Doing Politics in a Post-Roe Texas

If last month’s oral arguments at the Supreme Court were any indication, the conservative majority will overturn Roe v. Wade by this July and eliminate the constitutional right to an abortion. As decades of Republican promises to the pro-life religious right are fulfilled, abortion will play a role in the 2022 midterm elections unlike any we have seen in generations. In the ensuing battle over reproductive rights, Texas Democrats need to be prepared to talk to voters in a way that positions our party as the natural leaders in a post-Roe world. Unfortunately, national Democrats appear to be stuck on reactive messages that highlight the party's weaknesses rather than providing a proactive vision that plays to our electoral strengths.

What Losing Roe Will Mean

Before getting to strategy, let’s be clear about one thing: the loss of Roe will be an unmitigated disaster for women and families around the country. At least 22 states are already poised to significantly restrict access or ban abortion altogether upon the overturn of Roe, and more Republican-dominated states will undoubtedly move to follow suit. These states account for around a third of abortions nationwide. Women will be forced to choose between traveling out of state to clinics hundreds of miles away—incurring burdensome costs in the process—or seeking out abortions from underground providers and putting their own lives at risk.

In Texas, we’ve gotten a preview of this post-Roe world, thanks to the machinations of Jonathan Mitchell and the Texas Legislature. In case you missed the news this summer, Texas passed SB8, which bans abortions after six weeks–before many women even know they are pregnant–and evades judicial review by deputizing private citizens to enforce the law through civil lawsuits. “The clear purpose and actual effect of SB8,” declared Chief Justice Roberts in a scathing opinion last month, “has been to nullify [the Supreme] Court’s rulings.” In short, even though the Court has yet to rule anew on the constitutionality of abortion, the passage of SB8 effectively overturned Roe in Texas.

The impact of SB8 was immediate. When it went into effect in September, the number of abortions in Texas fell by half. Wait times for abortion clinics in nearby states increased, sometimes up to two weeks, as the surge of Texas patients strained capacity. Travel costs for such out of state care reached as high as $1000, on top of the procedure itself. These costs are all the more burdensome when you consider that the average woman seeking an abortion lives below the poverty line. And only time will tell what new burdens await these women if the Court grants Texas's neighboring states authority to ban abortions as well.

A Closely Divided Electorate

The harms of SB8 merit scrutiny and yes, outrage, but Texas Democrats have to navigate a state that is closely divided on the issue of abortion. Reproductive rights advocates will often cite statistics showing majority opposition to complete abortion bans, but these statistics don’t tell the whole story. For example, a June 2021 UT poll found that Texas voters opposed a total abortion ban by a wide margin, 53% opposed and 37% in favor. Yet that margin vanished when voters were asked about their support for restricting abortions after six weeks, which due to basic biology, isn’t that much different from an outright ban. Only 46% of voters opposed a six week ban, compared to 44% in favor, and this was at the peak of national media coverage critical of SB8. By contrast, earlier iterations of the poll in April 2021 and 2019 found significant plurality support for a six week ban. Texas Republicans have figured out how to tailor their policy goals and messaging to effectively cut off access to abortion without having to admit doing so. Thus far, the polling indicates that voters are buying it.

So in an election likely to be defined by abortion, and in the face of savvy Republican messaging, how should Texas Democrats talk about the loss of Roe? How can we turn this setback into a winning issue at the polls?

How Not to Talk About Roe

I’ve seen a few common responses emerging from national Democrats in the days following the ominous oral arguments at the Supreme Court. (These themes were all also raised in less partisan terms by Justice Sotomayor.) I think all three are electoral losers.

The “Pack the Court” Response

The first response goes something like this: We would still have Roe if Republicans hadn’t played dirty to confirm conservative justices to the Supreme Court. Gorsuch’s seat was stolen from Merrick Garland. Kavanaugh should have faced a full investigation of the sexual assault claims against him. Confirming Barrett in an election year was hypocritical. The conservative majority is illegitimate, and their decision to overturn Roe is as well. Voters should respond by supporting Democrats so that we can restore balance to the court, including by adding new justices who will reinstate Roe.

At a policy level, this argument makes sense. It aligns with a long-held progressive priority of court expansion, and it is a strategic way to build national attention to the threat posed by a court unaccountable to public opinion. Indeed, just a week after oral arguments, Senator Elizabeth Warren authored an op-ed in the Boston Globe entitled “Expand the Supreme Court.”

But focusing our electoral strategy on the legitimacy of the court is a mistake. First, Democrats are divided about how to correct the problem of the conservative court, with multiple options like term limits and jurisdictional limits on the table in addition to court packing. Until the Democratic Party has a coherent line on solutions, voters will not trust it to solve the problem. Second, even if Democrats unite behind court packing, it’s not clear that independents will accept it as a solution. Third, and most damning for Democrats, the party has done little to show that they would be able to implement these changes even if they had a coherent solution. In a world where we can’t even pass a widely popular social benefits bill like Build Back Better, how on earth are voters supposed to believe that we’ll get Joe Manchin and Kyrsten Sinema to reverse their public stances against court reform?

