This feels like a piece of disinformation from the Right to once again trick Democrats into eating their own. It’s not the GOPs fault, it’s actually Dems. Just more bothsidesism.
Legislating Abortion into law would have been flimsy. When power shifted Congress would simply change it back. It would have no durability and it would have kept it in the political discussion every cycle, making it constantly imperiled.
Roe v. Wade made Abortion not just legal but Constitutionally protected. Any legislation would have been both redundant and less forceful.
Congress passing such a law would have created a massive political spectacle which would have further galvanized the opposition for no additional protection. It would have been bad politics.
It would have created an opportunity for the opposition to challenge the new law in front of the Supreme Court which would have had uncertain results. Basically it would have forced SCOTUS to decide specifically on Abortion as a right instead of applying the more broad standard that was used in Roe. Roe was actually the more difficult precedent to fight.
Yeah…Democrats fundraising on this is sleazy and tone deaf. So, precisely typical but way down the list of problems today.
Perhaps my ideas above are flawed, please challenge them as appropriate. What are your thoughts on this talking point?
My take is it a valid beef that progressive Dems have with mainstream liberal and moderate Dems (and the few remaining conservative Dems.) I don’t really see it as a "bothsidesism which is usually a vehicle for conservatives to excuse Republican bad behavior with vaguely deceptive comparisons to Democratic behavior, or sometimes by disaffected centrists trying to paint both parties as equally bad. I don’t think the progressives I have seen raising this call would say the GOP and Democrats are equally bad, they view the GOP as the enemy, and “ineffective” Democrats as a barrier to good party function.
I do agree that the argument ignores some cold reality–namely that for most of the time since Roe v. Wade was decided, a significant portion of elected Democrats actually campaigned as, and were elected as, pro-life Democrats. It’s a little hard to expect “the party” to codify abortion rights when a decent chunk of its own caucus was duly nominated and elected on pro-life grounds. It has only really been since the early 2010s that pro-life Democrats largely died out completely, so the window where the elected members of the party were more lockstep on abortion rights was relatively small, and the party didn’t have good control of Congress + the White House really at any point in that time span. When most of the conservative Dems lost their seats in 2010, the Republicans controlled the House for the next 8 years, and it wasn’t until literally the 2020 election that Democrats had unified control of House, Senate and White House. And, of course, the control of the Senate was predicated on two Democrats–Manchin and Sinema, who have basically said they will not buck the filibuster for basically any reason. While that is a valid target for political attack, I think it’s a tad unreasonable to blame the “party” writ large for the behavior of two Senators, over whom the party writ large has literally no leverage at all (in fact, those two Senators functionally hold all the cards.)
If you start with the premise that abortion rights are core Democratic party policy since the 1970s, I do think the progressives have a valid point that there were many decades where the party’s national leaders chose to not do much to try and build a greater coalition of support for abortion rights that might have resulted in greater acceptance of those rights and legislation codifying them.
On the flipside, it was pretty clear the political calculus was that “pushing” the matter too much would have gutted all the remaining Democrats in the bible and farm belts, and ruined the party’s ability to win governing majorities.
The core issue probably isn’t so much the party as it is the same core issue we have with everything–rural voters have outsize power, and they are disproportionately pro life. There is no magic salve for that for the party.
Can you provide a transcript or summary? What kind of law are we talking about?
ETA: Just found the caption button, nevermind.
ETA2:
Protester 1: I received a text message from Joe Biden’s campaign yesterday saying that the Supreme Court had overturned Roe v Wade, it was my responsibility to rush $15 to the Democratic National Party. I thought that was outrageous. My rights should not be a fundraising point for them or a campaigning point. They have had multiple opportunities to codify Roe into law over the past 20, 30, 40, 50 years, and they haven’t done it. If they’re gonna keep campaigning on this point they should actually do something about it.
Protester 2: I am most worried about what comes next. Roe reverses way [?] was a precedent for our that – gay marriage, privacy in the bedroom. And they’re gonna be falling like [dominoes], as Clarence Thomas came out yesterday and said abortion is gonna be banned in your state in 30 days. – most women don’t even realize they’re pregnant before that point. There are women in Texas who have already died and have already been arrested for having an abortion or miscarriage […]
Reporter: This anger is towards the Democratic Party because they have missed chances to codify Roe v. Wade until this point. What does that mean for you when it comes to the midterm elections getting Democrats elected trying to codify Roe.
