The more I think about the Supreme Court’s recent decision in Dobbs, the more I suspect that the Republican Party will be facing a tough political test in the coming months and years. Before we get to that, though, a few preliminary thoughts on rights so you know where I’m coming from.
By eliminating the right to privacy on the grounds that it has no basis in the Constitution, Dobbs has kicked the decision on how to regulate abortion down to the states. It follows that all the grousing that this is an undemocratic decision handed down by a counter-majoritarian Supreme Court rings false. Those with more socially liberal sensibilities may not like the idea that in some parts of our nation women will have their access to abortion curtailed, or perhaps completely eliminated. That is not an argument about democracy, however, but about inalienable rights. The right to choose to have an abortion is not something which ought to be up for legislation, the reasoning goes. To call something a right is to put it beyond the reach of democracy.
I have never been particularly comfortable with the extent to which American political discourse is suffused with rights talk. Rights are, after all, simply claims. “We hold these truths to be self-evident” is not an argument, it is an assertion. For Thomas Jefferson and his peers, it was obvious that these truths were so-called “natural rights” which God bestowed upon all his human creations. As a secular non-believer, even “natural” rights have seemed to be nothing more than foundational beliefs, upon which one founds a society. The cost of belonging to a society is accepting these assertions. Don’t argue.
As a result, staking out further claims under the banner of rights without reference to the Almighty, as we have been doing in our increasingly secular public sphere, has struck me as suspect. There was always a whiff of hubris about this political gambit: assert a right that may not have broad political buy-in at any one moment, and over time it will become accepted as incontestable. It cloaks itself in the holy—but without overt recourse to the holy. Underlying the gambit is a particular liberal (in the American sense of the word) understanding of moral progress. The few understand the truth, and they designate it as beyond reproach. The unwashed will come to see the error of their ways soon enough. More troublingly, the invocation of right practically invites opponents to invoke different rights to counter them. Since the fight is not over laws, which are reversible, the other side needs to ground itself in similarly incontestable claims—in this case the so-called “right to life”.
Suffice it to say that neither the “right to privacy” nor the “right to life” are absolute. We grant the state, under the guise of law enforcement, to violate both supposed “rights” in different circumstances. We don’t do so cavalierly—in each case we struggle to circumscribe the prerogatives of the state as carefully as we can. Much of our case law and legislative effort is devoted to delimiting just how far the state can go. Our liberal (in the classical sense) society demands it.
But the genie is out of its bottle. With the right to privacy defeated, social conservatives within the Republican Party are left embracing a fifty year old commitment to a different right. Will they allow for something incontestable to be democratically contested?
Early signs are that even the most committed crusaders are charting a piecemeal course, planning to fight battles state-by-state. The Washington Post was not alone in running headlines declaring “Pence calls for national abortion ban as Trump, GOP celebrate end of Roe.” Mike Pence’s rhetoric was more subtle than that. “Now that Roe v. Wade has been consigned to the ash heap of history, a new arena in the cause of life has emerged, and it is incumbent on all who cherish the sanctity of life to resolve that we will take the defense of the unborn and the support for women in crisis pregnancy centers to every state in America,” he said. “Having been given this second chance for Life, we must not rest and must not relent until the sanctity of life is restored to the center of American law in every state in the land.” (Italics are mine.)
Rattled liberals can be forgiven for seeing in this a call to pass a national ban on abortion, rather than a state-by-state fight to restrict access. But it stands to reason that if liberals misunderstood Pence’s plan, the die-hard socially conservative activist base of the Republican Party has similarly misheard the former Vice President. And why shouldn’t these people think that the next logical step is a national ban? Aren’t we talking about rights? Shouldn’t those be beyond the remit of fickle democracy?
This is the rift I predict could open within the Republican coalition, with a fight breaking out between a more transactionally-minded leadership class that has relied on the tireless energy of single-issue voters, and these same voters that have long suspected that they have been taken for granted—and even condescended to.
Of course, given the roughly equal balance that both parties wield in today’s America, it’s unlikely that any national ban enacted through legislation is likely to survive for long. Even the conservative-leaning Supreme Court that we now have would find it difficult to sustain a law on the basis of an invented “right to life”. And once it struck down such a law, we would be in a much better place as a society, shorn of two spurious rights and ready to resume the ceaseless twilight struggle that is democratic governance. But getting there will be anything but a smooth ride for Republicans. Expect hell and high water.