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      Will anti-abortionists use ‘uterus surveillance’ against women in the US? | Arwa Mahdawi

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      Will anti-abortionists use ‘uterus surveillance’ against women in the US?Arwa MahdawiIf, as is expected, Roe v Wade is overturned by the US supreme court, 26 states are certain or likely to ban abortion – and data tracking could mean there’s nowhere for women to hide If you are looking for a cheerful column that will make you giggle and distract you from everything that is wrong with the world, click away now. This week I have nothing but doom, gloom and data trackers for you. If you are hoping to sink into a well of existential despair, maybe let out a few screams into the void, then you’ve come to the right place.Here goes: the US supreme court, as you are no doubt aware, is expected to overturn Roe v Wade and the federal right to an abortion very soon. At least 13 Republican-led states have “trigger laws” in place, which means that the moment Roe is overruled, abortion will be fully or partly banned. Other states will follow suit. According to the Guttmacher Institute, a pro-choice research organisation, 26 states are certain or likely to ban abortion when Roe falls.Perhaps you are the glass half-full sort. Perhaps you are thinking: “Well, at least people can travel to a state where abortion is legal.” Unfortunately, it’s not that simple. There are the obvious logistical and financial constraints, for one thing. Then there’s the fact that we live in a world of mass surveillance: pretty much everything we do these days leaves a digital footprint – one that anti-abortion extremists will not hesitate to weaponise. One Democratic senator has described the potential of new technology to track down and punish anyone who might even be thinking of having an abortion as “uterus surveillance”. Expect to see a big rise in this, not least because some anti-abortion states are providing financial incentives to snitch on your fellow citizens. Texas, for example, has passed “bounty hunter” laws promising at least $10,000 to individuals who help enforce the abortion ban by successfully suing an abortion provider.To be fair, there’s nothing new about uterus surveillance. Anti-abortion activists may be stuck in the past when it comes to reproductive rights, but they have always been adept at using modern technology to further their goals. One tactic they’ve used for decades is standing outside clinics and recording the licence plates of anyone who enters. As far back as 1993, extremists were tracing the people connected to those licence plates, obtaining their phone numbers, then calling up to harass them. Years ago tracing someone took a bit of time and effort. Nowadays, you can look up someone’s personal information with the click of a button and a small fee.The wonders of the modern world mean there are a mind-boggling number of ways in which you can now identify anyone who might be thinking about an abortion. To begin with, there’s location data. Vice media recently reported that a data location company is selling information related to Planned Parenthood facilities (many of which provide abortions). The data shows where groups of people visiting the locations came from, how long they stayed and where they went afterwards. That data is aggregated so it doesn’t provide the names of individuals; however, de-anonymising this sort of information is not very difficult. There is plenty of evidence that location data is almost never anonymous.Period-tracking apps, which are used by millions of people, are also a worrying source of potentially incriminating information in a post-Roe world. Experts have warned that rightwing organisations could buy data from these apps and use it to prove that someone was pregnant then had an abortion. Your text messages could also be used against you, as could your browser history. Indeed, authorities in Mississippi have already used a woman’s online search for abortion pills to indict her for second-degree murder after she miscarried. That happened in 2018; imagine what is going to happen in a post-Roe world. Speaking of which, I’ve just realised I Googled the word “abortion” 100 times while researching this. I’m off to scrub my search history.
      Arwa Mahdawi is a Guardian columnist
      TopicsRoe v WadeOpinionAbortionUS politicsWomenHealthUS supreme courtLaw (US)commentReuse this content More

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      Democrats Can Win This Fall if They Make One Key Promise

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      Democrats hope to make November’s midterm elections a referendum on Roe v. Wade, the linchpin decision upholding abortion rights, which the Supreme Court is almost certain to strike down this summer. That strategy makes sense. Polls show that roughly two in three Americans oppose overturning Roe and almost 60 percent support passing a bill to set Roe’s protections in a federal law. What’s more, polls showed a rising number of voters listing abortion as their top midterm issue after news of Roe’s imminent demise leaked in the form of a draft court opinion published by Politico.Unfortunately, their current plan is almost sure to fail.After the Democrats came up with just 49 votes to bring a Roe-protecting bill before the Senate on May 11, they promised to keep fighting and, in the words of Senator Amy Klobuchar, “take that fight right to the ballot box” in November. But you can’t make an election into a referendum on an issue if you can’t point to anything winning the election would accomplish. To make the 2022 elections a referendum on Roe, Democrats have to put protecting Roe and abortion rights on the table.Here’s one way to do that: get clear public commitments from every Senate Democrat (and candidate for Senate) not only to vote for the Roe bill in January 2023 but also to change the filibuster rules to ensure that a majority vote would actually pass the bill and send it to the White House for the president’s signature.At present, there are likely 48 Senate Democrats who can make that pledge. Senators Joe Manchin and Kyrsten Sinema are dead set against any changes to the filibuster — a fact you likely know because most of President Biden’s agenda has been bottled up behind their refusal for the past year. Some claim that Senators Manchin and Sinema are just taking the public heat for a number of other Senate Democrats who are also unwilling to change the filibuster rules. That’s highly unlikely. But if any do have misgivings, that’s why the public commitments are so important. Getting a list of holdouts down to a publicly named handful is the first step to persuading them to fall in line.If my math is right and there are 48 Senate Democrats ready to make that pledge, they need two additional Democratic senators in the next Congress. And that is the party’s message that makes the 2022 midterms a referendum on Roe: “Give us the House and two more senators, and we will make Roe law in January 2023.”No ambiguity, no haggling, no living in Senator Manchin’s head for a year. You give us this, and we’ll give you that. That tells voters exactly what will be delivered with a Democratic win. It also defines what constitutes a win: control of the House and two more Senate seats.The campaign message is clear: If you want to protect Roe, give us those majorities. If this is your passion, here’s where to channel that passion. These are the Senate seats we need to hold (in New Hampshire, Arizona, Georgia and Nevada) and here are the ones we need to win (in Pennsylvania and Wisconsin and possibly in Ohio, Florida and North Carolina). With those commitments