July 17, 2018
If the Brett Kavanaugh nomination had a subtitle, it could easily be The Great Democratic Freakout of 2018. For now, the hysteria over the president's Supreme Court pick seems to have shifted to the states, where governors are tripping over themselves to make their abortion laws as SCOTUS-proof as possible. They wail that Kavanaugh's confirmation would mean medieval values, millions dead, Sharia law, and, this beauty from Hillary Clinton -- a return to slavery. It's doomsday politics at its best. And, like so many things politicians say, has absolutely zero basis in reality.
While New York Governor Andrew Cuomo (D) declares a state of abortion emergency, the reality is, there's no Roe v. Wade 911 with Kavanaugh's nomination – or anyone else's. Within days of the announcement, the state's leading Democrat was trying to call lawmakers back into session to showcase New York's commitment to the legal killing of innocent unborn children. "The bill is on your desk," Cuomo said to lawmakers. "You either come back and protect a woman's right to choose and respect a woman's reproductive health rights, or the voters are going to say to you in November... 'Well, you're fired from the New York State Senate." If Roe v. Wade is overturned, he railed, "women lose their right to choose in the state of New York today."
Not true, the New York Daily News fired back:
"Roe or no Roe, state law holds abortion legal until 24 weeks of gestation, same as the landmark ruling... Never mind the fearmongering: New York women can get the reproductive health services they need today, and tomorrow, and tomorrow, and tomorrow... Now tell that to Gov. Cuomo, who's been barnstorming with the fervor of an end-times preacher warning of women's return to the proverbial pre-Roe back alley, while saying he'll sue (who? on what grounds?) if the high court upends the decision."
Amazingly, Cuomo is willing to bet his reelection that New Yorkers care more about destroying innocent lives than their daily worries over money, employment, health care, taxes, and national security. He's so convinced that women are sitting at home stewing over where they'll end their next pregnancy that he's sinking thousands of dollars into an ad campaign focused squarely on an issue that, surveys show, doesn't even crack the top 10 of voters' concerns! That doesn't mean people on both sides don't have strong opinions on abortion. They do. And it certainly doesn't mean that the Supreme Court won't have a say in the matter. It will. But mark my words: if the Democrats pin their midterm hopes on this irrational obsession with abortion, it will be a very disappointing November for them.
But then, Cuomo isn't the only one trying to convince people that Kavanaugh's confirmation would mean the automatic criminalization of abortion. In at least more than a half-dozen governor's races, Democrats are ratcheting up their panicky rhetoric. "This issue has been at the forefront of my campaign because down the road I see that it is not only possible but probable that Roe v. Wade would be overturned," said Florida candidate Gwen Graham. Others, like Illinois's J.B. Pritzker and Colorado's Jared Polis are going all-in on abortion ad blitzes, designed to reach deep into the pockets of Planned Parenthoods and NARAL. What it may not reach, though, is voters -- including, to most people's surprise, women.
Democratic pollster Celinda Lake had a word of warning for Cuomo and company, who are making feminism the midterm cause célèbre. "Women," she told the Hill's Joe Concha, "are much less likely to be pro-choice." She explained that women are "more religious than men," and so they are "slightly less pro-choice than men."
Meanwhile, politicians like Cuomo want voters to believe that the Supreme Court is as preoccupied with Roe v. Wade as he is. But of the 63 cases decided by the Supreme Court last year, do you know how many actually dealt with legality of abortion? One. That's 1.6 percent of the entire 2017-18 SCOTUS docket. And that was a summary opinion on the pregnant immigrant teenager in Garza -- not a major ruling. Another case, NIFLA (and its related suits), tackled the free speech issues surrounding abortion, but not the procedure itself.
Obviously, our hope would be that the Supreme Court has a chance to reconsider Roe or Casey v. Planned Parenthood with men and women who view the issue -- not in the shadows -- but in the light of the Constitution's clear text. Until then, Brett Kavanaugh and his colleagues will be dealing with a lot of significant cases that have nothing to do with life. That's why, in some ways, Democrats are doing us a favor by bringing this battle to the states. As Colorado's Jared Polis said (and we agree), "[I]t really shines [a light on] the importance of governorships and state legislatures..." If conservatives want to defend life, they need to get engaged -- and stay engaged -- on the local level.
Tony Perkins' Washington Update is written with the aid of FRC senior writers.