The thing about democracy is that once you have it, it’s hard to give up. That’s why, try as they might, Republicans are losing one battle after another.
In addition to their questionable tactics, like gerrymandering and attempts at voter suppression, the disingenuousness of their arguments, while perhaps effective in some Republican circles, is backfiring spectacularly nationwide.
Take the abortion issue. SCOTUS, now heavily weighted toward extreme conservatism by three Trump appointees — who pretended to honor precedent during their confirmation hearings, but who were quick to reverse Roe v. Wade the second they had the chance — have insisted their goal was not to end abortion. Rather, it was simply to shift the responsibility of choice to the states.
What SCOTUS didn’t say was they wanted the responsibility to be shifted to Republican state legislators, not the voting public.
Once Dobbs was decided, based on an opinion by Justice Alito that included reliance on an antiquated doctrine that conveniently ignored current scientific and medical knowledge, Republican state lawmakers took matters into their own hands. In one state after another, they implemented abortion bans, despite polling that has consistently shown most voters in every state want abortion care to be available — in some, if not all, cases.
How did this happen so fast?
Unfortunately, in many states, abortion bans were put in place before Roe v. Wade was reversed. This meant that as soon as Dobbs was announced, those laws were in effect. This was not an accident. It’s how Republicans ensured that before any state could vote on the issue, abortion would automatically be limited, if not outlawed entirely, in states where Republican legislators held a majority.
What SCOTUS didn’t say was they wanted the responsibility to be shifted to Republican state legislators, not the voting public.
In other words, while most people across the country believe that the deeply personal choice to bring a child into the world should be made with guidance from their doctors — not politicians — Republicans found a workaround to democracy.
Hypocrisy in high places
When Republican state legislatures began passing anti-abortion laws, they did so as part of a national Republican strategy. Trump had made a deal with Republicans to do everything in his power to overturn Roe v. Wade, he just needed a supreme court justice to die first. He got what he wanted.
Just weeks before the 2020 election, Ruth Bader Ginsberg passed away.
With the loss of Justice Ginsberg, Republican strategy kicked into high gear by immediately reversing their pledge to refuse to vote on a supreme court nominee before an election.
Amy Coney Barrett was narrowly confirmed just days before the 2020 election and only 30 days after her nomination. It is no coincidence that Barrett, who belongs to a Christian religious cult — one that is vehemently anti-abortion — sealed the deal for Republicans who had been enacting anti-abortion legislation in red states since Trump was elected.
Their goal was to have abortion bans (“trigger laws”) in place so that when SCOTUS overturned Roe v. Wade, abortion would immediately be restricted, if not eliminated entirely, in red states. The plan was simple and foolproof: take away abortion rights before anybody has the chance to vote on them.
Voters will not forget who took away their rights
I recall reading one opinion piece highlighting the initial public outcry over the reversal of Roe v. Wade. It was not long after the Dobbs decision, and I don’t recall who wrote it, but the gist was that the outrage would die down, and it would be a non-issue by the time the 2022 mid-terms rolled around.
Republicans seemed to think people would forget about having a basic human right taken from them — that women, in particular, who represent over 50% of the voting public, would simply accept that politicians are better qualified than doctors (or themselves) to make family-planning decisions.
I was dumbfounded by this thinking, especially since we have benefited from the right to abortion care for over fifty years. So whenever I heard someone say this would be a non-issue by the next election cycle, I was unconvinced. I was not wrong.
Since the Dobbs decision was announced, when voters have put the issue on the ballot, abortion rights have prevailed. Unfortunately, in many cases, trigger laws banning or severely limiting abortion were already in effect.
…while most people across the country believe that the deeply personal choice to bring a child into the world should be made with guidance from their doctors — not politicians — Republicans found a workaround to democracy.
But contrary to the expectation of the Republicans pushing the bans, anti-abortion legislation has motivated people in several red states to demand state constitutional amendments to guarantee the right to abortion care, or at least prevent state constitutional amendments that would prohibit or severely limit the right to an abortion.
Deep red Kansas led the way
The first state to vote on a constitutional ban on abortion post-Dobbs was Kansas. And according to the Associated Press, Republicans in Kansas were disingenuously working both sides of the issue.
Republicans have spent more than three decades making it as hard as possible to get an abortion in Kansas, and now that their chance to ban the procedure is in sight, they’re reluctant to tell voters whether that’s their goal.
Fearful of losing votes from people who want limitations on abortion but not an outright ban, Republicans pushing the amendment simply refused to say what they’d do if the amendment passed.
Then there was the outright lie told by someone attempting to confuse voters into passing the Republican-led effort by misleading them into thinking a “yes” vote was a vote for choice.
An anonymous group sent a misleading text Monday to Kansas voters telling them to “vote yes” to protect choice, but it was suspended late Monday from the Twilio messaging platform it was using, a spokesperson said. Twilio did not identify the sender.
