Abortion, Federalism, Ohio, and Colb (not in that order)
Until the last decade or so, US elections outside of presidential years were quiet affairs. After Republicans parlayed their not-particularly-unusual-for-midterms wins in 2010 into permanent gerrymandered control of dozens of state legislatures, however, people could no longer pretend that the stakes were low in supposedly local elections.
Not long after that, even off-year elections became a big deal. The 2017 and 2019 elections delivered loud anti-Trump results that portended Democratic wins in the 2018 midterms and the 2020 presidential and Senate elections. That in turn meant that 2021's win by Glenn Youngkin in the Virginia governor's race would be immediately over-interpreted into a big story about "parents' rights," a completely dishonest caricature of Critical Race Theory, and turning public schools into grievance-fueled battlegrounds. Also, Youngkin was supposedly now presidential material. His win led people to believe that the 2022 midterms would be a "red wave," which mostly did not happen -- where "mostly" unfortunately did not include the US House results that led to our current chaos.
Now, the 2023 off-year election results are in, and Democrats are happy. The biggest reason for rejoicing in non-Trump Land is that (just like 2022) the idea that President Biden's low popularity numbers would doom Democrats to huge losses was once again proved wrong. To be clear, when poll numbers show voters rating Biden below Donald Trump even on things like empathy and the defense of democracy, no one should take any poll result at this point to mean anything other than this: "Are you cranky? If so, blame Biden."
Tuesday's results, therefore, perhaps should not have been surprising; but because the people who follow these things are somehow both deeply cynical yet infinitely naive, the good night for Democrats was a big deal. One thing that the pundits and navel-gazers do seem to have finally figured out, however, is that voters overwhelmingly favor the freedom to choose when it comes to abortion. Here, after a few more preliminary comments, I want to offer two personal observations and one broader warning.
The results in Kentucky (where the Democratic governor won reelection) and Virginia (where the overrated Youngkin put all of his supposed heft into legislative elections yet was unable to prevent Democrats from holding the state Senate and flipping the lower house) were both apparently driven substantially by pro-choice-on-abortion voters. This all adds to the evidence that even conservative states are filled with large majorities of voters who want to prevent right-wing politicians from forcing pregnant, sentient human beings to give over their bodies and their lives to gestate ova into newborns (even when those zygotes, embryos, or fetuses are not ultimately viable).
The evidence from those two states is admittedly indirect. That is not to say, however, that it is anything less than compelling. After all, when people dismiss "merely circumstantial evidence," they act as if it is somehow illegitimate to draw conclusions from, say, watching two people walk into an empty room and then seeing one of them emerge carrying the other's dead body after a gunshot has rung out. Circumstantial? Yes. "Merely" circumstantial? Hardly.
As far as anyone can tell, voters in Virginia and Kentucky were encouraged by both parties to vote on abortion as a key issue, and the results speak volumes. Ohio, on the other hand, is the equivalent of video evidence of an actus reus. There, voters who had voted solidly for Trump in 2016 and 2020 and even elected the con man J.D. Vance to the US Senate in 2022 nonetheless turned out to vote -- by a margin of more than 13 percent, or over half a million votes -- in favor of an amendment to the state constitution that would guarantee individuals' "right to make and carry out one’s own reproductive decisions."
This, moreover, followed the decisive defeat of Buckeye State Republicans' sleazy effort three months ago to sneak through a referendum to change the threshold for statewide referenda. (No, that was neither a typo nor agrammatical. It was a referendum about referenda.) For Ohio to deliver such a resounding defeat of a regressive agenda that was backed by its gerrymandered legislature and its hard-right (but mild-mannered) Republican governor was nothing short of stunning. Compared to Trump's win there in 2020, the Republican side in 2023 lost ten percentage points. That is huge.
Above, I promised "two personal observations and one broader warning." Here we go.
