20 December 21
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I am very exhausted by hearing how concerned Democrats are.
Since September, when S.B. 8 was allowed to go into effect, millions of American women have been trying to absorb the possibility that their reproductive, contraceptive, and intimate lives may be subject to wildly intrusive state regulation, and that the current Supreme Court is unbothered by this turn of events. (As a sidenote, case name notwithstanding, the word woman appears once in the Neil Gorsuch–written majority opinion in the S.B. 8 decision, and it’s quoting the Texas statute.) And as Americans, particularly women, absorbed the shocking news that for the first time in history the high court was openly debating overturning precedent that has been reaffirmed multiple times in a case that vastly expanded—rather than limited—a basic freedom, the messaging from a White House, the House of Representatives, and the Senate, all controlled by Democrats, was a perfect reflection of the same shocked powerlessness most women were feeling themselves. How did this happen?
There was, to be sure, lots of talk of quickly bringing the Women’s Health Protection Act to the Senate floor. The WHPA, which passed with historic support in the House in September, would attempt to codify Roe v. Wade. Sen. Susan Collins has said she opposes the WHPA, although after the argument in Dobbs, she also says she supports codifying Roe, which is fairly classic Collins. But still, the possibility of nine other Republican senators signing off on this bill is zero, so it cannot survive a filibuster. The WHPA, in other words, cannot get through the Senate as currently constituted for the same reason voting rights reforms cannot get through the Senate as currently constituted. (Unrelatedly but also wholly relatedly: The Virginia legislature can’t get abortion protections done because legislators have to travel for the holidays instead.)
There has also been, to be sure, lots of shouting about “pack the court” in recent weeks. It’s clear that the momentum for serious court reform has ticked up fractionally in recent months, and that prominent members of the Biden court commission are now in support, and Sen. Elizabeth Warren has now signed off as well. But nobody believes that packing the court—a remedy never urged by the 36-member Biden commission that was never tasked with making recommendations in the first place—is something this Congress or the Biden administration is prioritizing anytime soon. And so, as is the case with stymied voting rights reforms, it seems as though every possible avenue to fundamental democracy reform eventually wrecks on the shoals of a faltering democracy. Meanwhile, the president is responding to crises of democracy by restating his support for Roe v. Wade. He is blandly trying to mollify us by suggesting that it’s OK for everyone to rely on Congress and a court reform commission to do precisely those things they demonstrably cannot achieve.
America has a democracy problem that is, in no small part, the result of its refusal to acknowledge that it has a democracy problem. As many an observer has noted, this is not how we’d be covering the collapse of functioning government were it happening anywhere else. But here, even as democracy experts are pulling all the rip cords, ringing all the bells, and sounding all the blazing alarms, most of us are simply frogs in pots, rooting for our respective teams and making eloquent statements about our commitments to Roe v. Wade, or to voting rights, or infrastructure funding, or some magical trick that might pack the court by this weekend.
As Mark Joseph Stern and I wrote this fall, the Supreme Court doesn’t care that millions of Americans are freaking out about losing reproductive liberty by July. Sixty percent of Americans want the Supreme Court to uphold Roe and Casey. Seventy-five percent believe that the decision to have an abortion should be left to pregnant people and their doctors. But since Roe was codified in 1973, states have enacted 1,327 abortion restrictions into law, 580 of which were put in place since 2011. Nearly 100 of those restrictions were put in place this year alone. Democracy is not solving the problem of female reproductive autonomy. Democracy is causing it.
This week, we learned that the Biden administration has pivoted back to prioritizing voting rights. That’s promising in no small part because the only direct way to repair democracy is to protect voting. But where it trips up is that it is still unclear if there is any actual mechanism to force voting reform on a country that is making free and fair elections less likely by the day. Nobody wants to see members of the Biden administration setting themselves ablaze screaming that doom is anon, but the persistent message that everything will be taken care of by bipartisan cooperation between one party that believes in government and one that believes in malapportioned, nihilist, racist election subversion is in fact contributing to the failure of government. You can only hear election officials describe democracy subversion as a “five-alarm fire,” as Jocelyn Benson, the Democratic secretary of state in Michigan told the Times this week, and wonder why women are losing abortion freedoms, so many times. The good folks in the Biden administration really need to stop mouthing platitudes about the generalized supporting of Roe and the vague need to pass good laws, and connect the failure of women’s rights to the failure of representative democracy and the courts. I’m not sure what the Biden administration is waiting for, but I am more certain by the day that by July it will be far too late.
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