Why the coming confrontation on abortion will echo the battle over voting

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The approaching legal and political showdown over abortion will reprise the key dynamics that shaped last week’s bitter Senate struggle over voting rights — and further inflame disputes between the parties over the filibuster and the role of “states’ rights” in limiting federal guarantees of civil rights and liberties.

Why the coming confrontation on abortion will echo the battle over voting
© Drew Angerer/Getty Images Demonstrators rally outside the US Supreme Court on November 1, 2021, in Washington.

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The same ingredients that produced the voting rights confrontation are reassembling on abortion: a momentous Supreme Court decision, aggressive action in Republican-controlled states, a forceful response from the Democratic majority in the House of Representatives — and a Republican Senate filibuster that stops Democrats in their tracks.

The abortion fight is nearing even as the voting rights battle showed congressional Republicans are growing more committed to retrenching the federal role in guaranteeing shared national rights on issues such as voting and abortion.

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One of the most striking aspects of last week’s showdown was how strongly and persistently Republican senators portrayed any new standards as a “federal takeover” of voting rules and a threat to state prerogatives. With that heated language, Republicans embraced states’ rights claims against a federal role in protecting voting access more unreservedly than at any point since Southern segregationists filibustered unsuccessfully to block the original Voting Rights Act’s passage in 1965.

The vehemence of that criticism — which a dozen separate Republican senators raised during the floor debate last Wednesday — captured a shift in the GOP’s center of gravity. It signaled that Republicans are likely to advance similar arguments about preserving state authority to block any attempt from Senate Democrats to pass legislation codifying the national right to abortion that the Supreme Court established in the 1973 Roe v. Wade decision, which marked its 49th anniversary over the weekend.

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Like last week’s struggle over voting, the coming battle over abortion will sharpen the contrast between a Republican coalition insisting that states must be permitted more flexibility to set their own rules on a wide array of issues and Democrats and civil rights groups warning that such leeway will undermine constitutional rights that should be available in every state.

“I have been a state attorney general; I believe that states have certain sovereign powers,” Democratic Sen. Richard Blumenthal of Connecticut, the principal sponsor of the Senate bill codifying Roe, told me. “But they do not include denying rights of privacy, which underlie reproductive freedoms under Roe, or denial of voting rights.”

The pivot toward ‘states’ rights’

During the “rights revolution” that began in the 1960s, the debate seemed to be settled on the side of more guaranteed national rights. The courts and/or Congress overturned state bans on interracial marriage, access to contraception and abortion; set a nationwide floor of voting rights; dismantled state-sponsored segregation; and barred discrimination on the basis of race, gender and, more recently, sexual orientation. But over the past several years, Republicans in the federal courts, the states and Congress have launched a sustained counteroffensive to tilt the balance away from national authority toward “states’ rights” to set their own standards.

“We had what seemed to be a kind of big moment in the 1960s where … states’ rights were pushed back because of concerns that states left to their own devices would pursue policies that were discriminatory,” says Donald Kettl, author of the 2020 book “The Divided States of America” and a recently retired professor of public administration at the University of Texas at Austin. “But anyone who has followed American history knows that when it seems any issue is finally resolved we swing in the other direction.”

The resurgence of states’ rights arguments among Republicans, Kettl says, “is a very big deal because in some ways it pushes us back to the 1950s,” when the rights available to Americans varied much more widely, depending on what states they lived in. The failure of the Democrats’ twin voting rights bills last week virtually guaranteed that divergence will widen on access to the ballot; if the Supreme Court overturns Roe and the Senate can’t pass legislation to respond, the same will rapidly become true on access to abortion.

The Senate’s debate last week on two Democratic voting rights bills pivoted precisely on that fulcrum: How much divergence in state rules on voting is acceptable?

Republicans relentlessly portrayed the Democratic proposals as an excessive infringement on state authority.

“Make no mistake about it, that is what we are talking about: federalizing elections in this country; usurping, preempting states, where elections have been administered and regulated since the inception of this country,” insisted GOP Sen. John Thune of South Dakota, the Republican whip.

Added GOP Sen. Mike Crapo of Idaho: “These bills are really a power grab that would circumvent and federalize our entire elections process, stripping states of their constitutional authorities.”