Personal observation #1: As frequent readers of Dorf on Law might have noticed, I often mention that I grew up in Ohio. I left the state to attend college elsewhere and never moved back, but I am still very much a product of that state, and most of my family continues to live there. It was thus a special personal delight to watch this all play out.
The result there might in part have had something to do with the Republican attorney general's cruel and ignorant response to the case of a 10-year-old rape victim who had to leave the state to have an abortion, but the vote was decisive in any event. It is now possible to hope that the state might even return its progressive US Senator Sherrod Brown to Washington next year. From my perspective, this was like watching an angry MAGA-fueled uncle suddenly sit up and say, "Wait a minute, those shitheads in Columbus want to force who to do what?"
Personal observation #2: If there were any justice, Professor Sherry Colb would have lived to see all of this. Her passing was a deeply personal loss to everyone who loved her, so politics is in the most important sense beside the point when considering her memory. Even so, she cared about this issue passionately, so it is fun in a poignant way to think about how happy she would be right now, seeing how abortion politics is playing out in the US in the nearly fifteen months since her death. Her last few months of writings were positively thrilling, showcasing her fierce moral outrage alongside her brilliant legal analysis, to say nothing of her biting wit, in critiquing Samuel Alito's nonsensical writing in Dobbs. (See especially "All Hail Justice Coathanger" and "Commander Alito, at Your Cervix.")
Having experienced the outrage, it thus seems especially unfair that she did not live to see how US voters have responded to the Supreme Court's indefensible overturning of Roe. I have no doubt that she would have loved watching this blowback hit Alito's political patrons. More than most people, she deserved to see the reaction that we have seen post-Dobbs, to at least partially counterbalance her justified anger about the decision itself. But the universe is often very unkind, and she is not here to enjoy the ride. Again, there are profoundly personal reasons to miss her, but this is something that would have been a very big deal to her.
Broader warning: Political chatter about abortion continues to mischaracterize Dobbs as having turned the question of abortion "back to the states." Emphasizing the results in Ohio and elsewhere reinforces that framing. We must bear in mind, however, that Alito's 5-4 opinion did not turn the abortion question back to the states but to "the people's elected representatives." (That Alito and his colleagues have blithely voted to make sure that "the people's elected representatives" are anything but representative is especially infuriating.") We continue to talk about this as a federal-state question, but it has long been obvious that Republicans would change their stripes as soon as a states' rights position was inconvenient for them.
True to form, Congressional Republicans are thus desperate to pass a nationwide ban on abortion. The supposedly reasonable non-Trump presidential candidate, Nikki Haley, continues to dodge the issue by saying that such a bill would never get through the current Senate (dominated by Democrats), but she has said at other times that she would like to criminalize abortion. Chris Christie's lack of seriousness is especially rank when it comes to abortion, as he continually asserts that Democrats want to allow abortion-on-demand through birth. ("[I]n my state of New Jersey, it's abortion up to nine months." Yeesh.)
The point is that Republicans are not backing away from their anti-abortion stance, and that is because most of them are in safe districts, while others are simply too afraid to alienate the rabid base of the party. And because their central goal going forward is to establish permanent minority rule, it does not matter that they are so completely out of step with voters on abortion -- or guns, or health care, or progressive taxation, or anything else.
House Republicans recently elected -- unanimously -- a weird theocrat who also happens to be a true believer when it comes to ignoring the will of the voters. The Senate, notwithstanding Sherrod Brown's somewhat improved prospects, is nearly unsalvageable, given the unforgiving map in 2024 (no Republican seats in play, compared to six Democratic seats).
Yes, it is heartening that voters in Ohio and many other states have defended reproductive freedom, Many of them will, however, soon turn around and vote for people who are champing at the bit to take that freedom away. Perhaps that will ultimately not happen, and perhaps it will even be the politics of abortion that makes the difference. It only takes one bad election, however, for it all to fall apart. Even supposedly serious Republicans are insane when it comes to abortion. Good results like we saw on Tuesday could soon mean nothing. I will enjoy it while I can, but this feels very tenuous.