In his unanimous opinion on the Supreme Court’s decision to annul Roe v. Wade, Judge Brett M. Kavanaugh expressed a tone of optimism that democracy and the will of the people would prevail, even on the painful issue of the right of a woman to end a pregnancy.
“The nine unelected members of this Court do not have the constitutional authority to override the democratic process,” he wrote, adding that the court’s decision merely “restores the people’s authority to raise the issue of abortion.” tackle through processes of democratic self-government.”
In other words, states have the power.
For Democrats, that’s extremely bad news: In many states, including Wisconsin, Ohio, Georgia, and Florida, the new battleground of abortion is decidedly unequal, tilted by years of Republican efforts to change the state’s legislature as Democrats largely lose their way. concentrated on federal politics. With abortion becoming illegal in half the country, democratic self-government can be nearly out of reach for some voters.
By neutralizing federal rights and powers, the Supreme Court turns states into battlefields. That goes beyond abortion and includes voting, immigration and civil rights. And if, as expected, the court limits the federal government’s ability to regulate carbon dioxide, state governments, stepping in before a stalled Congress, will be left to tackle climate change, too. That would leave the future of the battle to lawmakers in places like Sacramento and Oklahoma City.
Even as leaders of conservative advocacy groups celebrated a historic victory on Friday decades in the making, they said they were already preparing for the next phase of the battle in state houses and state supreme courts.
Thirteen states have so-called trigger laws designed to effectively ban abortion in the wake of the Supreme Court ruling overturning Roe v. Wade.
Others could try to remove the right to abortion from state constitutions. And still others, such as Michigan and Wisconsin, have old pre-Roe laws banning abortion that abortion rights advocates and political leaders are now trying to block.
“There’s definitely going to be a lot of action in the states,” said Carrie Severino, the chairman of the Judicial Crisis Network, a conservative legal advocacy group that has helped elevate Republican judges. “The challenge is which states will have state courts that are likely to be to the left of the people.”
Democrats may have won the popular presidential election in five of the last six elections, but Republicans control 23 state legislatures, while Democrats lead 14 — with 12 bicameral state legislatures split among the parties. (The Nebraska legislature is elected on an unbiased basis.)
In a very real sense, the country is tearing apart, with blocs of liberal states on the west coast and northeast moving forward with one agenda while the conservative center of the country moves in the opposite direction. For example, state agreements on the coasts have moved forward to curb emissions of climate-warming pollution, while states that rely on fossil fuels in the center are pushing for more oil, gas and coal production.
The division has only grown in Washington, where the extremely narrow Democratic majority of Congress has failed to pass significant legislation on climate change, voting, immigration or abortion rights, leaving these weighty issues to the courts. and regulatory authorities. The conservative 6-3 majority of the Supreme Court now makes it clear that such matters should be decided by the people’s representatives. With Washington at an impasse, those representatives will have to be found in the states.
“What we’re seeing is a pendulum swinging back to state power over fundamental rights,” said S. Karthick Ramakrishnan, a public policy professor at the University of California, Riverside. “This is the result of decades of investment by conservatives of the movement.”
In states where the voting population is ideologically divided, the political direction of government in state capitals may be determined more by partisan power structures set up by politicians than by public opinion. Although the Supreme Court says it wants to give voters more power, it ruled in 2019 that federal courts did not have the power to rule on partisan gerrymandering. The decision in Citizens United v. Federal Election Commission also removed many campaign contribution checks, making it much harder for state house fighters to have something like a fair fight.
Unshackled by the Supreme Court and often largely unopposed by Democrats, conservative organizations backed by billionaires like Charles Koch — including the American Legislative Exchange Council and the Republican State Leadership Committee — began more than a decade ago to dominate state-level policymaking. And now, unfettered by the constitutional rights under Roe, that dominance can come to fruition over access to abortion, often regardless of public opinion.
“Kavanaugh’s naive theory is that the people speak and the legislature listens,” said Samuel S. Wang, director of the Gerrymandering Project at Princeton University. “But for that to happen, you need a mechanism to make their influence felt, and in some states you have political parties building a system to keep themselves in power.”
In Ohio, the Republicans have an undeniable statewide lead, but it’s nothing like their 64-35 lead in the Statehouse or their 25-8 lead in the state Senate. Those benefits are likely to see an almost complete abortion ban in the coming weeks. Because the gerrymandering of the state’s legislative lines is so extreme, the only competition Republican lawmakers fear is from even more conservative Republicans.
In Wisconsin, the Democrats hold virtually every office in the entire state, including the governor. But waves of gerrymandering have almost given Republicans a supermajority in the Senate and the Legislature. That means an abortion ban passed in 1849, when only white men were allowed to vote, is back in effect now that Roe v. Wade has been lifted.
“Because the structure of Wisconsin’s ultragerrymandered maps is so manipulated against small-scale democracy, we’re getting a bill on the books that the vast majority of Wisconsinites are against,” said Ben Wikler, the chairman of the Wisconsin Democratic Party.
Georgia voted for President Biden and two Democratic senators in 2020, but those same voters barely made a dent in the state’s Senate and House. With the repeal of Roe v. Wade, the Georgian law passed in 2019 banning abortion after six weeks is set to come into effect soon, and state lawmakers say they can tighten it up.
Similar imbalances exist in Florida and North Carolina, where closely divided voting populations live among state houses and state supreme courts that will determine the future of abortion without needing to reflect public opinion. Texas rekindled the national battle over abortion last year after the Supreme Court refused to block a law passed by the Republican-controlled legislature that banned abortions after six weeks and allowed alternate ordinary citizens to enforce the law.
The repeal of Roe v. Wade will lead to a new law in the coming weeks that virtually eliminates the right to abortion in Texas. Republicans are now discussing legislation to allow prosecutors to prosecute people involved in abortions in neighboring counties and criminalize anyone who helps a woman have an abortion in another state.
State Representative Briscoe Cain, a Republican, called the overthrow of Roe v. Wade “a victory” for legal philosophy.
“The issue should have been left to the states all along,” he said.
The state pressure has been deliberate. The landmark Civil Rights Act of 1964 and the Voting Rights Act of 1965, passed after years of a bloody civil rights struggle that swelled from the ground up, helped conservatives understand the importance of state power, said Dr. Ramakrishnan. Over the next five decades, conservatives invested heavily in state-level legal science and advocacy, as veterans of those past civil rights battles and newer crops of progressives tended to focus on federal policy.
“You can see it as an erosion of rights from below,” he said.
In 2010, after successive Democratic waves put Republican power on the back burner, Republican organizations came up with what they called Project Redmap, pouring $30 million into state legislative races. They were convinced that a backlash against Barack Obama, then president, in a year of redistricting would put a stranglehold on state capitals for years to come.
Democrats insist they can fight back now. The power of issues coming to the fore this summer — not just abortion, but gun violence and the January 6, 2021 uprising — could energize Democratic voters and convince enough Republicans to brave the partisan collapses of some Gerrymandered districts.
“Your ability to vote or access abortion care will depend more on zip code than in the past,” said Lindsay Langholz, director of the American Constitution Society, a progressive legal organization.
Laphonza Butler, the chairman of Emily’s List, the powerful political action committee that helped elect hundreds of women who support abortion rights, said her organization was beginning to shift its focus to state governor races and parliamentary elections around 2016.
That shift came about when Republicans crumbled the right to abortion. Emily’s List is now focused on supporting Democratic candidates active in key states, including Michigan Governor Gretchen Whitmer and Stacey Abrams, who is seeking governor in Georgia.
“We are as angry as anyone and we are ready to take on this moment,” Ms Butler said.