March 21, 2024 | Reading Time: 4 minutes

The backlash against Dobbs should restore balance to a constitutional order in need of it

It should do more than defeat Trump.

Courtesy of Wikimedia Commons.
Courtesy of Wikimedia Commons.

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I have been saying the US Supreme Court is lost. It will be dominated by a rightwing majority for years, decades even. The best we can do, if we care about democracy, liberty and liberal values, is dominate the institutions of lawmaking, especially the US House. Thanks to Donald Trump, we have a chance to do that.

Trump recently took a firm position – well, firm enough – on the idea of a national abortion ban. In February, the Times reported he privately supported the proposition of a 16-week national abortion ban, with exceptions for rape and incest. Trump denied the report, however, for fear of radicalizing voters who’ve been radicalized by the fall of Roe.

The former president seems to have misplaced his previous fear. On Tuesday, during a radio interview, he said he was open to a 15-week ban. He said it was a “reasonable” position, but stopped short of endorsing it. Trump has been coy since the Supreme Court invalidated national abortion rights. That is, when he’s not taking credit for that.

The threat of a national abortion ban might jolt Democrats to drive out of office blue-state Republicans who’d help enact one, thus laying the groundwork for a takeover of the US House that could last for years.

The reason he’s even talking about a national abortion ban is because supporters are unsatisfied with letting states decide how to regulate abortion, even though state’s rights were key to the Dobbs ruling. They are unsatisfied, because the anti-abortion movement was never about abortion, but instead a woman’s place in society relative to a man’s. 

Trump knows he’s treading on thin ice. He knows the backlash against Dobbs – and, therefore, against him – is the reason GOP candidates have been losing elections since 2022. Even in red states, activists have been fighting to put the question to voters in ballot initiatives. In some, like Ohio, they enshrined abortion rights in their state constitution.

Trump could say nothing and maintain all the support he needs from white evangelical Protestants and other diehard anti-abortionists while letting swing voters, who don’t love abortion but hate bans on it, come to their own conclusions about him. He doesn’t need a position on a national ban, yet here he is, playing footsie with the idea. Perhaps he can’t help himself. He’s a showman. He has to pander to the crowd. 

In any event, playing footsie with a national abortion ban just might jolt blue-state Democrats out of their sense of complacency. They may be appalled by the sight of what’s happening in Texas, where the “exceptions” to its abortion ban turned out to be farcical and where pregnant women face the horror of birthing dead babies. But they are largely unconcerned about abortion restrictions in their own states. 

That’s partly due to blue states generally having liberal abortion laws. But it’s also partly due to believing the anti-abortionists when they say their goal is protecting life, beginning the moment a human sperm touches a human egg. They don’t care about that. They care about controlling women. They care about that so much they’re prepared to ditch previous overtures to state’s rights in favor of a national ban.

A 15-week national abortion ban would threaten to invalidate liberal abortion laws blue-state Democrats currently take for granted. Depending on the Supreme Court’s rightwing majority, it might even invalidate amendments to state constitutions currently enshrining abortion rights. Moreover, Trump and congressional Republicans wouldn’t stop at 15 weeks. That number was made up to give the impression of a middle ground. They would find a way to zero. 

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To do that, Trump would need a Republican Congress. That’s where blue states come in. More than 20 House Republicans come from California and New York alone, whose liberal abortion laws are taken for granted by Democratic voters in those states. If they remain complacent, and if Trump wins, House Republicans from those states could, and probably would, help enact a national abortion ban. If, however, Democratic voters from just California and New York drop their complacency, they could avoid that fate by driving out of office each of those Republicans, denying Trump the majority he’d need. 

The conventional liberal wisdom is the reaction to Dobbs is going to defeat Trump in 2024. But the reaction to Dobbs could be much more than that. Indeed, it must be. The American principle of checks and balances is out of balance thanks to a rightwing majority on the Supreme Court. Whereas previous generations came to see the high court as the giver of rights, subsequent generations will almost certainly see it as the taker of rights. The only way to counterbalance that is by dominating the institutions of lawmaking, namely the House. 

The Senate isn’t enough. Though the Senate is where federal judges are confirmed, and though federal judges determine through the common law what federal law is, they can be, and probably will be, overruled by the Supreme Court’s rightwing majority if it doesn’t like their decisions. Anyway, the distribution of votes in the Senate is almost evenly divided, and there’s probably not much that’s going to change about that soon.

However, if the Democrats hold the House – for years, hopefully longer – they can take the necessary action, during those times when the Senate is in Democratic hands, to restore rights and protections, such as the right to an abortion, that the rightwing majority of the Supreme Court has taken away and will almost certainly continue to take away. 

The backlash against Dobbs shouldn’t only defeat Trump. It should restore balance to a constitutional order desperately in need of it.

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

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