There’s only one way for Democrats to win the abortion fight

There’s only one way for Democrats to win the abortion fight

Opinion by 

Paul Waldman

Columnist

Today at 12:47 p.m. EDT

For all intents and purposes, Roe v. Wade is no longer the law in Texas, thanks to a far-right legislature and an activist U.S. Supreme Court majority. Republican legislators in multiple states are already drafting copycat laws, and in weeks we could be in what is essentially a post-Roe world, in which abortion is legal in blue states and all but outlawed in red states.

By the time the Supreme Court finally overturns Roe in its upcoming session, it will merely be ratifying the on-the-ground reality it just created.

So what are Democrats going to do about it? The answer may not be very satisfying.

It’s hard not to feel frustrated at the Democratic response so far, given the stakes. House Speaker Nancy Pelosi (D-Calif.) has said that the House will soon vote to enshrine abortion rights in federal law. Meanwhile, President Biden instructed the Justice Department to figure out what it can do to protect the abortion rights of women in Texas, rights that essentially no longer exist.

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In response, Attorney General Merrick Garland issued a statement saying, “while the Justice Department urgently explores all options to challenge" the Texas law “to protect the constitutional rights of women and other persons, including access to an abortion,” they’ll be sure to enforce the existing federal law that protects clinics against violence and property damage.

So they’re exploring their options. Urgently.

This will no doubt be greeted with anger from the left, as once again Democrats supposedly show themselves to be weak and feckless in the face of Republican aggression.

But if you’re going to call them ineffectual, you’re obligated to suggest an alternative path they could follow if they had the fortitude and determination you want to see. So what specifically should Democrats do that they aren’t doing?

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I wish there was a clear and obvious answer, but there isn’t.

To begin with, Roe itself is doomed. There is no compelling argument that will change the minds of the conservatives on the Supreme Court. There just isn’t.

As for national legislation to codify abortion rights, that is absolutely a path Democrats should pursue. But if the bill Pelosi brings to a vote passes, it will die in the Senate, where it not only would face a Republican filibuster but would not even get 50 votes. Sen. Joe Manchin III (D-W.Va.) calls himself pro-life, is an adamant supporter of preventing government funds from being used to provide abortions, and has supported a ban on abortions after 20 weeks. The same is true of Sen. Bob Casey (D-Pa.). With only 50 Democratic senators, the bill will lose.

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That makes the House vote a statement, but nothing more — at least for now. If you want that legislation to pass, you need to elect more Democrats to Congress, and especially to the Senate. With an extra two or three Democratic senators you might get a pro-choice majority and the will to get rid of the filibuster.

But that won’t happen in this Congress. You can’t wish that fact away, or say that the problem could be solved if the Democrats just became more resolute.

If there are no short-term legal or legislative strategies to stop what’s coming, what’s next? One answer is that a much more comprehensive effort has to be made to help women who live in states where abortion is soon to be outlawed. Like it or not, that will inevitably mean some kind of underground railroad that pays for travel to neighboring states where abortion is legal, and wide distribution, legal or not, of medication abortions.

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Just imagine if abortion rights supporters put half the creativity into establishing those systems that antiabortion forces put into devising new legal stratagems to make abortions unattainable.

Which is an important reminder that the Supreme Court’s recent ruling may have been a shock, but it was the culmination of years of complicated, comprehensive work from the right. It involved huge numbers of people on their side — activists, state-level elected officials, the U.S. Senate, the conservative legal establishment — and only came to fruition once they maneuvered themselves into a far-right supermajority on the Supreme Court, a circumstance made possible through a combination of luck, timing and ruthlessness.

As one antiabortion activist described it, their strategy played out over “decades," entailing an effort "to elect pro-life presidents, pro-life senators and put in these pro-life legislators so they could nominate and confirm pro-life Supreme Court justices.”

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Some will react with exasperation if you say that the only way to win this fight over the long term is to elect more Democrats, who can then pass a national law protecting abortion rights and eventually appoint more Supreme Court justices — perhaps by expanding the size of the court and/or imposing term limits. “Elect more Democrats” might seem mundane, but there’s no way to protect the right to abortion without it.

In some states now controlled by Republicans but trending liberal — such as Arizona, Georgia and yes, Texas — it will mean eventually taking over the legislature and governorship, so that laws curtailing abortion rights can be reversed.

Electing more Democrats is a difficult task — and it isn’t a particularly clever or innovative solution. It will take money, energy and commitment over the course of years. But if anyone has a better idea, let’s hear it.