Does the Republican party have the right to life?

Rare are those events that frame entire political epochs, but the leak of a draft decision on abortion rights by the US Supreme Court is one such moment. It is both an indicator of where we’ve been but also where we’re going in terms of the course of politics in America.

First: where we’ve been…

President Donald Trump’s biggest legacy was his appointment of three justices to the Supreme Court, the most by any American president since Ronald Reagan nominated O’Connor, Rehnquist, Scalia, and Kennedy back in the 80s. Yet there was a marked difference in the ways that Reagan and Trump went about their constitutional duties. There was a seven-year gap between O’Connor and Kennedy, indicative of the two-term president’s success over nearly a decade. Trump, meanwhile, went about his nominations in a single term and did so thanks to the machinations of Senate Majority Leader Mitch McConnell who prevented another two-term president, Barak Obama, from installing his third nominee, Merrick Garland. With Republican control of the Senate under a Democratic president, McConnell could frustrate the White House, ensuring the position remained unfilled until Trump’s term began. He then, of course, reversed the logic to rush through Amy Coney Barrett in the dying days of the Trump administration after the death of Supreme Justice Ruth Bader Ginsburg.

The backstory is important. Beyond the crazy rhetoric coming from the then president, the Trump years were a concerted and successful effort by Republicans to leave their imprint on the US legal system, not least in terms of the make-up of the Supreme Court. All three of Trump’s nominations came from the shortlist of candidates decided by the Federalist Society whose members have “presented oral arguments in every single abortion case that has been before the Supreme Court since 1992”. There was no attempt to compromise or soften the politics. The Republican actions resulted in a lopsided court, heavily in favour of conservatives, even if you discount Chief Justice Roberts, also conservative but generally mindful of presenting the appearance of a balanced court.

Although the confirmation hearings of Brett Kavanaugh were the most memorable – thanks to the testimony of Christine Blasey Ford and the scandalous intrigue that threw up – the process followed the same pattern as the hearings for Neil Gorsuch and Coney Barrett. It wasn’t so much a matter of what they said but how they didn’t say it when discussing the issue of abortion rights and Roe vs Wade. In that landmark 1973 ruling, the court decided that “the Texas criminal abortion statutes are unconstitutional”, affirming the “constitutional challenges to state criminal abortion legislation”. All three lawmakers had “accepted” in their hearings that the case was settled law and there was no reason to overturn that precedent. As Kavanaugh put it, “[It] is settled as a precedent of the Supreme Court, entitled the respect under principles of stare decisis,” referring to the long-standing custom that justices agree “to stand by things decided”.

It would be an understatement to say that none of it sounded convincing. With each nomination, these declarations seemed increasingly hollow. Senator Susan Collins was widely mocked when she voted for Kavanaugh, claiming that “[he] believes that precedent is not just a judicial policy, it is constitutionally dictated to pay attention and pay heed to rules of precedent.” It was never believable and felt like the convenient politics of the day: a Republican senator backing a Republican nominee at a time of heightened political hostility. Yet with the three justices settled in place, the book could be closed on the abortion story with a clear message on the last page: “To be continued…”

We are now approaching the moment of the sequel.

Roe vs Wade has long been the target of the religious right in America, as reviled as it is held precious by liberals. No issue divides the sides as clearly. The Supreme Court is meant to decide on an outstanding case, Dobbs v. Jackson Women’s Health Organization (a challenge to a 2018 Mississippi state law), in late June or early July, and an advanced draft of that decision is what has been leaked.

Although it’s a draft and liable to revision, it is also not clear if it reflects the final decision. Justices might yet change their minds and, indeed, that could well be one of the motivations behind the leak, either to prepare the public mood or arouse their anger to sway at least one of the conservatives back to the positions they expressed at their confirmation hearings.

There will be a lot of mud thrown about which side leaked the document (theories are legion) but it doesn’t change the underlying politics. If Republicans go into the mid-terms as the party that would end the federal protection of abortion rights in America, it is highly likely to change the nature of those midterms and the course of American politics for the foreseeable future. It cannot be understated how seismic this decision would be, further exposing the deep power imbalance in America.

Remember that Trump won fewer votes than Hillary Clinton in 2016, George W. Bush fewer votes than Al Gore in 2000, and both only became president thanks to the inbuilt bias of the electoral college system than ensures that the most populated states don’t overpower the more rural states. The reality is that the opposite has occurred twice within 20 years (also in 1876 and 1888), where the votes in states like California and New York have been proved to be worth significantly less than those in a state like Wyoming, whose 563,000 voters install two senators with equivalent voting rights in the Senate as the two Senators from California with its 40 million voters.

This disparity is compounded on an issue like abortion rights – arguably on no issue quite like abortion rights – where Republicans are appealing to a diminished minority. About a third of Americans would support the ban, leaving two-thirds of the nation abiding by a decision that runs counter to their belief. It would also move the matter to the individual states, where many would outlaw it with no concessions for either rape or incest. Less in the headlines but also likely: the ruling might open the way to the court addressing other rulings beloved by those on the left and reviled on the right.

This will set up huge tensions across the country, felt most keenly at state boundaries, which young women would have to cross (sometimes multiple times) in search of the healthcare refused to them in their own states. It’s hard to conceive of a time in America where disagreements were this intense except, perhaps for the Civil War, which pitched state against state. This time, it’s unlikely to escalate quite that far. Talk of segregation has edged into the political discourse as it often does but with very little penetration. Instead, the repercussions will be internal to the parties, energising the Democrats and testing the will of moderate Republicans inside a party increasingly dominated by the right.

The looming midterms will initially speak to that pressure since there comes a point in all political calculations where the bad luck or poor performance of an incumbent president is less a factor in the voter’s mind than the malicious dumbassery of the challenger. Fiercely ideological but politically toxic, abortion rights might well be the hill where this manifestation of the Republican Party chooses to die.