It turns out that Brett Kavanaugh wasn’t really all that into stare decisis after all— and, as a result, it looks like Roe v. Wade is on borrowed time. Based on Wednesday’s hearing, this sounds about right:
So what happens now? On yesterday’s Bulwark podcast, I talked about the political fallout with Amy Walter, the publisher and editor-in-chief of the Cook Political Report. Here is a partial transcript of what she had to say:
If Roe is not flatly overruled, but the court changes the legal standards on abortion:
“[In that case] it's more muddled, and it's not as easy as ‘yes’ or ‘no’ — black or white. So, we could be in a situation where it is much more challenging to see this as a clear political issue or wedge issue in the way [it would be] if it were overturned.”
If Roe is overturned:
“Not only would [that] upend the midterms, but … if ultimately what we get to is a situation where there is no constitutional right, and each and every state then makes its own rules on this, every single governor's race in the country is going to be a referendum on this issue — as well as the debates in Congress. And so … [that] makes for quite a dynamic situation.
How pro-choice voters would likely respond if Roe is overturned:
“The argument has been that the pro-life side has been much more passionate, and has been much more focused than the pro-choice side — which makes a whole bunch of sense. Forget about it just being an abortion issue. Take any issue — where you are on the losing side — you are much more passionate about that issue than if you're on the winning side. Because you're constantly trying to get your issue to the finish line.
Now, let's reverse that. [If] we have it overturned, now you're going to get an entire community of voters — many of whom have never lived in a world without Roe v. Wade — to become engaged on this. And I do think it is going to be an incredible motivating tool, not just for Democrats writ large, but in terms of voters who may not even be particularly engaged in politics:
‘I don't know, I don't follow politics. I'm not paying much attention.’
But this is one of those things where you go:
‘Whoa, whoa, whoa! I didn't think this was actually going to happen. Now I am paying a little more attention. Now, I'm a little more engaged.’
We really haven't seen this kind of fight, Charlie, at a national level since 1992. The world has changed a lot since then. But I do I agree with you that when you move from the loser to the winner, that the pro-choice side — which has been much quieter, not as an intense — will become incredibly engaged.”
How the Democratic Party may respond: