The Abortion Bans are the Story of Democratic Backsliding

If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide. — Abraham Lincoln, 1838

In March 1916, Carolina Petrovitis, a mother of two small children, was in terrible pain following an illegal abortion when a local doctor sent her to the hospital. Three police officers soon arrived to question Carolina. With the permission of the hospital physician, hospitals being then required to cooperate in abortion investigations, Sgt. William E. O’Connor “instructed” an intern to “tell her she is going to die.” With the dying mother wailing from this cold-hearted invocation of her mortality, the police then collected a “dying declaration” from her in which she named the midwife who performed her abortion and gave facts pertinent to charging the midwife with a crime. The midwife was dragged in and Carolina identified her. A third police officer drew up another dying statement “covering the facts.” As he read the third statement back to Carolina, she lay in bed “in pain, vomiting;” illiterate, she made her “mark” on the statement. Having accomplished the state’s goals, she then died.

The past is never dead. It’s not even past, wrote Faulkner. In the abortion storm now gathering, Faulkner’s maxim has proven sadly accurate. Despite a century of ostensible progress, the aspirations of the legal regime which killed Carolina Petrovitis- criminalization of abortion and focus on prosecution at the expense of women’s health — have emerged from the grave to which they were consigned in Roe v. Wade. In May, Georgia became the fourth state this year to outlaw abortion at six weeks, followed closely by Alabama’s even more draconian law providing no exception at all to forced pregnancy.

Positions on abortion are hardened in the arteries of the American political system, and no great good is accomplished by reiterating them. Yet even within the confines of the long-running abortion wars, Georgia’s statute posits a reach of vastly terrifying proportion. Unlike Georgia’s earlier abortion law which explicitly targeted providers- bad enough, derivatively, for women- the new law defines abortion to be “the act of using, prescribing, or administering any instrument, substance, device, or other means with the purpose to terminate a pregnancy.” Consider the modern age: A woman who takes misoprostol, which she herself can purchase on the internet, to induce miscarriage is “administering” a “substance” to “terminate a pregnancy” and is therefore potentially liable under the law.

Even more ominously, the law vests personhood in any fetus once it reaches six weeks. In a remarkable opinion provided to the Georgia Legislature, the Georgia Office of Legislative Counsel concluded that “at that point [i.e. a fetus at six weeks from conception] the person is entitled to be included as a dependent on the person’s or his family’s tax returns and and is entitled to protections afforded to any other person on this state.” (italics mine). While almost boomerang- amusing in the breadth of its overreach — zygotes of illegal immigrants could be considered proto-citizens and benefit eligible in Georgia at the same time their mothers are considered vermin to be expelled from the nation, and good luck squaring that circle- — the larger effects on Georgian women are stunningly plain: persons in Georgia are afforded the right not to be killed, and so any direct reading must conclude that any woman terminating a pregnancy could well be guilty of murder; even one leaving the state for a legal abortion elsewhere could well be considered a conspirator.

Even in the depths of the 90’s era abortion wars, the idea that women themselves were the targets of abortion laws was sotto voce, voiced only on the extreme margins. But if the recent past has taught us anything, it’s that ideas which appear on the margins soon are institutionalized into the mainstream. Donald Trump, speaking in 2016, said the quiet part loud on the campaign trail when he answered a question about abortion by proclaiming, vis a vis expectant women “There has to be some form of punishment.” More recently, Texas state Rep. Tony Tinderholt introduced a bill in April, 2019, which would have provided for the death penalty for women who had abortions; unrepentant at the bill’s demise, Tinderholt doubled down: to exempt women who get abortions from criminal penalties “would inherently treat unborn children differently than other people who are murdered.”

How in the hell, many rational people have asked, have we gotten here? All the quotes about the moral arc of the universe, pink pussy hats, and trending hashtags cannot obscure the beast now slouching toward red-state women. The stinking apotheosis of the war on women has come to life. From state to state, the bells are tolling for legal abortion. In Georgia and Alabama, Jim Crow has begot Gyn No.

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Abortion is an issue which fires the soul. On the other hand, the grind of state legislative process, judicial appointees, and state re-districting usually induces yawns. The two, however, are very much linked. The answer to how we got here, to the death knell of legal abortion, is a study in the web of democratic mechanisms being ripped asunder, inch by inch, in service of a goal. That goal is the effort by extremist communities within the Republican coalition to rage against the dying of the light and control the policymaking arm of American government despite lacking majority support for their positions. Demographics is destiny, no more so than in a republic. As whites, and their evangelical subset, become a smaller part of the American electorate, they have turned the tools of democracy against itself in an attempt at permanent counter-majoritarian hegemony, voters and democratic rule be damned. Abortion restrictions are the end result, not the beginning. Best to focus on the process in order to fight for the right, and nowhere is the process more endemic to its endpoint than in Georgia.