in hand, one question should be on the lips of every Democratic candidate. Will you make a firm commitment to never vote for a federal law banning abortion nationwide?Few, if any, Republicans would be able to make that pledge. And their evasions wouldn’t just make them look ridiculous; that would put squarely on the table the very real threat that Republicans would enact a nationwide abortion ban as soon as January 2025. That could prove enough to win Senate races in Pennsylvania, Wisconsin and Ohio.In a way, though, this strategy isn’t so much about winning the 2022 midterms or even making Roe into a federal law, although it’s the best way to accomplish both. It’s just an example of how you win elections.Effective campaigns are built on connecting the intense beliefs of the electorate — their hopes and fears — directly to the hard mechanics of political power. You’ve got to connect those wires. If you were testing some new electrical contraption, that’s the first thing you’d do: make sure the energy supply is wired to the engine that makes it run. This is no different. Without tying a specific electoral result to a clear commitment to a specific legislative action after the elections, you’re not connecting those wires.What Democrats would be proposing is a classic small-c conservative solution in the best sense of the word. Codifying Roe would preserve the set of rights and protections that the vast majority of Americans have lived their entire adult lives with and that the overwhelming majority of Americans do not want to change. The threat that the court will strike down such a law is real but overstated. And in any case, refusing to act because of what opponents might do is the definition of political paralysis.So how do Democrats get from here to there?They likely can’t rely on the party’s leaders, at least not at first. But they’re not essential. It’s really up to voters and activists and particularly committed members of Congress. Probably half the Democrats in the Senate would be happy to sign on this dotted line by the end of the day. Those who are up for re-election, even in safe races, will come around quickly.Some senators may resist at first. And that wouldn’t be surprising. Politicians seldom see any advantage to committing themselves in advance or reducing their room for maneuver. It’s always safer to keep your options open and be as general as possible until the final moment. That’s why assembling a clear public list of commitments is critical. Once the list gets down to a handful of hesitaters, the pressure from Democrats nationwide, focused on those members, will be overwhelming. If there are real holdouts, they’ll fold in short order.You don’t need to wait on Nancy Pelosi or Chuck Schumer or President Biden. You can get the ball rolling by calling up your Democratic senator today.Josh Marshall (@joshtpm) is the founder and editor in chief of the political news website TPM.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Abortion and guns may awaken a slumbering giant for Democrats | Robert Reich

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      Abortion and guns may awaken a slumbering giant for DemocratsRobert ReichA mobilisation such as America has rarely seen could propel Democrats to larger majorities this November Two of the most basic human aspirations are making one’s own decisions about whether or when to have a child, free from government interference, and keeping any child one does have out of harm’s way, secure against random violence.Yet both aspirations have been fiercely resisted in the United States – the first by many evangelical Christians, the second by the gun lobby.Republican lawmakers are in the pockets of both. Democratic lawmakers are on the side of reproductive freedom and gun control.It has become the sharpest divide in contemporary American politics.The American people are not evenly divided on these issues. A large majority wants to maintain access to abortions during the first trimester of pregnancy, which has been the rule since the supreme court decided Roe v Wade in 1973.An even larger majority (including many Republican voters) support requiring universal background checks for would-be gun buyers, and most favor banning high-capacity magazines and the sale of assault weapons.Do the opinions of the majority matter on these two issues, where politically potent minorities have demanded the opposite? At first glance, it seems not.After the 2 May leak of a draft opinion in the case of Dobbs v Jackson Women’s Health Organization, written by Samuel Alito and evidently joined by four other Republican-appointed justices – which argues that no right to abortion can be found in the constitution and that, therefore, no such right exists – Senate Democrats tried to codify a national right to abortion.But on 11 May, the Women’s Health Protection Act failed in the Senate, by a vote of 49 to 51. That was short not only of a simple majority but, more importantly, of the super-majority of 60 votes required to overcome the inevitable filibuster. (Only the West Virginia Democrat Joe Manchin crossed party lines.)Now, in the wake of last week’s massacre of 19 children and two teachers in Uvalde, Texas, Congress is about to vote on regulating guns. Almost no one believes there are 10 Republican senators who will support any form of gun control, even after last week’s horror.While steadfastly refusing to maintain access to abortion services and refusing all recent attempts to control guns, Republican lawmakers at the federal and state levels also remain opposed to government funding for childcare, parental leave, sex education and contraception, and for reproductive, maternal, neo-natal and pediatric health services.It takes a great deal to awaken the slumbering giant of American voters. Most do not belong to either major political party. Many are turned off by politics. In the typical midterm election, only about half of those who are eligible to vote do so.Yet every so often the slumbering giant awakens – and with a swoop of its huge arm at the ballot box remedies the growing disconnect between what voters want and what politicians do (or fail to do).In the 2014 midterms, only 20% of young people between the ages of 18 and 29 went to the polls.But in the 2018 midterms, after two years of Donald Trump and congressional Republicans trampling on issues young people cared about – such as the environment, education and protection for undocumented immigrants who came to America as children – young voters were stirred to action: 36% of them voted. That was enough to switch control of the House to the Democrats.Most pundits are convinced that the Democrats are doomed to lose the House and Senate in the upcoming midterms. They point to the fact that after 15 months in office, Biden is polling badly, at about 40%.But the punditocracy is ignoring the disconnect between what most Americans want on abortion and guns and what Republican lawmakers are doing.The two issues of abortion and guns may have a larger impact on Americans together than they have had separately because of the moral relationship between them – being free to decide whether and when to have children and keeping children safe from gun violence.(The pundits also forget that at the same point in his presidency, Ronald Reagan was polling at about 40%. But as inflation declined, Reagan ran for re-election against Walter Mondale and won 49 states.)If the slumbering giant does awaken, a mobilization such as America has rarely seen could propel Democrats to larger majorities in the House and Senate this November – giving them enough votes in the Senate to eliminate the filibuster and consigning Republicans to a near permanent minority.
