The Fight Over Abortion Rights: How We Got Here, And Where We Might Be Going
The Supreme Court had its say. Now you might get yours.
Hello, Substack readers! It’s been a while, I know. I hope everybody had a nice summer.
Because it’s Labor Day Weekend — and because it’s been such a long time since I’ve posted — I thought I’d use these next few days to flag some recent articles on topics that are still very relevant now.
First up: abortion.
I’ve been writing about reproductive rights off and on for the last year, pretty much as soon as it became apparent the Supreme Court was likely to overrule Roe v. Wade. I’m fortunate enough to work alongside Alanna Vagianos, a senior reporter at HuffPost who is one of the nation’s best at covering this beat. I highly recommend reading and following her if you don’t already. Here’s a link for her twitter feed and here you’ll find her HuffPost archive.
As for my writing, I’ve focused on a few specific areas…
The Supreme Court
The ruling in Dobbs v. Jackson Women’s Health Care was not surprising, especially after Politico got a hold of a draft version in May. But it was still shocking in its breadth and ambition. The Supreme Court rarely issues decisions that instantly change life for so many people, let alone take away a right that it has recognized for decades.
And of course Dobbs was part of a series of rulings remaking the constitutional landscape. This year the Court also wiped away a whole class of gun restrictions, struck a major blow to the separation between church and state and undermined the federal government’s ability to issue basic regulations protecting health and safety.
Each of these decisions involved major shifts in constitutional doctrine. Each were part of a broader, decades-long campaign by conservatives to refashion America. And while we’ve seen a few of bursts of judicial activity like this in the past, the two previous instances in modern history were both instances of the Court updating its vision of the Constitution in order to keep up with changes in society and public values.
That’s not really the case here. If anything, this string of decisions has been unpopular, while pushing the law in the opposite direction of changing values. That’s a critical point and says something about the state of our democracy, as I explained in my wrap-up on the Court’s term: “It Took Just 10 Days For The Supreme Court To Change America As We Know It.”
Abortion in Michigan
I take a special interest in Michigan because I live here. But even if I didn’t, the state would be worth watching because the future status of abortion is very much up in the air — and dependent on what happens in November.
One reason is a 1931 law prohibiting abortion except in cases where the mother’s life is in danger, with no exceptions for rape or incest.
The law was unenforceable while Roe was still in force. And at the moment it’s still unenforceable, because of a series of lower state court rulings that have blocked prosecutions until the state’s Supreme Court can rule on whether the 1931 ban violates provisions of Michigan’s constitution.
But there’s no way to be sure how the Court will rule. There’s also no way to be sure whether the current, 4-3 Democratic majority on the bench will become a 4-3 Republican majority following the November election. (In Michigan, Supreme Court justices are elected.)
And that’s not the only way abortion access depends on the November ballot. Democratic Gov. Gretchen Whitmer is a staunch abortion-rights advocate. Attorney General Dana Nessel is too. Both have said they will do whatever they can to keep abortion legal. But both face tough reelection fights this year.
Meanwhile, abortion rights supporters have put forward a ballot measure that would amend the state constitution, inserting an explicit guarantee of reproductive rights. If it gets onto the ballot — which it should, and probably-but-not-definitely will — then Michigan voters could put the question to rest once and for all.
So that’s a lot and I’ve been following it. I first wrote about Michigan’s 1931 law and its possible effects back in April, before the Dobbs ruling was out. And then, right after the ruling, I wrote about the confusion in Michigan, when a major hospital chain here temporarily stopped abortions and cited possible prosecution.
It was just one example of how Dobbs has been affecting reproductive health even in places where abortion is supposed to stay legal.
The Politics Impact
As soon as Dobbs came down, a big question was about the political reaction. Polls showed that most Americans think abortion should be legal at least some of the time, and that even many who identify as “pro-life” get queasy at thought of government dictating that choice. But now that the guarantee of abortion rights was gone, would these voters get angry? And would they get angry enough to change the outcome of elections?
Increasingly it looks like the answer is “yes.”
The first signs were in the polls, in which Dobbs was instantly unpopular and the Supreme Court’s approval ratings fell. Soon there were more concrete signs, in the form of actual election results, starting with that state-level ballot question in Kansas.
An anti-abortion measure there failed and failed badly, even though Kansas is a reliably conservative state. And as I explained in my writeup on the election, a big reason was newly registered voters whose primary motivation was to make sure abortion remained legal in the state.
It was a telling development, although it came with caveats. Among other things, this was a direct, up-or-down vote on an abortion measure. Would the anger over Dobbs carry over into elections about candidates, giving a boost to abortion rights defenders (in most cases, Democrats) over abortion rights opponents (in most cases, Republicans).
The answer to that question also appears to be “yes,” at least based on evidence to date — including a recent special election in upstate New York. I wrote about that contest too, and the many reasons why it could be indicative of a much bigger trend.
There are still two months to go until Election Day and a lot could change by then. But for the moment, at least, Dobbs appears to have altered the political landscape dramatically, putting Republicans on the defensive in what had seemed, until very recently, to be a year for big GOP gains.
The tell-tale sign here is the way Republicans are talking about abortion. More and more, we see officials and candidates with records of supporting severe restrictions or outright prohibitions downplaying their position or disguising what it would mean.
As I wrote in my most recent article on this, which appeared just a few days ago, you know a politician is on the losing political side of an issue when they don’t want you to know what their actual position is. And that certainly appears to be the case with abortion rights.
I hope you find some/all of these articles interesting, if you haven’t read them already. I’ll be back soon with another set of articles from the summer, covering what was (in my world) the other big story of the season.
— Jonathan