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Campaigners for stringent abortion restrictions achieved their aims not from a long campaign of moving public opinion, which is the intended the traditional mechanism for tectonic change in democracy, but rather by driving forward a spreading spider web of cracks in the face of legitimate public policy. Polling confirms that most Americans don’t want Roe v Wade overturned; most Georgians don’t want Roe v Wade overturned, opposing the new law in a recent poll by 49–44 percent, and startlingly, even most Republicans in Georgia swing-districts oppose the new law. We are not seeing the majority legislating their desires, but instead an insular and extremist minority, step by step, undermining democracy and law in pursuit of revisionist goals. Stopping the wheel means stopping the spokes which radiate outwards from the center of revanchist radicalism.

Should the proponents of the law have achieved their goal by means of fair competition, by winning each step of the way at the ballot box and within the law, then the ultimate result of the law would be adjudicated as many laws have in our nation’s past: by a neutral arbiter within the courts determining whether the individuals affected have specific individual rights, whether those rights were infringed, and whether such infringement is sufficiently fundamental to invalidate the majority’s desire for the legislated result. That, however, is not what happened. At each stage of the game, the Republican party, a wolf in wolf’s clothing, has acted like an insurgent outlier, in defiance of law and Constitutional dictate, dressed in only the flimsiest of rationales, to achieve its aims.

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The first step was to capture the state legislature. Even in a reliably Red State, the Georgian population is much closer to purple than generally thought- 46% of the state went for Clinton in 2016, in a down year for Democrats. Yet Republicans have a supermajority in the State Senate and 103 of 178 seats in the lower house. They’ve achieved this through a brutal and partisan battle to gerrymander the county borders and then apply a healthy dose of voter suppression to lock in the unjust gains. After capturing control of redistricting in 2010, Georgia Republicans redrew the map to ensure that black voters, who vote heavily Democratic, were crammed into as few districts as possible, further rendering many districts in Georgia uncompetitive. In 2015 the Georgia House re-drew 15 districts in order to dilute the black voting population in districts where white Republicans were vulnerable. In 2014, Brian Strickland narrowly edged a Democratic challenger in a metro Atlanta district with a voting population which was 56% white and 31% black; by re-drawing the map, the white voting population increased and the black decreased, allowing Strickland to win against in 2016 with a 3.4% margin. The effect was pronounced: in 2018, 112 of the 180 House seats had one party run a candidate while unopposed. Republicans won 60 races in which their candidate won 100% of the vote, like some tin-pot dictator professing his bona fides. If democracy is choice, then in most Georgia districts, democracy simply doesn’t exist. The law, meanwhile, provided no succor to stop the charge. In 2018, a federal court found “compelling” evidence that Georgia lawmakers redistricted black voters to preserve Republican power at the state Capitol, but elevating form over substance, refused to take any action on the theory that partisan, rather than racial advantage, lay behind the rationale.

Uncompetitive districts permit radicalism: if a legislator has no competition, he or she has no incentive to moderate to win re-election. Any challenge comes from the flanks in the primary, drawing legislators even further from center of the political heartbeat. Nor do single party dominated elections suggest any reason for voters to show up in the first place: the result is preordained.

Legislative seats may have been locked in the amber of redistricted guarantee, but the statewide raise for governor was not. That’s where the second horseman of the extremist apocalypse rode into the fray. Either unconvinced of victory in open competition or unwilling to take the chance, the 2018 defeat of Democrat Stacey Abrams by Republican Brian Kemp floated on an effort of voter suppression of breathtaking breadth. Kemp’s victory came by a margin of just 54,700 votes in an election that saw nearly 4 million votes cast. Kemp ran for office from his perch as Georgia’s Secretary of State, which permitted him to in essence oversee his own election. He pursued his own interests — and that of Georgia’s decreasing white majority — -with a vengeance. From 2012 through 2016, Kemp oversaw the purging of 1.4 million voters from the voter rolls. In 2017, the gerrymandered Georgia legislature passed a law requiring that information on voter registration forms match exactly with existing state records. Even a single digit or a misplaced hyphen could be enough to prevent registration and instead put the application on “pending” status. The goal was obvious: Rep. Sue Burmeister, a lead sponsor of Georgia’s voter restriction law, told the Justice Department that “if there are fewer black voters because of this bill, it will only be because there is less opportunity for fraud.” Kemp used the law to put the registrations of 53,000 voters, 80% of them of color, on hold in 2018 before the election date.