Protester 1: When it comes down to the primaries which are coming up in the next couple of months, we need to get as many people to the polls as possible to vote for Mueller [more?] progressive Democrats. We need to get old, white, Democrats out of office and put in new young, people. When it comes to midterms, we should have the same people who voted for the people in the primaries coming bad [back?] and voting in the midterms. So they can get into office and make the change that funny [?].
For the record, the linked video was on my homepage today and it prompted me to make the post so I linked it for context. It’s not the most cogent or emphatic version of this talking point/meme I’ve seen over the few days. This has been particularly viral on TikTok of late.
I think your analysis is probably accurate, if maybe a little pessimistic (there were as many GOPers in bluer areas who were quietly pro-choice). That said for the purposes of my OP I’m willing to grant the premise that the Dems could have made it law to focus on the inherent flaw in the concept.
I can’t see what good putting a right to abortion into the law would accomplish, either. Any Court that would overturn Roe would also overturn the law.
I also can’t think of any example where this has ever happened. Can anyone else come up with an example where something became law due to a Supreme Court decision, and then Congress went ahead and passed a law legalizing it?
The only thing that would have helped would have been a Constitutional amendment. But that would have required (I believe) 38 states to sign on, and that was not remotely feasible. And all for something that was already the law of the land.
Plus there’s the fact that, by all legal standards, Roe should have never been in jeopardy. No huge change has happened to require revisiting that decision. It’s not like Scopes, which got reversed because separate but equal was proven not to actually exist. It’s not even like the VRA, where they could argue the law was no longer necessary. There just aren’t any actual grounds for overturning Roe other than the judges thinking it was wrongly decided—which is not supposed to be how it works.
And, finally, this sort of blame game is just always stupid. It’s entirely irrelevant. It’s like sitting there and beating yourself up over your past mistakes. We need to figure out how to move forward, not try to find who to blame more. If you think that now the solution is to codify Roe, then do that. Assigning blame will only make it harder to actually work together to get that accomplished.
This is my view. What do folks think would have happened when the Republicans retook the House, Senate, and WH? If Roe was codified now, the Republicans would be using it as a fundraising and election bloody shirt and use it as a major issue in 2024… and you know they’ll end the filibuster to end a federal Roe law.
Not to mention it would require all the factions of the Democratic party to agree on where the limits should be. Some would be for the post-Casey viability standard, while others undoubtedly would consider even Casey too restrictive, and then you’d have arguments on where the viability line should be.
Reporter: Is this the number one issue for voting?
Protester 1: For me, yes. But for the riseup4abortionrights.org, it’s legal abortion on demand nationwide, we don’t really care about how they get that done. We don’t care about which institution gets it done. We know [it] won’t be the Supreme Court. But somebody needs to do it whether it’s through an executive order or due to the House of Representatives’ action.
Protester 2: I agree with her we need to be calling on the Biden administration, the Congress, whoever can help us, we don’t care who, we don’t care how, but abortion needs to be ratified into U.S. law, needs to be a fundamental right that all women in this country ha[ve] no[t only] sanctuary states know [not?] some women have access. Know [not?] some people get funding to go. Every single woman in this country needs her inalienable [end of video].
I don’t know if Protester 1 or 2 has a solid understanding on the limits of Presidential authority or on what the House can do without the Senate…
This doesn’t follow at all, actually. The court overturned Roe because it disagreed with the premise that previous precedents (specifically around privacy) create an implicit, judicially protected right to abortion. Any court case involving a national codification of abortion rights would have to deal with entirely different areas of law, and without knowing the specific form of the legislation, it’s not so easy to say what the ruling would be.
The Religious Freedom Restoration Act was in direct response to the Supreme Court ruling in * Employment Division v. Smith* . The RFRA mandated strict scrutiny be applied when dealing with questions regarding free exercise of religion, after the Smith decision said that Oregon’s generally applicably drug standard could deny unemployment benefits to two Native Americans who tested positive for peyote, which they claimed was part of their religious rituals.
I don’t think you can criticize historical administrations for failing to forestall something that had not yet happened, with the Republicans subverting the Supreme Court into a tool to implement theocracy. And you can’t criticize the current administration for not doing anything when the Senate would obviously block it.
But now that we all understand what’s happening, because it IS happening, I think the Democratic Party must adopt an explicit manifesto BEFORE the next elections to:
end the filibuster
pack the Supreme Court
take aggressive action at the Federal level to defend voting rights
admit D.C. and Puerto Rico as states
I mean, it’s not as though anyone can possibly now have any expectation that if we don’t stop them that the Republican Party will do anything other than dismantle our democracy and implement a fascist theocracy, and we do still have a functional democracy with these tools to stop that happening.
