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2020

Would Democrats Restore Roe If Republicans Overturned It?

The enactment of a new Alabama law that treats performing an abortion as a felony akin to murder has made it easy to imagine that the 2020 election will transpire against the backdrop of a post-Roe v. Wade America, where abortion is no longer a constitutional right, and has been banned—outright or effectively—in dozens of states.

Alabama’s law violates the right to abortion flagrantly and intentionally, with the aim of inviting the Supreme Court to overturn Roe altogether.

What that would mean for national politics is anyone’s guess, but it is also easy to imagine that if the Republican men on the Supreme Court reverse Roe in an election year, they will fuel a Democratic victory larger even than 2018 landslide, leaving the party with a huge House majority, a small but real Senate majority, and control of the White House.

But national elections don’t change what the Constitution says, or how the courts interpret it. For all the satisfaction we might feel over having punished the anti-choice GOP at the polls, millions of women would still be denied abortions. Some would face criminal penalties for exercising their former right.

Reversing this injustice would require radical action. Restoring the right to abortion after the Kavanaugh court obliterates it would necessitate either an amendment to the Constitution—an impossible lift—or a broad consensus on the left that the decision was illegitimate, and needed to be overturned immediately. That lift would be much lighter in theory, but would still require Democrats to adopt a clear rationale and strategy.

The rationale might be this: The Court that overturned Roe was constituted corruptly. A Republican Senate stole one seat at the end of President Obama’s second term, and the party secured the power to fill a second by committing crimes and betraying the country to win the 2016 election—all despite losing the popular vote. As true and infuriating as this argument is, though, it would need to be deployed in service of passing a law to change the number of seats on the Supreme Court, which would in turn require abolishing the filibuster.

This scenario is by no means inevitable—perhaps the Supreme Court will not overturn Roe so soon, perhaps Democrats will not win overwhelmingly next year. But it’s certainly plausible. And yet it is almost impossible to imagine this Democratic Party, in its current configuration, taking any of the steps required to reestablish Roe, should it be overturned in the coming months.

Democrats are already locked in a contest of raw power with Republicans but seem incapable of recognizing it. For two years they insisted they would reserve judgment on whether President Trump should be impeached until Special Counsel Robert Mueller completed his work, only for Mueller to disclose a raft of criminal activity and corruption that the Democratic House majority has spent more than a month trying to ignore.

Trump has interpreted his opponents’ complete lack of appetite for confrontation as permission to step up his abuses of power. This week, his personal lawyers argued in federal court that the Constitution prohibits Congress from investigating his personal criminality or official corruption. His White House counsel adopted the same ludicrous position in a letter informing Congress that the administration will decline any and all requests and subpoenas for information and testimony stemming from its interest in the Mueller report, and insisting that they cease their investigation of those matters. On Wednesday night, he pardoned his former business partner, the noted conservative movement crook Conrad Black, who served years in prison for obstruction of justice and fraud—both crimes Trump himself has committed.

In an alternate universe, Democratic leaders might have announced Thursday morning that they intended to tack the Black pardon on to their ongoing impeachment inquiry. In an alternate universe the pendancy of an impeachment inquiry might have discouraged Trump from issuing another corrupt pardon in the first place. In the universe we inhabit, the pardon went almost completely unmentioned, because Democrats didn’t mention it, and the political establishment has been habituated to take Trump’s impunity for granted.

Now ask yourself: If this Democratic Party regains a governing majority in a post-Roe America, is it likely to do whatever it takes to set things right? Will a party whose leaders who are so conflict averse that they will passively allow their nemesis to commit crimes at their own expense take radical steps to right any acute injustices? Or will they allow the damage Trump and his supporters have done shape the country—the lives of hundreds of millions of people—for decades?

Nearly a quarter of the way through this Congress, the outlook is poor. But it’s still possible to imagine public pressure forcing Democrats to do the right thing, and convincing Democratic leaders that their voters expect them to use their power to protect people from the malignancy of the Trump GOP.

What Democrats ultimately do about the authoritarian dangers confronting them today may well preview the kind of party that will be governing us in 2021. And the demands they’ll face then won’t be any smaller than the ones they face now.