’s decision destroyed democracy. Again, let us take a moment to marvel in the irony in this call. The Dobbs decision actually and explicitly returned the issue of abortion to the people and its democratic processes, which allows for the very debate Romero now wants to have.

However, he may not like the results. “As many as 85 percent” of Americans may support some access to abortion — it’s in the ballpark of polling — but not Casey-level unrestricted access at all times. In most polling, a majority Americans are in support of first-trimester access but then favor sharp restrictions after that. If Romero’s activists force the Democratic party to adopt the Chuck Schumer-Nancy Pelosi approach of legalizing abortion on demand through all nine months, they will find themselves in a fringe of around 20% of Americans. And that will not bode well for such politicians, especially in the political environment of these midterms, where voters already see Democrats as extremists and bunglers to boot.

Nonetheless, elections and legislation are the proper forums for this question, and federalism is the proper application of subsidiarity in which it should take place. Glad to see that our elites have finally discovered what we have argued all along.