The “Slippery Slope” Response

The second response is particularly popular among leading Democratic lawyers and focuses on the legal ripple effects that would result if the Court overturns Roe. The right to an abortion in Roe relies on the legal concept of substantive due process, which in layman’s terms, essentially enables the Court to find that certain rights are constitutionally protected even if they are not explicitly mentioned in the Constitution. Conservatives have long been critical of substantive due process, and the Court would likely limit it considerably in overturning Roe. As this argument goes, new limits on substantive due process would imperil many other rights that voters hold dear, including the right to marriage for gay couples.

Again, the intuitive draw here is understandable. By massively expanding the range of rights threatened by the loss of Roe, we could perhaps galvanize voters who may not otherwise be moved to act. But the problem arises in making voters truly believe that those other rights are at risk. The Court’s decision on gay marriage was just five years ago, and even then, conservatives had the majority. On top of that, it will be difficult for voters to connect the dots from Roe to other issues without getting into nuanced legal doctrine. As the Gipper would say, “if you’re explaining, you’re losing”.

The “My Body, My Choice” Response

Ironically, the final response that I’d classify as “misguided” is the very argument that won the Court over in Roe fifty years ago: the government has no business inserting itself in a woman’s intimate decision of whether or not to have a child. Laws restricting access to abortion are a gross overreach that violate our most basic rights to privacy and bodily autonomy.

This message is compelling in its simplicity and urgency, and from an ethical and legal perspective, I believe it is correct. In states with firmer pro-choice majorities, it can probably be a winning message at the polls. But the hard truth is this: in a state where a majority of voters aren’t even willing to oppose an incredibly restrictive six week ban on abortions, arguing that government has no role to play in a woman’s reproductive choices will be a massive uphill battle.

After half a century of debate since Roe, views on abortion have become too firmly entrenched–and the labels of “pro-choice” and “pro-life” too flattening–to have complex conversations about liberty and bodily autonomy. The second a candidate mentions a right to choose or keeping the government out of intimate decisions, they will be labeled as “pro-choice” and any room for nuance will disappear. Candidates should pick a label and move on from the conversation.

The politics of COVID and vaccination have further complicated the picture. Vaccine skeptics have seized on the “my body, my choice” messaging to claim that Democrats have taken a hypocritical stance. While a needle prick is hardly the equivalent of a dangerous forced birth, their argument has some intuitive pull. It will be more difficult for Democrats to position ourselves as champions of an individual's bodily integrity at the same time that we are pushing people to get an injection for the good of their fellow citizens.

How Texas Democrats Should Talk About Roe

If Roe is overturned, Texas Democrats need a playbook for abortion politics that goes beyond reactive messages that seek to restore Roe and keep the fight on the same old battlefield. We need to play from our strengths and remind people why they want to put Democrats in power.

I propose, at least in the short term, we concede that we have lost on broad abortion access and stop talking about it there. Candidates running as Democrats don’t need to convince pro-choice voters that we are the party of Roe. And as I noted earlier, it isn’t clear that Texas voters are particularly eager to elect a champion of abortion rights. Need we recall Wendy Davis’s 20-point loss to Governor Abbott in 2014?

Texas Democrats should instead seize the conversation around Roe to focus on other aspects of reproductive health care and family policy. Polls show that health care remains a top issue for Texans, even when separated out from pandemic issues. And the Democratic brand is particularly strong on health care, as we saw in the 2018 midterms. And this brand has remained strong even as Democrats poll numbers have fallen during the first year of the Biden presidency. A June 2021 Third Way poll found that Democrats had a 20-point advantage over Republicans when voters were asked which party they trusted more to make health care, housing, and education less expensive. We should seize on this trust to position ourselves as the party that is offering commonsense answers to the complex problems that emerge in the wake of Roe.

Rather than fighting for a return to Roe, Democrats should be asking voters: Now that Roe is gone, what do you want reproductive rights in Texas to look like?

Democrats already have a robust health care and social welfare platform that provides voters with answers. In the absence of Roe, our previously defensive stances can transform into an affirmative legislative agenda. And by focusing on care in the first six weeks, we can force the GOP to own that they approved of abortions during that period.

• Pass legislation that provides exceptions for victims of rape and incest
• Pass legislation ensuring that women can have access to abortion medications by mail
• Highlight the high uninsured rate and advocate for women to have easy, state-funded access to pre-natal and reproductive care
• Increase funding for adoption programs
• Increase funding for childcare programs, aid to mothers and children

To be clear, I don’t mean to suggest that Democrats should altogether abandon efforts to protect abortion care. When we have the power to increase access, we should do so. But we need to gain that power first, and we do it by making voters trust that we have solutions.

For decades, Republican politicians have been able to escape accountability by portraying Roe as the villain and bemoaning their lack of legislative authority on abortion. With their unifying foe vanquished, Republicans can no longer avoid the thornier questions of reproductive health policy. Democrats should seize the opportunity by asking the questions that highlight Republican incompetence and providing clear, coherent answers as to why we are the stronger party to lead in a post-Roe world.