Abortion, Dobbs, And The Republican Field

// The word “abortion” does not appear in the Constitution.

Neither does the word “privacy.”

But liberals were happy with the Supreme Court’s decision in Roe v. Wade, so they insisted the decision was correct to find a Constitutional right to privacy that protects a woman’s right to an abortion. Even though the Constitution doesn’t explicitly protect a right to privacy, generally, or an abortion, specifically, liberals said the Constitution implicitly protects those rights.

Conservatives, of course, took the other tack, insisting that the Constitution says nothing about abortion or privacy, which means there’s no federal constitutional right involved when a woman decides to terminate a pregnancy. The issue belongs in the hands of the states.

When the Dobbs decision was handed down, the Republicans won this issue.  Abortion is now in the hands of the states.

So what happened? For Republicans, it’s time to change your tune.

Actually, the Republicans didn’t all change their tunes. Only some of them did.

In the debate last Wednesday night, Chris Christie alone was principled. (You may or may not like the guy overall. I’m talking only about his position on abortion.)  He said that Republicans had argued for 50 years to return decisions about abortion to the states; the Supreme Court has now done this; each individual state should thus decide what rules should govern abortion in each state. That’s the position Republicans had held for the past 50 years; Christie stood by it.

Not Tim Scott. For 50 years, Republicans wanted states to control the issue of abortion. That’s now true — under Dobbs, states do — so Tim Scott has changed his tune. He thinks that Congress should pass a nationwide ban on abortions after 15 weeks of pregnancy. So much for defending states’ rights on this issue.

I grant you that Scott’s position — “Congress should pass a law governing abortion” — is not precisely the same as “there’s a constitutional right governing abortion.” But conservatives argued for 50 years that the issue belongs in the hands of the states … and all of a sudden that the issue does not belong in the hands of the states. Scott is not principled.

Nicki Haley is the funniest of all. During the debate, she said that she’s pro-life, but she’s also a pragmatist. You need the House of Representatives and a filibuster-proof 60 senators to agree on any federal law about abortion, and she’ll settle for what she can get in that environment. This position allows Haley to say that she’s pro-life but then to argue for restraints on abortion that are more moderate and palatable than the typical Republican fare.

Of course, if Haley’s a pragmatist on the abortion issue, striving only for a result that could pass Congress, she should also be a pragmatist on every other issue that requires Congressional consent. Why isn’t she saying: “I’m a fiscal conservative. But I’m also a pragmatist. We need the House of Representatives and a filibuster-proof 60 senators to agree on a fiscal agenda. Because I’m a pragmatist, I’ll continue to let the federal government spend like a drunken sailor.” Indeed, why doesn’t Haley take the same position on immigration, where 60 senators are not nearly as hard line as Haley, or any other issue that requires Congress to act?

(Did you see the recent Babylon Bee headline: “Nicki Haley Stumped When Debate Moderator Asks Her to List Some Countries She Wouldn’t Invade.” That’s actually another issue that struck me during the debate. Trump is isolationist, saying the United States should avoid foreign entanglements, such as NATO and Ukraine, but at least two of the Republicans — Christie and Haley — are remarkably hawkish on damn near everything. And all the Republicans seem to want to bomb Mexico to eliminate labs where illegal drugs are manufactured.  What’s with that?)

Although Trump didn’t participate in Wednesday’s debate, his position on abortion fits nicely in the Republican mode. Now that Roe has been overturned, Trump will negotiate a deal with Congress on abortion that will be great — the best ever! Everyone will be delighted with the terms of the deal! Only Trump can do it. Vote for him, and you’ll see.

Anyway, I realize that we can’t ask politicians to be honest or principled. But on the issue of abortion, the Republican field was so unprincipled during the debate that I was wondering why anyone keeps listening to them.

Then again, I listened on Wednesday night, so maybe it’s just insatiable curiosity.

Mark Herrmann spent 17 years as a partner at a leading international law firm and later oversaw litigation, compliance and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at [email protected].

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Abortion, Dobbs v. Jackson Women's Health, Government, Mark Herrmann, Republicans