Post Roe, the path forward lies in the States

Post Roe, the path forward lies in the States
Photo by Gayatri Malhotra / Unsplash

*Reader's note: this is not a Texas focused post, but given the moment, we are making an exception.

First, let’s not mince words.

Dobbs vs. Jackson Women’s Health is one of the single most abominable and undemocratic decisions by the United States Supreme Court.  The Court’s decision to overturn Roe v. Wade and turn over abortion to the states leaves millions of American women and men bereft of the reproductive rights that Roe ensured. Additionally, as Clarence Thomas’s concurrence indicates, the rights to gay marriage and contraception are also potentially in the line of fire.  

To those who are frustrated, angry, terrified, and anxious you are fully entitled to your feelings.  This aside, we cannot offer you comfort that there is immediate Congressional action incoming to re-establish the legal guarantees of Roe v. Wade.  Currently the odds of the Senate filibuster being overturned are at 0%, and even if legislation is passed, it is not clear that the current 6-3 conservative majority on the Supreme Court would uphold it.  

There is no magic wand to restore the Roe status quo.  For too long Democrats have relied on the Supreme Court and judicial branch as the guarantors of rights, forgetting that the progressivism of the New Deal era has been an aberration.  For most of American history, the Court, like the Senate, has been an obstacle in the path of progress. The Court’s recent rightward shift is simply a return to this historic pattern.  As others in the media have documented, the Democratic insistence on enacting policy change through the federal court system has in part resulted from an overreliance in Democratic leadership on lawyers and ex-lawyers, whose system focused sensibilities have been preoccupied by winning policy change solely through trials at the expense of other methods of gaining and exercising power.  

So what’s the plan?  As Representative AOC memorably said, it cannot simply be fundraising for impotent national Democratic politicians.  The moral imperatives of this moment call for a path to do as much that can be done while internalizing the Roe-era national status quo as a north star.  

Courts may have authority, but they are not the supreme one.  True power in a democratic and federal system flows from the people, and as numerous polls have shown, the public by double digit margins prefers to have legal access to reproductive rights, contraception, and gay marriage. Democrats must return to the movement building work that took place in the 1973 pre-Roe era, focusing on winning power by appealing to the people and gaining power through the states.  Above all, Democrats must imitate the success of the forced birth movement and wage a total political war in every forum possible, activist, local, state, AND national.  National Congressional action cannot be the sole arbiter of movement change. This aside, Democrats and left leaning groups must also be strategic.  

The following quote by Sun Tzu is illustrative:

“Military tactics are like unto water; for water in its natural course runs away from high places and hastens downwards. So in war, the way is to avoid what is strong and to strike at what is weak.”

The following analysis below offers a path forward to gain the maximum abortion rights for the largest number of people on a policy level.  This post is focused on achieving maximal policy change within the constraints of the system; this post is for those interested in turning their anger into policy change.

National and state level polling concur.  Over 60% of Americans back some level of abortion access, and over 40 states have majority support for reproductive rights. Though there may be some level of polling error, and Republican attorneys generals or State Supreme Court justices will make implementation as difficult as possible, broadly speaking, state level constitutional or ballot referendums in 2022, 2023, and 2024 offer the cheapest and most politically convenient method of expanding abortion access through the enactment of law.