Democrats fired back that the Constitution’s elections clause (Article 1, Section 4) explicitly authorizes Congress to set the rules for congressional elections. And Democrats repeatedly noted how much the contemporary claims from the GOP echoed states’ rights arguments that Southern segregationists such as Sens. Strom Thurmond and Richard Russell raised against the original Voting Rights Act and other landmark civil rights legislation during the 1960s.

“Many of them have been channeling old states’ rights arguments,” Democratic Sen. Raphael Warnock of Georgia, who still serves as the senior pastor at Atlanta’s Ebenezer Baptist Church, noted at one point. “Please know that as the pastor of Dr. King’s church, this argument evokes … some of the darkest moments in our country’s long struggle for equality.”

New arguments against Voting Rights Act

Perhaps the most revealing aspect of the debate was that Republicans, in making the states’ right case, did not differentiate between the Democrats’ two bills. The Freedom to Vote Act would in fact set detailed federal standards all states must meet on issues such as access to mail and early voting, voter registration and congressional redistricting.

But the Democrats’ second bill, the John Lewis Voting Rights Advancement Act, essentially restored the Voting Rights Act, which the Republican-appointed Supreme Court majority has severely weakened. In the 2013 Shelby County v. Holder decision, five GOP-appointed justices outvoted four appointed by Democrats to effectively overturn the law’s provision requiring states and localities with histories of discrimination to receive Justice Department “preclearance” for changes in voting laws; in the 2021 Brnovich v. Democratic National Committee case, the six GOP-appointed justices voted to dilute the law’s other major provision allowing suits against discriminatory election laws.

Since its approval in 1965, the Voting Rights Act had been reauthorized five times with broad bipartisan support (with each extension signed into law by a Republican president). During the most recent extension, in 2006, more Republicans objected to the preclearance process, but ultimately the bill specifically reauthorizing it passed the GOP-controlled House with 390 votes and passed the Republican-controlled Senate on a 98-0 vote.

Against that history, the nearly unanimous Republican opposition to the John Lewis act dramatized a significant escalation in GOP opposition to a federal role in guaranteeing voting rights. While resisting the Democratic proposals, Republican senators and conservative critics alike over the past year have attacked preclearance much more directly than in the past, railing against “unelected bureaucrats” in the Justice Department exercising a “veto” over “commonsense election safeguards and voter integrity measures passed by duly elected state legislators,” as Ken Cuccinelli, the former Republican Virginia attorney general and top Department of Homeland Security official under President Donald Trump, declared at one Senate hearing last year.

“If you listened to the arguments that were raised at the hearings against the Voting Rights Act, any of the arguments they raised weren’t about the particular bill, they were against the basic concept and structure of the act as it had existed in the past 60 years and the concept of preclearance and federal legislation generally,” notes Wendy Weiser, vice president for democracy at the Brennan Center for Justice at New York University Law School.

Linda Chavez, chair of the conservative Center for Equal Opportunity and a former civil rights official for President Ronald Reagan, says that “the Voting Rights Act became so sacrosanct that Republicans for a long time were very afraid of ever doing anything that seemed to be pushing back against” it. The more forceful opposition evident today, she says, reflects a widespread conservative belief that the preclearance process enables too much federal intrusion on state authority. “The preclearance provisions were always intended to be temporary,” Chavez argued. “They were put in place at a very different time in our history. The idea that access to voting is being impeded in the way it was in the Deep South in the 1960s is just nonsense.”

But civil rights advocates argue that without the specific federal standards for voting access in the Democrats’ broader bill, or the backstop of Justice Department oversight through a restored Voting Rights Act, red states now have a clear runway to steadily impose tighter restrictions on ballot access. The result could be a widening gap in the rules surrounding voting and election administration in red and blue states.

Such a chasm is exactly what the Supreme Court appears poised to reopen on abortion. In recent proceedings on cases involving Mississippi and Texas laws imposing stringent abortion restrictions, at least five GOP-appointed justices have signaled they may be prepared to overturn Roe.

If the high court does so, 21 states predominantly controlled by Republicans already have laws on the books that will immediately ban or severely limit abortion, according to a roundup by the Guttmacher Institute; another five GOP-controlled states are poised to join them. A common national right for nearly half a century, abortion by this summer could become a powerful symbol of America’s broader political and cultural divergence.

