Political Animal


March 27, 2013 9:52 AM Next Year’s SCOTUS Sensation?

By Ed Kilgore

As commentators begin to run out of words to speculate about the murky maneuverings of the Supreme Court on same-sex marriage issues as reflected in oral arguments, it’s occurring to some to compare and contrast the trajectories of law and public opinion on gay marriage and that other hardy perennial of the Culture Wars, abortion.

At Wonkblog, Sarah Kliff sums up the anomaly:

Tuesday marked for a watershed day for gay rights activists as the Supreme Court heard oral arguments on a case with the potential to legalize same-sex marriage across the country.
Across the country and 1,500 miles west of Washington, an equally notable event took place: North Dakota enacted the country’s most restrictive abortion law, barring all procedures after six weeks.
For decades, support (or opposition) for gay marriage and abortion went hand in hand. They were the line-in-the-sand “values” issues that sharply divided the political parties.
Not anymore. ”As recently as 2004, we talked about abortion and same sex marriage in the same breath,” says Daniel Cox, research director at the Public Religion Research Institute. “They were the values issues. Now, it doesn’t make sense to lump them together anymore. We’ve seen a decoupling.”

Actually, I beg to differ in part: abortion policy is, more than ever, a reliable and quasi-universal item that divides the two major political parties.

What’s different is that there’s no clear generational trend on abortion that makes the conservative and Republican position doomed, as Kliff notes:

Younger Americans have become increasingly supportive of gay marriage in a way that hasn’t necessarily happened for abortion rights. Young Americans’ views on same-sex unions look nothing like previous generations. But when it comes to abortion rights, Millennials look a lot more lilke their parents.
Millennials, PRRI has found, have similar views to the general population on the morality and legality of abortion. Fifty-two percent of the general public thinks abortion is “morally wrong.” Among Millennials, that number stands at 50 percent. Fifty-six percent of all Americans think abortion ought to be legal, compared to 60 percent of the younger crowd.

In terms of state activity, the irony is that a development adverse to the anti-choicers—President Obama’s re-election—is partially responsible for the wild competition Republican legislators around the country have been undertaking to enact the most irresponsible and—under existing precedents—blatantly unconstitutional abortion restrictions. Now that they’ve been denied a Romney presidency where Supreme Court appointments would be carried out under a strict anti-choice litmus test, abortion-rights foes have clearly decided to initiate a challenge that will test the commitment to Roe v. Wade and Planned Parenthood v. Casey of the existing Court—and particularly its erratic “swing vote,” Justice Kennedy, who opened the door to new abortion restrictions in his bizarre opinion in a 2007 decision upholding a federal ban on so-called “partial-birth-abortion.”

When North Dakota’s Gov. Jack Dalrymple signed that batch of radical bills on abortion yesterday, he might as well have been holding up a big sign reading: “Hey, Anthony Kennedy! These bills are for you!” So I wouldn’t be surprised if abortion is the big issue in oral arguments before the Supremes next year or the year after that.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.


  • c u n d gulag on March 27, 2013 10:20 AM:

    I'd be interested in seeing that poll of millenials on a state-by-state basis.

    From what I've seen demographically, a lot of those millenials didn't stay on the family farm. And those who didn't move to the cities, moved, or stayed in, the suburbs.
    The closer you get to urban areas, the more Liberal you tend to get.

    They grew up in a "Roe World," where it was always a legal option, and they've never yet experienced it being taken away as, or not being, an option for THEM.

    As long as sparsely populated, mostly rural, states are trying to reverse Roe, I don't suspect it'll get much outrage from the millenials - who, I suspect, aren't as populace as they are in cities and suburbs in other states.

    But, let these new laws start hitting the cities and suburbs in more populated, more urban, states, and we may see some outrage from the millenials.

    Let the Governor of PA let his state legislature do something like North Dakota, and I think that might rile-up the millenials in other states.

    Maybe I'm wrong about this.

    But this seems like a 'Two Degrees of Seperations from Rob Portman" situation. Portman himself wasn't gay, but his son was, and so he threw his hat into the gay rights ring.
    Let someone's Facebook or Twitter female friend get pregnant, and can't find someone to do the procedure, or have to spend a ton of money and time going to a nearby state, and watch the social media take off on the subject of abortion.

