By Chris Satullo
The Texas Heartbeat Act, which all but outlaws abortion in the Lone Star State, is a lousy piece of lawmaking propped up so far by a sneaky bit of evasion from the Catholic bloc on the U.S. Supreme Court.
Yet, it might still turn out to be one of the best things to happen in a long time for the Democratic party, and the nation’s hopes for outgrowing its red/blue divide.
Before elaborating on that paradox, let me confess up front: I have complicated, ambivalent feelings about abortion. I just can’t salute some of the reasoning and rhetoric deployed by fervent supporters of abortion rights. But I still believe Roe v. Wade was essentially the right call. As far as I can tell, the occasions where government might have a reason to get involved in a woman’s decision whether to deliver a child are extremely rare.
I also consider this court majority’s willingness to substitute their personal moral beliefs for clear constitutional precedent, while hypocritically denying that they are practicing rank judicial activism, is beneath contempt. I could spend many pixels hyperventilating about that, but no need: Adam Serwer of the Atlantic has already done that far beyond my poor power to add or detract. I’ll let his words speak for me.
I’ll focus instead on the paradoxical prospect that should provide some comfort for the millions appalled by what’s going on in Texas now and fearful that it may come their way next.
This brutally bad law could prove a good thing for the nation – if (if) it goads supporters of abortion rights to get off their complacent, self-righteous duffs and do the right things in response. And by that I do not mean dashing off angry tweets – nor even donating to Planned Parenthood, fine idea though that might be.
What just happened in Texas – along with all the horrors happening right now in state capitols across the land as devotees of the Orange One try to rewrite election laws so that he can simply be declared the winner in 2024, no matter how the voting goes – drives home a key point that progressives too often ignore to their pain:
State capitols often are (and, in fact have been for quite some time) where the action is. Under those domes, not the one in D.C., occur many of the essential fights over a host of constitutional rights – from the right to vote, to the right to an education, to the right to a fair trial and protection from false imprisonment, to, yes, the right to reproductive freedom.
Understand that, from 1973 on, Roe v. Wade fueled a surge in evangelical conservative political activism (coming as it did on the heels of the school prayer, desegregation and defendant’s rights rulings of the Warren Court). This fervent movement paid heed, in a way liberals rarely do, to the local level. It fought fiercely for control of things like school boards and state legislatures.
The conservatives now serving as governors, congresspeople and U.S. senators often got their starts in the brutal trenches of those local and state elections fought and won 20, 30 and 40 years ago over “culture war” issues – or they depend on the political savvy, money and votes of people who did. Conservative strategists have never taken their eyes off local and state offices as places where they can cement voter loyalty, groom superstars and find clever ways to counter the impact of liberal laws or liberal judicial rulings emanating from Washington.
By contrast, liberals/progressives cast barely a glance at those homely races, preferring to spend their attention and donations on glamorous MSNBC darlings like Beto O’Rourke, Jaime Harrison and Amy McGrath. Nothing against those candidates personally, but any political pros worth their salt could tell you those three never had a snowball’s chance against Ted Cruz, Lindsey Graham or Mitch McConnell. Yet how much money and air do such hyped phenoms routinely suck out of the Democratic room?
Life is about opportunity cost. Every penny spent on those doomed campaigns, every moment of Rachel Maddow airtime wasted on them, is money and attention stolen from the far more pressing issue of whether your local school board of education will be populated by zealots who want creationism to be taught in your child’s school, or whether your community is going to send to your state legislature another Cro-Magnon specimen who’s eager to oppose vaccines, cut school funding, imprison half of every city, and hyperventilate about phantom threats like transgender bathrooms and critical race theory.
So that’s how things like the Texas Heartbeat Act happen. Fun fact: While Democrats basked in Barack Obama’s two presidential victories, the party lost more than 900 state legislative seats across the map.
Granted, the high court’s wink at the Texas law doesn’t overturn Roe v. Wade, per se, but makes it clear the high court is prepared to defer radically to state judgments on the issue. Even a ruling tossing out Roe (which may be coming soon) would not in and of itself make abortion illegal.
That would take actions at the state level, in state after state after state.
So, by the same logic, abortion can be made legal, state by state by state. You just need the votes.
That is where the coming fight will be. The complacency that Roe has bred on the left must be swept away. It could be replaced by urgency and passion to win back the prize in state after state, one tough, priceless state election fight at a time.
Or the energy might instead flow, in a typical left-of-center strategic mistake, to finding a perfect new test case to try to win back part of the old freedom in one bold, courtroom master stroke. (When a bunch of your big thinkers and donors are litigation lawyers, such mistakes happen.)
Yes, trying to pry back a prize democratically is a much harder, slower slog, requiring patience, determination and resilience – exactly the same qualities the conservative movement has displayed since 1973. (And, yes, I do concede the slog probably will be made harder by the Republican dominance in state capitols, which is striving, even as you read this, to sharply tip the playing field via gerrymandering and bogus voting laws.)
What’s more, trying to win what you want through democracy, not court rulings, produces benefits beyond the immediate target. It breeds organizing and activism, which creates bonds of trust and loyalty within a movement, making it less prone to the exasperating narcissism of small differences that the braying Dems are now displaying re: the infrastructure bills. It identifies, trains and tempers the instincts of young stars destined for federal office i.e. an antidote to Beto-ism. It promotes a steady stream of donations based on hope and determination, not bogus fear-mongering.
Beyond that, there’s this possibility, which underscores and may accelerate an emerging truth of American life:
The more that red states turn to a theocracy of the ignorant, the more painfully apparent will become the ills of daily life in those states compared to the blue states (or areas) that pay at least a modicum of fealty to science, to diversity and tolerance, to environmental protection and social justice, and (in fact, if not in Fox hysteria) to the freedoms authentically embodied in the Bill of Rights.
Increasingly, people who value learning, diversity, sustainability, data and innovation, yet find themselves trapped inside red state ignorance, dysfunction and decline, will face two choices:
- Move their talents, their values and their energy to a blue area where they have a better chance of being welcomed, appreciated and supported.
- Or fight like hell to take back their own state, school board by school board, town council by town council, state legislature by state legislature.
Either choice will be good for America. Between inexorable demographic change and this intensifying contrast between red stagnation and blue growth, the folly of the Fox/MAGA governing mindset will eventually collapse under the weight of its own incompetence.
I doubt I’ll still be alive when that fine day comes, but I believe it is coming.
Or, more accurately, I hope it will. Because, if it doesn’t, the American experiment that I love and consider worth fighting for will itself collapse onto the ash heap of history.
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Chris Satullo, a civic engagement consultant, is a former editorial page editor/columnist at The Philadelphia Inquirer, and a former vice president/news at WHYY public media in Philadelphia