Donald Trump made perfectly clear during the campaign that, if elected, he would appoint justices to the Supreme Court who would overturn Roe v. Wade. When asked whether abortion would be illegal in some states, he replied that they should go to another state. He told MSNBC’s Chris Matthews that there must be “some sort of punishment” for women if abortion were outlawed.
His campaign later released a statement trying to walk that assertion back, but Trump has never recanted personally. (The explanation itself is deeply offensive insofar as the campaign said only doctors would be “held legally responsible, not the woman. The woman is a victim in this case as is the life in her womb.” The woman has no agency, no will of her own in the eyes of right wing. How revealing.)
Let’s say Trump gets his antiabortion judge that was vetted by the Federalist Society. A red state passes a bill to make abortion illegal, and then the Trump court upholds it. What next?
That is the question every state and federal official must answer because it would then be within their power to either protect abortion rights or criminalize abortions. A state legislator could introduce a bill banning (or effectively banning) abortion; or he could leave the state of the law exactly where it was on the day the court ruled (e.g., some minimal health restrictions on abortion providers); or he could decide abortion is only allowed in the case of life of the mother, rape and incest — maybe not even the last two. His view of abortion is no longer theoretical, and he should tell his voters exactly what he is prepared to do. And the same goes for every gubernatorial candidate. Would the candidate, if elected, veto a bill protecting abortion — or veto one outlawing it?
Candidates for House, Senate and president have vast power to affect the lives of American women. Would they pass a bill saying that any state receiving federal funds must protect abortion rights — or would they do the opposite and promise to pass legislation saying that any state receiving federal funds must outlaw abortion? Presidential candidates must say exactly what they would do as well.
For some politicians, the stakes are low. Mississippi Republicans will be compelled by their most ferocious backers to eliminate abortions. Their voters will likely reward them at the ballot box, and women in Mississippi will be relegated to seeking illegal abortions and suffering prosecution, or traveling — perhaps very far if the surrounding states enact similar laws — to get an abortion in another state, and in some cases, risking their own health.
Think however of blue-state Republican congressmen — such as those candidates in competitive races in New Jersey, New York, California and Illinois — in a post-Roe world. If they promise to protect abortion, Republicans abandon them; if they say they’ll support banning some or all abortions, then a lot of independents and ticket-splitting Democrats will refuse to support them.
It’s not unreasonable to predict there will be no Republican congressmen, senators, governors or state legislators in states such as Maryland, New York, New Jersey, Illinois, Connecticut, etc. The same may be true of Western, generally libertarian states such as Nevada, Arizona and Colorado.
Even in Texas, Sen. Ted Cruz, R, tweeted about “Supreme Court Justices who will preserve the Constitution & Bill of Rights, not undermine our rights and legislate from the bench.” But what about outlawing abortion, which will certainly be attempted in his state? What would he do then? Rep. Beto O’Rourke, D, tweeted, “After today, this race to represent Texas in the Senate matters more than ever.”
I asked O’Rourke’s campaign what this means in everyday terms. A senior campaign official reminded me that Cruz has taken the position that Roe v. Wade is not settled law. The official continued to tick off the position Cruz has taken: that Roe should be overruled, and that states could then outlaw abortion even in cases of rape and incest. (During the 2016 campaign, Cruz said that “rape is a horrific crime against the humanity of a person but at the same time as horrible as that crime is, I don’t think it’s the child’s fault.”) As for O’Rourke, he supports the status quo, including “the ACA’s provision that guarantees coverage for contraceptives,” the campaign official said.
Understand what that really means: Cruz would, after Roe is overturned by the kind of judge he’s been pining for, push to outlaw abortions for women who have been raped, putting to women the choice of either violating the law or continuing their emotional anguish. That’s his position, and it’s now a real possibility for every woman in Texas. If a woman has a medical condition that would be greatly aggravated by pregnancy, but maybe not kill her, well, I guess it’ll be up to Cruz and other Republicans to decide.
Republican voters who went along with the party’s agenda thinking abortion would never be outlawed now have to consider the risk of voting for abortion opponents. Leadership roles in the House and Senate — which determine the agenda and stock the committees - will be front and center during the political firestorm, as will future presidential candidates.
Everything said about abortion is true of contraception — though Republicans will deny it - because the same legal theory that protects abortion also protects the right to use contraception (the 14th-amendment right to privacy). Once the issue is back in the hands of legislators, everyone has to make clear his position. Not in the abstract, but in reality.
In a post-Roe world, every voter will need to consider the abortion and contraception issue as a real issue of life and death and how it will transform the lives of women, and every candidate will have to answer for it. If you think Americans were uncivil and polarized before, wait until women find out their only option (unless they live in a deep blue state impervious to federal pressure) is an illegal abortion. Even if they have been raped. That’s where we are headed unless the two self-described pro-choice Republican women senators say, “Not on our watch.” And no one is going to believe that a flimsy, nonspecific promise to respect precedent gives them a free pass to vote to confirm such a nominee.