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The Fate of Abortion Rights Rests Not in D.C. but in the Statehouses

When the draft opinion of the Supreme Court’s anticipated 5-4 decision to overturn Roe v. Wade leaked Monday night, Democratic members of the US Senate, along with challengers to Republican senators, rushed to call for the codification of abortion rights. US Senator Tammy Baldwin (D-Wis.) immediately announced, “If the Senate is going to legislate from the bench and turn back the clock 50 years on #RoeVWade, then the Senate needs to pass my Women’s Health Protection Act, and if we need to eliminate the filibuster to get it done, we should do that too.” Pennsylvania Democratic Lieutenant Governor John Fetterman, a leading contender for the Democratic US Senate nomination in that state, declared, “Let’s be clear: The right to an abortion is sacred. Democrats have to act quickly—get rid of the filibuster to pass the Women’s Health Protection Act + finally codify Roe into law. We cannot afford to wait.”

Their calls to action were understandable at a moment when Americans were trying to wrap their heads around the reality that abortion access in the country could be upended in short order. But the unspoken detail was that the current Congress has already tried to codify Roe. And failed. This stark reality reminds us that much of the fight to defend reproductive rights will be waged in the states, where this fall 36 governors and 30 attorneys general will be chosen, and where control of 88 state legislative chambers in 46 states will be decided.

Senate majority leader Chuck Schumer (D-N.Y.) and House Speaker Nancy Pelosi (D-Calif.) have made it clear that they will look for every opening in Washington. But even before the draft opinion leak—which the court confirmed the authenticity of—they had already run into roadblocks erected by Republicans and members of their own party.

In September of 2021, the House voted 218-211 to pass the Women’s Health Protection Act, which was written to “protect a person’s ability to determine whether to continue or end a pregnancy, and to protect a health care provider’s ability to provide abortion services.” But when the Senate took up the measure in February of this year, the high-profile effort led by Schumer crashed and burned. Only 46 senators, all Democrats, backed a cloture motion. They were opposed by 48 senators, including anti-choice Democrat Joe Manchin and supposedly pro-choice Republicans Susan Collins and Lisa Murkowski. Three more anti-choice Republicans failed to vote, suggesting that the current Senate is effectively split 51-49 against taking an action that—unless the filibuster is overturned—would require 60 votes.

There is a case to be made for upping the pressure on Murkowski, who is up for reelection this year and, under Alaska’s unique voting system, will need Democratic votes to win. But remember, the Alaska Republican who voted to put Justice Amy Coney Barrett on the high court has been absolutely clear about her opposition to filibuster reform.

In the specific case of Alaska, the better strategy for Democrats is to find a strong candidate who can beat both Murkowski and a rigidly anti-choice Republican in this fall’s multicandidate runoff election. More broadly, the necessary strategy for Democrats is to do everything in their power to hold their House majority and flip enough Republican-held Senate seats to establish a majority that is both pro-choice and supportive of filibuster reform.

But that won’t be easy in a midterm election year where holding the House looks especially difficult because of patterns of redistricting and gerrymandering that look increasingly favorable for the Republicans. Polls suggest Democrats will struggle simply to retain the current 50-50 split in the Senate.

So Democrats must do something they haven’t been very good at in recent years: prioritize statehouse elections. That does not mean that the party should abandon the fight for control of Congress. But it does mean that if the party is serious about protecting reproductive rights and a host of other rights that are now threatened, electing pro-choice governors, state attorneys general, and state legislators will become essential.

This is not just about the 21 states across the country that have retained pre-Roe bans on abortion rights or that have passed so-called “trigger laws” to implement a ban if the court acts. This is about all the states where Republican governors with legislative majorities could eliminate existing protections and further threaten reproductive rights.

Democratic Legislative Campaign Committee President Jessica Post offered a clear-eyed assessment that leaders of her party, and pro-choice activists nationwide, need to recognize. Acknowledging that “Americans will soon be living in a post-Roe world,” Post said, “This should be a tough lesson for Democrats—our policy-making power in Washington is limited and the fight to protect abortion rights will now lie in state legislatures.”

As such, the DLCC has launched a “States to Save Roe” campaign, which seeks to draw attention and resources to statehouse fights.

“While federal action on abortion legislation has stalled, 16 Democratic-controlled state legislatures and Washington, D.C., have explicitly protected the right to an abortion. In stark contrast, we’ve seen an onslaught of anti-abortion legislation passed in Republican statehouses,” argued Post. “State legislatures are Democrats’ best chance to protect abortion rights across the country when the court strikes down Roe. We are prepared for this fight in 2022 and will ensure that Republican legislators are held accountable for their attacks on the right to self-determination and our fundamental freedoms.”

Fights for control of legislative chambers will matter in states such as Arizona, where flipping a handful of Republican seats could shift control of both chambers to the Democrats, and Minnesota, where Democrats could take charge of the state Senate and regain full control of the legislature. It will also matter in states with Democratic governors and Republican legislatures, such as Michigan and Wisconsin, where Republicans will be seeking to win a large enough majority in the state House to overturn gubernatorial vetoes. And in states where Democrats could retake governorships and block Republican legislatures from enacting anti-choice measures, such as Georgia and Texas, where Stacey Abrams and Beto O’Rourke are mounting consequential bids. As O’Rourke says, “If they want states to decide, then we must elect a governor who will protect a woman’s right to abortion.”

Democrats need to elect governors who are as aggressively committed as Michigan’s Gretchen Whitmer, who on Monday night declared, “I will fight like hell to make sure abortion remains safe, legal, and accessible in our state.”

Democrats will also need to focus on races for the post of attorney general, making sure that defenders of abortion rights are positioned to decide how and when to enforce outdated bans on abortion that are of dubious constitutionality. In Michigan, Democratic Attorney General Dana Nessel faces a serious reelection challenge from a Republican who is promising to enforce a 1931 abortion ban that’s still on the books. On Monday night, Nessel posted video of her opponent, Matt DePerno, declaring that he would prosecute women and their doctors for abortion with no exceptions for rape, incest, or medical emergencies. “Women in Michigan should be terrified right now,” said Nessel. “Vote like your life depends on it.”

That’s true in the fight for control of the US House and the US Senate. It’s every bit as true in fights for control of statehouses. If the high court does, indeed, overturn Roe, supporters of reproductive rights will have to recognize that the struggle to defend and expand abortion access will play out in every state, and for every branch of government.

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