voting for obama because of the supreme court? please check your math

When making the case for the differences between US Democrats and Republicans, many people's first thought is the Supreme Court. High on their list of the importance of SCOTUS is usually Roe v. Wade, the case that established abortion rights for American women. There was a time when I would have wholeheartedly agreed with both of these assessments - but that time has long since passed. Yet so few USians seem to realize it.

The current makeup of SCOTUS is already five Republican appointees who range from moderately conservative (in the US context) to far-right ideologues and four Democrat appointees who range from moderately liberal to liberal (again, within a US context only). Five to four. Done.

More significant, though, is the relevancy of Roe. The tremendous focus on whether or not that case will be overturned is about two decades out of date. From the earliest days of the Reagan administration, when the anti-choice movement began to raise money and stock state legislatures in earnest, laws restricting abortion have been passed in every state in the country. The majority of those laws have been allowed to stand by successive Supreme Courts, long before the Republican-appointed majority. The two most important cases in this regard were Webster, decided in 1989, and Casey, decided in 1992. In 2007, things got worse with Stenberg, then Carhart. (Note that the Wikipedia entries for those cases use the non-medical, propaganda term "partial-birth abortion," a procedure which does not exist.)

Over this period, as restrictive anti-abortion laws continued to pass in almost every state, anti-choice lobbyists and state legislators felt free to float increasingly restrictive - and often, downright insane - legislation. In the past few years we've seen laws that would have been unthinkable 20 years ago, such as South Dakota's 72-hour waiting period and mandatory anti-abortion counseling. Fourteen states now have near-total criminal bans on abortion, despite the unconstitutionality of the laws. These include Massachusetts, Vermont, and Delaware.

Last year, anti-choice legislation reached feverish proportions. Indeed, 2011 marked the highwater mark for state laws restricting access to abortion. WaPo columnist Ezra Klein got the math from the Guttmacher Institute. And although Klein is pro-choice, this post from last December illustrates some of the problem with current pro-choice thinking in the US.
[In 2011], [s]tates passed 83 laws restricting access to abortion, nearly four times the 23 laws passed in 2010. A lot of that had to do with the 2010 elections, which ushered in a wave of Republican legislators and governors. This year, the number of states with fully anti-abortion governments — in which both the governor and the legislature oppose abortion rights — increased from 10 to 15.

That cleared the way for new restrictions. Five states banned all abortions after 20 weeks of gestation; until last year, only Nebraska had such a restriction. Seven now require an ultrasound, or the offer of one, prior to the procedure. Eight will no longer allow private insurance plans to cover the procedure. A handful of states are, to this day, battling the Obama administration over whether they can bar abortion providers, such as Planned Parenthood, from receiving government funds, even for the non-abortion services they provide.

Some of those restrictions will likely prove more of an ideological statement than a practical obstacle to abortion. A small minority of abortions happen after 20 weeks, meaning that a ban on such procedures won’t touch most patients. Abortion rights supporters have not challenged the new laws, mostly for that reason: While many argue the laws are unconstitutional, they’ve questioned whether a major legal fight over a late-term abortion law affecting relatively few women is their best strategy.
That last paragraph speaks to the true horror of this trend. Many women need abortion services after 20 weeks because of all these restrictive laws! Mandatory waiting periods mean multiple appointments, usually entailing travel and child care expenses - and all the while the termination procedure becomes increasingly expensive and further out of reach. In the abortion-access movement, that's called "chasing the funds". By the time a woman has scraped together $800 for a 15-week procedure, she's 18 weeks along and the cost is $1100. And by the time she finds the additional $300, she's 20 weeks, and the cost has doubled, and no one in her area will perform the procedure. So, in reality, a 20-week ban hurts many women - all low-income and uninsured.

In 2005, I wrote an essay called "For Millions of American Women, Roe Is Already History". In 2008, in response to a column by Globe and Mail columnist Margaret Wente, I documented abortion restrictions by state as of July 2008. The lists in that post are now horribly and tragically out of date. Here are the most recent lists and maps from NARAL Pro-Choice America. I encourage you to explore them.

