One of the great political memes of the Trump era was that Maine’s moderate GOP Sen. Susan Collins is “concerned” over the president’s latest extreme action — even as she continued to vote in lockstep with a GOP dominated by the Former Guy. But one thing that Collins insisted she wasn’t concerned about — even as Donald Trump tilted the Supreme Court to the far right with his three appointments — was the fear that the new justices might vote to overturn Roe v. Wade, the landmark 1973 ruling that legalized abortion nationally.
Collins — who had trumpeted her support for abortion rights in winning as a Republican in a state that’s voted for Democrats in recent presidential elections — said during the 2018 brouhaha over Trump’s naming of eventual Justice Brett Kavanaugh that the nominee assured her that, like Chief Justice John Roberts, he believed Roe v. Wade is a matter of “settled law.”
Maybe Collins should be concerned now. On Monday, the High Court stunned veteran observers with the announcement that during its 2021-22 term it will hear an appeal over a 2018 Mississippi state law that banned abortions after 15 weeks and which was struck down by a lower court, citing the precedent of Roe v. Wade. Over the last decade, the Supreme Court had refused to even hear similar cases, but that was before the recent turnover at SCOTUS — including the arrival of Kavanaugh and 2020-confirmed Justice Amy Coney Barrett, who in a 1998 law-review article had referred to abortion as “always immoral.”
Would the Trump Court actually strike down the 48-year status quo on abortion rights, handing the final say back to the states? Many legal observers are doubtful that the justices — even with a 6-3 conservative majority — will go that far, that fast. Barrett said in a 2016 campus talk she didn’t expect Roe v. Wade would go away, but she did see an opening for increased restrictions — like the law subsequently passed in Mississippi. Lawmakers and governors in GOP-led states are already racing ahead, with Texas Gov. Greg Abbott on Wednesday signing a law that effectively bans abortion after just six weeks. Here in Pennsylvania, Republican lawmakers are proposing a raft of restrictions as pro-abortion-rights Gov. Wolf nears the end of his term.
But could the sudden, rapid tremors around abortion rights be the warning of a political earthquake? For those watching through the prism of realpolitik, the abortion battle has always looked like a weird game of “chicken” where the drag racers swerve to safety at the last moment — safety being a place where the threats Roe v. Wade might be overturned were more useful for raising money and energizing voters than working for actual change. But with the possibility of the court’s most impactful abortion ruling in a half-century coming next spring, political experts say any court bombshells could dramatically alter the 2022 midterms.
How? Historically, voter turnout for the midterms falls sharply from presidential-year levels, which gives an edge to the side with the most energy and enthusiasm. And usually that energy is the rage felt by the party out of the White House, which in the past translates to an average gain of 30 seats in the U.S. House. The conventional wisdom ahead of 2022 had been that — even with an end to the pandemic and economic gains — President Biden could lose his congressional majorities, both because of that history and because the Census added House seats in conservative states.
A major conservative court ruling on abortion could blow up the conventional wisdom. Suddenly, the angriest U.S. voters next year could be the demographic with the highest level of support for abortion rights — urban and suburban college-educated women. In other words, the same voting bloc that was most angered by Trump’s 2016 election, that flooded the streets in January 2017 for the Women’s March, and which knocked on millions of doors in 2018 as Democrats re-took control of the House. The so-called “Trump resistance.”
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In an online interview this week after the High Court agreed to hear the Mississippi case, pollster Anna Greenberg — who’s written extensively about the prospects for a women’s revolution in politics — said that gender issues tend to be a lightning rod to rally voters on the left or right, and that the new abortion politics in 2022 “could absolutely see a reaction that drives Democratic turnout.” Like other experts, she qualified her remarks because it remains to be seen how far the justices might go, noting that a flat-out overturning of the 1973 ruling would be “highly motivating.”
It’s also hard for pundits to know exactly how a ruling would affect 2022 voting because Americans’ views on abortion are fairly complicated. Large majorities — in the range of 60% to as high as 70% — tell pollsters that they do not want the court to overturn Roe v. Wade. But surveys also find surprisingly strong support for some government restrictions on reproductive rights, which means the devil could be in the details of the Mississippi case. What’s more, many voters rank abortion rights low on their list of important issues — although the controversy tends to drive activism among those who do see it as a critical matter.
Ziad Munson, a sociology professor at Lehigh University who’s written a book on abortion politics and is currently studying politics in the U.S. suburbs, told me that historically reproductive rights have been more of a turnout motivator for the political right, as the GOP turned its attention to installing socially conservative judges. But now, he believes a Supreme Court ruling that seriously restricts access to an abortion could rapidly speed the migration of upscale suburban women away from the Republican Party.
One potential impact — especially if the ruling allows the harsh restrictions in Mississippi and Texas and encourages Republican lawmakers in Pennsylvania and elsewhere — is a focus on state legislative races that was absent in elections like 2020, when President Biden carried the Keystone State and yet the same electorate strengthened the GOP’s grip on legislation in Harrisburg.
But I think more importantly, any move by the High Court to poke the bear of abortion politics with a sharp stick could backfire on Republicans next year by putting the legacy of Donald Trump back on the ballot. After all, the conventional fear is that Biden’s 2020 victory was driven heavily by affluent, college-educated voters who were desperate to go “back to brunch” and not think about politics for the next four years. Curtailing reproductive rights — and the reminder that a Republican-led Senate as early as 2023 could block Biden from appointing new judges — could reunite the band of the Trump resistance, with a 2018 level of activism.
To be clear, that renewed activism would come at a terrible cost — a Republican Party where many view The Handmaid’s Tale as non-fiction seeing a near-total victory in a decades-long battle to restore one of the key facets of the patriarchy, which is controlling women’s bodies. Monday’s announcement by the Supreme Court was a reminder that America is still living with the toxic consequences of Trumpism, even with the Former Guy exiled to Elba-on-the-Intercoastal-Waterway. All of us, and not just Susan Collins, should be concerned.
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