The Politics of the Protection of the Woman’s Right to Choose: Five Critical National and NJ Aspects

December 6, 2021

Insider NJ

Last Thursday, I authored a column, “  New Jersey in a Post-Roe v. Wade World: Craig Coughlin and a Woman’s Right to Choose.

Yet in addition to the court decision-making and legislation enactment procedures, there are five political factors in both New Jersey and the nation’s capital having a bearing on the final outcome of the Battle for the Right to Choose.  These factors are as follows:The column examined 1) the justices on the US Supreme Court who are the likely players in reversing Roe v. Wade; and 2) the key New Jersey legislators whose support will be necessary to enact the Reproductive Freedom Act, the passage of which would provide statutory protection of a Woman’s Right to Choose.

 1) The Specter of Misogyny 

Donald Trump, a misogynist president,  appointed three anti-abortion justices. Two of the five apparent anti-Roe justices presently on the court,  Clarence Thomas and Brett Kavanaugh were charged with acts of misogyny during their confirmation hearings, Thomas with sexual harassment, and Kavanaugh with sexual assault.

The appearance of a US Supreme Court largely appointed by a misogynist president and with two alleged misogynist justices gives the High Court the appearance of a misogynist cabal, hellbent on depriving women of the fundamental right of reproductive freedom.

In recent elections, women have not been united as a voting bloc.  A most relevant example close to home was the 2021 New Jersey gubernatorial race.  Urban and suburban women voted overwhelmingly for incumbent Democratic Governor Phil Murphy, while Republican Governor Jack Ciattarelli made substantial gains among exurban and shore women voters.

The specter of misogyny hanging over the current US Supreme Court hearings on Roe v. Wade will cause a major shift back to the Democrats in 2022 among New Jersey women who left the Democratic fold to vote for Jack Ciattarelli in 2021.  Overall, due to the endangerment of the right of abortion choice and the aforesaid atmosphere of misogyny in the GOP, the appeal to women voters of “Come home to the Democrats in 2022” will have an increased salience and efficacy.

2) The Resurgence of Women Identity Politics 

The threat to reproductive freedom posed by the GOP and this Trumpist aligned US Supreme Court will cause a resurgence of women identity politics.  This means that women will refocus their voting agendas based upon their identities as women rather than any other factor.

This is particularly bad news for the Republicans as they approach the 2022 Congressional elections with high, yet rather unjustified hopes based upon an exaggerated sense of hubris.  Had the current US Supreme Court hearings on Roe v. Wade taken place in mid-October, 2021, a few weeks before the November election, Murphy’s margin over Ciattarelli may have been increased by three to five percent.

3) The notion that the US Supreme Court follows the election returns is false

Many pundits, evidently with limited historical knowledge and insight, have blithely predicted that Roe v. Wade will never be reversed.  They base this prediction on the axiom that “the US Supreme Court follows the election returns” and that after the election of a liberal president by a substantial margin, like Joe Biden in 2020, the High Court will never set about to practice conservative jurisprudence and reverse liberal precedents like Roe v. Wade.

This axiom, however, was thrown by the US Supreme Court into the mothballs in 1934 in the case of Schechter Poultry Corp. v. United States.

At that time, President Franklin D. Roosevelt and the Democrats were at the height of their popularity.  FDR had won a landslide victory in 1932 and was headed towards an even larger margin in 1936.

The US Supreme Court, however had a conservative bloc of four justices, Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter, known as the Four Horsemen.  These four jurists were determined to block the implementation of FDR’s New Deal regulatory plan.  Undeterred by FDR’s popularity, to a large extent, they succeeded.

The Schechter brothers, sons of Polish Jewish immigrants, ran a thriving kosher chicken business in Brooklyn.   They were accused of violating the code promulgated by Roosevelt’s National Recovery Administration (NRA) to cover the chicken business.  The Schechters were found guilty of violating the NRA code, but they fought all the way to the US Supreme Court and won.

In a unanimous ruling the court found the code to be an unconstitutional expansion of federal authority.  As a result of the Schechter case, the NRA soon ceased its operations.  And the case proved that the US Supreme Court does not necessarily follow the election returns.

4) Winner: Phil Murphy

By the time Phil Murphy leaves office in January, 2026, he is likely to have appointed four New Jersey Supreme Court justices, all pro-reproductive freedom.   This majority of four of seven justices will guarantee the existence in New Jersey of a women’s right to choose for at least a generation – another proud legacy for Murphy to claim.  It should also have the effect of increasing the New Jersey Democratic registration majority.

5) Loser:  Susan Collins

The Republican US Senator from Maine placed her trust in Brett Kavanaugh’s promises at his confirmation hearings that on issues like abortion, he would follow existing precedent such as Roe v. Wade.  Based on his comments at the hearings last week, regardless of how he ultimately votes, it is clear that he does not view Roe v. Wade as any type of binding precedent.

Regardless of the Kavanaugh deception, Collins is likely to win reelection in Maine in 2026.  It is never beneficial for a US Senator like Collins, however, to appear to have been duped.   At confirmation hearings in the future, the Kavanaugh episode is likely to increase skepticism among the Senators regarding commitments of nominees that appear to run contrary to their past record.

Alan J. Steinberg served as regional administrator of Region 2 EPA during the administration of former President George W. Bush and as executive director of the New Jersey Meadowlands Commission.

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published this page in News and Politics 2021-12-07 03:22:38 -0800