What happened yesterday was, unfortunately, not surprising. Even before the Supreme Court decision overturning Roe v. Wade was leaked, it looked as if this would happen once hard-right conservatives held five seats on the Court.
What happens next is anybody’s guess, but maybe we can at least parse out some questions about the future.
What does this mean for our institutions?
About six in ten Americans support access to abortion all or most of the time with another three in ten against abortion most, but not all, of the time. Only one in ten Americans is against abortion under all circumstances. Yet, the Court’s decision would allow states to ban abortion completely, and some will while others already have. To be sure, public opinion on abortion is far more complicated than what is reflected on the signs you see at pro- or anti-abortion rallies, but it’s fair to say that the bulk of the American public is center-left on this issue while the Court has opened the door to about half of the states going hard-right. Combine this with another decision that came down this week making it harder to enact gun control laws and the Court looks way out of step with the American majority.
Yeah, I get it. It’s not the job of the courts to rule based on popular opinion. But on the other hand, the high court has always kept one eye on that as a way of maintaining its legitimacy. That’s exactly what Chief Justice John Roberts was trying to do in his separate opinion, which would have given states almost total discretion on the issue but without striking down Roe. At a time when virtually all of our institutions — from the free press to the rule of law to fair elections — are under attack, this is likely to diminish public faith in the courts. This is not good.
Along these same lines, I’m not crazy about statements made by Democratic law enforcement officials around the country and here in Dane County who stated, within minutes of the Court ruling being announced, that they would not enforce the law in their jurisdictions. More cautious statements would have been more appropriate. It’s one thing for a district attorney to say that he would refrain from pursuing prosecutions until, for example, Wisconsin’s musty 1849 law was sorted out in higher courts. But I spend much of my time in the North Woods where, about a year ago after another spate of mass shootings, several northern county sheriffs pledged that they would not enforce gun control measures because whatever those controls would be (none were forthcoming at the time) would be “unconstitutional.” I’m sorry, but county sheriffs don’t get to decide which laws are constitutional. The same principle applies here.
What’s the law now in Wisconsin and other states like ours?
Wisconsin has a law passed in 1849 that bans all abortions except to save the life of the mother. Attorney General Josh Kaul has signaled that he will challenge that law, possibly on the grounds of a legal theory that long dormant laws are unenforceable. This is likely to be a long legal fight which will certainly go beyond August, 2023 when a new Wisconsin Supreme Court justice, to be elected next April, will take a seat. The liberal-conservative split on the court is up for grabs in that election. If the liberal candidate wins, the liberals will have a 4-3 majority and they will almost certainly take the opportunity to find a reason to strike down the 1849 prohibition. If Gov. Tony Evers wins reelection this fall he’ll veto any new anti-abortion laws passed by Republicans and the upshot could very well be that abortion rights are restored here.
What does it mean for November?
As noted above, everybody is now focussed on November, but in Wisconsin April might be just as important. In any event, the common wisdom is that this is all good for Democrats because it will rile up the liberal base and possibly flip socially more liberal Republicans, especially in the suburbs. Maybe. It certainly feels like that now, but the fall elections are about 20 weeks out. Is the ire sustainable? For most of us, abortion rights are an abstract, something that does not impact us directly. So, if inflation persists and we fall into recession, won’t that overwhelm this and virtually every other issue? Right now, I’m guessing abortion will provide a few clicks of support for Democratic candidates. That could seal the election for Gov. Tony Evers, but beyond that I’m not so sure.
I don’t have answers to a lot of questions, but what’s clear to me is that we need to find a way to align our leaders with where the plurality, if not the majority, of Americans are at. Most of us are centrists. We support access to abortion but with some restrictions and plenty of caveats. We want our officials to enforce laws even if they disagree with them. Our views are not reflected by the ideologues and the extremists on any side of any issue.
We want the drama reduced and the temperature lowered. These days, good luck with that.