      Robert Reich, a former US secretary of labor, is professor of public policy at the University of California at Berkeley and the author of Saving Capitalism: For the Many, Not the Few and The Common Good. His new book, The System: Who Rigged It, How We Fix It, is out now. He is a Guardian US columnist. His newsletter is at robertreich.substack.com
      TopicsRepublicansOpinionUS politicsAbortionUS gun controlcommentReuse this content More

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      Austin resolution aims to ‘decriminalize’ abortion if Roe v Wade is overturned

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      Austin resolution aims to ‘decriminalize’ abortion if Roe v Wade is overturnedGroup of city council members seeks to protect patients from criminal prosecution if supreme court ends abortion rights A group of Austin, Texas city council members is preparing a resolution to “decriminalize” abortion there in the event the US Supreme Court overturns Roe v Wade, a landmark case decided nearly five decades ago that protects the federal right to terminate a pregnancy.An unprecedented leaked supreme court draft decision showed a conservative majority of the nine justices are open to reversing Roe v Wade entirely. If that happened, 26 states would be certain or likely to ban abortion, including in Texas. The state has a “trigger” ban that would almost immediately ban abortion.A final supreme court decision is expected in June.“The resolution does two things – one, [it] restricts city funds from being used to essentially investigate any kind of alleged abortion crimes,” said José “Chito” Vela, an Austin councilman. “The other thing it does is to make the investigation of any abortion-related crime the lowest priority for our police department.”The resolution seeks to protect patients and medical professionals from criminal prosecution and would also advise Austin police not to assist other law enforcement, such as state police, in such investigations.Texas has already proven to be a legal pioneer in restricting abortion. The state banned abortion after six weeks gestation, before most women know they are pregnant, through a novel law that allows citizens to sue anyone, anywhere who “aids or abets” a woman in terminating a pregnancy.“We need them focusing on historically classic criminal activity – not politically disfavored groups that factions in the government want to harass and punish,” said Vela. “That’s the real core of what we’re trying to do.”Mainstream anti-abortion groups have long argued they oppose prosecution of women and cast women as victims of abortion providers. Similarly in Texas, the trigger ban would make the performing of an abortion a first degree felony punishable by up to 99 years in prison, an article likely to heavily impact medical providers.However, a vocal minority of abortion “abolitionists” , a word appropriated from anti-slavery campaigners, have also recently pushed lawmakers to classify abortion as murder.In May, Louisiana lawmakers considered a bill to charge women who have abortions with homicide. “We all know that it is actually very simple – abortion is murder,” one of the bill’s supporters, state representative Danny McCormicktold colleagues, according to CBS News. The bill was pulled after it failed 65-26.Although many anti-abortion groups say they oppose prosecution of women, anti-abortion restrictions and rhetoric have nevertheless resulted in more than 1,600 instances of women since 1973 being, “arrested, prosecuted, convicted, detained, or forced to undergo medical interventions that would not have occurred but for their status as pregnant persons,” National Advocates for Pregnant Women said in a recent brief to the supreme court.At least one recent, high-profile example from Texas, 26-year-old woman Lizelle Herrera was charged with murder via “self-induced abortion”, a criminal statute that does not appear to exist. Charges were dropped after public outcry. The prosecutor apologized.Austin’s Guarding the Right to Abortion Care for Everyone or “Grace” Act is still in draft form, and text is not expected to be immediately released. Vela said the council would likely consider the act after the supreme court releases its final decision in the highly anticipated abortion case.It is a case out of Mississippi, formally called Dobbs v Jackson Women’s Health Organization, in which the southern state has argued that the court should use the case to overturn Roe.“Whatever your thoughts on abortion, criminal prosecution of women who have abortion is absolutely unacceptable and abuse by the criminal justice system,” said Vela. TopicsTexasAustinAbortionUS supreme courtLaw (US)US politicsnewsReuse this content More

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      Turning Pregnant Women and Doctors Into Criminals

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      More from our inbox:A Piercing Inquiry Into the History of Haiti’s PlightA Self-Fulfilling Election Prophecy? Ben HickeyTo the Editor:In “Punishing Women Who Have Abortions” (Opinion, Sunday Review, May 15), Jane Coaston mentions the possibility being discussed in some anti-abortion circles of charging those who have abortions with homicide. There is another way some in the anti-abortion camp speak of punishing women who seek abortions, in this case very ill women — letting them die.This is not a majority position in the anti-abortion movement, but it is not a new idea. In 1984, Paul Weyrich, an influential conservative activist, stated, in explaining his opposition to exceptions to abortion bans in cases of threats to a woman’s life: “I believe that if you have to choose between new life and existing life, you should choose new life. The person who has had an opportunity to live at least has been given that gift by God and should make way for new life on earth.”In the likely event that the Supreme Court overturns Roe v. Wade and about half the states ban abortion, it is in the realm of possibility that extremist politicians in some of these states will be successful in blocking any exceptions whatsoever. Doctors in those states will be placed in a horrible position, facing years of jail time if they abort the fetus, and women will die needlessly.Carole JoffeSan FranciscoThe writer is a professor of obstetrics, gynecology and reproductive sciences at the University of California, San Francisco.To the Editor:An important problem in criminalizing abortion is frequently overlooked: policing it.New York County abortion trial transcripts in the John Jay College of Criminal Justice archives (1883-1927) show that because