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Even when voters were registered, the state did all it could to make voting an exercise in difficulty, exhaustion, and futility. Between 2012 and 2018, county election officials closed 214 precincts across the state since 2012, according to an analysis by The Atlanta Journal-Constitution. The goal, implicitly, was to make voting more difficult for minority voters. 53 Georgia counties have fewer polling places than they did in 2012; of those, 30 are at least 25% African American. The excuses are often shameless: only a public outcry in rural, majority African-American Randolph county helped stop a consultant’s proposal to close 7 of 9 precincts in 2018. According to the AJC, the “proposal was billed as a way to ensure the disabled would have accessible facilities at the remaining precincts.” Even these dark arts were not sufficient. Two days before the election, Kemp’s office announced, citing scant evidence, that it was opening an inquiry into the state Democratic Party after what the office called “a failed attempt to hack the state’s voter registration system.”

Having passed the law with a compliant Governor to sign it, abortion extremists needed to be sure that federal judges would look kindly on their efforts. Here we turn to the federal government, and the third sordid block in the wall of antidemocratic politics. Donald Trump arrived in Washington to an unprecedented amount of vacancies in the federal judiciary. Despite his usual dishonesty- speaking in 2018, the President had the temerity to say “when I got in we had over 100 federal judges that weren’t appointed. I don’t know why Obama left that … Maybe he got complacent.” — the vacancies were the result of a cynical and unprecedented campaign launched by Senate Majority Leader Mitch McConnell. In 8 years of his Presidency, Barack Obama had 329 Article III judges confirmed. Of that number, just 20 were confirmed in the final two years after the Republicans took the majority in the Senate in the 2014 elections. The embargo was a dramatic change: despite massive unpopularity and a Democratic Senate, George W Bush had 68 judges confirmed in his final two years. McConnell’s actions have borne fruit: Despite the fact that Democrats have held the White House 16 of the last 27 years, a majority of federal judges have been appointed by Republican presidents, a number that will only accelerate in the future.

With a Republican President, McConnell’s blockade immediately eased. As of this writing, Trump has had 107 Article III judges confirmed, with 56 nominations awaiting votes. These appointees are of a fairly uniform, and unsurprising, demographic. 90% of Trump appointees are white, and almost 80% are male. Trump has confirmed more appeals court judges in his first two years than any other president in American history: one in five federal appellate judges is a Trump appointee. Confirmations will go even faster now, as well. McConnell in April invoked a “nuclear option” to reduce the debate time on any federal judge nominated by Trump from 30 hours to two. Somehow getting the words out without bursting into flames from the searing hypocrisy, McConnell at the time said “Exemplary jurists with broad bipartisan support [are] subjected to weeks if not months and months of pointless delays and pointless cloture votes.” McConnell has also smoothed the way for Trump nominees by ignoring the “blue slip” rule for circuit court nominees, a Senate tradition of moving forward with a judicial nominee only after both home-state senators sign off on it by returning a piece of paper called a “blue slip.” Having used blue slips to help block certain Obama nominees, Republicans are denying Democrats the same longstanding privilege. In 2019 alone, 5 judicial nominees have been confirmed over the objections from both home-state senators, an unprecedented occasion in Senate history- before 2019, no judge had ever been confirmed over the objection of just one home state senator. In their customary role as Charlie Brown believing this time, Lucy will leave the football on the ground, no hearing or vote was held on a nominee during the entire Obama Administration unless both home-state senators had returned their blue slips.

The effect is that while liberals may view the federal courts as the natural habitat of seasoned litigators posing reasonable arguments against the enforcement of the Georgia law, there is an increasing likelihood that an extremist Republican ideologue will the black-robed recipient of such an argument, with a predictable result.

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Gerrymandering, Blue slips, Article III embargos, and cloture votes often fly below the larger public radar. The Supreme Court, however, does not, and that brings us to the fourth element of the larger extremist plot. McConnell’s proudest, and most disgraceful moment in a long career of disgrace occurred when he openly defied the Constitution and refused to so much as give a hearing to Obama’s Supreme Court nominee Merrick Garland. Garland would have provided a 5–4 majority for the liberal wing of the Court, thus likely cowing state legislatures from daring to attempt to brazenly negate Roe, lest the highest court in the land slap them down. But having denied Garland his seat, the Court now retains its 5–4 conservative tilt, made even more ominous by the replacement of the Court’s longtime abortion Hamlet, Anthony Kennedy, by Brett Kavanaugh. That an accused sexual predator may be the deciding vote on whether women in Georgia are jailed for abortion is a macabre twist so ridiculous that Hollywood showrunners would likely laugh it off as too outlandish.

