Ever since the U.S. Supreme Court decided the case of Roe v. Wade in 1973, politicians on all sides have had a free ride on the issue of abortion. They could comfortably take positions that would never attract majority support, knowing they would never have to vote on actual legislation embodying those views. This allowed them to play up to voters who were passionate on one side of the issue and who could be relied upon to donate, volunteer, and turn out to vote.
Now, however, the free ride may be over. The court is apparently on the verge of overturning Roe v. Wade as well as a later case upholding abortion rights, Planned Parenthood v. Casey. If that happens, the authority to regulate abortion will return to the people of each state and their elected representatives. That puts state lawmakers in a new political world. They’re going to have to deal with the rest of the voters.
“Abortion presents a profound moral issue on which Americans hold sharply conflicting views,” Justice Samuel Alito wrote in his leaked draft opinion in Dobbs v. Jackson Women’s Health Organization. “Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.”
Gov. Gavin Newsom and state legislative leaders are clearly in the second group. On Wednesday, a news release from the governor’s office declared that they are advancing a state constitutional amendment to “enshrine the right to an abortion.”
A constitutional amendment would need a two-thirds vote in both the Assembly and the state Senate to get on the November ballot, and then it would need approval by a majority of voters to become part of the state constitution.
But on this issue, details are destiny. Will the amendment guarantee the right to an abortion at any stage of pregnancy? Would that attract majority support in California?
Even in the Golden State, Justice Alito’s observation about sharply conflicting views may apply. We’ll all find out together when the first draft of the amendment is introduced in the Legislature.
The politics are unpredictable. Lawmakers will have to vote on a measure that’s in writing, not in theory. Then they’ll have to explain their vote to constituents who may disagree. That’s very different from the rhetorical license they’ve had up until now to say anything that excited “the base” and drove up fundraising numbers.
The amendment “enshrining” a right to abortion is only one of the quicksand pits into which state politicians are marching. Newsom unveiled what he called a “Reproductive Health Package” that will spend tens of millions of your tax dollars to “help prepare for the influx of people seeking reproductive health care from other states.” How much are California voters willing to pay for the abortions of out-of-state residents? Lawmakers may find that some policies are easier to support in the abstract than in the budget.
All the difficult questions will have to be answered. If the leaked draft turns out to be the Court’s opinion, then in Alito’s words, “we thus return the power to weigh those arguments to the people and their elected representatives.”
And it’s looking like “when,” not “if.” Politico, which first published the leaked opinion, followed up with a story this week reporting that no justices have switched their votes and no other draft opinions have been circulated. The leaking continues.
“We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey,” Alito stated in the draft, which was written in February. “And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”
That statement is certainly being put to the test. The leak of the draft opinion has been quite the dress rehearsal. Someone wanted the justices to see exactly how our political system and society would respond to the decision. Someone wanted that knowledge to influence at least one vote.
It’s unlikely that the five justices in this apparent majority will change their minds, even in the face of illegal picketing outside their homes with the tacit approval of the White House. The draft opinion states that Roe v. Wade was wrongly decided—“egregiously wrong from the start”—and the Supreme Court does not have the authority to decide how abortion may be regulated in the states.
Alito wrote that the Court “usurped the power” from the people and their elected representatives.
That has happened many times. Roe v. Wade was just one of a long series of landmark Supreme Court decisions that abruptly transferred policy-making powers from state governments to federal courts. Many of these decisions were controversial at the time, and all for the same reason—whether the policy that resulted was good or bad, the Supreme Court has no authority under the Constitution to make policy. The framers left policy-making to the people’s elected representatives.
If Alito’s draft opinion becomes the real thing, state lawmakers may have some difficult votes ahead. That could leave many of them, and their fundraisers, yearning for the days of the free ride.
Write Susan at Susan@SusanShelley.com and follow her on Twitter @Susan_Shelley.