Im-Politic: Abortion Really Did Prevent a Red Wave, Part II

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abortion, Arizona, Associated Press, democracy, Democrats, Dobbs v. Jackson Women's Health Organization, economy, Edison Research, exit polls, Fox News, Im-Politic, inflation, midterm elections, midterms 2022, National Opinion Research Center, Nevada, New Hampshire, Pennsylvania, Republicans, Roe vs. Wade, Supreme Court

 As observed on Friday, U.S. midterm elections are really collections of state and local elections. So it’s crucially important to recognize that the exit polls on these races – including in the closely contested swing state races whose outcomes have been vital for determining control of Congress – show just as convincingly as the national poll results that mishandling the abortion issue was a huge mistake for Republicans.

In fact, as I first saw it weeks ago, even though large numbers of variables always influence all such votes, strong GOP support for the Supreme Court’s take-back of national abortion rights and for enacting sweeping bans in its wake, turned out to be a huge enough mistake to explain most of the Republican under-performance in swing states that as of this writing could cost them both the House and Senate.

As with the national level, the evidence for these propositions at the state level (the focus of this post) comes from two leading exit polls. We’ll start with the data from the survey conducted for the Associated Press (AP) and Fox News by the University of Chicago’s National Opinion Research Corporation, mainly because it looked at more individual states than the sounding by Edison Research for other major news networks, and because it contains state-level figures on that odd quirk pointed out in yesterday’s post: the tendency of many more respondents to brand abortion as the single most important factor behind than designated it as the most important issue facing the country.

That distinction – which I still find head-scratching – seems to account for much of the failure of so many pollsters to pick up on the significance of abortion in the weeks and months before Election Day. Opinion researchers evidently assumed that the wide lead over racked up by the economy over abortion when voters were asked about their top concerns would translate into an election completely dominated by economic issues, and therefore big Republican gains. But it didn’t, and the greater-than-expected influence of abortion on the actual voting looks sufficient to have swung the swing states in the Democrats’ favor.

Let’s kick off with Nevada, since incumbent Catherine Cortez Masto’s (typically narrow) win over Republican Paul Laxalt has just assured Democrats continued control of the Senate. When AP/Fox asked voters views on “the most important issue facing the country,” they responded almost identically like the country as a whole, giving “the economy and jobs” a majority (52 percent) and answering abortion just nine percent of the time.

Yet when it came to identifying “the single imost important factor” behind their vote, inflation’s margin over abortion was a much smaller 54 percent to 25 percent.

Moreover, it’s clear that voters motivated mainly by abortion were opposed to the overturning of the 1973 Roe vs Wade decision. In the AP/Fox survey, Nevadans took a “pro-choice” over a “pro-life” stance by a landslide-like 69 percent to 31 percent. And of that 69 percent, nearly half were “angry” about the Roe-overturning Dobbs ruling.

Voters in neighboring Arizona, where another loss helped kill GOP chances of capturing the Senate, gave the AP/Fox pollsters similar answers. They named the economy the country’s most important issue by 45 percent to 15 percent. But they said that their own vote was determined chiefly by inflation over abortion by a slimmer 50 percent to 24 percent count.

In addition, 62 percent of Arizona voters favored legalizing abortion in all or most cases with only 38 percent supporting a ban in all or most instances. And 35 percent of them described their views about the high court’s Dobbs ruling rescinding abortion rights as angry.

But this pattern isn’t simply a Mountain State phenomenon. In Pennsylvania, Republicans thought they had a great chance to hold a Senate seat because of Democratic candidate John Fetterman’s health problems and supposedly far-left views.

There again, a majority (51 percent) of voters said the economy was the country’s most important issue, and only 12 percent named abortion. But inflation beat abortion as a the key vote motivator by just 50 percent to 24 percent.

And in the Keystone State, too, voters supporting legalizing abortion in all or most cases by 65 percent to 35 percent, with those professing to be angry about Roe’s demise totaling 35 percent.

In New Hampshire, Republicans thought they could flip the Senate seat held by incumbent Maggie Hassan. On the “most important issue facing the country” question, they chose the economy over abortion by 50 percent to 13 percent. Yet on the “single most important factor” shaping their vote, that lead shrank to 48 percent for inflation compared with 23 percent for abortion.

In New Hampshire, “pro-choice” views topped “pro-life” views by a yawning 73 percent to 27 percent, and nearly half of all voters (47 percent) declared themselves angry about the Dobbs decision.