“Young women have not known a life without Roe vs. Wade, without a national constitutionally protected right to abortion,” says Democratic Rep. Judy Chu of California, the lead sponsor of the House bill codifying Roe. “To have 26 states ban abortion … would be an incredible wake-up call to women all across the United States.”

Recent CNN polling found that more than two-thirds of Americans oppose overturning Roe (including 44% of Republicans). But if the court invalidates Roe, there’s essentially no chance the Senate will back the House-passed Women’s Health Protection Act restoring a national right to abortion. With 48 co-sponsors for the Senate version, Blumenthal told me he’s not inclined to negotiate changes in the legislation to try to attract two more votes, including potentially Republican Sens. Lisa Murkowski of Alaska and Sen. Susan Collins of Maine (who, similar to her remarks last week on voting, has said she supports the concept of codifying Roe but opposes the actual Democratic bill to do so).

“There have been conversations with a number of my colleagues,” Blumenthal says. “But my view is very simple: Any senator who is really pro-choice will support the Women’s Health Protection Act. Period.”

And of course, even if the bill did reach 50 votes, it has no chance of attracting the 60 required to break a certain Republican filibuster.

Undoing vs. preserving rights

As the Supreme Court considers Roe, conservatives are arguing that allowing states to set their own courses would reduce political tension around abortion. “It ought to be a state matter,” says Chavez. “The fact that you might have liberal laws in some states and more conservative laws in some states, just as we do on a lot of things … that involve morals and certain values that differ from state to state … doesn’t bother me.”

Blumenthal crystallizes the counterargument when he says there are baseline individual rights so essential they must be guaranteed in every state. “The same argument could be made about every one of the Bill of Rights, that there would be less debate or contention if there were no constitutional guarantees,” he says.

Like the voting dispute, the abortion controversy illuminates a fundamental disparity in this escalating struggle. Republicans are rolling back previously guaranteed national rights with party-line majority rules votes on the Supreme Court and/or state legislatures. But to defend those rights, Democrats ultimately need a bipartisan supermajority of support in the Senate to surmount the filibuster.

With its many checks and balances, the American political system is usually described as biased against change — but in this case, the correlation of forces makes it easier to undo rights than to preserve the status quo.

“Why is it that the states can use a simple majority no matter how slim to roll back voting rights or constitutional protections like abortion access … and they are doing it on an explicitly partisan basis, but on the federal level, because of the filibuster we cannot use a simple majority to protect our constituents?” says Chu. “For a democracy to be functional it should be that the majority rules … and yet in this case, a minority rules.”

The same imbalance is shaping a lengthening list of other issues. Red states are imposing new restrictions on transgender young people competing in sports through majority-rule largely party-line votes in state legislatures; the House, on a near party-line vote, approved legislation last February that would overturn those bans and establish a broader baseline of LGBTQ anti-discrimination protections. But a Republican filibuster has shelved that bill in the Senate.

Similarly, the House passed policing legislation last March on a near party-line basis that, among other things, responds to Supreme Court decisions broadening the “qualified immunity” defense, which makes it difficult to prosecute police officers for misconduct. But after lengthy Senate negotiations — that saw Republicans echo the states’ rights arguments they used on voting — that legislation is stalled indefinitely, too, with no prospect of surmounting a filibuster.

Like many legal and political analysts, Kettl, the retired public administration professor, says he expects the years ahead to produce “a growing divergence … between the red states and the blue states” that erodes the framework of common national rights expanded since the 1960s. Both last week’s Senate Republican filibuster on voting rights and the potential decision from the GOP-appointed Supreme Court majority to weaken or end Roe capture the core structural disparity that explains why.

“The Democrats are being blockaded at every turn at the national level,” he says, “while Republicans at the state level are able to push aggressively toward their agenda.”

So long as Democrats can’t surmount the filibuster to preserve nationally guaranteed individual rights, that means the conservative claims of states’ rights are poised to increasingly drive policy in the 2020s — more than half a century after those arguments had appeared irrevocably discredited during the titanic struggle to topple state-sponsored segregation.

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