Cross-posted from our joint Raising Women’s Voices campaign

The Election Results Are Clear

Nine days after the election, we can be absolutely certain about who won the presidency. But big questions remain about the peaceful transition of power, control of the U.S. Senate, and the ability of the next administration to meet the challenges of the moment if Republican leaders choose nihilism over bipartisanship.

Joe Biden and Kamala Harris have soundly defeated Donald Trump and Mike Pence, in both the popular vote (where they currently lead by over 5 million votes, or 3.4% of the total) and in the Electoral College (where they’re on track to win 306 to 232). Their election makes history, with Vice President-elect Harris breaking multiple glass ceilings as the first woman, the first Black person, and the first person of South Asian descent elected to the vice presidency.

Trump’s loss — a rarity for incumbent American presidents — is also notable, marking one of the very few times in recent years where right-wing nationalism, surging around the globe from Bolsonaro to Brexit, has been defeated at the polls.

The GOP’s Commitment to Misleading the Public is Just as Clear

Despite the clear loss, Trump is denying the outcome and mobilizing a complicit Republican Party to delegitimize the election results in the public’s mind, just as he promised he would. The president has launched a series of frivolous lawsuits that don’t seem designed to win so much as to create chaos and sow doubt. None of his wild allegations of fraud have been backed by any evidence — as his lawyers have been forced to admit in court. But that may not matter. The scandal that led to his impeachment, remember, was pressuring the Ukrainian government to publicly announce that they were investigating the Biden family (whether or not they were), a reflection of Trump’s keen insight that the outcome of the investigation often matters less than the existence of one.

Now, the right wing echo chamber is awash in conspiracy theories completely divorced from reality, and Trump’s GOP allies are playing along. In Georgia, the state swung to Biden-Harris thanks to the multi-year effort of heroes like Stacey Abrams and organizations like Women Engaged, the Feminist Women’s Health Center and the New Georgia Project to foster civic engagement and to elevate important reproductive justice issues in the state. In response, the state’s entire Republican congressional delegation has called on the state’s Republican secretary of state to resign unless he delivers the state to Trump because, in essence, he didn’t do enough to suppress Black voters.

He's not alone. GOP legislatures in Biden-won states around the country are under pressure to invalidate election results due to supposed “corruption.” These baseless allegations set the stage for Republicans to argue, as this Wisconsin legislator did, that electors should ignore voters and instead “vote for the person they think legitimately should have won.”

In DC, cynical observers have been quick to conclude that “Trump isn’t really trying to overturn the election. He’s simply running one more scam before he leaves office that would enable him to enrich himself.” Media outlets have reported that while Trump’s fundraising appeals emphasize recounts and legal battles, the fine-print makes clear that the funds raised will go to unrelated accounts, including a Trump-led leadership PAC that could serve as a “slush fund” for the Trump family. According to Common Cause, “There is no limit to how much Donald Trump can pay himself or any member of his family under [his PAC].”

Meanwhile, top Republicans have told reporters — without going on the record, of course — that they know Biden has won and that any claims of fraud are false; they admit they are indulging Trump’s ego while trying to keep his base inflamed enough to carry them to victory in future elections. The conservative Washington Examiner described the GOP’s position as “purely transactional.”

The Short Term: GOP Obstruction Will Cost Lives   

But as so often has been the case in the Trump era, we’re left reading the tea leaves to differentiate between greed and something even more sinister. This week Trump fired a host of senior defense and intelligence officials, including those who had resisted his efforts to deploy US troops against US civilians, and replaced them with loyalists. The directors of the FBI and CIA are rumored to be next. It’s unclear whether the president is simply settling old scores, helping his loyalists burrow in, covering up incriminating information before the transition, preparing lame duck hostilities against Iran — or actively preparing to subvert the will of the people.

Even if there’s no real intent to steal the election, the harm done is potentially incalculable. In a disturbing break with past precedent, the General Services Administration (GSA) is refusing to ascertain Biden’s victory, denying the transition team access to millions of dollars in federal funding and the ability to meet with federal officials. As Politico reported, “the Trump administration’s refusal to authorize a presidential transition is interfering with President-elect Joe Biden’s plans for a rapid scale-up of the federal coronavirus response, leaving the incoming administration locked out of key health agencies amid the spiraling pandemic.”

The Biden-Harris team has already moved to confront the COVID-19 epidemic, which is surging out of control across much of the U.S. They quickly announced appointments to a COVID-19 task force including former Obama administration Surgeon General Vivek Murthy, MD, and Yale Medical School Prof. Marcella Nunez-Smith, MD, an expert on health disparities.

But the Daily Beast reported that “officials in the Trump administration working the COVID vaccine process, particularly those working on Operation Warp Speed, have been unable to communicate with Biden’s new COVID-19 task force about what plans they already have in place for distribution. Without close coordination on those topics, current officials say, Biden’s team could face significant delays in getting the vaccine out to the American people.”

