Reviews | Republicans Rigged Our Democracy To Produce More Abortion Bans


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Which state charts the future of abortion rights afterdeer America: Kansas or Indiana? I want the answer to be Kansas, but I’m afraid it’s Indiana.

Last week, Kansas voters surprised America — perhaps even surprised themselves — by outright defeating a referendum that would have removed abortion rights protections from the state constitution. Three days later, Indiana lawmakers enacted a near total ban on abortion, becoming the first state since the Supreme Court‘s ruling in Dobbs v. Jackson Women’s Health Organization end of June pass a restriction on abortion.

Partisan politics does not explain the difference: both states are bright red. In the 2020 election, Donald Trump won 56% of the vote in Kansas and 57% in Indiana. In both states, polls suggest voters are roughly evenly divided on the issue, but oppose extreme abortion bans.

The important – and telling – difference is that Kansas involved a statewide referendum by voters and the turnout was huge while Indiana was a law passed by a heavily gerrymandered legislature to strengthen the partisan advantage of the Republicans. Consider: Republicans typically receive 56% of the state vote in Indiana, but the state legislature is even more tilted toward the GOP, whose members hold 39 of 50 Senate seats and 71 of 100 seats at bedroom.

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This kind of partisan gerrymandering isn’t unique to Indiana — it’s rampant, and it turns the idea of ​​returning abortion rights to the states into a cruel joke. When the democratic process is undemocratic—when, by manipulating constituency boundaries to its advantage, a party manages to choose its voters—democracy becomes an illusion.

We got to this perilous situation largely thanks to the Supreme Court, which announced three years ago that the federal courts would not interfere with partisan police gerrymandering. “Excessive partisanship in the constituency leads to results that appear reasonably unfair,” the court proclaimed in its 5-4 ruling in Rucho c. Common cause in 2019. “But the fact that such gerrymandering is ‘inconsistent with democratic principles’…does not mean that the solution lies in the federal judiciary.”

Thus, the very court that has pronounced hymns to democracy in Dobbs – “It is time to respect the Constitution and return the issue of abortion to the elected representatives of the people”, proclaimed Judge Samuel A. Alito Jr. – allowed the type of manipulation that ensures that “the elected representatives of the people” do not represent them at all. It is a bit hard to bear the complaints of conservative judges who deer “short-circuited the democratic process” by allowing the subversion of the democratic process by Rucho. Good job, Judges.

Marc Thiessen


counterpointUnlike Biden, most Democratic voters want tough limits on abortion

For a chilling illustration of the impact of partisan gerrymandering and its intersection with abortion rights, see Jane Mayer’s recent New Yorker article, “State Legislatures Burning Democracy,” describing the “transformation of Ohio into a center of extremist legislation, not just on abortion, but on such divisive issues as guns and transgender rights. Ohio now prohibits abortion after six weeks, with no exceptions for rape or incest; its legislature is set to further tighten access after the summer recess.

There are other reasons for my dismal prediction that Indiana, not Kansas, might be the barometer. The Kansas referendum was based on a 2019 state Supreme Court ruling that the Kansas constitution protected the right to abortion. Don’t count on many state supreme courts to make — or stand by — similar rulings; state Supreme Court justices are now elected in 38 states, and these races are increasingly ideological. And a referendum to maintain the status quo, as was the case in Kansas, might be more appealing to voters than one to change it.

And, of course, regional differences intensified by ideological sorting mean that some states, left to their own devices, will impose strict limits on abortion even in the absence of partisan gerrymandering. Mississippi goes to Mississippi, gerrymander or no gerrymander. In about 10 states, according to an analysis of state-level polling data by political scientists Jake Grumbach and Christopher Warshaw, majorities oppose allowing abortion. No Kansas-style referendum will work there.

The real problem is elsewhere, in about 16 states, where Grumbach and Warshaw found “big differences between what people … want and the laws their legislatures have passed.” There, thanks to partisan redistricting, the opinions of the majority will not matter.

So forgive me for doubting claims that anti-abortion lawmakers, having achieved what they say they want, will eventually back down from the extremist positions they have championed on abortion. In this version of the fairy tale, the status quo of abortion in the United States will coalesce around something like European standards, with abortion available until around 15 weeks (if without European protections such as insurance national disease and numerous exceptions).

In some states, like Florida (which now has a 15-week limit) and Virginia (where Republican Gov. Glenn Youngkin proposed the rule), sure. But in other purplish states, abortion laws will have a redder hue than the public desires.

That could change – eventually. “When such a large percentage of the public is in favor of something even though the other party controls the government for the long term, they tend to ultimately do what the public wants,” Warshaw told me. But its long term is awfully long, maybe 20 to 30 years, which means a whole generation or more of women without abortion rights in this rosier scenario.

In the short term, get ready for Indiana. Politicians need not fear public backlash when they have effectively isolated themselves from all but their base voters.

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