The Edison survey, again, didn’t ask the “most important issue facing the country” question in its exit poll. But it, too, found much more prominence given to abortion, and more heated opposition to the strike-down of broad abortion rights, than was apparent from the pre-election surveys.

In Nevada, Edison found that 36 percent of voters named inflation the “most important issue to your vote” – not overwhelmingly ahead of the 28 percent naming abortion. Nevadans backed broad access to abortion by 66 percent to 29 percent, and fully 35 percent were angered by the Dobbs ruling.

According to Edison, Arizonans prioritized inflation over abortion by a slim 36 percent to 32 percent. Broad abortion legality out-polled broad illegality by 63 percent to 35 percent, and those angered by the Supreme Court’s latest abortion decision totaled an impressive 40 percent.

In Pennsylvania, Edison researchers found that abortion actually beat out inflation as voters’ biggest motivator by 37 percent to 28 percent. Pennsylvanians took “pro-choice” positions over “pro-life” positions by a wide 62 percent to 34 percent, and 39 percent expressed anger over the Dobbs ruling.

Finally, in New Hampshire, Edison reported that inflation edged abortion by just 36 percent to 35 percent as the biggest factor behind voter decisions. “Pro-choice” backers exceeded their “pro-life” counterparts by 68 percent to 29 percent, and those angry due to the overturning of Roe vs Wade numbered a considerable 42 percent.

Incidentally, another major surprise in both sets of exit polls was the importance respondents attached to “the future of democracy in this country,” as AP/Fox called it. In nearly all the states examined above, this issue registered in the low- or mid-40 percent range as “the single most important factor” behind individuals’ votes.

But it’s difficult to understand whether Democrats or Republicans benefited on net, because members of both parties have expressed significant but significantly different sets of anxieties about the subject.

The numerous factors influencing midterm election results include national issues, state and local issues, candidate personalities, voter turnout, and changing demographics. Moreover, the lines separating these issues are rarely blindingly bright, or even close.

But the surprisingly great salience showed by abortion issues in the post-election exit polls, in contrast to the findings of pre-election polls, tells me that my hunch about the political impact of the Dobbs decision was well-founded. As was the case with no other issue, its announcement (on June 24) gave the Democrats a mobilizing cause when they had absolutely nothng going for them before. That’s why this gift looks like the single development most responsible for turning the Red Wave into a Red Trickle – at most.

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Im-Politic: Abortion Really Did Prevent a Red Wave, Part I

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2022 election, abortion, Associated Press, Dobbs v. Jackson Women's Health Organization, economy, Edison Research, exit polls, Fox News, Im-Politic, inflation, midterms 2022, National Opinion Research Center, NPR-Marist Poll, politics, polls, Red Wave, Republicans, Roe vs. Wade, Supreme Court

At the risk of blowing my own horn, I think it’s of more-than-usual interest to report the evidence that I’ve been proven right on my prediction that the Supreme Court’s decision to strike down abortion rights, and Republican support for such efforts, would be nothing but trouble for the GOP in this year’s mid-term elections.

Indeed, the exit polls – which, to be fair, are preliminary at this point – show that public anger at the Dobbs decision, and fears of it spurring a wave of draconian state-level and even federal abortion bans, influenced voting decisions nationally and in key swing states nearly as much as resentment over the state of the economy. And this development supported, in spades, my belief that whereas before Dobbs, Democrats had little or nothing going for them as the election approached, the Supreme Court gave them something. If anything, though, I underestimated how big this “something” would be, for it appears important enough to explain by itself why the “Red Wave” widely expected didn’t materialize.

Let’s start with with a survey conducted for some major broadcast and cable news networks by Edison Research. Practically up to Election Day, polls were showing that inflation was voters’ most pressing concern, with abortion trailing far behind. For example, this NPR/PBS/Marist College sounding from late October found the margin to be 36 percent to 14 percent among adults and registered voters, and 36 percent to 11 percent among those saying they’d “definitely vote” in the contest.

In addition, respondents believed that Republicans could control inflation better than Democrats by nearly two-to-one. No wonder so many in the GOP was so optimistic. 

But Edison’s exit poll found a much smaller margin for inflation’s paramount importance –  just 31 percent to 27 percent for abortion.

