The Over/Under on the Right's Federalism Flip on Abortion
by Neil H. Buchanan
Having returned two days ago from spending Fall semester in the UK, I am still jet-lagged and not able to write a normal column for Dorf on Law today. As it turns out, however, this was a good week for me to be disengaged. After all, the big story of the week was the Supreme Court's oral argument in the anti-Roe case, and Professors Colb, Dorf, and Segall have already ably and extensively commented on that debacle.
Even if I had been able to fully engage this week, I suspect that I would not have had much to add to their analyses. In this very short entry, therefore, I want to return to an abortion-related question that I posed in a column three months ago. I wrote:
Republicans' commitment to devolved federalist power -- so-called states' rights -- has never been anything but opportunistic on any policy question. Even within that hailstorm of hypocrisy, however, their commitment to "letting the states decide" abortion's legality has always been a crock.
How many nano-seconds will it take Cruz to decide that abortion is a federal issue, after Republicans are able to pass a federal prohibition that their packed courts will allow to stand?
...Cruz and others in his camp will simply do what they did when asked about the hypocrisy of ramming through Amy Coney Barrett's confirmation. Cruz was particularly blunt, telling interviewers that people could complain all they want, but because Republicans had the votes to do what they wanted to do (and to ignore what they had said about Merrick Garland's nomination), nothing could stop them. And so it will be when Republicans want to outlaw abortion nationwide. I honestly would not be surprised if Cruz has already written his speech favoring central government control of women's bodies.
The oral argument included pious let-the-states-decide comments from Brett Kavanaugh. My guess is that the majority might even include some such language in their opinion neutralizing Roe. Even so, that will all be forgotten as soon as it is convenient for the one-party autocrats to flip.
I therefore want to use this post to open the comments to guesses as to the answer to the question: How long will it take before Republicans try to pass a nationwide ban on abortion? My over/under is two days from the beginning of the next congressional term in which they are in the majority.
Bonus question: What fig leaf will Kavanaugh et al. use to claim that their sudden abhorrence for states' rights is not evidence of their being partisan hacks?