When Roe v. Wade is overturned - an outcome most people within the movement consider a foregone conclusion - many states will ban abortion outright, some states will not criminalize abortion but will severely restrict it (as they currently do), and some states will continue to allow less restricted abortion services. But on the ground, very little will change for most American women, who right now have no access to family planning services of any kind.

Those Americans who feel it's important to vote Democrat will vote and should vote for Obama. But if you think that your vote is somehow keeping abortion safe and legal because of Supreme Court appointments, please check your addition. Five plus four equals six plus three, and both equal the end of Roe.


Amy said...

The math is not that simple. Kennedy has often been a swing vote, voting with the Ginsberg, Breyer, etc., bloc. He can sometimes be swayed if individual rights are at stake, for example. (I'd give you some cites, but have no time right now.) Also, Ginsberg is likely the next Justice to retire, given her health and age, and replacing her with a right winger would be disastrous. If not Ginsberg, then Kennedy is the next likely retiree. If Obama can replace him with someone more pro-choice, more in favor of same-sex marriage, more in favor of Obamacare, it would be a HUGE difference.

The Court and its members are always in flux. Even assuming your description that the Court always splits 5-4, with even one replacement, things can change completely.

So yes, it IS important to vote for Obama if for no other reason to keep the Court from becoming completely dominated by the Scalia-Alito-Roberts-Thomas bloc.

Amy said...

Your description of what is happening on the state level is what makes this even scarier. At some point the Court may either strike down these laws (or at least some of them) as contrary to Roe and thus unconstitutional OR it may overturn Roe and leave it entirely to the states to pass whatever laws they want, including complete bans on abortion.

laura k said...

The Court and its members are always in flux.

I agree. Totally. SCOTUS justices aren't always predictable. In my opinion, that's the opposite of needing to vote Democrat to save SCOTUS. It might be worth a shot, but it can't be counted on in either direction.

Regarding Roe, however, there is no hope.

laura k said...

OR it may overturn Roe and leave it entirely to the states to pass whatever laws they want, including complete bans on abortion.

Amy, with respect, I feel as if you didn't really read the post. I understand you disagree, but my point is that SCOTUS, as presently constituted, will overturn Roe. My point is that that ship has sailed. And all this has been going on in the states decades. And it wasn't stopped by Clinton and it wasn't stopped by Obama and it won't be stopped by SCOTUS.

Amy said...

No, nothing is certain. Certainly no one expected Earl Warren to be one of the most liberal Chief Justices when he was appointed by Eisenhower. But giving up hope? That's just not who I am. If I felt that way, I would be too depressed to do anything at all. I have to vote with hope that something makes a difference.

laura k said...

There are many things you can do to make a difference, but regading Roe, voting for Obama is not one of them.

Amy said...

As presently constituted, perhaps. But I still have hope that Kennedy won't vote to do that, and although Roe may be further eroded, it won't be completely overturned. And if Kennedy gets replaced, then it's a whole new ball game, depending on who his replacement will be.

Amy said...

Well, true, but I disagree with your view on the vote. And it's not only about Roe. There are lots of other issues that will come before the Court in the coming years, and the makeup of the Court will make a big difference on those as well.

laura k said...

And if Kennedy gets replaced, then it's a whole new ball game, depending on who his replacement will be.

It will not be a whole new ballgame for the majority of American women, who right now do not have access to abortion.

Besides the focus on SCOTUS, my point is that the focus on Roe is extremely outdated. Roe is mostly irrelevant.

Dr. J said...

Great post. The larger question is where change comes from: from above or from below. This post shows quite clearly that without mass pressure from below, neither Obama nor SCOTUS nor Roe are protecting choice, and changing one president or judge for another will not alter much on the ground. The flawed perception that they will do something on their own has kept many progressives off the streets--which has allowed choice to be further undermined. When Bush was in office there were half a million anti-war protesters surrounding the White House, and a million-strong march of women. Those have almost disappeared with Obama in office, a strategy which has yielded nothing in return--except for Obama to extend Bush's policies by killing Kyoto and launching drone wars. The key factor is how mobilized people are against the war on women, irrespective of which corporate party is in office, who's on SCOTUS, or what laws are on the books.

laura k said...