Findings like this, however, can be of only limited value, because Americans can be concerned about various issues for different reasons. So it was smart of Edison to publish a party breakdown. And with abortion ranking as “the most important issue for your vote” by 76 percent of Democrats but only 23 percent of Republicans, the Dobbs decision and its aftermath looked like definite political losers.

Backing up this conclusion: According to Edison, 37 percent of voters viewed the overturning of the 1973 Roe vs Wade high court decision establishing a privacy-grounded right to an abortion to some extent with “enthusiasm” or “satisfaction,” while 60 percent reacted with “dissatisfaction” or “anger.” And nearly two-thirds of that 60 percent were angry.

The second major exit poll is one conducted for the Associated Press and Fox News by the University of Chicago’s National Opinion Research Center. Its findings came with a major quirk. As with so many pre-election surveys, respondents ranked the “economy and jobs” as “the most important issue facing the country” by far. It claimed the top spot for 48 percent of those contacted versus just nine percent for abotion. In addition, respondents overwhelmingly (78 percent) thought the economy was in “not so good” or “poor” condition, and gave President Biden poor grades on handling this challenge.

But many more respondents (24 percent) called abortion “the single most important factor” behind their vote (versus 51 percent for the economy). And again, the decided (61 percent to 39 percent) backing for “a law guaranteeing access to legal abortion nationwide,” and the emotions registered over Roe’s demise (41 percent “happy” or ”satisfied,” 59 percent dissatisfied or angry, and 33 percent angry), demonstrate unmistakably how the issue cut politically against more powerfully than generally anticipated against Republicans. All the more so given how close so many key state and local elections were.   

And speaking of these state and local elections, since especially for matters like control of Congress, what counts most are those results (particularly for the supposed swing states where the GOP saw real promise of victory), not the nation-wide findings. As I’ll show tomorrow, the state and local results, too, all but clinch the case that the Dobbs ruling dashed those Republican hopes.

Im-Politic: More Reasons to Think Americans Aren’t So Divided

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abortion, affirmative action, college admissions, Dobbs v. Jackson Women's Health Organization, education, gender, higher education, Im-Politic, LGBTQ, minorities, polarization, politics, polls, public schools, race relations, social issues, Supreme Court

RealityChek regulars know that a theme to which I keep returning centers on intriguing evidence that Americans’ views on supposedly polarizing social issues aren’t nearly as polarized as the positions taken by activists on all sides.  Indeed, the public’s views are a triumph of both common sense and a spirit of compromise that’s continually overlooked by the political class across the spectrum. (See, e.g., here on the overall national mood, and here on abortion – a subject of special interest lately given the Supreme Court’s June decision to reject the idea of a Constitutional right to privacy and therefore to abortion.)

So I’m pleased to report new findings of equally surprising and encouraging consensus on two other supposedly divisive wedge issues.

The first is affirmative action in higher education admissions, whose future (for the time being) will be decided by the Supreme Court beginning later this month, when cases challenging such racial preferences will be heard.

If the public opinion has anything to do with the final outcome, however, these programs will clearly be toast – at least according to research summarized in this Wall Street Journal column. As noted by the author, retired University of California, Santa Cruz literature professor John Ellis,

“A 2022 Pew Research Center poll found that 74% of Americans oppose the use of race in college admissions. Even more surprising, 68% of Hispanics, 63% of Asians and 59% of blacks also opposed it. The same applied to both political parties, with 87% of Republicans and 62% of Democrats objecting.”

Most stunningly, even the African Americans who are the main intended beneficiaries of race-influenced admissions policies now strongly oppose the practice – along with three-fourths of the entire country.

Further, Ellis cites referendum results showing that uber-liberal California is off the affirmative action boat, too.

The second set of findings concerns the emotionally fraught matter of whether subjects like gender identity, sexual orientation, gay rights, and trans rights should be taught to pre-college students, and whether such materials on these “LGBTQ” topics belong in these students’ assigned reading.

A national survey from the University of Southern California (brought to my attention in this Washington Post article) makes clear that Americans are strongly opposed to these subjects in elementary school education, but much more open to bringing them into high school classes.

Specifically, the share of respondents agreeing that primary school students should learn about these subjects was only between 28 and 30 percent. But roughly twice as many Americans were fine with including LGBTQ subjects in high school curricula.

Somewhat oddly (at least to me) support for assigning LGBTQ-themed books was a good deal lower for both grade school students (18 percent) and for high school students (38 percent).

