Following Up: Still No Signs That Abortion, Guns — or January 6th — Are Democratic Midterms Lifesavers

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abortion, Biden, Buffalo shooting, Democrats, Donald Trump, election 2022, election 2024, Following Up, gun control, January 6 committee, mass shootings, midterms 2022, polls, RealClearPolitics.com, Republicans, Roe v. Wade, SCOTUS, Supreme Court, Uvalde shooting

Since early May, American politics has been rocked by the kinds of major shocks that I can’t recall coming so fast and furiously since at least the Nixon impeachment summer of 1974, and maybe since the spring of 1968 — when the Vietnam War’s Tet Offensive led to Lyndon Johnson’s withdrawal from that year’s presidential race,and was followed by the assassinations of civil rights leader Dr. Martin Luther King and New York Democratic Senator Robert F. Kennedy (for starters).

The last two months of this year alone have been marked by the leaked draft and final release of the Supreme Court ruling that ended nearly fifty years of a national right to an abortion, two appalling mass shootings (one racially motivated in Buffalo, New York, and one of school children in Uvalde, Texas), and televised Congressional hearings that have bombarded the nation with reminders of both the disgraceful January 6^th Capitol attack and former President Donald Trump’s reckless behavior that day.

On net, these developments would seem to damage Republicans’ chances of an midterms election landslide of epic proportions this November. As I’ve noted, even though the abortion developments could motivate heavily Republican anti-choice voters, too, the overturning of the 1973 Roe v. Wade decision at least gave Democrats one reason for optimism where none could plausibly be detected – because everything we know about public opinion tells us that Americans decisively favor keeping Roe. (The same arguments hold for mass shootings, IMO, as do poll results on gun control).

But at the end of May, I reported the absence of polling evidence that the guns and abortion issues were turning the tide. Now, a month later, they — along with the January 6th Committee hearings — still haven’t shown any midterms lifesaving potential for the Democrats. In fact, some survey measures suggest that the Republican position has strengthened somewhat.

As often, my sources are the averages of poll results compiled and updated on an ongoing basis by RealClearPolitics.com. Let’s start with an important indicator of midterm outcomes – presidential popularity.

The Politico.com scoop on the Supreme Court abortion draft leak appeared the evening of May 2, so May 3 seems like the baseline to use for measuring how the aforementioned news shocks have changed midterms prospects.

On May 3, according to the RealClearPolitics average, President Biden was underwater in terms of job approval ratings by 10.5 percentage points. As of today, the share of Americans admiring his performance in the White House stood at 38.4 percent and the share giving him thumbs downs was 56.9 percent. So his net negatives have nearly doubled, to 18.5 percentage points. In addition, that gap is only slightly narrower than the record 19.5 percentage points registered just yesterday.

And worse for the President, and his party: His popularity has deteriorated both because his approval ratings are as of today (38.4 percent) just off their all-time low and the disapproval numbers (56.9 percent) are just shy of their all-time high (both also set yesterday).

Pollsters also offer respondents a “generic Congressional ballot” – asking them whether they’d be likelier to cast ballots for Democratic or Republican candidates for House and Senate whoever the specific candidates on their ballots are. Although it deals with the elections that will actually determine which party winds up with majorities on both ends of Capitol Hill, its readings need to be viewed with caution because Congressional elections aren’t national but state-by-state and district-by-district. In fact, because of the Constitution’s approach to apportioning Senate and House seats, Republicans enjoy a built-in edge here, meaning that at least when it comes to the generic ballot, Democrats need to be winning by several percentage points to justify election day optimism.

According to RealClearPolitics, they’ve made some progress since May 3, but still have a ways to go.

The day after the Supreme Court leak, Republicans led the Dems by this measure by 4.1 percentage points. By May 29, that margin had shrunk all the way down to 1.5 percentage points. But as of today, though, it’s back up to 2.2 percentage points, and has remained stable overall since June 5.

Finally, and perhaps most discouraging for the Democrats given their efforts to portray most Republicans as backers of an extremist, Trump-y “ultra MAGA” agenda, the former President continues to lead Mr. Biden in polls asking about a head-to-head match-up in 2024. The website doesn’t post averages over time – just a single average figure that shows a Trump lead of 1.8 percentage points as of today.

Changes revealed in individual surveys can be interpreted as either favorable or unfavorable to President Biden depending on your baseline starting date. Specifically, in late April (just before the Politico leak), two polls showed him leading his predecessor by one and two percentage points. So since then, the President has lost ground. But a mid-May survey reported a three percentage point Trump lead. So since then, Mr. Biden has gained ground, though he’s still behind.

What does seem fair to say, though, is that no polls report any burgeoning public disenchantment with Trump since recent events that can credibly be argued have placed him, his views on gun control, and the Supreme Court Justices he appointed, in more negative lights. And revealingly, the latest set of Biden-Trump election results, in this Emerson (Massachusetts) College survey, showed Trump with his biggest edge (five percentage points) since late March – even though it was conducted the day of former White House aide Cassidy Hutchinson’s explosive anti-Trump testimony before the January 6^th Committee, and the day after.

All of these trends could easily reverse themselves in the months remaining before November – if only because more politically charged shocks could easily be in store. In addition, voters’ views on the recent shocks could grow more intense and likelier to influence their voting. (Here’s some new evidence for that proposition.)

But what seems most striking to me at this point is how stable the polls have been despite the recent string of arguably pro-Democratic bombshells – and consequently how dim their November prospects remain.

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.