illegal abortions invariably took place in private locations — usually the home of the doctor or midwife who performed the abortion — the authorities had to rely on unsavory detection methods.These included threatening the hospitalized victims of botched abortions with arrest unless they named and testified against their abortion providers; making deals for leniency with pregnant women arrested for unrelated crimes if they agreed to help entrap a suspected abortion provider; and setting up elaborate sting operations with women employed by the police.Even with the more sophisticated surveillance methods available today, law enforcement personnel will often be obliged to rely on entrapment to prosecute abortion providers in states where abortion is illegal. The surprising number of acquittals in the historic abortion cases I have studied suggest that entrapment can be distasteful to jurors. Entrapment methods may also have a demoralizing, demeaning and potentially corrupting effect on the police.Elisabeth GitterNew YorkThe writer is emerita professor of English and interdisciplinary studies at John Jay College of Criminal Justice.To the Editor:I’d like to see an article about “How Will We Punish Men Who Don’t Support Women Who Have the Pregnancies.” We are still focused on the women, but now we have the technologies to identify the fathers and expect them to fully support the children they conceive. Would this change the dynamics of pregnancy, abortions and support? You bet it would.Janice WoychikChapel Hill, N.C.A Piercing Inquiry Into the History of Haiti’s PlightAn illustration depicting plantations burning in 1791, during the Haitian Revolution.Universal Images Group, via Getty ImagesTo the Editor:Your comprehensive May 22 special section on Haiti, “The Ransom,” was eye-opening. It showed that debt is a tool of the rich comparable to slavery — and has been throughout history.But the special section, sadly, also shows the limits of talking about reparations as justice. Even if the French government paid Haiti back all that it took, with interest, the resulting payment would scarcely account for the lost opportunities and social dislocations caused by its aggression.Andrew OramArlington, Mass.To the Editor:When I arrived in Haiti for the first time, in 1996, I had already been in a number of poverty-stricken countries in this hemisphere. There were similarities, of course, but the depth and pervasiveness of impoverishment and the unreliability or absence of the most basic physical and governmental infrastructure were on a scale I had not previously encountered.It was not surprising that Haitians felt that they had little control over their lives — lives spent in surviving day to day.How did it come to this? Your series “The Ransom” provides well-researched, convincing answers to that question.George Santayana warned that “those who cannot remember the past are condemned to repeat it.” We cannot heed that warning if that past is not known to begin with. Now that the reality of that Haitian history is more widely known, will it continue to be repeated?John CosgroveLumberton, N.J.The writer is professor emeritus in the Graduate School of Social Service at Fordham University.A Self-Fulfilling Election Prophecy?To the Editor:Current reporting from many Democratic and Republican pundits presumes that Republicans will take over the House and the Senate in the November elections. No doubt they base this prediction on polling and the historical results of midterm elections. Perhaps they are right, but perhaps not.While such a prediction serves the Republicans well, for the Democrats, it’s toxic. An attitude of “it’s all over but the voting” has the potential to discourage Democrats from bothering to vote, turning that presumption into a self-fulfilling prophecy.Mary-Lou WeismanWestport, Conn. More

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      ‘The G.O.P. Has Gone Even Farther to the Right Than I Expected’: Three Writers Talk About the Midterms

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      Frank Bruni, a contributing Opinion writer, hosted an online conversation with Lis Smith, a Democratic communications strategist, and Matthew Continetti of the American Enterprise Institute about a month of primaries, how they have shaped the midterms and what Democrats and Republicans can hope for and expect.FRANK BRUNI: On Tuesday, at least 19 children and two teachers were killed in the latest mass school shooting in a country that has witnessed too many of them. In my heartfelt (and heartsick) opinion, that should change the political landscape. But, realistically, will it?LIS SMITH: It should, but I unfortunately don’t think it will move the needle a ton.MATTHEW CONTINETTI: I agree. Unfortunately, history suggests that the political landscape won’t change after the horror in Texas.There’s a long and terrible list of school shootings. Each incident has been met with public horror and with calls for gun controls. But little has happened to either reduce the number of guns in America or to shift power to advocates for firearm regulation.SMITH: After Sandy Hook, we did see a number of states — Colorado, Connecticut, Maryland, New York — take strong action on gun control, and I still believe that we will most likely see gun-control legislation on the state versus the federal level.And this does raise the stakes of the midterms. It will allow Democrats in marginal, suburban seats to use the issue against their Republican opponents, given that nearly every Republican in the House voted against H.R. 8, which would implement background checks and common-sense restrictions of the sort that have had broad public support.BRUNI: After that cheery start, let’s pull back and zoom out to a bigger picture. Have the primaries so far conformed to your expectations — or are there particular results or general patterns that surprise you and that challenge, or throw into doubt, your assumptions about what will happen in November?CONTINETTI: I’d say they are shaping up as one might expect. The president’s party rarely does well in midterms. The Biden Democrats appear to be no exception. What has surprised me is the depth of public disillusionment with President Biden, his party and the direction of the country. My guess is Democrats are surprised as well.SMITH: We have seen common-sense Democrats like Shontel Brown in Ohio, Valerie Foushee in North Carolina and Morgan McGarvey in Kentucky win against far-left Democrats, and that’s a good thing for the party and our chances in November.The G.O.P. has gone even farther right than I expected. Just look at Doug