In the end, the unsavory tactics of the Republicans in Kansas were not enough to win the day. In a larger than expected turn-out, 59% voted to reject the measure (which stated that nothing in the state constitution could or would ever guarantee the right to an abortion).
Kentucky Republicans fail to pass an amendment banning abortion
Kentucky Republicans also tried to amend their constitution to specifically exclude the right to abortion care. In a move that mirrored Republican tactics in Kansas, the amendment was designed to settle the issue permanently by declaring that the right to an abortion was not, nor would ever be, backed by the state constitution.
Kentucky voters rejected the amendment with a 53% majority.
Unfortunately, Kentucky Republicans had prepared for the reversal of Roe by putting an abortion ban on the books in 2019. And while the Kentucky trigger law was temporarily on hold, when it made its way to the state supreme court, the injunction was removed. Kentucky law now prohibits abortion after six weeks with no exceptions for rape or incest — the only exception is to protect the life of the mother.
The supreme court decision was not based on their interpretation of the state constitution, however. It was based on the fact that the organizations fighting the bans (Planned Parenthood and the ACLU) do not “have standing” to bring the case on behalf of patients seeking abortion care.
However, should a patient choose to present a case, the standing issue would be resolved and the court would presumably be willing to revisit its earlier decision. Once that happens, all signs indicate that the ban will once again be on hold until the state can add this issue to the ballot and can bring the decision to the voters.
In the meantime, abortion is still illegal under most circumstances in Kentucky — despite everyone knowing that Kentuckians support the right to choose.
Six states have voted for abortion rights
So far only six states have allowed the public to weigh in on abortion rights and in all six states, the legislation that passed proved that voters want the right to choose.
In Kansas, Kentucky, and Montana, Republican efforts to ban abortion failed. And in California, Vermont, and Michigan, voters passed abortion rights amendments.
But despite the consistency voters have shown to respect the right to choose, Republican efforts to curtail that right continue. Now, even in states where the public has made their choice clear by voting, state legislators are finding new and creative ways to work around democracy.
Republicans continue to hamstring democracy
In Montana, Republicans have introduced a referendum that would classify an embryo or a fetus as a person with the same legal rights to medical care as you or I, if that fetus was “born alive” at any time. Medical professionals warn that this could only complicate decisions for doctors who might recommend palliative care for infants born with fatal heart conditions.
And to what end? An aborted fetus will never be born alive so the referendum does nothing to prevent an abortion, it merely criminalizes healthcare choices that allow doctors to avoid unnecessary pain and suffering by both the mother and the child when the fatality of the child is already guaranteed.
This is what Republicans call “pro-life.” It’s what I call “pro-birth.”
In Texas, one of the first states to react after the Dobbs decision, the laws are so complex and confusing that doctors are often unable to deliver medical care to pregnant women with complications without fear of imprisonment. This has left pregnant mothers to endure horrific conditions before needed abortion care can be provided.
The result of such irresponsible legislation has caused the Center for Reproductive Rights to sue the state of Texas for endangering the lives of the women they are sworn to protect.
Amanda Zurawski, the lawsuit’s lead plaintiff, testified Wednesday that her water broke 18 weeks into her pregnancy, putting her at high risk for a life-threatening infection. Zurawski’s baby likely wouldn’t survive.
But the fetus still had a heartbeat, and so doctors said they were unable to terminate the pregnancy. She received an emergency abortion only after her condition worsened and she went into septic shock.
Zurawski described during Wednesday’s hearing how her family visited the hospital, fearing it would be the last time they would see her. Zurawski has argued that had she been able to obtain an abortion, her life wouldn’t have been in jeopardy in the same way.
“I blame the people who support these bans,” Zurawski said.
What’s next in the fight for the right to choose?
As it stands, in states where Republican legislators are in the majority, they are continuing in their efforts to push legislation that is confusing to both doctors and patients as they struggle to manage prenatal healthcare.
If we continue down the path of forcing each state to vote on this individually, it is clear that abortion rights will prevail. But at what cost?
We’ve already seen the impact the Dobbs decision has had on women everywhere. And we’ve seen the confusion and frustration it has caused doctors in states like Texas where the law is so vague it’s virtually impossible to comply without simply refusing to offer abortion care.
If we added up all the effort, energy, and financial resources that have been consumed by these issues since SCOTUS made the decision to put the choice in the hands of the states, the wasted resources alone would be a good reason to end this nonsense. But if you also add the pain and suffering this decision has caused, it seems unconscionable to me that we can’t convince Congress to codify the right to choose in the U.S. Constitution.
The end game must be a nationwide constitutional amendment
The pattern is clear. Voters want the right to make their own healthcare and family planning choices; whereas, Republicans want the right to control the voters.
It’s hard to imagine how we can promise “life, liberty, and the pursuit of happiness” when we don’t allow people to keep their healthcare private and their choices personal.
Unfortunately, we have the same problem we’ve had for decades. For Republicans, cruelty is the point. If this example doesn’t prove that, I don’t know what will.