All the same, though, a strong consensus view – and one that should make intuitive sense as a starting point for making policy – shines through: Little kids just aren’t ready to be exposed to new challenges to longstanding ideas about gender identity and such. High school students? Much more so.

Of course, as we learned earlier this year with the Supreme Court’s latest abortion ruling, the fact that the public has figured out pragmatic ways to view complex social issues (simply put, supporting a broad right to an abortion early-ish during pregnancies and increasing restrictions as the pregnancy proceeds) is no guarantee that American leaders will be able, or want to, agree.

But as I pointed out in the above-linked abortion post, a powerful lesson taught by U.S. history has been that the Supreme Court “is most successful when it pays attention to public opinion, and runs into its greatest troubles when it gets too far ahead of or too far behind these attitudes.” The same surely applies to elected politicians and activists. Let’s just hope that all of them can get with the common sense approaches favored by Americans before further inflammatory actions really do produce dangerous and lasting national divides.

Im-Politic: A New, Promising but Still Flawed Form of Conservatism

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abortion, America First, China, Christianity, conservatism, crime, culture wars, Dobbs v. Jackson Women's Health Organization, education, family policy, foreign policy, identity politics, Im-Politic, Immigration, industrial policy, inflation, national conservatism, politics, religion, Roe vs. Wade, sovereignty, Supreme Court, Trade, wokeness

Don’t get me wrong. It’s not like I’m not grateful to have been invited to last week’s third National Conservatism Conference. The interest displayed by this crowd in economic policy ideas that depart dramatically from the right-of-center’s longstanding free market dogmatism was especially gratifying, and there was no shortage of thought-provoking and compelling speakers.

It’s just that my four days at the session left me unconvinced that National Conservatism as it presently seems to be constituted can create or contribute to a winning American political coalition. The main problem: Most of those spearheading the drive to establish National Conservatism as a major national force haven’t recognized which culture wars they should be fighting, and which they shouldn’t — and how this failure to discriminate is endangering other objectives that the movement (and others) rightly deem crucial.  In fact, unhappiness expressed to me by more than a few conference attendees with the stances on social and cultural issues taken by those putative leaders make me skeptical that it’s a movement yet to begin with – or can be if their vision prevails.

The economic dimension of national conservatism, at least judging by the presentations and hallway conversations, is not only politically astute; it’s substantively sound. All the speakers who addressed these issues – including such nationally prominent figures like Florida Governor Ron DeSantis, and the state’s Republican Senators Marco Rubio and Rick Scott (the event was held in Miami) supported smarter, more restrictive trade and other economic policies (especially toward China), reduced immigration inflows and genuine border security, and federal policies to promote strategically important industries and to ease economic pressures on the middle and working classes.

The same goes for National Conservatism’s critique of the overly, and often recklessly, adventurist foreign policies pursued by the mainstreams of both major political parties for decades.

But the conference organizers and another set of speakers seem wed to other goals and measures that are already backfiring among the American electorate and that, intriguingly, clash with other elements of their agenda. The most important by far were near-total opposition to abortion and a determination to tout the United States as a “Christian nation.”

The political folly of these priorities couldn’t be more obvious. As I’ve written, there’s long been a strong national consensus favoring the right to an abortion early-ish during a pregnancy and then favoring broad restrictions later on with significant exceptions (rape, incest, life of the mother, health of the mother). Indeed, that’s why comparable majorities have supported maintaining the abortion policy framework established by the Supreme Court’s 1973 Roe vs. Wade ruling – which was entirely consistent with that common sensical compromise. P.S. Contrary to the claims of the extreme pro-lifers on an off the Court, Roe gave states plenty of latitude to enact all manner of abortion curbs. (The other major misconception or falsehood surrounding Roe comes from the pro-choice movement: It never established an unfettered right to an abortion.)

If you’re skeptical, consider that the day that a draft of the Supreme Court’s eventual decision striking down Roe was leaked to the press (May 3), Republicans held a 4.1 percentage point lead in the RealClearPolitics.com average of polls gauging the public’s preference for control of Congress in November’s midterm elections. The latest figures show Democrats with a 1.1 percentage point lead in the so-called Generic Ballot.