Mastriano, who won the Republican governor’s primary in Pennsylvania. He funded buses to shuttle people to the Capitol on Jan. 6 and helped efforts to overturn the 2020 election in the state. He opposes abortion without exceptions. He makes Ron DeSantis look like Charlie Baker.BRUNI: Matt, do ultra-MAGA Republican candidates like him or for that matter Ted Budd in the North Carolina Senate race potentially undermine what might otherwise be a red-wave year? I’m thinking about a guest essay you wrote for The Times not long ago in which you raised the concern that Donald Trump and his minions would spoil things. Does that concern persist?CONTINETTI: Indeed, it does. Where Republicans got the idea that Trump is a political winner is a mystery to me. By the end of his presidency, Democrats were in full control of government. And he has been unpopular with the independents and suburban moderates necessary for any party to win a majority.I draw a distinction, though, between Mastriano and Budd. Mastriano is, as you say, ultra-MAGA. Even Trump was wary of him until the very end of the primary. Budd is a more typical fusion of conservative movement traits with Trump MAGA traits. If I had to guess, Budd is more likely to win than Mastriano.BRUNI: Lis, is Matt splitting hairs? I mean, in the House, Budd voted to overturn the 2020 election results. I worry that we’re cutting certain Republican conspiracists a break because they’re not as flagrant conspiracists as, say, Marjorie Taylor Greene or Madison Cawthorn.SMITH: It’s splitting hairs a bit. But he’s right — Mastriano proved so polarizing and so toxic that you had a former Trump adviser in Pennsylvania, David Urban, say that he was too extreme. He was too MAGA for the MAGA crowd. The G.O.P. has been more welcoming of Budd, but he also wanted to overturn 2020 and he also opposes abortion in every instance. North Carolina voters have a history of turning back candidates with extreme social views. That’s one of the reasons Roy Cooper won his first race for governor — the G.O.P. overreached on the bathrooms issue, the law that restricted restroom access for transgender people.BRUNI: What shall we call “too MAGA for MAGA”? Mega-MAGA? Meta-MAGA? Maxi-MAGA? Regardless, we keep asking, after every primary: What does this say about Trump’s level of sway? Is that question distracting us from bigger, more relevant ones?SMITH: Trump is a factor here, but Democrats really need to keep the focus on these candidates and their beliefs and make this an election between the Democratic candidate and the Republican candidate. As we saw in Virginia, Democrats can’t rely on painting their opponents as Trump 2.0 — they need to explicitly define and disqualify the opposition, and these mega-MAGA extremists give us plenty of material. The people who aren’t as out there as Mastriano give us plenty of material, too.BRUNI: Matt, I know you’re not here to help Democrats, but if you were advising them, what would you tell them to do to head off a possible or probable midterms drubbing?CONTINETTI: If I were a Democratic consultant, the first thing I would tell my clients would be to take shelter from the storm. There is no escaping Biden’s unpopularity. The best hope for Democratic incumbents is to somehow denationalize their campaigns. Even that probably won’t be enough to escape the gravitational pull of Biden’s declining job approval.BRUNI: Lis, the “plenty of material” you refer to must include abortion. Along those lines, do you see anything potentially happening in the months ahead that could change the trajectory of the midterms? For example, what if the Supreme Court in June in fact overturns Roe or further weakens gun regulations? What about hearings on the Jan. 6 storming of the Capitol?SMITH: Roe is an example of something that could change the trajectory of the election. I usually think of the presidential election as when the broad electorate turns out and midterms as when pissed-off voters come out to vote. The Supreme Court taking away something that has been a fundamental right for 50 years will definitely piss people off and bring some of the Biden voters who might have otherwise voted Republican this year back into our corner. But voters have more reasons to be angry than just Roe.BRUNI: What are you thinking of? I’d like to hear it and then what Matt has to say about it.SMITH: We need to be screaming from the rooftops about what the Republicans in Congress are doing. They voted against the American Rescue Plan (then took credit for the checks that went to American households), mostly voted against infrastructure (then took credit for projects in their districts), mostly voted against capping the price of insulin, voted against stopping oil companies from price gouging, mostly voted against a bill that would include importing baby formula.Why? Because they want to impose as much misery as possible on the American people so that voters blame Biden and vote Republican in November. It’s really cynical, dark stuff. And then when they win, they want to criminalize abortions and ensure that we never have free and fair elections again. That’s my rant.CONTINETTI: Voters will hear a lot of what Lis is saying before November, but the Democrats’ problem is that they are in power as inflation comes roaring back after a 40-year absence. I am open to the idea that the end of Roe v. Wade may induce pro-choice voters off the sidelines in some swing districts, but in the weeks since the leak of Justice Samuel Alito’s draft opinion, the evidence of a pro-abortion-rights surge among voters is scattered at best. As the great Mark Shields likes to say, “When the economy is bad, the economy is the only issue.” Right now the economy is the issue, and it’s hurting the Democratic Party.BRUNI: As we were all typing, Beto O’Rourke, a Democrat who’s running for governor in Texas, where this latest horrible massacre occurred, interrupted a news conference being held by the incumbent Republican governor, Greg Abbott, to shout at Abbott that he was doing nothing to stop such bloodshed. In its urgency and passion, is that smart politics that could make a difference, Lis?SMITH: That’s a great example of going on the offensive, generating the emotion and pissed-off-ness that Democrats need to turn out our voters in the midterms. We often lose the gun debate because it’s about policy particulars. If Democrats can channel the outrage that a lot of Americans feel — particularly parents — toward the politicians who are just sitting behind tables and choosing inaction and make this about political courage, we can potentially flip the script. Sometimes these sorts