Prime

TPM Reader LM asked me why so many Republicans appear to be leaning into not only the abortion bans Dobbs made inevitable but also the horror story cases that are now coming to light. I thought other TPM readers might have the same question so I’m publishing LM’s question and my reply.

From TPM Reader LM …

This is getting worse and worse. My colleagues and I noted yesterday that Indiana Attorney General Todd Rokita had threatened the doctor who treated the 10 year old rape victim from Ohio with investigation, loss of licensure and even imprisonment. This was another effort to shift the story after Republicans at first tried to claim the girl didn’t exist. Rokita suggested that the doctor, Dr. Caitlin Bernard, had failed to file mandated reports with the state about the abuse and the abortion. At least, Rokita claimed, he could find no evidence for any reports. Bernard is an “abortion activist acting as a doctor with a history of failing to report,” Rokita told Fox News on Wednesday. “We’re gathering the information, we’re gathering the evidence as we speak and we’re going to fight this to the end, including looking at [Bernard’s] licensure, if she failed to report. In Indiana it’s a crime for … to intentionally not report.”

From TPM Reader DS …

Just read your latest piece. I still think you are correct on the Codify Roe promise. But every single day that goes by without explicit promises, in living rooms and cars, the energy wanes. The right to abortion (and the right to privacy in general), affects many, many people. The actuality of it, on a day to day or week to week basis, doesn’t. 

I mean, think about it. The whole anti-choice movement was built on the idea that hundreds of thousands of women were just running around getting abortions every other week. It is kind of a classic Overton-window situation, right? A million abortions a day! Roe is overturned, now, it’s only a few thousand a day!! We have saved lives, and those who really need it still have some access!!

Over the last couple months I’ve been beating the drum over the critical importance of putting Roe v. Wade at the center of the midterm election and doing so with a unified pledge to pass a Roe law in January 2023 if Democrats hold the House and add two Senate seats. There’s been some but still not nearly enough progress on getting Democrats to make this pledge or at least to say they’d support such a bill if it comes to a vote. So I wanted to check in to see if polls suggest any of this is having an impact.

I wanted to refer back to the email from TPM Reader SR which I published last night. SR referred to yesterday’s email from TPM Reader TL about government lawyers and the challenge they face taking stock of the fundamental changes in today’s judiciary. SR interpreted this as a matter of toughness or willingness to take extreme steps to advance policy outcomes. As he put it, these roadblocks stymie Democrats but they didn’t create an obstacle for Republicans or Trumpers because they just ignored the legal advice. “The difference is integrity. Dems have it. Reps don’t. You knew that already.”

This is not at all what we’re talking about. Certainly not what I’m talking about and I’m quite confident not what TL was talking about either. Toughness or willingness to break things is another metric that can be very important. But that’s not what we’re talking about here.

I disagree with TPM Reader SR on this. But I post it here to add to and advance our broader discussion of the issue.

Those same gutless government lawyers mentioned in the edblog email today also put an end to a LOT of stupid shit long before the public gets a whiff of it. “Big shouldered” tough-guy dummies in the last admin were stopped dead in their tracks more often than not. They were literally too stupid for their own good. Which, was good for the rest of us.

The same starting point of what is the statutory/const authority for doing this action is an equal opportunity roadblock. The difference is that the republicans say thanks and do it anyway by finding some political lawyer hack to overrule. The dems piss and moan about the laudable goals(often true) and ask to rethink it 5 times and then gnash and wail forever. But don’t do it.

I want you to read this TPM Reader email. If you care about Roe, Dobbs or what seems like a White House response that’s just not up to the challenge of the moment, you should really read this. It’s not exculpatory. But it explains the nature of the breakdown, the outdated model they appear to be stuck in. I won’t be identifying the TPM Reader, even by initials. Suffice it to say TPM Reader TL, as I’ll call them, has longtime professional experience that allows them to give this perspective and render these judgments.

Yesterday afternoon, you retweeted the Politico story on the White House lawyers’ conservative approach to post-Dobbs fixes saying “If this is true it shows a total misunderstanding of the current political moment.”

That is exactly the problem.

For decades, lawyers for the Executive Branch, in both DoJ and the White House, have urged their “clients”—agencies and the President—not to be overly aggressive in exercising their authority for fear that agency action would be invalidated in court. 

I wanted to follow up on Nicole Lafond’s post from yesterday afternoon. Subject to signature verification, a broad right to abortion and reproductive rights in the form of a state constitutional amendment will now appear on the ballot in Michigan in the November election. It seems very likely the referendum will win and essentially end the abortion issue in the state of Michigan going forward, excluding the possibility of a national abortion ban or Court ruling that might conceivably override the state constitution. One recent poll shows that 58% of Michigan residents oppose the Dobbs decision and 52% strongly oppose it. Only 34% support it.

Late last week as we were discussing Roe, the corruption of the Court and various avenues to constrain that corruption, I got a series of emails from TPM Reader lawyers experiencing what amounts to a crisis of faith in the assumptions of their profession. They were remarkably similar. It was clear the debate had struck a very particular nerve.

So, for instance, TPM Reader SB wrote saying he entirely agrees with the need to codify Roe and if necessary take further steps to constrain the Court if they then strike down such a codification. But then he added this.