NO, Gutting the Filibuster on Abortion Would Be a DISASTER!

[Author’s Note: Look: this piece is written for people from a pro-choice perspective. If that’s not you, you may not want to read this. And if you want to go on an anti-abortion tirade in comments, please know that I am in a very bad mood about this issue and I cannot guarantee your comments’ safety. Go celebrate elsewhere.]

Yes, I am going to write one of my painfully long essays on Justice Alito’s draft Dobbs decision that will take it apart joint by joint. But, given that we’ve got primary ballots showing up on Monday and Poseidon’s hearing a week from Thursday, I have enough on my plate and putting in the time such a massive critique can wait (or at least it can appear in pieces. But one notion demands immediate rebuttal — and it’s something that was said emphatically by Sen. Elizabeth Warren and Trevor Noah and I don’t know how many others on Tuesday, May 3: that Democrats can solve this problem by themselves. If you think it through even a little bit, that would be a disaster.

The idea being embraces right now is that Senate Democrats can just eliminate the filibuster, either overall or just on the topic of abortion. Then, while Democrats still control the leadership positions in both houses, they could pass legislation establishing abortion as a legal right and guaranteeing meaningful access. Such a federal law would supersede state law under the constitution’s Supremacy Clause, and everything would be all right again.

That’s the theory — and it’s completely short-sighted. Such a law would likely be struck down within a year at most. And then, things would get even worse — especially right here at home.

Pro-choice sign
If you’re pro-choice and angry, this post is for you — but now you also have to be smart about how to respond. The filibuster protects your rights.

Problem 1: Federal Statutes are Subordinated to Constitution Law

Roe has, thus far, been subjected to a “death by a thousand cuts,” where meaningful access to abortions in red states has been scaled back to the point where it’s not even possible to get an abortion, even potentially by the abortion pill, in some of them. That, believe it or not, was the least bad of the three ways that anti-choicers in the government could have proceeded.

The second-worst way would be to do what Justice Alito has proposed: erasing Roe (and much else of our civil rights and civil liberties protections) off of the judicial map. This then leaves abortion law to the states: blue states will continue to allow abortions — and to serve as havens for women from red states who want them — and red state legislators can have lay claim to the cheap sense of moral smugness that comes when the sacrifices you force others to make harm only others. If you’ve been watching the news, you already know how bad that is.

But there’s something worse.

If we successfully squeezed a law protecting abortion through by eliminating the filibuster, the Supreme Court majority could simply come back and decide a new case that reinterprets the Equal Protection and/or Due Process clauses of the 14th Amendment to grant a right to life that begins at conception. Yes, that would require overruling what Alito has drafted in Dobbs, but the Justices really don’t give a damn: they want their way and they are going to get it.

That ruling would outlaw abortion — and even some sorts of birth control, including the abortion pill, IUDs, and possibly chemicals like Depo Provera and the birth control pill — everywhere! Blue states and red states alike would be required to eliminate abortion and these extra rights. A challenge to such a law could be fast-tracked by courts in the South, Plains, or Midwest and completed by next summer (or perhaps by the end of next year.)

We are beyond struggles over principle here. If Dobbs comes down in anything near its present form, this becomes a matter of pure power politics. The Supreme Court can change the meaning of the constitution as it wishes, unless we can amend the constitution itself. And pro-choicers can’t.

(The anti-choice side, though, might be able to amend the constitution — which requires acts both of Congress and of enough state legislatures — because the real problem we have are with (1) the small rural-state-favoring composition of the Senate and (2) the resulting effect that has on the Electoral College, (3) Congress on the courts allowing partisan gerrymandering to create districts that widely favor the dominant party, and (4) Congress and the courts no longer protecting the voting rights of subordinated groups, under the cynical banner of “election security.”)

There’s a second route for anti-choicers to get to the same “worst-case” result, though, without the Supreme Court. It’s slower, but a lot less messy. And that is to eliminate the filibuster.

