Did Texas Hand Biden a Lifeline?

Column: The unpredictable politics of abortion in 2022 and 2024

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September 3, 2021

President Biden's approval rating is sinking. Independent voters are against him. Republicans are gaining on Democrats in the congressional generic ballot. GOP candidate Glenn Youngkin is within striking distance in the Virginia governor's race. There's even a dwindling chance that California's Democratic governor Gavin Newsom might be replaced by a conservative Republican in September's recall election. And Democrats are already worried about next year's midterms. "The '22 midterms are going to be tough," Rep. Jake Auchincloss (D., Mass.) told the Washington Post last week. "We've got the historical precedent of midterms for a first-term president provoking a backlash."

Right now, the backlash looks harsh. This first-term (one-term?) president hasn't exactly inspired confidence with his handling of the coronavirus pandemic, inflation, illegal immigration, crime, and withdrawal from Afghanistan. To the contrary: President Biden is remote, inept, out-of-touch, and out-of-step. He's on a downward political trajectory. His best chance of recovery is a break from the onslaught of bad news. He needs the media to shift topics.

And the state of Texas is ready to assist him.

Late in the evening of September 1, the Supreme Court decided 5-4 not to enjoin a Texas law that bans abortions after a fetal heartbeat is detected at about six weeks of pregnancy. The Court found that the law, Senate Bill 8, "presents complex and novel antecedent procedural questions on which they [the abortion providers appealing to the Court] have not carried their burden." The most basic "complex and novel antecedent procedural" question is this: When the Court issues an injunction, it doesn't unilaterally put a law on pause. It tells officials not to enforce a law.

But Texas officials don't enforce the abortion restrictions in Senate Bill 8. Private citizens do. The law authorizes them to sue abortion providers or individuals promoting abortions in Texas after the six-week limit. How, then, can the Court enjoin a law that no one has enforced? And how can the Court judge the constitutionality of a statute that hasn't been challenged correctly? Until that happens, the Court wrote, the Texas law remains in place.

Which might help Biden. The president, the vice president, Democrats in Congress, progressive activists, and their allies in the media denounced the Texas law with incredible speed. Why? Not just because they are passionate defenders of abortion. Because they sense a political opportunity. Biden said that he would "launch a whole-of-government effort to respond to this [i.e., the Court's] decision." Nancy Pelosi said that she would bring to the floor the "Women's Health Protection Act," which would eliminate practically all restrictions on abortion nationwide. Former acting solicitor general and al Qaeda lawyer Neal Katyal tweeted that Senate Democrats should break the filibuster to codify abortion rights. The disaster in Afghanistan vanished from the front pages. Stories on the Texas bill appeared instead.

These are stories that Democrats want to see. For the fact of the matter is that the Texas heartbeat law cuts against public opinion on abortion. "Most Americans do not want to overturn Roe v. Wade, but they have long supported restrictions on its use, including solid opposition to second and third trimester abortions," wrote my American Enterprise Institute colleague Karlyn Bowman in 2020. The restrictions in the Texas law are imposed during the first trimester. They don't include exemptions in cases of rape or incest. Abortion clinics say they are turning away women for fear of litigation.

What better material for a Democratic president and progressive movement eager to change the subject from their own incompetence to the fanaticism of their opponents? The subtleties of Senate Bill 8—the fact that its text says Roe may be a valid defense against it so long as Roe is controlling precedent—won't be mentioned in the media firestorm. The media doesn't do subtlety. It's not their bag.

The politics of abortion are crosscutting and complex. I make no claim that the 2022 midterm or 2024 presidential elections will turn on the Texas heartbeat law or on the Court's forthcoming decision in Dobbs v. Jackson Health—in which the Court could overrule Roe or weaken it beyond recognition. But I do not doubt that Republican candidates will have to take on this difficult and uncomfortable subject. Every Republican running for office will be asked whether he or she supports the Texas law and others like it. They better have an answer ready. And that answer better not sound like it came from Todd "legitimate rape" Akin, whose abortion-related gaffe in 2012 cost the GOP a Senate seat.

That was another election Republicans thought they had in the bag. They were disappointed. Will history repeat? Few people in 1973 understood the ways in which Roe would warp our constitutional system. Few people today can predict the fallout from either the Texas law or a potential reversal of Roe next summer—much less all of the events, scandals, and crises that will unfold in the coming year.

What we can say is that politics in the first quarter of the 21st century moves at a dizzying tempo. When you think you're up, you're down. When you're down, you're soon to be up. Issues long thought settled become electric and contested. A president can consign 38 million men, women, and children to theocracy in Afghanistan, then paint his domestic opponents as theocrats-in-waiting. The end of Roe might catalyze a feminist juggernaut, but the continuance of Roe might depress turnout among social conservatives. In this kingdom of extremes, few things are certain. One is that the candidate the public deems less frightening is the candidate who wins.