It’s true that abortion isn’t the only reason, that the actual votes determining control of Congress aren’t cast nationally but state-by-state, and that Republicans hold enough built-in advantages in the Congressional map to keep their hopes of prevailing very much alive. But the polls also show that the Court’s Dobbs decision, the enactment of and efforts to enact near-abortion bans in Republican-run states that the ruling has permitted, and GOP talk of more such moves (including on the national level) is increasing Democrats’ interest in voting and boosting the party’s prospects. (See, e.g., here.) And not so coincidentally, Republican candidates and leaders all over the country are backing away from hard-line anti-abortion positions.

Adamant opposition to abortion in practically all circumstances also seems to clash violently with other stated National Conservative positions. For example, many speakers at the conference emphasized their support for individual liberty. But what about the right of women uninterested in becoming mothers to lead the lives they wish? Even if the unborn must indeed be deemed human life very early in pregnancies, should the wishes of those women count for absolutely nothing the minute they conceive – and simply because they failed to take adequate precautions, or because precautions taken failed? According to many, and possibly most, at the conference, the answer is “Yes.”

The repeated references to America as a Christian nation are just as problematic. For reasons like those suggested above, if that’s a rationale for insisting that U.S. policies conform with scriptural teachings (and Section 4 of this “Statement of Principles” by the movement’s leading lights certainly suggests this “Where a Christian majority exists” – i.e. in most of the country), that simply won’t wash with big majorities of voters. But the historical arguments advanced for this view don’t impress, either.

Sure, the Founding Fathers were Christians, and for the most part, observant Christians at that. But so what? The England they came from was overwhelmingly Christian. What else realistically could they be? For similar reasons, the Founders were ovewhelmingly white, too. Does that mean that America should be seen as a Caucasian nation?

And does Christian dogma really deserve much credit for the ideals that make up the American creed of freedom of expression and conscience and other major liberties for the individual; representative, accountable government; equal justice under the law; and the like? Clearly, in most of Christendom at the time (e.g., Russia, Spain, Germany) these notions were unknown or actively rejected. Instead, the great American experiment in self-government is rooted in specifically English thought and practice. And ironically, the major contribution made by Christianity that hasn’t been present outside Europe has been the faith’s willingness to leave big swathes of human life to secular institutions and authorities (as in Jesus’ admonition to “Render to Caesar the things that are Caesar’s, and to God the things that are God’s.”)

Even worse, precisely because they’re so unpopular as well as intellectually feeble, National Conservatism’s focus on these particular culture wars is weakening the ability of the entire conservative movement (except the libertarians) to fight effectively the culture wars that must be fought – specifically, over woke school public curricula; the metastasis of left-wing authoritarianism in so many major, powerful American institutions; and the related spread of divisive identity politics.

I have nothing but respect for those National Conservatives I met – and other Americans – to declare that they’re less concerned with winning politically than with remaining true to their consciences. But their version of the perfect is shaping up as a powerful enemy of the good and formula for defeat – especially if they wish to contend, as they clearly do, in an arena that rightly values the art of the possible.

That’s why I was so encouraged to find out that many of those I met at the National Conservatism Conference agreed that hard-line anti-abortion stances and pro-Christian nation preaching need to be dropped if any of National Conservatism’s other worthy causes are to be advanced.

For me, nothing could be clearer than the following as a recipe for political victory and national well-being: focusing tightly in an America First-type way on  confining U.S. foreign policy to advancing and protecting U.S. sovereignty and core security (especially against foes like China), on taming inflation and building sustainable prosperity; on securing the border; on fighting crime; on removing propaganda from public schools; on preserving a strong voice for parents in their children’s education; and on resisting the intolerant woke and rigid identity politics ideologies being pushed by our most powerful institutions.

National Conservatism as it exists now is close to being on board. If it can go the extra mile, show better judgment politically, and accept a more inclusive, more historically accurate view of “Americanism,” I’ll be happy to join its ranks.

Following Up: Sense and Nonsense in the Abortion Debate

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abortion, abortion rights, birth control, Clarence Thomas, Constitution, contraception, Dobbs v. Jackson Women's Health Organization, Following Up, gay marriage, Ninth Amendmen, Planned Parenthood of Southeastern Pennsylvania v. Casey, privacy, Roe v. Wade, same-sex marriage, Samuel Alito, Supreme Court

Even by the standards of the shameful misinformation- and sheer ignorance-dominated era in which we live, the national abortion debate is noteworthy for the shameful misinformation and sheer ignorance it’s generated, So I thought it would be useful to provide some crucial correctives.