Abortion, of course, isn’t the only issue that comes before the Court, and here we see how mutually reinforcing the breaks with democratic precedent have been. Georgia’s voting laws were, at one point, subject to preclearance by the federal Department of Justice, a requirement of the 1965 Voting Rights Act that saw historical voter discrimination and aimed to remedy it by providing federal oversight. Yet the pre-clearance requirement was struck down by a 5–4 Supreme Court majority, with all five conservatives in support, in 2013’s Shelby County v. Holder. Georgia couldn’t have dramatically slashed voting booths, could not have so ruthlessly suppressed votes absent the conservative majority eviscerating a law which had done so much to address the legacy of Jim Crow. The 2018 federal court ruling that permitted Georgia’s partisan gerrymandering cloaked in racial preference was the result of the Supreme Court’s refusal to address partisan gerrymandering, with the Court’s decision in 2018’s Gill v. Whitford punting the issue back to the lower courts. Ohio, meanwhile — another state which has inserted itself into the abortion wars via new legislation passed by ruthlessly gerrymandered legislature — had its own voters suppression law upheld by the Supreme Court in a 5–4 decision in 2018’s Husted v. A. Phillip Randolph Institute. The deciding vote was cast by Neil Gorsuch, the man appointed to the seat which but for McConnell’s defiance of the Constitution would have held by Merrick Garland. McConnell’s Senate has also refused to take up bills introduced to reinstate preclearance, and he’s denied a floor vote to the House-passed For the People Act, which would address partisan gerrymandering and electoral suppression, stating his opposition only as “Because I [McConnell] get to decide what we vote on.”

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Short of a massive dose of conscience and respect for precedent injected into the Republican party as a whole, hoping for a return to normalcy, as Barack Obama famously did in 2012 and Joe Biden persists in doing even to this day, is an exercise in shitting in one hand and wishing in the other, and seeing which fills up first. Better instead to question, first: philosophically, why have those who have been the most disdainful of democratic practice been the ones to most decisively reap its rewards? More importantly, what should those who intend to both uphold the system and defend existing policy gains do in response? How do you both decisively push back against extremism without breaching the very norms you seek to uphold yourself? The fancy footwork required to recognize when norms need to be breached in defense of larger norms, and when norms need to be upheld and adhered to, has largely eluded a bewildered Democratic party. Yet that, more than specific policies, is the great question of our times. If democratic practice is subsumed to be wielded like a sword by a minority dedicated to nothing but its own preservation of power, above that of the rules of the game, the game is over, and only will to power, with all the demons in the shadows it implies, remains. That cannot be our future; we cannot let it be. Abortion is the showy headline, but the norms, guts, and longstanding practices of building a republic responsive to the will of the people is the backbone which protects the rights now being undermined. However unsexy, this is the hill upon which to die.

We can as of now take some specific actions. Gerrymandering and voter suppression were the first parts of our story, enthroning a majority which does not reflect the majority. Legislation in Congress is a dead letter so long as McConnell holds the reigns. But the states have proven surprisingly fertile ground for ending gerrymandering. All four states — Michigan, Colorado, Utah, and Missouri — which created citizen-led ballot initiatives in 2018 creating some form of commission or place restrictions on the redistricting process passed. Because ballot initiatives don’t indicate on the ballot itself which party or partisan-leaning has compelled the question, they are more amenable to passage of restrictions than would otherwise be possible. Voting rights, as well, may be moldable clay for ballot initiatives. A much-celebrated Florida ballot initiative in 2018 restored voting rights to most former felons. Nevada, too, approved a clever initiative which automatically covers registration of eligible citizens when receiving certain services from the DMV, which should tend to expand the franchise.

As for the federal courts, no immediate action is foreseeable. The President nominates federal court judges and the Senate confirms, so the solution is as simple in suggestion as it is difficult in execution: change the President and the composition of the Senate. While obvious, the effect means that the Democratic firing squad that tears down potential candidates for not being insufficiently devoted to specific causes must be suppressed. Someone imperfect will be the nominee, and that imperfect man or woman must be the vessel towards the greater good. Best to start getting over it now.

As for abortion itself, absent the unexpected nothing under the law can stop the coming apocalypse for Red State women. This has been the goal extremist ideologues have strove to accomplish for two generations, and by undermining majority rule, it’s now in their grasp. It’s up to the majority to ameliorate the policy harm –perhaps an underground railroad to Blue States for poorer women — and to marshal whatever resources are possible to assist those directly in the path of the patriarchal steamroller. In pursuit of grasping of power, the minority has done grave damage to democracy. Repairing it with the power of the majority is this generation’s debt to the Founders and their progeny, and that debt must be paid with unyielding determination. The past may not be past, but the future is not ours to surrender.

Lawyer by day. Star Wars aficionado by night. Hug a wookie and fight the dark side.

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