Then it’s up to the electorate to vote to give the Democrats the explicit mandate to do this. If this doesn’t get people out to vote, then I guess people just don’t care enough.
I think you’re operating under the idea that SCOTUS overturned Roe based on merit. I think @BigT and most other observers feel like SCOTUS was hellbent on banning abortion and any justification was done after the fact. They’d have cherrypicked any old standard to overturn any abortion law they were hearing regardless what grounds a new law used.
There’s actually a lot that was mixed up in that statement.
Scopes was a local case in Tennessee that was never reviewed by any Federal court. The Tennessee Supreme Court did overrule the Scopes guilty verdict on a legal technicality–the judge set Scopes fine of $50, under Tennessee law at the time for a fine that large a jury was required to issue the fine.
Scopes had nothing to do with separate but equal but was a case about a local schoolteacher teaching evolution (interestingly too almost the entire controversy was deliberately manufactured by all parties involved for publicity, no one involved in the case was actually that worked up about it.)
Brown, which I think he may have been talking about, didn’t rule that segregation in schools was unconstitutional because “separate but equal was proven not to actually exist”, it instead said that even if the facilities and quality of education were genuinely equal, separation based on race does permanent harm to the minority race, hence separate but equal educational institutions are inherently unequal.
This is clearly not coming from the right. Those protesters clearly identify with the left and they told us exactly why they were fed up with Democrats. The word for this phenomenon is disillusionment.
I think it’s safe to say these particular women are not concerned with, and possibly do not understand or care about the difficulty of, enacting a federal law protecting a woman’s right to obtain abortion.
This only follows after the filibuster has been abolished.
Could have. We don’t know for sure, it would depend on the law passed.
A court case challenging a federal law would not directly address any individual right to obtain an abortion. It would be about whether Congress has the power to prevent a State from prohibiting abortions.
That’s speculative, I don’t see good evidence that the current court will just literally overrule any ruling it wants. While in a time of “liberal hysteria” it is hard to notice, this court continues to issue plenty of rulings unfriendly to Republican / Conservative causes. I am a strong enemy of this current court, and think the entire institution of the court is corrupt and ought be eviscerated, but it just isn’t factual that even this shitty court is just entirely ignoring all semblance of judicial decision making.
The bigger problem is actually finding solid constitutional grounds upon which Congress could “codify Roe.” I do think there are solid grounds that would make it procedurally very, very hard to prosecute abortions on which Congress could legislate, but explicitly codifying Roe probably has some enumerated powers problems.
Before Dobbs, Congress could have tried to justify such a law with section 5 of the 14th Amendment. But that would be of no help whatsoever when this Supreme Court gets to it.
Congress certainly has the power to protect or even assist individuals who travel across state lines to obtain abortions, under the Commerce clause. This may possibly be used to justify a federal law that protects mail-order abortifacients.
Your entire post reflects what I find to be the most unpleasant thing about the Dope these days. Not trying to single you out or pick a fight, but so many of the discussions here seem to do everything they can to get bogged down in the minutiae of a post while overlooking the spirit of the idea or argument. It makes one feel like Sisyphus.
No…these girls are obviously not right wing operatives. I would have hoped that I could have taken that as obvious to all involved. That wasn’t the point. Less informed folks (who always seem to land in front of TV cameras or get amplified on social media) pick up their talking points from the ether. They of course apply their own filter and frustration, but nothing these days is truly organic. One clueless person hears or reads something online…maybe it came from a troll, maybe from a well-meaning person who’s argument gets misinterpreted or reduced, maybe from a fellow young and clueless person who didn’t know better, or maybe from a socially engineered and targeted meme that’s intentional inflammatory and false. We have lots of real evidence that right-wing troll farms and foreign nationals are sowing dissent this way. It doesn’t really matter where it starts or who is repeating it, it’s very possible and I think likely that the right-wing outrage machine in all it’s forms is promoting these statements. They want this to take root as a media talking point for a few news cycles and it will.
I regret including the link. I do not want to debate what these girls said specifically. I want to discuss what I said in the OP. I simply was using that to illustrate that I wasn’t fabricating “what I observed”.
There’s no reason to think it would hold. If you value the filibuster that’s more argument for why legislating abortion is a bad idea.