April 15, 2022 | Reading Time: 3 minutes

Roe is going down, slowly and one state at a time. Where’s that backlash we were promised?

Opposition is hard to come by without a big picture.

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Among liberals who are anticipating, and who are fearing, the fall of abortion rights nationally is an assumption. That assumption is this: A gigantic backlash will crush the Republicans after the Supreme Court enfeebles Roe.

If a backlash were brewing, though, we’d see evidence by now.

I don’t see it. 

Do you?

Texas, Mississippi, Oklahoma, Idaho, Kentucky, Arizona, Wyoming and Florida have passed laws outlawing abortion or nearly banning it. 


Like the anti-abortion statutes gaining in popularity in states run by the Republican Party, the above laws and acts are blatantly unconstitutional. States are not supposed to nullify federal law. The Civil War settled that. States are not supposed to regulate immigration. The federal government has clear authority over federal borders. 


Some laws, like Florida’s, make no exception for incest, rape or risk of injury or death to the mother. Others, like Texas’s, create a legal setting in which private citizens enforce the law by hunting bounties. 

(Some states already had laws on the books criminalizing “fetal homicide.” The Editorial Board’s Mia Brett wrote this week these laws pave the way for the invention of a legal fiction: “fetal personhood.”)

By the summer, additional GOP-controlled states will prohibit or restrict-into-oblivion access to abortion. These same states will likely forbid the selling, buying and possessing of the abortion pill, too.

Why don’t we see a backlash yet? A couple things. 

It’s hard to see a pattern taking shape nationally when states do things one at a time. Their laws will incapacitate the right to choose, but few see it clearly enough. Without a big picture, a backlash can’t mount.

The Supreme Court, moreover, is not likely to strike down Roe as dramatically as the Warren court struck down “separate but equal.” Instead, Republican justices will cripple the legal precedent so much it’s still technically “the law of the law” but technically unenforceable.

Seismic events, like the 2016 election, get enough attention to trigger a backlash. Slow-but-steady events, like the one-by-one passing of anti-abortion laws, don’t. Focus, hence backlash, is harder to come by.

We’re witnessing blackletter law erode into dead letter.

I think that’s the goal in other areas, too.

Missouri is the latest state controlled by the Republicans to nullify federal gun laws. According to a report by the Rockefeller Institute, the state’s “Second Amendment Preservation Act” “purports to nullify certain federal gun laws.” Among other things, it “forbids state or local officials from enforcing or attempting to enforce any of those laws.”


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Texas hasn’t nullified federal immigration law, to my knowledge, but it has overtaken the constitutional purview of the federal government. Governor Greg Abbott has deployed law enforcement and Texas National Guard troops to police the state’s southern border.

Like the anti-abortion statutes gaining in popularity in states run by the Republican Party, the above laws and acts are blatantly unconstitutional. States are not supposed to nullify federal law. The Civil War settled that. States are not supposed to regulate immigration. The federal government has clear authority over federal borders. 

Not just unconstitutional. 

Preemptively so. 

State Republicans know they are violating the founding document they say they hold dear in preparation for the Supreme Court’s endorsement of that violation. The Texas AG admitted as much:

“The governor has figured out we can stop trade along the border, slow it down, and it will create pressure on Mexico and some of their governors to work out a deal to help us with border security.”

Again, this drip-drip-drip of legislative and executive action is hard to place in a context large enough to rally opposition. The Republicans are indeed endeavoring to “return power to the states,” as they and people believing their bad faith like to say, but it’s more grotesque. 

Think about why it’s abortion, immigration and guns.

With guns, white people can terrorize nonwhite people in the country. Case in point is “Stand Your Ground” law. It permits white men to murder. (Yet it’s not applicable, somehow, to nonwhite defendants.) 

If they can’t get what they want from democracy, they can get what they want by flooding the country with guns. If few white people died in the process, they died heroes. They died protecting “our way of life.” 

While white men in the country terrorize nonwhite people with guns under the cover of the Second Amendment, other white men – in the Texas National Guard or rogue agents in the Border Patrol – continue blocking undocumented Americans from crossing the border.


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With guns and immigration, the Republicans and the people who lean their way have a potent defense against a growing population, and hence political power, of nonwhite people in the country who will outnumber white people at some point this century, thus making democracy itself “the enemy of the people” – ie “the master race.”

What about offense? That’s where abortion comes in. 

Terrorizing nonwhite people already in the country and blocking nonwhite people from entering the country – these are efforts to buy time while white women who’d otherwise have abortions, but no longer can, get busy populating the country with white babies.

A big picture like that might inspire a backlash.

Will it? 


John Stoehr is the editor of the Editorial Board. He writes the daily edition. Find him @johnastoehr.

1 Comment

  1. John Smart on April 15, 2022 at 2:18 pm

    I no longer believe the American Left is capable of anything beyond teeth gnashing and tweeting.

    If we can’t even rise up for abortion rights then what…exactly… is the point of being a progressive in this country?

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