When Bush was in office there were half a million anti-war protesters surrounding the White House, and a million-strong march of women. Those have almost disappeared with Obama in office, a strategy which has yielded nothing in return

This is what is so heartbreaking and frustrating. So much effort and energy was put into electing Obama, then most US liberals sat back and waited for change.

Meanwhile, the right continues to fund its worker bees all over the country, and all the laws continue to trap women into reproductive slavery and poverty.

Thanks for the perspective, Dr. J.

allan said...

Those have almost disappeared with Obama in office

That's a huge reason why Obama has been a more dangerous (and, in my opinion, worse) president than Bush. All of the horrific stuff from Bush/Cheney was simply co-opted by Obama (and in many cases, increased and expanded). Almost immediately, Democrats began falling all over themselves to make excuses for the inhumane policies they had once loudly condemned. (A liberal message board I once checked a dozen times a day for years for news during the Bush years become completely unreadable because so many posters became apologists for the same war crimes they once howled in protest about.)

Obama has effectively (and brilliantly, I have to add, sadly) destroyed most of the protest movement against endless war, secret torture sites, and wanton murder, the continued shovelling of the nation's resources to the 1% and so many other horrors by making all of those policies bi-partisian.

laura k said...

(A liberal message board I once checked a dozen times a day for years for news during the Bush years become completely unreadable because so many posters became apologists for the same war crimes they once howled in protest about.)

This makes me sick. People rant about the Tea Party and the Bill O'Reillys, while these fucking liberals will put up with anything if the perpetrator has a D next to his name.

Student of the World said...

It's even worse if you're progressive and Black and criticize Obama's many horrible policies and stances

You get accused of being an Uncle Tom or being a crab in a barrel.

I'm supposed to support his devastating attacks on human rights and civil liberty abuses just because he has the same skin and racial background as me, or I'm a race traitor.

Never mind the fact that he didn't attend the International Conference on Racism. And told the Congressional Black Caucus to "Stop Complaining."

All this gives me a migraine. I'm lucky enough to be able to meet my well women needs and always have something stashed away for emergencies. But that's only because I'm one of the lucky ones.

Student of the World said...

I've told many people that I'm not voting, only because they asked and when I explain this very thing to them that the parties are really no different and Obama doesn't represent me, they don't want to hear it.

I'm just going to lie all the time. Truth is not popular.

BTW I lurk here and love your blog.

laura k said...

Student of the World, thank you so much. So nice to hear from a lurker.

When I put your comment through, I had just hit "publish" on a new post. I thought, how on earth could anyone have read and responded to it so quickly?? Ah ha. You were on a different post.

Please feel free to copy/paste this to the new post if you like.

I totally understand lying to save yourself the trouble. In certain situations, like in a workplace, it's often the only way to get by.

laura k said...

Re Uncle Tom, I once wrote about how it would break my heart to not vote for Hillary Clinton for president. All my life I've wanted to see a woman POTUS, but at some point I realized that she'd be the US equivalent of Margaret Thatcher, and I wouldn't vote for her. I, too, am a traitor. Thanks for sharing that.

Student of the World said...

Oh lol, my mistake.

I felt the same way about Hillary. I thought "I would love there to be a woman president but...Hillary seems too power hungry and her ethics are questionable."

At least she was honest though. Like a commentator above said Obama is as bad as Bush or worse, just because he slides under most people's radar. But American politics is like that.

Even conservative voters didn't get what they wanted with Bush II. He was supposed to be a fiscal President, instead he's brought in the deficit and government spending that Conservatives abhor.

laura k said...

I don't judge anyone for appearing to be power hungry. No one gets ahead in politics without that hunger - and it seems that only women are judged harshly for it.

I could not vote for Hillary Clinton because she is a warmonger.

allan said...

More on the idea of "a lesser evil".

allan said...

The great cartoonist Mr. Fish with one called "Awesome Shit".