If you thought Roe v. Wade was the settled law of the land think again. It’s not.
While progressives and liberals have vowed to keep that from ever happening, the surprise retirement of Associate Justice Anthony Kennedy highlights the fact that the Democratic Party has ceded control of the nation’s courts to the GOP, and there seems to be a realization among many in the party that there’s nothing they can do to stop Republicans from accomplishing that goal.
That has some on the right suddenly giddy.
Anti-abortion policy has become the purest Republican orthodoxy that, whether they admit it publically or not, is the litmus test for the GOP since justices ruled on Roe in 1973. As a result, there’s already a strategy in place to bring about a seismic challenge before the Supreme Court to the nation’s decades-old abortion policy.
“The day’s a little brighter today,” Rep. Kristi Noem (R-SD) told The Daily Beast just after this new opening on the Supreme Court was announced.
Noem is running for governor and like many in her party she’s set on overturning Roe, and she knows that a new Republican-appointed jurist could help move in that direction.
“I believe we have a good shot. South Dakota actually has a case,” that could be the vehicle to test the bounds of Roe nationwide, she said. “We believe we have strong legislation, that if we got it to the Supreme Court then absolutely we may have more of an opportunity to overturn that.”
Conservatives have never taken their eyes off of that prize, as they’ve dumped millions and millions and millions of dollars in the past few years to capture state legislatures, governor mansions and key benches in the nation’s sprawling judiciary – all while Democrats have seemingly been sleeping.
Just on Tuesday, after the Supreme Court shot down a progressive abortion law in California while also upholding President Trump’s Muslim travel ban, The Daily Beast pressed Senate Minority Leader Chuck Schumer on his pitch to his base during this year’s midterm elections in light of those devastating rulings. He demurred and seemed to say it’s not even on his radar.
“Our pitch to voters is on healthcare,” Schumer intoned, as if on his usual poll-tested script. “We cannot have proposals that jeopardize Medicare and Medicaid and put our grandchildren into tremendous debt. We believe on the merits of the issues. The public is strongly with us and November will show that.”
A request to Schumer’s office asking them to clarify whether the minority leader had a plan to focus voter’s attention on the GOP’s makeover of the nation’s courts this fall went unanswered.
Schumer changed his tune after Kennedy made his announcement in a floor speech on Wednesday where he demanded the GOP delay any nomination until after November’s election.
But Schumer seems to have been outmaneuvered from even before he was handed the reins of power by his predecessor Harry Reid who made the decision to blow up long standing Senate rules and lower the threshold from 60 votes to a simple 51 on all judges except for the High Court. McConnell and the GOP then followed suit and lowered it further to get Neil Gorsuch seated on the Court.
“The big mistake was giving up the filibuster on the lower court judges,” Rep. John Yarmuth (D-KY) told The Daily Beast. “That’s all hindsight. I understand why they did it. They did in the interest of good government and efficient government, but it came back to bite them.”
Other Democrats don’t so much blame Schumer as much as they do McConnell.
“McConnell operates on the premise that most good politicians do: Reward your friends and kick the shit out of your enemies,” Rep. Alcee Hastings (D-FL) told The Daily Beast. “That’s what more of us should do.”
The rollback of abortion rights on the state level has been going on for years as a result of the Republican takeover of state legislatures that swept the nation starting in 2010 and expanding ever since.
From Kentucky where most abortions are now banned after 11 weeks,to Mississippi where the vast majority of women – even if raped – can’t legally get an abortion after 15 weeks, to Indiana and a slew of other states where patients are now forced to hear about the potential complications of an abortion before they can get one, which opponents say is a scare tactic meant to dissuade them from getting the procedure.
Iowa is widely seen as the most restrictive though. The new law there bans abortions after a heartbeat is detected, which can be early as six weeks, which was purely intended as a test of Roe v. Wade.
“Absolutely. Absolutely. And [it was] argued that way,” Rep. Steve King (R-IA) told The Daily Beast through a grin just after the Kennedy retirement was announced. “The governor knows that. And when you know she signed it, you know hats off to [Gov.] Kim Reynolds, but she was happy and confident and ready for the challenge of going to the Supreme Court.”
While King is laughed off even by Republicans in Washington for his many fringe beliefs and comments over the years, he remains a leader in his party when it comes to his anti-abortion views. He’s proud that the bill he’s offered repeatedly in the House is the basis for the Iowa law that he’s now lobbying a number of other states to pass.
Many fiscal conservatives in his home state initially balked at passing a new law whose sole aim was to make it before the nation’s nine Supreme Court justices because those cases can take years and cost millions. But King and his allies placated those naysayers by solidifying commitments of the Thomas More Society and Liberty University.
“Both of them stepped up and said ‘We’ll do it pro bono,’” King said through a telling smile, as if he’d already won this battle.
Having legal fees paid for in advance is key to his strategy, and it’s proving a smart move. Opponents of Iowa’s law already have an injunction on it that has it currently locked up in state court, which is nothing to King.
“They’re trying to keep tied up in state court. Our job is to get it out of state court and into federal court,” King said, as his smile widened. “That was just part of the strategy that we knew all along we were going to have to face. So there’s no disappointments along the way. There’s a temporary injunction on it in Iowa. We more or less accepted that so that we could prepare our arguments at the higher level.”
That’s not all. While Democrats like Schumer seem to be just waiting for that potentially mythical though much talked about “blue wave,” King and others actually think the chance of overturning Roe v. Wade will spur a massive turnout of conservative voters who have had their sights singularly focused on banning – or at least drastically restricting – abortion for decades now.
“Now we have a chance to go to a Supreme Court,” King continued. “I think that the U.S. Senate races that are out there hanging in the balance, they’ll look at this and these U.S. Senate races will mean more for pro-life voters. And some of them out there in like North Dakota, in Montana, West Virginia, Missouri, Pennsylvania – all of those states will be affected by this decision.”
King is now redoubling his efforts to get Republican leaders to take up the same heartbeat bill that’s passed in Iowa in the U.S. House of Representatives.
“And I always wanted to give it a big lead so that we could be at the Court when have a new confirmation,” King said, as his face beamed like a mad scientist seeing his beast breathe for the first time.
Even as Schumer seems to have roused from his slumber now that there’s a vacancy on the High Court, other Democrats aren’t shocked, even if they’re dismayed that Republicans are redoubling their once longshot efforts to unwind Roe v. Wade.
“Oh, I don’t think there’s any question that that’s where they’re headed,” Rep. Jackie Speier (D-CA) told The Daily Beast, even as she dismissed many in the GOP as hypocrites or completely out of touch on the issue of reproductive rights. “You know, Republican families have daughters who get pregnant and have abortions. We have members who – members serving right now –who have counseled their mistresses to have abortions, so it is a fact of life.”
But what can Democrats do to stop this speeding locomotive?
“I think for Democrats and progressives this as seen as an existential threat and a danger. I think it’s go be a motivator,” Rep. Raul Grijalva (D-AZ), a co-chair of the Progressive Caucus, told The Daily Beast. “I think for families, individuals and particularly for women, that it is going to be, how would you say it, a political tsunami. It’s going to be huge.”
But many, if not all, Democrats are still smarting over how Senate Majority Leader Mitch McConnell seemingly outsmarted them by blocking former President Obama’s Supreme Court nominee, Merrick Garland, from even having a confirmation hearing during the last year of his presidency as Hillary Clinton and Donald Trump duked it out on the campaign trail.
“We should’ve shut down the Senate,” Sen. Ben Schatz (D-HI) told reporters at the Capitol this week. “Here’s what happened: We made a calculation that we were going to win the election and confirm a nominee, and it didn’t work out.”