by Dave Anderson
There are very few laws, regulations, and Supreme Court decisions in the United States that are permanent. Certainly, most laws and regulations can be changed if Congress changes its mind or an Executive Order by the president is able to change course.
The Supreme Court can also overturn prior decisions, and Congress can pass laws that have the same effect.
Moreover, the United States is a big country, the third largest in population in the world – though admittedly a distant “show” behind China and India in the global population horse race.
Nevertheless, our 330 million people are divided into 50 states and each of those states has considerable political power.
The founding fathers set up our country in this way so that political power would be divided between the federal government and state (and local) government. By dividing the federal government, and state governments, into three branches — legislative, executive, and judicial — that spread the power around even more.
And by making the House of Representatives run every two years, the founders added an additional element of the possibility of change to the overall power structure.
When the Supreme Court overturned Roe v. Wade, they ended one era but they also started another.
What that new era will be is, in many ways, unclear.
First, because the Dobbs opinion handed down the decision about whether to permit abortion to the states, basically half of the states have banned or soon will ban all or most abortions, while the other half will not.
If nothing else changes in the next 49 years, Dobbs will not affect about half of the women in the country, including women from California, New York and Illinois, three of the six most populated states. Individuals over the next 49 years might literally move themselves and their families to the “free to choose” states.
It is unlikely that nothing else will change in the next 49 years, but it is instructive to think about what would happen if nothing did.
Second, it is possible that the U.S. Congress could pass a law that permitted abortion, say, before 15 weeks in every state. That law would essentially override the Supreme Court decision to overturn Roe.
In order for this to happen, Democrats, and possibly some moderate Republicans, could probably succeed if they changed the filibuster to include an exception for abortion.
Given the uproar amongst tens of millions of Democrats and independents voters, the Democrats could actually seize several more Senate seats in November 2022 to make up for the votes they do not have from Sens. Manchin and Sinema to change the filibuster rule.
Thus, it is game on for Election 2022.
The impermanence of all laws and regulations is a core feature of our democracy, but we may lose it if the wrong candidate ends up in the White House. Because, autocratically minded politicians can alter our system of governance outside of the electoral process itself.
The bottom line is that, as of today, laws and regulations are subject to change and the U.S. Constitution is subject to reinterpretation. Although Roe being overturned is a cause of celebration for the right and a cause of despair for the left, neither side can assume that things cannot change again.
In addition, there are things that both sides can do to bolster their position that do not involve changing the laws and regulations in place.
The right can push to have more laws passed that will provide funding to support women who have become pregnant and do not have the means to have a child, and the left can push to help women move to other states or travel to other states to obtain abortions.
These efforts are in fact already underway.
So long as we keep hold of our democracy, advocates from all points of view on the abortion topic, and any topic, should keep advocating with all of the resources, courage and passion that they have.