First, the 1973 Supreme Court Roe v. Wade ruling just overturned by six of today’s Justices did not create an absolute Constitutional right to an abortion. That majority opinion specifically stated that

“appellant [Jane Roe, the pseudonym of the pregnant woman who brought the case] and some amici [individuals and organizations that provided supportive “friends of the court” briefs] argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant’s arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman’s sole determination, are unpersuasive. The Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.”

The Roe majority added its agreement with prior federal and state court decisions that, although the right of privacy “is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant.” .

Second, as a result, “codifying Roe” through Congressional legislation, as sought by many critics of the Court’s Dobbs v. Jackson [Mississippi] Women’s Health Organization ruling overturning Roe, would not create an absolute Constitutional right to an abortion, either. In fact, the specific legislation offered in the House and Senate would clash violently with both the Roe and the follow-on 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey decision by preventing the state or federal governments from imposing any limits on abortions “after fetal viability.” as long as “in the good-faith medical judgment of the treating health care provider, continuation of the pregnancy would pose a risk to the pregnant patient’s life or health.”

Third, whatever was contained in legislation establishing national abortion rights, an act of Congress could well wind up providing only the most short-lived of guarantees. For that law would be likely targeted for abolition as soon as anti-abortion politicians gained sufficient control of both Houses of Congress and/or the Presidency (depending of course on whether a majority achieving this goal was veto-proof). And if the Senate filibuster is ended – another goal of many abortion rights backers – scrapping an abortion rights law would be even easier.

Fourth, I wrote on Friday that a Constitutional right to privacy is essential for any political system like America’s that claims to value individual liberties, whether it’s explicitly mentioned in the U.S. Constitution or not. As with all legitimate rights, it can’t be absolute – because in principle and in real life, too many of these can come into conflict. But without an underlying right to privacy, no limits on government’s authority to control individual behavior would exist save those that are explicitly mentioned in the Constitution.

These are numerous and important (like freedom of expression and religion, the right to keep and bear arms, to be protected against unreasonable searches and seizures). And although it’s often overlooked, the Ninth Amendment holds that “certain rights” not enumerated in the Constitution must be “retained by the people.”

But the text of the Ninth Amendment offers no examples or guidance of any kind. And without an underlying right to privacy, it’s not the slightest bit difficult to understand that despite the assurance offered by the Dobbs majority, many other current individual liberties could be endangered. Nor is the evidence limited to Justice Clarence Thomas’ opinion concurring with the Dobbs ruling, which argued that with the right to privacy out of the way, Supreme Court rulings legalizing contraception, same sex marriages, and same sex relationships should be overturned with the same logic.

Even now, politicians in some states are moving to outlaw certain kinds of birth control devices. And it’s surely pertinent to note that Dobbs opinion author Justice Samuel Alito – who insisted that “It is hard to see where we could be clearer” in stating that the majority opposed equating the legalit of abortion and the legality the other forms of intimate behavior mentioned above – himself opposed the 2015 pro same-sex marriage decision using the exact same kinds of arguments he made in Dobbs. So I certainly think he could have been clearer.

But there’s another important reason to prize a right to privacy.  It has to do with the nature of constitutions themselves. Their whole point (unless they’re the phony kind concocted by dictatorships) is establishing limits on government. Why else bother with such exercises? And what set of limits on government is more crucial than those determining how it can and cannot treat private individuals’ behavior? 

These four aspects of the abortion rights debate certainly don’t exhaust the list of  falsehoods and plain old hare-brained ideas warping a controversy that’s otherwise entirely legitimate and necessary. But the sooner they’re recognized and cashiered, the likelier the nation will be to craft (or re-craft, as I’d put it, given my belief that Roe and Casey got the basics right) an abortion consensus behind which Americans can unify.  

Im-Politic: The Court’s New Abortion Decision is Egregiously Wrong Itself

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abortion, abortion rights, Constitution, Dobbs v. Jackson Women's Health Organization, gun control, Im-Politic, Planned Parenthood of Southeastern Pennsylvania v. Casey, privacy, Roe v. Wade, Supreme Court

The Supreme Court has finally decided to overturn the 1973 Roe v. Wade ruling supporting a Constitutional right to an abortion based on the majority’s vigorously argued position that “Roe was…egregiously wrong and on a collision course with the Constitution from the day it was decided” and that the follow-on 1992 Casey decision “perpetuated its errors.”