Referendum access by state courtesy of Ballotpedia
The 16 states in which reproductive choice is protected by law
  1. First, of the 50 states, we can safely eliminate from action the 16 strongly Democratic states that have enacted reproductive rights into law. If citizens of these states wish to further strength abortion rights by enacting a Constitutional amendment to deeply root abortion and marriage rights, that’s within their authority, but given the crisis of other non-green states as seen on the map, and the fact that abortion is broadly popular in these Democratic states by double digit margins, states under attack should probably take priority.  
  2. This leaves 34 remaining states to consider in which reproductive rights are either unprotected or actively in danger from trigger laws/impending legislation.  17 of these 34 states have ballot referendum mechanisms. Additionally, aside from Arkansas and Misssissippi, in 15 of the 17 states, some level of legal abortion access is either popular or within striking range of a majority.  Democratic and left leaning organizations should immediately prioritize them. Using an average signature cost/referendum in 2021 derived from Ballotpedia’s publicly available data, for the cost of around $34 million, we can get abortion rights on the ballot, and if successful restore some level of Roe era reproductive choice to over 20-40% of America’s reproductive age women.
17 of the 34 states without reproductive rights enacted into law have ballot referendum mechanisms 
  1. Arkansas and Mississippi are much trickier.  Given the fact that abortion polls at -22% and -23% popularity, short of nationwide Congressional legislation, winning a ballot initiative for the pre-Roe status quo will be extremely difficult.  Given the relatively poorer economies of both states, it would be cheap to poll the states further in detail and see what is the maximal level of reproductive autonomy that can be achieved, and then engage in an outreach and marketing campaign in earnest.  In this environment and these types of states, even getting access to reproductive rights in the case of a mother’s life, rape, incest, and fetal abnormalities would be a victory, though obviously this is not acceptable.  
Cluster 1: Pro-choice mixed legislature states
  1. The final 17 states without referendums are a mix.  We will separate them into clusters.

Cluster 1: Pro-choice mixed legislature states: New Hampshire, Michigan, Virginia, Wisconsin, Pennsylvania

a. These are all decently pro-choice states with mixed legislatures.  Though New Hampshire and Virginia do not have Democratic governors, the other states do.  These Democratic governors must push the full expanse of their authority to understand how they can preserve reproductive rights, and/or negotiate with their Republican legislatures.  If they are unable to do so, they should use this as an issue to run broadly pro-choice state legislative campaigns and beat enough forced-birth legislators in pro-choice districts to gain a majority and enact reproductive rights into law.

b. In New Hampshire, activists can make certain that reproductive rights is one of the top issues for voters in the 2022 Gubernatorial election in New Hampshire and force the incumbent Republican governor to take a pro-choice position in line with his state or beat him in a backlash.  In Virginia, the next opportunity to win gubernatorial and legislative elections is in 2025.  Aside from lobbying the current legislature and governor, a low probability of success since they’re all Republican, 2025 will be the nearest opportunity to restore abortion rights.

c. Alternatively, most of these states have elected Supreme Courts.  Making these elections as partisan on a pro-choice level as possible could result in broadly Democratic Supreme Courts that could interpret the state’s Constitution in a way that restores abortion access, though these are no substitute for enacted law.  

Cluster 2: Purple, neutral states: Iowa, North Carolina, and Kansas

a. Kansas and North Carolina have Democratic governors.  It’s possible that they can bargain with their counterparts in the Republican legislatures and come to some level of compromise, perhaps by promising a corporate tax-cut, but this will be difficult.

b. The same state Supreme Court strategy elucidated previously in cluster 1 may be another plausible approach, but as the US Supreme Court has shown, what Courts enact, they can un-enact and are no substitute for passing laws.  

Forced birth states in which there is no referendum access

Cluster 3: Strong forced-birth states: low-hanging fruit: rape, incest, the mother’s life, and some level of fetal abnormalities

a. Given a lack of referendums and strong public support in most of these states, and the fact that in most of them, Democrats have not held power for decades, it is difficult to imagine any strategy that could result in restoring reproductive rights access.

b. The only one that makes sense is the fact that Republicans in most of these states have broadly overstepped with bans that were never intended to go into effect, banning abortion access even in the case of rape, incest, or a mother’s life being in danger.  This is extremely unpopular; even in a state as red as Texas.  Additionally, the numbers in Georgia and Texas are not out of the realm of persuasion; there is hope in these states, particularly as they grow and become urbanized.

c. Focusing on this narrowly tailored issue, and potentially expanding based off of polling to understand what can get 51% support, could allow Democrats to gain a policy foothold by exposing Republican incumbents as the radicals they are.  This aside, the battle to restore the Roe status quo here will be difficult and take decades.

Overall, the battle to ensure reproductive access has just begun and will take place across a wide variety of fronts.  As you wonder where to put in your efforts, we urge you to consider volunteering for, donating to, or publicizing state ballot initiatives and elections.