of confrontations can come across as a little stunt-y, but in this case, it was executed well and made Governor Abbott and his lackeys look cowardly.CONTINETTI: O’Rourke is running 10 points behind Abbott, and I don’t think his outburst will help him close that gap. Many Democrats believe that pissed-off-ness is the key to winning elections, but I don’t know what evidence there is for that case. The key to winning elections is to appeal to independent voters and moderates in the suburbs.SMITH: Trump’s whole pitch is to play on grievances! And midterm elections are traditionally where voters air their grievances: They’re mad about inflation, mad about gas prices — in 2018, they were mad about Republicans’ trying to repeal Obamacare. This is a strategy that appeals to independent and moderate voters in the suburbs — they are often with Democrats on abortion, with us on guns.CONTINETTI: As you know, Trump did not win the popular vote in either 2016 or 2020. Pissed-off-ness gets you only so far. I agree that it helps when you are the out party in a national election and can blame the incumbent for poor economic and social conditions. Whether getting angry will work in Texas this year and for this candidate is another matter.BRUNI: Matt, why aren’t the Republicans who are losing to other Republicans in these primaries, as Lis put it earlier, “screaming from the rooftops” about election irregularities and rigged results the way they do when they lose to Democrats? Either a state holds trustworthy elections or it doesn’t, no?CONTINETTI: We’ve been reminded in recent weeks of what you might call Trumpian Exceptionalism. Whenever Trump loses, he says the result is fraudulent. He’s been urging his choice in the Pennsylvania Senate primary, Mehmet Oz, to declare victory in a race too close to call. Yet Oz has refrained, as have other Trump picks like the former senator David Perdue, who lost in a landslide in Georgia to the incumbent governor, Brian Kemp. Is there a Republican future in which candidates regularly ignore Trump? Some of us hope so. Though we’ve learned not to hope too much.BRUNI: Let’s end with a lighting round of short questions. At this point, just over five months out, what percentage chance would you say the Democrats have of holding the House? The Senate?CONTINETTI: Math, much less statistics, has never been my strong suit. Let’s just say that the Democrats have a very slim chance of holding the House and a slightly less-than-even chance of holding the Senate.SMITH: Emphasis on “at this point”: 51 percent chance Democrats hold the Senate, 15 percent House.BRUNI: In 2028 or 2032, will we be talking about Sarah Huckabee Sanders, possible Republican presidential nominee?!?!SMITH: Wow, I’ve never thought of that, but I can see it. At some point the Republicans will nominate a woman for president — let’s hope that you didn’t just conjure this one.CONTINETTI: I can see that, too — maybe that’s when Alexandria Ocasio-Cortez will make her presidential debut as well.BRUNI: Thoughts on Herschel Walker (potentially) in the Senate, in five words or less.SMITH: Death of an institution.CONTINETTI: Fun to watch.BRUNI: Lastly, in one sentence without too many conjunctions and clauses, give me a reason not to feel too despondent-verging-on-hopeless about our political present and immediate future?SMITH: We’ve gotten through worse.CONTINETTI: When you study history, you are reminded that America has been through a lot like this before — and worse — and has not only endured but prospered. We’ll get through this moment. It will just take time.Sorry, that’s three sentences — but important ones!Frank Bruni (@FrankBruni) is a professor of public policy at Duke, the author of the book “The Beauty of Dusk,” and a contributing Opinion writer. He writes a weekly email newsletter and can be found on Twitter, Instagram and Facebook. Matthew Continetti (@continetti) is a senior fellow at the American Enterprise Institute and the author of “The Right: The Hundred Year War for American Conservatism.” Lis Smith (@Lis_Smith), a Democratic communications strategist, was a senior adviser to Pete Buttigieg’s presidential campaign and is the author of the forthcoming memoir “Any Given Tuesday: A Political Love Story.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Don’t believe those who say ending Roe v Wade will leave society largely intact | Laurence H Tribe

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      Don’t believe those who say ending Roe v Wade will leave society largely intactLaurence H TribeIf the high court adopts Alito’s draft opinion, it will be a legal tidal wave that sweeps away a swath of rights unlike anything America has ever seen Now that the dust has begun to settle after the initial explosive news that the US supreme court is poised to overrule the right to abortion and that Justice Samuel Alito’s draft opinion in Dobbs v Jackson Women’s Health Organization represents what a majority of the court initially voted to do, among the most revealing ways to understand the devastation the court appears ready to wreak on America’s long march toward “liberty and justice for all” is to examine the kinds of arguments being made in the opinion’s defense.The argument that such a ruling would simply return a divisive issue to the people had long since been widely dismantled. It certainly wouldn’t be returned to the people most profoundly affected once women were told they may have to remain pregnant despite whatever urgent reasons they might have for seeking a safe and legal abortion. It couldn’t be described as returning the abortion issue to the states, now that the possibility of a nationwide ban that the supreme court might uphold is on the horizon. And to the extent the issue is returned to the states, it would be returned to state legislatures so gerrymandered that they often represent the views of a distinct minority of the people anyway.Ending Roe v Wade is just the beginning | Thomas ZimmerRead moreThe argument that “only” abortion is involved because Alito’s draft assures readers that the supreme court’s opinion won’t be treated as precedent for anything that doesn’t involve killing an unborn human is both profoundly insulting and manifestly misleading. It insults every sentient person by minimizing the significance of commandeering the bodies and lives of half the population – and re-inserting government power into every family. And it misleads every reader of Alito’s words by suggesting that a court has the power to shape how future lawmakers and judges will build on its decisions and the reasoning underlying them. Alito’s hollow promise