Maybe so, but at least based largely on the official summary (the Syllabus) of today’s ruling released by the Court, the six Justices who backed the Dobbs v. Jackson (Mississippi) Women’s Health Organization decision expressed some views themselves about what government can and can’t regulate that look pretty internally contradictory at first glance and that seem – eggregiously – at variance with ideas about Americans’ liberties that – to quote a legal standard they cite – are “deeply rooted in [our] history and tradition” and “essential to this Nation’s ‘scheme of ordered liberty.’”

Perhaps first and foremost, the Dobbs ruling states that “the authority to regulate abortion is returned to the people and their elected representatives.” And at least since a draft of the decision making this point was leaked in May, any number of pro-life supporters have argued that rescinding the right to an abortion by no means amounts to a nation-wide ban on the practice, and that states will remain perfectly free to keep or enact permissive abortion policies.

But in Dobbs, the Court has also called abortion a “critical moral question” because it “destroys what Roe termed ‘potential life’ and what the law challenged in this case calls an ‘unborn human being.’” Today’s Dobbs decision emphasizes this point in order to insist that their judgement poses no intrinsic challenge to other rights concerning highly personal behaviors, like the availability of birth control or gay marriage – which presumably don’t rise to abortion’s level.

All of which raises the question: If abortion is in a morality class by itself because of its devastating effects on the unborn, why do the six Justices supporting the Dobbs decision believe that states should have the any authority to regulate it? What satisfactory definition of morality could permit such a uniquely heinous practice to be permitted anywhere in the United States? Why, indeed, should it not be banned nationally – with or without whatever exceptions this or future Courts happen to allow.

In fact, contrary to the majority’s views, today’s Dobbs decision leaves in place many of the gravest threats to Americans’ freedom from government’s reach that appeared to receive support in the leaked draft version. Principally, the Court has now affirmed that not only does the Constitution grant no right to an abortion. It also holds that there’s no right to privacy having to do with the freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy.”

To be sure, the six Justices in the majority correctly contend that no Constitutionally granted rights are absolute, observing that this founding document creates a system of “ordered liberty” that “sets limits and defines the boundary between competing interests” – and also, by extension, between competing rights, since many regularly clash with each other in real life.

But if the American system of government and law aren’t distinguished fundamentally by the assumption that a substantial burden of proof lies with government for infringing on the freedom to make “intimate and personal choices” related to “personal dignity and autonomy,” then it’s difficult to imagine fundamentally what it is distinguished by. In other words, if you can’t find something like a “right to privacy” in the Constitution, you’re not looking very hard.

And ironically, just yesterday, the Court supported this kind of argument when it struck down New York State’s “concealed carry” gun control law. That majority argued that this statute unconstitutionally “required law-abiding, responsible citizens to ‘demonstrate a special need for self-protection distinguishable from that of the general community’ to carry arms in public.” That is, an excessive burden of proof was placed on ordinary Americans, when it should belong to government. Why shouldn’t this kind of reasoning apply to abortion?

Finally, how can anyone believe that “a State’s regulation of abortion is not a sex-based classification” that “violates the Constitution’s Equal Protection Clause?” What men does the Dobbs majority believe will be affected by its decision? And how can these Justices reject the – inevitably gender-based — logic of the Casey decision’s statement that

“The Roe rule’s limitation on state power could not be repudiated without serious inequity to people who, for two decades of economic and social developments, have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives”?

One claim made by many Dobbs supporters is true — the practical, on-the-ground effects of the decision will be limited for the time being , mainly because the total numbers of legal U.S. abortions have been falling significantly in the last three decades, and because practically all of these have taken place during a pregnancy’s first trimester. (See here for the data.) Interestingly, that’s after Mississippi’s proposed abortion near-ban would go into effect.

Moreover, some other so-called “trigger laws” will allow abortions early in pregnancies, too. But others (see, e.g., here) will significantly narrow this window (even outlawing the procedure before most women even know they’re carrying), and in some of these and others, the lack of exceptions for instances of rape and incest, for example, are truly abhorrent. And now with Dobbs the law of the land, who knows what other outrages may lie in store?      

At one point the Dobbs ruling, the majority wrote that “In interpreting what is meant by ‘liberty,’ the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent
views about the liberty that Americans should enjoy.”  As far as I’m concerned, that advice about leaving personal beliefs out of judicial decisions is a vitally important rule of thumb across the legal board, and as indicated by the above examples of tortured reasoning in today’s abortion rights decision, it’s one the Dobbs majority just threw under the bus.