Problem 2: Federal Statutes are Made to Be Repealed

One reason that Sen. Warren and others are yelling that that we have to eliminate the filibuster right now is that the only way we can get a statute to pass is to control both houses of Congress. I don’t mean being able to put together 50 votes plus the VP; I just mean having the majority so that the Speaker of the House and the Senate Majority Leader are both from the party that wants change, because without that then whichever doesn’t want to see the change can ensure that the proposed statute never emerges from the committee process, most likely getting moored in the Rules Committee, which makes the rules. Democrats have that advantage right now, meaning that legislation can come to the floor, even if nothing can make Senators Manchin and Sinema vote for it. (There is a procedure to bring a statute to a floor vote by a “discharge petition,” but it essentially doesn’t happen. Leaders will punish those who try.)

Democrats have generally been expected, before this, to lose both the House and the Senate to Republicans. Think about the implications of that for just a bleeding minute. Here’s the best-case timeline:

House Democrats pass a federal statute guaranteeing a right to abortion by July 4. The Senate considers it, brings it to the floor by the beginning of October, Manchin (sacrificing his career) and Sinema (most likely doing the same) both incredibly agree to go along with it, or maybe it would be Senators Susan Collins and Lisa Murkowski — and Vice President Harris employs the “nuclear option,” ruling that the filibuster does not apply to this legislation. And boom — by Halloween, the Assurance of Available Access to Abortion Act (of the “Quintuple A”) goes into effect.

And then — Republicans win both houses in 2022. They do the exact same thing in reverse: and the AAAAA is gone by its first anniversary. In its place is a law that declares abortion to be illegal everywhere in the U.S. — abortion is not longer a constitutional right, remember? — and even a clearly worded federal statute trumps a state constitution. So: no abortion in in New York, Massachusetts, Illinois — or the whole West Coast, including California.

What’s the only thing that can prevent Congress from taking away the right to abortion everywhere, including California? That’s right, it’s the filibuster.

Now cynics will say that the Republicans in the Senate will just get rid of the damned filibuster anyway when it suits them — and that may be true. But we’ve had unified Republican rule not so many years ago, and then didn’t do it then — because they like the way that the Senate is set up now.

It is absolutely true that the specious and dumbfounding logic of the Alito draft could — and almost sure would — be used to roll back marriage equality and more for LGBT+ individuals. and the same analysis applies. The only reasonably sure protection of equal rights and liberties is the rulings of the Supreme Court. There’s no legislative shortcut. It would be nice if there were — but while wish-fulfillment is fun, we’re courting disaster if we kid ourselves about it.

If we’re going to break the filibuster, there’s only one thing worth doing it for — and that’s for adding four new seats to the Supreme Court to replace the four Justices (Alito, Gorsuch, Kavanaugh, Barrett) who lied during their confirmation hearings about their pious respect for Roe as precedent. (Roberts probably voted with the liberals, or else he’d have assigned himself the majority opinion — and made it far more narrow and far less harsh.) Yes, this is the dreaded “court packing” — and if this opinion is anything like the final one in Dobbs, the Court will have surely earned it.

So What Is One To Do? “Don’t Mourn, Organize!” And Not Just Here!

Meanwhile, if you’re truly upset about this, you should be making plans to work between Labor Day and Election Day in Nevada or Arizona, where the Democrats are defending two vulnerable Senate seats — or even further away (like Georgia, where we’re defending a third, or Ohio or Wisconsin, where we’re trying to pick up seats. And if you don’t want to go but have money to put people up, spend it. I apologize to Democratic candidates here if this takes away campaign workers — anyone traveling to another state can still vote for you, of course — but this is what a nationalized election looks like. Just focusing on California leads to doom.

Of course, there’s the possibility that Democrats will now win both houses of Congress because now the Beast Will Have Been Awakened. That would be great! I hope it happens! But if so, we don’t need to be embracing this risky and likely to backfire solution right now, right? Grit your teeth, fly pregnant women out here for medical care, and get to work!

About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)