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Justice Sam Alito's GOP curse and Ohio's abortion vote
"Women are not without electoral or political power," Alito wrote in Dobbs. On Tuesday, Ohio voters agreed, passing a constitutional amendment protecting abortion rights.
For nearly 50 years, Republicans, conservative legal advocates, and other opponents of Roe v. Wade wanted few things more than for the decision establishing a constitutional right to obtaining an abortion to be overturned.
By the time Donald Trump’s three appointees to the U.S. Supreme Court — Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — helped to turn that desire into reality, Trump was already out of office.
Trump’s legacy on the issue, however, was nonetheless cemented on June 24, 2022 — when the Supreme Court released its decision in Dobbs v. Jackson Women’s Health Organization.
Justice Sam Alito — a George W. Bush appointee — wrote the court’s opinion, as previewed by Politico when it obtained and published the draft of the opinion earlier that year. The fifth vote to overturn Roe in Dobbs came from Justice Clarence Thomas, appointed to the bench by Bush’s father, George H.W. Bush.
The opinion was a piece of work — questionably detailing history; dismissively addressing countervailing claims; and quickly laying out how freed states would be to, basically, restrict abortion as they pleased.
The consequences of the decision have already been many — fastidiously detailed at Abortion, Every Day — with countless women and other pregnant people’s lives, as well as the lives of those around them, being affected, yes, daily.
One paragraph of the Dobbs opinion, however, is becoming Alito’s curse on Republicans — a rare statement of fact from his opinion that inadvertently serves as an explanation of the price Roe’s opponents are paying, and will pay, for having accomplished their 50-year mission. Alito wrote:
Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power. It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.
And so it has been in elections since.
The August 2022 Kansas vote rejecting an evisceration of state abortion protections. Special elections. California, Michigan, and Vermont votes protecting abortion. Votes against anti-abortion measures in Kentucky and Montana. The broader 2022 midterm elections. All signs pointed to the facts that Alito was right — and that women and those who support them were pissed about Dobbs.
Republicans haven’t changed course, though. Instead, and in ways that matter, they’ve doubled-down, even in recent weeks. House Republicans promoted Mike Johnson, one of the most far-right abortion opponents in the House, to be House speaker last month. A trio of Republican state attorneys general sought just last week to join the lawsuit aimed at ending or restricting access to mifepristone, a medication abortion drug, across the nation.
With Speaker Mike Johnson’s ascent from Alliance Defense Fund spokesman to speaker of the House and with the state AGs joining up with ADF (now, Alliance Defending Freedom) in the mifepristone case, voters again went to the polls.
Voters, it turns out, haven’t changed course either.
On Tuesday — 501 days after the Dobbs decision came down — Ohio voters easily passed Issue One, a constitutional amendment protecting abortion and other reproductive rights.
The Issue One victory was all the more important given that Ohio has been trending much more Republican than “toss-up” in recent years and because the key opponents of the measure, including Republican Ohio Secretary of State Frank LaRose, tried to put up every roadblock they could to try and stop the measure from succeeding.
And yet, women and their allies in Ohio did — indeed — show that they are not without electoral or political power on Tuesday. As The New York Times reported overnight:
The same signs came out of candidates’ elections in Kentucky, where Democratic Gov. Andy Beshear was re-elected, and Virginia, where Republican Gov. Glenn Youngkin not only failed to gain control of both chambers of the legislature — he lost control of both chambers. Abortion rights and restrictions were an issue in the campaigns in both states.
The same was true of the Pennsylvania Supreme Court race, which the Pennsylvania Capital Star reported “was dominated by millions in third-party spending on campaign advertising that brought the campaign down to the singular issue of abortion.” Democrat Daniel McCaffery won handily.
Despite all of that, the talk from Republicans on Tuesday went in one of two directions — wishful thinking (“abortion won’t be an issue by 2024”) or clueless (“we just need to change the way we’re talking about this”).
In either event, so long as Republicans committed to ending or severely restricting abortion rights — or those inextricably linked to such policies — are the ones running the party, Alito’s curse will continue to haunt the GOP.
Law Dork with Chris Geidner brings you independent, reader-supported legal and political journalism that seeks to hold government and other public officials accountable. Support this reporting by becoming a paid or free subscriber today.