To make matters worse, it’s not clear when the GSA, or the White House, will be forced to acknowledge reality. Electoral College delegations don’t vote for president until December 14. Congress doesn’t certify the Electoral College outcome until January 6. With control of the Senate set to be determined by two Senate run-off elections in Georgia on January 5, Senate Republicans have signaled their intent to do everything they can to keep their base energized for fear of disenchanted Trump voters staying home.

In short, we’ve entered dangerous and unchartered territory, with major ramifications for public health in the midst of the pandemic.

The Long Term: An Emboldened McConnell Could Hobble the Biden-Harris Administration 

And that’s just the next ten weeks. Looking further ahead, if Republicans led by Mitch McConnell retain control of the Senate after January 5, they can severely hobble a Biden-Harris administration’s ability to secure legislative wins, and even their ability to fully staff the government, blocking both executive branch and judicial nominations. Furthermore, McConnell can now extract a heavy price (e.g. legal immunity for businesses that knowingly expose their workers and customers to unsafe conditions) for any COVID relief or other must-pass packages, including appropriations and any fix to Trump’s disastrous payroll tax deferral order.

There’s unlikely to be much appetite from House Democrats (who retained their majority by the slimmest of margins) or a Biden-Harris White House for playing any kind of fiscal hardball that jeopardizes their top funding priorities, particularly around the pandemic, sharply constraining advocates’ hopes of using legislation to unwind bad Trump rules related to contraception, abortion, LGBTQ rights, Medicaid work requirements, and more.

It’s also unlikely that the Biden-Harris administration will have the same expansive executive authority that the Trump-Pence administration has had. The same Supreme Court willing to give Trump his unconstitutional Muslim ban, illegally funded border wall, and so much more, even before the loss of Ruth Bader Ginsburg, may have no problem swatting the Democrats down on the originalist legal doctrine of “rules for thee, but not for me.”

We had hoped that voters would roundly repudiate the candidates who espoused policies that take away our health care, undermine our reproductive health, and stand for racial injustice. There was no such repudiation. Many of the candidates who stood up for the worst sort of oppression were re-elected, and opponents of key women’s health issues will retain their power in the Senate through January — and possibly beyond. The next four years could be even uglier and more dangerous — in terms of white terrorism, QAnon-fueled attacks, and deadly public health misinformation — than the last ones.

This is demoralizing, depressing, and frightening, with a direct impact on women’s lives and health, and on the kinds of policy advances that might have been possible under different circumstances. The impact falls even heavier on Black, Latinx, Indigenous, and other people of color, on LGBTQ people, and on all those who have been disproportionately subjected to the harm perpetuated by our political system since our country’s founding.

There Are Reasons to Hope (and to Act)

And yet, the ousting of Donald Trump is a tremendous victory both for women’s health and our democracy. President-elect Biden and Vice President-elect Harris have already announced steps to restore the federal bureaucracy's scientific, issue-area, and legal expertise; reestablish foundational rules and norms about ethics and democratic norms; respond to the pandemic; unwind rules that harmed women, LGBTQ people, people of color, and other vulnerable groups; and restore sanity to U.S. policymaking.

 

ACA likely to survive SCOTUS, but other progressive gains at risk

This week, the Supreme Court heard oral arguments on the lawsuit threatening the Affordable Care Act. Although it’s impossible to know how the Court will eventually decide, there’s reason to be cautiously optimistic about the ACA’s fate. The justices’ discussion focused primarily on the questions of standing (do the plaintiffs have the right to sue at all) and severability (can the rest of the law stand even if the mandate is struck down).

Chief Justice John Roberts and Justice Brett Kavanaugh, both conservatives, expressed skepticism about the plaintiffs’ major claims, seeming to suggest that Congress intended for the law to remain in place without the mandate. “It does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place," said Kavanaugh. That increases the likelihood that even if the now-toothless mandate falls, the rest of the law will survive.

Furthermore, as legal analyst Nicholas Bagley noted before the election, the ACA may be safe simply because “the conservative political establishment that did so much to make the last Obamacare case seem plausible, even inevitable, has not laid the same groundwork here. … [Republican leaders] are trying to signal as loudly as they can that they would prefer the lawsuit to go away.”

That's likely to be true for the foreseeable future. Roberts and his allies know that a GOP-led outcome striking down health care coverage in the midst of a pandemic that has already claimed the lives of over 240,000 Americans — the equivalent of wiping out the entire population of Madison, Wisconsin or Reno, Nevada — could hurt Senate Republicans up for re-election in 2022.

But while the ACA could stand, women’s health advocates are right to worry what progressive advances a 6-3 Court could decide are politically safe to overturn going forward. As Bagley notes, “Judge Barrett has been pretty candid that she would have sided with the challengers in the first lawsuit challenging the individual mandate. If she, not Justice Ruth Bader Ginsburg, had been sitting on the Court back in 2012, the Affordable Care Act would now be in ashes.”

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Sarah Christopherson, MA, is the Legislative Director for the social justice campaign, Americans for Tax Fairness, and the NWHN’s former Policy Advocacy Director. Her 10 years working for Congress and her deep knowledge of health policy and consumer protection make her the NWHN’s issue area expert on federal health reform implementation and defense, drug and device safety and efficacy, and sexual and reproductive health.

Read more from Sarah Christopherson.