Our Rigged Political System Comes for Roe

A radical Republican Party and a rigged Supreme Court effectively overturn Roe v. Wade, endangering women and ignoring the will of the majority

Progressive activists have been warning us that our increasingly radical Supreme Court would overturn Roe v. Wade for decades. Those warnings grew louder after Justice Anthony Kennedy retired and was replaced by Brett Kavanaugh. They reached a fever pitch after the death of Ruth Bader Ginsburg and the ascension of Amy Coney Barrett to the Supreme Court. Many “savvy” legal scholars and political analysts dismissed those fears, claiming that the Court would never do such a thing. Well, as usual, the defenders of the status quo who look down their noses at the activists — particularly women — on the front lines were wrong. Deadly wrong in this case.

Late Wednesday night, without even a hearing, the Supreme Court ruled 5-4 against a motion to block a radical new law in Texas that clearly violates the principles of Roe. The decision was confirmation of their refusal to act the night before when the law went into effect.

Some have argued that the Texas decision was made on procedural grounds and was not a ruling on the constitutionality of the law itself. While this is technically true, it’s impossible to ignore the fact that the Court allowed a clearly unconstitutional law that will risk women’s lives to take effect. This ruling is a clear invitation to other states to pass laws just as — or even more— extreme than the moral atrocity on the books in Texas.

The Texas law and the Supreme Court’s decision have induced justified fear and righteous anger across the country. Women are less free and less safe in America thanks to a radical Republican minority, a political system that gives that minority a massively disproportionate share of political power, and a Democratic Party unwilling or unable to take the tough actions necessary to protect women, immigrants, people of color, and everyone else targeted by the Republican Party. 

How We Got Here

AS Rebecca Traister wrote on Twitter yesterday:

These things keep happening over night. But they absolutely did not happen overnight. True of abortion, true of climate change. We wake up to individual horrors because so many were comfortable/powerful enough to sleep soundly through decades of alarms.

Many have written much more powerfully than I ever could about how we got here and what it means. I would especially recommend this essay by Traister from 2019.

For decades, the pro-choice side of the issue has been winning the battle but losing the war. Polling is very clear. The public supports Roe v. Wade and supports giving women the freedom to make choices about their bodies. A Pew Research poll from May shows that six in ten Americans support abortion being legal in all or most cases.

A Gallup poll from June found that 58% of Americans see Roe as precedent and only 32% want to see it overturned.

Support for abortion has been growing and opposition shrinking steadily for more than a decade. While Democrats are overwhelmingly more supportive, nearly a third of Republicans agree that abortion should be legal in all or most cases.

Yet, at the exact same time public support was growing for reproductive rights, Republicans at the state level have been making steady progress in restricting those very rights — an effort that culminated in last night’s Supreme Court decision. This is the exact opposite of how politics is supposed to work. Despite being on the wrong side of public opinion, Republicans fearlessly proceeded with their cruel agenda in lieu of political consequences.

None of this should be a surprise. It has been decades in the making. Overturning Roe has been an organizing principle of the conservative agenda since the original decision was handed down in 1972. Republicans can attack the law because they are invested in the hard work of politics in ways that Democrats aren’t.

First, the conservative movement has invested time and money in recruiting, training, and electing state legislative candidates. Up until recently, Democrats have been unable and unwilling to make similar investments. The consequences of that failure are devastating.

After winning power, these legislators lock in their power through gerrymandering and voter suppression. Texas is a rapidly diversifying state trending blue faster than anywhere else in the country. An influx of college-educated voters to suburban areas is one of the main factors making Texas a battleground state. These voters are usually the most ardent supporters of abortion rights. Instead of bowing to the will of their majority, Republicans just change the rules to empower the minority that supports their extreme agenda. They gerrymander the legislative districts and suppress the votes of those who disagree. It is cynical and malicious but also devastatingly effective.

Republicans have understood — in ways that Democrats haven’t — the Court’s ability to enact an agenda that is repeatedly rejected by voters at the national level. I don’t think Donald Trump would’ve been president if not for the Supreme Court. Many Republicans swallowed their concerns about Trump because they knew that no matter what happened, he would appoint a justice that would preserve the conservative majority in the Court. Democrats had a similar calculus but failed to prioritize the Court. More than four million people who voted for Barack Obama in 2012 sat out that election. In critical states like Wisconsin and Pennsylvania, the Green Party candidate received a share of the vote that significantly exceeded Trump’s margin of victory. In the campaign, we failed to use the Court as an argument to recalcitrant Democrats and in the years prior, and we failed to educate our voters on the centrality of the Supreme Court. And we failed to do all this because the Roberts Court had turned our elections over to billionaires and corporations, gutted voting rights, hobbled labor unions, and made it harder to stop climate change.

Where Do We Go From Here?

Ever since the Texas law went into effect, people have been asking what we can do about it. Unfortunately, this outcome was a long time coming, and there are no easy answers. Even talking about what Democrats can do to respond is deeply unsatisfying and rage-inducing.

During the campaign, President Biden promised to pass a law codifying Roe v. Wade as the law of the land. Despite Democratic control of the House and the Senate, this outcome was unlikely. Such a law would be subject to a filibuster, and there are not ten Republican votes. Moreover, Senator Joe Manchin would almost certainly vote against a federal abortion law. Even if the filibuster was abolished, we would need  Susan Collins or Lisa Murkowski, two very disappointing individuals, to vote with the Democrats. Despite the long odds of success, I think Democrats should call the vote. Everyone must go on the record — even Manchin. If it fails, a vote will help Democrats make the case that Republicans are extremists with an out-of-touch, unpopular agenda. The Texas law is deeply unpopular, and Democrats should make Republicans pay a price for it in Congress and on the campaign trail.

Of course, the Texas law is the direct result of a rigged political system that gives disproportionate power to a conservative, white male minority. Democrats could address that problem by passing the For the People Act and the John Lewis Voting Rights Bill. It’s unclear what more Joe Manchin and Krysten Sinema need in order to do the right thing. Maybe the health and lives of Texas women will force them to open their eyes.

In the long term, the best way to protect women’s rights is to add at least two justices to the Supreme Court. The demographics of the Court's current makeup suggest the anti-women’s health majority could be around for decades. While Court expansion has gained a lot of momentum in the last year, there is much more work to do to convince congressional Democrats and the public of the urgency of Supreme Court reform. Take Back the Court, an organization for which I advise, is leading the fight. You can support them here.

In the short term:

  • Support Texas Women: First and foremost, we can support the women targeted by this law. The Abortion Care Network supports providers and clinics, and this fund will help Texans pay for their procedure and get logistical help like a ride to the clinic. (The first two months of every new subscription to Message Box for the next two weeks will be split between these two funds.)

    Subscribe now

  • Support the Groups Fighting These Laws: NARAL-Choice and Planned Parenthood have been on the frontlines fighting for abortion rights. They need our support now more than ever.

  • HelpElect More Pro-Choice Women: Emily’s List, Run for Something, and the Democratic Legislative Campaign Committee are the groups on the front lines of training and electing down-ballot candidates.

The stakes for the upcoming elections in California, Virginia, and across the country in 2022 were already sky-high. A bunch of cruel misogynists in Texas and a radical Supreme Court just catapulted these stakes into the stratosphere.