brings to mind similar assurances in notorious cases like Bush v Gore, is inconsistent with how the judicial process works, and wouldn’t offer any solace to anyone who might become pregnant or whose miscarriage might be treated as a crime scene for police to investigate.The foolishness of the argument that there’s nothing to see here other than the future of abortion law is underscored by some of what is said in its support. We’re told not to worry about the future of decisions like Loving v Virginia, ensuring the right to marry someone of a different race than your own because, after all, Justice Clarence Thomas is in an interracial marriage. We’re told not to worry about the right to same-sex marriage because, after all, Justice Brett Kavanaugh would never vote to overturn Obergefell v Hodges, the most iconic opinion written by his proud mentor, Anthony Kennedy – the man who left the court only after he had hand-picked Kavanaugh as his successor. We’re told not to worry about contraception (despite the way quite a few people view Plan B or IUDs as forms of abortion) because even supreme court nominees like Amy Coney Barrett, who were cagey about just how “settled” a precedent they deemed Roe v Wade, said they couldn’t imagine anybody today challenging Griswold v Connecticut. All that prognostication is cold comfort to the millions of people whose lives are profoundly affected by these shaky predictions.The most substantial argument is one that is equally fallacious but more sophisticated and in some ways more devious and dangerous: it is the argument that supreme court reversals of precedent, like the reversal of Plessy v Ferguson by Brown v Board of Education, are often to be welcomed as needed course corrections, and that this “course correction” wouldn’t be the first time the supreme court has rolled back decades-old constitutional rights. The many commentators who persisted in describing Alito’s draft in those terms – as an unprecedented retreat in the arc of ever-expanding rights – have recently been denounced as either inexcusably ignorant or deliberately duplicitous by distinguished scholars like Yale’s Akhil Amar, who says that every first-year law student learns that the very same thing happened during FDR’s second term as president, when the supreme court in 1937 in West Coast Hotel v Parrish overturned a long line of decisions that had blocked minimum wage and maximum hours and other worker-protection laws in the name of employers’ rights of “private property” and the “liberty of contract”. To be sure, Amar’s argument echoes that of the Alito draft, which cites Parrish and says, in effect, “nothing to see here, we did the same thing before” when we rolled back the liberty of contract line of decisions in 1937.Justice Alito and Professor Amar are simply wrong: profoundly so. That so-called (and quite misleadingly labeled) “switch in time that saved the nine” was nothing like the switch that Dobbs would represent. The 1937 “switch” was no sudden politically driven turnabout but was in fact the culmination of long-simmering movements in legal and economic thought – movements that were reflected both in scholarship and in judicial opinions from the earliest days of the 20th century in places like Justice Oliver Wendell Holmes’ dissent in Lochner v New York insisting that “the 14th amendment does not enact Mr Herbert Spencer’s social statics,” movements that represented the growing conviction that the “freedom” to work at low wages and in miserable conditions was an illusion lacking both moral and legal foundations and one that simply helped perpetuate economic inequality and the exploitation of relatively powerless, not-yet-unionized workers by wealthy and powerful corporations.Indeed, it is noteworthy that West Coast Hotel v Parrish – the 29 March 1937 decision that is usually marked as the pivot point in the great constitutional upheaval – was handed down by precisely the same set of nine justices as the nine who had rendered a decision pointing in the opposite direction less than a year earlier, on 1 June 1936, in Morehead v New York ex rel Tipaldo. One justice of the nine, a moderate Republican named Owen J Roberts, who had been rethinking his position on the underlying legal theories, had foreshadowed his shifting views by writing a landmark opinion upholding milk price regulation, Nebbia v New York, by a 5-4 vote in 1934 – less than two months after the court had upheld a state mortgage moratorium law by a 5-4 vote in Home Building & Loan Ass’n v Blaisdell, a decision clearly foreshadowing the 1937 repudiation of Lochner’s legacy by reconceiving the meaning of the constitution’s clause forbidding all state impairments of the obligation of contracts.That history is important to keep in mind if one is to understand the depth of the error made by those who seek to compare the 2022 tsunami that Dobbs would represent with the gradual shift in current represented by the 1937 movement away from liberty of contract to protection of workers and consumers. The head-spinning and altogether untimely switch in the supreme court’s abortion jurisprudence that Dobbs would represent – if the decision the court announces late this June or early July is in substance what the leaked Alito draft indicated it would be – will reflect not the steady maturation of a long-developing jurisprudential movement but the crude payoff to a partisan political program to take over the federal judiciary, one beginning with Ronald Reagan’s presidency and the rise of the Federalist Society, and advancing with supreme court appointments made by Republican presidents all of whom lost the popular vote (George W Bush, appointing Justice Alito and Chief Justice John Roberts; Donald J Trump, appointing Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett), and made in circumstances of dubious legitimacy.Professor Amar treats as laughably naïve the observation by ACLU national legal director and Georgetown law professor David Cole that, although “Parrish took away some rights of business owners … its real effect was to expand rights protections for millions of Americans subject to exploitation by powerful corporations.” Amar’s rebuttal? He says, and I’m serious here, that it’d be equally legitimate to say that “Dobbs’ real effect would be to expand rights protection for millions of innocent, unborn Americans … unborn humans, subject to extermination by society.”It’s hard to know where to begin in unraveling that alleged parallel. Suffice it to note that the status as rights-bearing persons of embryos and fetuses remains a matter of profound sectarian controversy in America