Commentary

Alito just threw the Dems a midterm lifeline. Will they use it? | Fletcher McClellan

Mobilization for future elections, fueled by thousands of stories of women denied control of their bodies and lives, is the best hope for pro-abortion advocates

May 5, 2022 6:30 am

Women react to the U.S. Supreme Court decision June 30, 2014, when the high court ruled that some private companies can be exempted, on religious grounds, from health care reform’s requirement that employer sponsored health insurance policies cover contraception. (Photo by Mark Wilson/Getty Images)

The U.S. Supreme Court appears ready to launch a legal and political bombshell into the 2022 elections nationally and in Pennsylvania.

A leaked copy of a draft opinion written by Justice Samuel Alito in the case of Dobbs v Jackson Women’s Health Organization, revealed by Politico and other news organizations, would uphold Mississippi’s 15-week abortion ban and overturn the viability standard established by Roe v Wade, the landmark 1973 case that established a constitutional right to abortion, and the 1992 Pennsylvania case, Planned Parenthood v Casey, which built upon it.

Alito, a strong opponent of abortion rights, likened Roe to Plessy v Ferguson, an “egregiously wrong” decision that upheld racial segregation laws. By allowing state governments to regulate when, where, and how women can terminate pregnancies, Alito stated that the Court is returning the issue to “the people and their elected representatives.”

Not coincidentally, over 20 states are ready to implement strict abortion bans if the Supreme Court strikes down Roe v Wade.

The Alito draft is the beginning of a process in which the Supreme Court makes decisions. Other justices circulate their draft opinions, hoping to persuade colleagues to join them. Any justice can change his or her mind during this process. Indeed, sometimes draft majority opinions wind up as dissents.

One of several theories about the leak of the Alito opinion – perhaps the most serious violation of secrecy protocol in Supreme Court history – is that it was the work of a conservative justice or clerk who wanted to make sure there were no defections among anti-Roe Justices Clarence Thomas, Neal Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and Alito.

If Alito is speaking for a Court majority, the forthcoming decision in Dobbs will put reproductive rights front and center in this year’s elections for Pennsylvania governor and state legislators.

Instant reactions from candidates for governor, as well as for the U.S. Senate, indicated that PA Republicans want to curtail or eliminate abortion rights, while Democrats want Roe to remain the law of the land. A few GOP candidates want a Texas-style, total ban on abortions after six weeks of pregnancy with no exceptions.

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Some political analysts believe the Supreme Court is throwing a lifeline to Democrats, who are presently on course to lose their majorities in the U.S. House of Representatives and U.S. Senate.

Aligned with historic trends in midterm elections, in which the president’s party nearly always loses seats in Congress, recent polls indicate that voters are more inclined to support Republican candidates in their districts or states than they are to vote for Democratic candidates.

President Biden’s public approval rating has hovered in the low 40s the past few months, despite greater support for how he is managing the Russia-Ukraine war.

Polls also suggest that the public trusts Republicans to do a better job in handling the issue most important to them – inflation. News that the Gross Domestic Product declined in the first quarter of 2022 undermined, at least temporarily, the Biden administration’s claim that its policies have produced spectacular economic growth.

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Not surprisingly, there is an enthusiasm gap between Republicans and the Democratic base, disappointed that the party has thus far failed to enact policies that would strengthen voting rights, address climate change, reduce student debt, and support working families.

Democratic leaders are second-guessing themselves about how to turn things around. Few Democrats seem eager to confront Republicans on abortion or other culture war issues, including outrageous claims that Democrats are somehow enablers of pedophiles.

Lately, there are signs that energy on the Democratic side is picking up. The impressive performance of Judge Ketanji Brown Jackson in winning Senate confirmation to the Supreme Court, despite disgraceful Republican attacks on her character, won support from not only Democrats but also independents.

The loss of a right exercised by women for half-a-century, favored by strong majorities in national and statewide surveys, will certainly motivate pro-abortion supporters to the polls in November.

Especially infuriating is the fact that President Trump, who lost the popular vote in both presidential elections, and Senate Minority Mitch McConnell, R-Ky., who refused to consider former President Barack Obama’s nomination of then-Judge Merrick Garland to the Supreme Court in 2016, engineered the reversal of Roe.

Abortion politics may lead Democrats to focus on races for U.S. Senate, where the power to confirm judges lies, and, depending partly on how Pennsylvania goes, the party has a decent chance to hold on to its majority.

At the same time, the impending end of national abortion rights should energize anti-abortion forces. This is particularly true in the commonwealth, where only the veto pen of outgoing Gov. Tom Wolf, a Democrat, prevented the Republican-controlled state legislature from enacting restrictions to reproductive freedom.

Besides, it remains to be seen whether a single issue, even one as potent as abortion, will halt what looks like a national Republican wave this year.

Mobilization for future elections, fueled by thousands of stories of women denied control of their bodies and lives, is the best hope for pro-abortion advocates.

Opinion contributor Fletcher McClellan is a political science professor at Elizabethtown College in Elizabethtown, Pa. His work appears biweekly on the Capital-Star’s Commentary Page. Readers may email him at [email protected], and follow him on Twitter at @mcclelef.

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