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Voting Can’t Save Roe v. Wade

The party in power has decided theocratic fascism is something they can't—or won't—stop.


The Supreme Court heard oral arguments today in Dobbs v. Jackson Women’s Health Organization, the case which will determine the constitutionality of Mississippi’s ban on abortions after 15 weeks of pregnancy. It seems clear what is going to happen next.

During their arguments, Trump-nominated Judges Brett Kavanaugh and Amy Coney Barrett made it clear that they believe Mississippi’s ban is not only constitutional but that it also is grounds to issue a broad ruling that would effectively overturn the central holding of 1973’s Roe v Wade, which established a constitutional right to abortion and stopped states from banning the procedure before “fetal viability,” typically estimated at around 23 weeks.

There are details to work out, of course. The New York Times’ analysis predicts that moderate conservative Justice John Roberts lobby Kavanaugh and Coney Barrett to help deliver a narrower ruling which would uphold the Mississippi law but not fully overturn Roe, instead stopping at 15 weeks. This is unlikely. Slate’s Mark Joseph Stern, who knows the Court better than me and the vast majority of people commenting or following this case, predicts that Roe v Wade will be overturned in a decision in June, making it likely that abortion would become illegal in almost half the states shortly after.

I don’t need to tell anyone how to think or feel or process these proceedings on a personal level. But I can tell you that there is one response that no longer makes any political sense, and that continuing to entertain it does little to change the reality we now find ourselves in. That response is this:

Defending abortion rights has become one of the most crucial part of the Democrats’ wider platform, something that they heavily lean on every two years to try to win midterm and presidential elections. In recent years, they have had some success—regaining a strong majority in the House in 2018, recapturing both the executive branch, and (nominally) the Senate in 2020. In many ways, this platform has worked nationally. Democrats have won the popular vote nationwide in every presidential election from 1992 to date, except for 2004, when a two-term, two-war, two-Bush George W. beat John Kerry by three million votes.

What this shows is that America is voting for Democrats. The majority of American voters consistently vote for Democrats. The American people are doing their job. The people failing them are the ones they’ve elected.

The argument put forward by the DSCC and other idiots today is that, essentially, if Hillary Clinton had won the presidential election in 2016 and/or the Democrats had held the Senate during Donald Trump’s two-justice nomination term as president, we wouldn’t be in this situation. Which, sure. Ok. But again: The voters did their job. They elected Hillary. But the people in power—the Democrats—failed them long before that in their consistent refusal to change the systems of power that allow a conservative minority to control the country.

And even still! There are ways around this. There are ways the Democrats could save abortion and save democracy and sweep back the country’s inexorable trend toward theocratic fascism, but they all involve using power in a way that, so far, no leader from the party has been willing or able to do.

You’ve probably heard of several of these: eliminating the filibuster, packing the court, or even simply using the executive branch to ignore the right’s new grasp over judicial review, which was never in the Constitution in the first place and we can all see has clearly gotten out of hand. Even within the flawed system of the Senate and current legislature, Democrats could be making a concerted push for D.C. statehood or Puerto Rico statehood or both, giving them a better chance to secure majorities so that every single bill doesn’t rest on people like Joe Manchin and Kyrsten Sinema. Democrats could even pass a law ensuring a woman’s right to an abortion (imagine that) right now, technically, if they chucked the filibuster and convinced Joe Manchin and Bob Casey to support the bill that passed the House in September.

They can’t do this, of course, because Manchin and Casey probably won’t budge on abortion and Manchin and Sinema won’t budge on the filibuster. All of these people are Democrats. So while it’s potentially true that if we just elected “more Democrats,” these few ideological aberrations might be less of a problem, but the question becomes how many? How many do we have to elect? And what if we keep voting for Democrats, somehow flip a few more red states to purple, but the only way we do so is if we elect another Joe Manchin? What then? What do we need to secure these things—60 votes in the Senate? Obama had 59 in 2009 and barely got the Affordable Care Act passed. Political priorities have changed a bit in the past 12 years, but is there any guarantee that we’d get anything done with 59 or 60 now? Not really. And where are those seats supposed to come from?

This situation arises because the other party, the Republicans, has spent every single year since at least the Reagan presidency doing everything they can to both reinforce and abuse the existing undemocratic systems of power in this country. In our current predicament, McConnell’s nuclear bomb on the filibuster for Supreme Court justices in 2017, predicated by the smart assumption that he would retain at least nominal control of that House for the foreseeable future (still true), allowed conservatives to essentially waltz into their strongest ideological majority since the 1930s.

These are people that none of us voted for. These are systems that are not fixable by “voting” and will only change in two ways: with their complete overthrow and destruction by external forces or their systematic reform by people who do have that power and choose to wield it. Every single year, America votes for Democrats, almost always by a hefty majority. And every year they fail to secure the power we vest in them, deciding that theocratic fascism is generally preferable to taking political risks that could change the status quo or “democratic norms” that got us where they are. If they don’t decide to do their jobs and ensure the future we voted for, then it’s time we bring them down and secure it ourselves.