and throughout the world while no such controversy attends the status as rights-bearing persons of the array of workers whose rights, at least under laws designed to limit economic exploitation if not directly under the constitution itself, were indisputably expanded by virtue of the Parrish decision and the overturning of the Lochner line of cases.Perhaps no less important is the indisputable fact that, although there remain a few commentators who continue to think that Lochner was rightly decided and Parrish was wrong, there is a nearly universal consensus, certainly covering the ideological spectrum on the current supreme court, that the “rights” protected by Lochner and the other decisions that Parrish tossed into the dustbin of history were not constitutionally sacrosanct, and that inequalities of bargaining power prevented the common-law baseline that Lochner treated as immune to legislative modification from having any special constitutional status. At the same time, the notions of personal autonomy and bodily integrity that provide the constitutional foundation for the substantive “liberty” at stake in cases like Roe and Casey are almost universally accepted as real, although deep disagreements remain about whether, to what degree, and from what point in fetal development the protection of the unborn fetus can properly trump that liberty.The upshot is that the radical change in law and society that Dobbs would represent truly has no parallel in the history of the supreme court or in the history of the United States. As David Cole writes, the “proper analogy is not Brown overruling Plessy, but a decision reviving Plessy, reversing Brown, and relegating Black people to enforced segregation after nearly 70 years of equal protection.” For, as Jamelle Bouie rightly observed, “equal standing is undermined and eroded when the state can effectively seize your person for its own ends – that is, when it can force you to give birth.” Whether or not one compares that compulsion and forced labor to literal enslavement, as I did in my 1973 article on Roe v Wade, attempts to minimize the huge retrogression this would represent must be dismissed as little more than shameful efforts to camouflage the carnage the supreme court of the United States is about to unleash both on its own legitimacy and, even more important, on the people in whose name it wields the power of judicial review.
      Laurence H Tribe is the Carl M Loeb University Professor of Constitutional Law Emeritus at Harvard University, the author of numerous books and articles, a distinguished supreme court advocate, and holder of 11 honorary degrees
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      Arkansas Republican admits abortion trigger law would cause ‘heartbreak’ if Roe is reversed

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      Arkansas Republican admits abortion trigger law would cause ‘heartbreak’ if Roe is reversedGovernor Asa Hutchinson signed near-total abortion ban bill, even though he disagreed with the lack of exceptions for incest and rape The Republican governor of Arkansas, Asa Hutchinson, has admitted that an anti-abortion trigger law that he signed on to the books would lead to “heartbreaking circumstances” if Roe v Wade is overturned, in which girls as young as 11 who became pregnant through rape or incest would be forced to give birth.Hutchinson’s remarks give a revealing insight into the twisted human and political quandaries that are certain to arise should the US supreme court, as expected, destroy the constitutional right to an abortion enshrined in Roe v Wade when it issues its ruling next month. The governor told CNN’s State of the Union on Sunday that in 2019 he had signed the Arkansas trigger law, Senate Bill 6, which would ban almost all abortions the instant Roe were reversed, even though he disagreed with its lack of exceptions for incest and rape.Asked why he had put his signature on the law, despite the fact that it would prohibit all abortions other than in cases where a pregnant woman’s life were in imminent danger, he said: “I support the exceptions of rape and incest … I believe that should have been added; it did not have the support of the assembly.”Under intense questioning from the CNN host Dana Bash, the governor was asked why an “11- or 12-year-old girl who is impregnated by her father, or uncle or another family member be forced to carry that child to term?”He replied: “I agree with you. I’ve had to deal with that particular circumstance even as governor. While it’s still life in the womb, life of the unborn, the conception was in criminal circumstances – either incest or rape – and so those are two exceptions I think are very appropriate.”He added that if the supreme court does throw out the constitutional right to an abortion, then “these are going to become very real circumstances. The debate and discussion will continue, and that could very well be revisited.”But Bash pressed Hutchinson on what would happen if the absence of rape and incest exceptions can’t be revisited in the law that he had personally approved, pointing out that his term as governor comes to an end in January. “If you can’t change [the trigger law], that means girls who are still children, 11- and 12-year-olds, might be in that situation in a very real way in just a couple of months,” Bash said.“Those are heartbreaking circumstances,” Hutchinson replied. “When we passed these trigger laws we were trying … to reduce abortions, but whenever you see that real-life circumstances like that the debate is going to continue and the will of the people may or may not change.”A report by the Guardian this month found that at least 11 US states have passed laws that ban abortions without any exceptions for rape or incest. Such trigger laws are legally written in such a way that they would come into effect the second that the constitutional right to an abortion embodied in Roe were overturned.Earlier this month, a draft majority opinion of the supreme court written by Justice Samuel Alito was leaked to Politico. With the apparent backing of five of the six conservative justices on the nine-member court, it would eradicate federal abortion rights in the most aggressive terms.The court has insisted that the draft is not final and that changes to its wording or outcome are still possible. But the country on both sides of the abortion divide are bracing now for Roe to be undone and power over women’s reproductive choices to be handed to individual states like Arkansas.TopicsArkansasRoe v WadeAbortionUS politicsHealthRepublicansUS supreme courtnewsReuse this content More