    All of this is 'in theory,' or at least being legistalted, to them right now.

    Let it become a hard reality for a while, and let's see if millenials don't come around on this issue, greasing the way for progress, just like they did with gay rights and gay marriage (no pun intended).

  • Rich on March 27, 2013 10:46 AM:

    The generational change on abortion is that NARAL finally has a new CEO (or whatever title they use) who is showing signs of life after decades of that org raising money and doing nothing efficacious with it. National Planned Parenthood was almost as bad, but the Right's attack on them also seems to have emboldened them to organize and act. Whether they can put together workable, effective coalitions is still an empirical question.

  • emjayay on March 27, 2013 11:00 AM:

    I'm wondering how long it takes after a state does something clearly against Supreme Court decisions that clearly violates the rights of people for something to happen. If Missippi decided that hotels and restaurants could refuse to serve black people or put up colored and white signs at restrooms and drinking fountains, wouldn't something like an injunction happen immediately? In North Dakota does a woman have to be refused an abortion and then the ACLU or someone have to recruit them and they go to court and eventually appeal to the Supreme Court which decides to hear the case or not about 3 or 4 years later? It seems like something should be done immediately. Can an injuntion be issued before the 6 week ban goes into effect, and how does that happen?

  • Sgt. Gym Bunny on March 27, 2013 11:23 AM:

    Seconding gulag. I think with Millennials it's a matter of personal experience. But unlike with homosexuality, getting an abortion is a private matter that you can't expect the patient to be "out of the closet" about.

    Additionally, because abortions touch on issues involving sexual relations, there's probably a significant degree of moral posturing afoot. It's easy to look at abortions and say "Oh, I'm not like that. I'll never need to get an abortion." Like most people assume that they'll never be a victim of some crime because they just know better...

  • Steve in the ATL on March 27, 2013 11:32 AM:

    Gulag, keep your eyes on Tennessee and Georgia. Hard core right wingers own the state governments, and the liberal city dwellers have been powerless to stop their insane agendas. TN is worse so far, but give us time down here in GA....

  • JoanneinDenver on March 27, 2013 12:03 PM:

    I think that there will be a link between what the SCOTUS decides on the two gay rights cases and the ND law. I have consistently argued that abortion is not about abortion but rather about states' rights. So these decisions would strengthen the possibility that SCOTUS would rule to overthrow Roe with the ND case.

    These are possible decisions that I think could lay the foundation for a Roe overturn.

    1) Court determines that DOMA is unconstitutional because marriage is an issue left to the states and not the federal government. That argument could set the stage for overthrowing Roe and turning it back to the states. The minority opinion in Roe by Justice White argued that abortion was a medical matter and should be regulated by the individual states and not a civil right matter for the federal government to enforce.

    2) Court decides that Proposition 8 case was wrongly referred and refuses to issue an opinion. That would leave the Circuit of Appeals decision standing which would overthrow Proposition 8 in California, but have no greater constitutional implications.

  • jjm on March 27, 2013 12:03 PM:

    I believe that the press is on to get this particular Supreme Court, with its abundance of Catholics and a conservative majority to review the constitutionality of these laws, and of course (they think) overthrow Roe v. Wade. And they are hoping for a challenge before Obama has a chance to nominate another Justice.

    They might have another think coming.

  • KK on March 27, 2013 12:55 PM:

    Don't forget Mils have had the luxury of the morning after pill.
    If that gets threatened by the right wing freaks you may a huge swing toward privacy rights.

  • cmdicely on March 27, 2013 1:07 PM:

    I'm wondering how long it takes after a state does something clearly against Supreme Court decisions that clearly violates the rights of people for something to happen.

    It depends whether the so-called "political" branches of the federal government (the executive and legislative) decide to intervene, or if it is left to individuals to seek redress through the courts. The former is generally much quicker than the latter for "something" to happen that changes things on the ground with respect to the violation, since challenges through the courts are often slow, and decisions of lower courts are generally stayed pending appeal.