Women’s Health and the 2020 Elections

By Sarah Christopherson

As I write this in August, it’s hard to predict what new crises the nation might be facing in October, the month best known for ghouls, goblins, and nasty election eve “surprises.” While I can’t say what’s going to happen next, I can say with certainty that the coming election is a matter of literal life and death.

That’s always true to some degree. I cast my first ballot in 2000, the year that five Supreme Court justices put us on the path to war in Iraq and the Great Recession. Eight years later, historic elections set the stage for the most significant legislative reforms since the 1960s, including the Affordable Care Act (ACA).

Even the elections that don’t loom as large in the public consciousness have far-reaching consequences. Key parts of the progressive coalition sat out the 2010 midterms and the result was years of health care sabotage; a debt-limit showdown that eviscerated federal investments in health, education, and infrastructure; the entrenchment of the Tea Party, whose racist subtext Donald Trump now openly makes text; a nationwide takeover of state houses by anti-abortion conservatives who then gerrymandered their way to a decade of control; and a Congress that refused to restore the Voting Rights Act after the Supreme Court gutted it in 2013, a key factor in Trump’s 2016 win. Four years later, the 2014 midterms promoted Mitch McConnell (R-KY) to Senate Majority Leader, which is why Neil Gorsuch sits on the Supreme Court today instead of a fifth vote for women’s rights.

But even with these precedents in mind, it’s hard to overstate the enormity of what’s at stake. This election will determine whether we fix the bungled federal COVID-19 response; protect the ACA from conservative-backed threats; end the Trump-Pence administration’s assaults on democracy, civil rights, and marginalized people; ensure that all Americans can vote safely; restore rules and norms combatting corruption; and rebuild our scientific agencies.

And that’s just 2021. Within the next few weeks, we’ll set the path forward on a host of issues with long-term consequences.

Like 2010, 2020 is a census year, so the politicians who win this election will redraw state and federal districts for the next decade. In Wisconsin, for example, the GOP wave in 2010 ensured that the districts drawn in 2011 remain so gerrymandered nine years later that Republicans can lose statewide but still end up with a supermajority of state assembly seats — as they did in 2018, despite a “blue wave” statewide. When politicians fear primary challenges but are protected from losing general elections, they pursue the extreme policies that excite their most ardent base voters. It’s no surprise, then, that state-level attacks on abortion rights exploded after 2010. Redistricting — and redistricting reform — could have as big an impact on the future of abortion rights as who becomes president.

And then there are the courts, where a conservative takeover has been occurring just below the public’s radar. Since Thurgood Marshall’s nomination in 1967, Democratic presidents have filled just four Supreme Court vacancies. The other 15 were all appointed by Republican presidents, dramatically shifting the Court to the right on thousands of cases over the last half century. Trump’s takeover of the lower courts has been equally shocking, with roughly one out of every four federal judges now a Trump appointee. Trump’s next Supreme Court pick, if he gets the chance, will almost certainly be one of those judges appointed to a lower court by Trump himself. As Carrie Severino, president of the conservative Judicial Crisis Network, noted, Trump judges are a “really different type of group… chosen with specific interest in having a certain level of courage and principle in a way that the Bush administration wasn’t focusing on.” In context, “courageous and principled” are euphemisms for “shamelessly partisan and dangerously unfit,” as reflected in the record number of Trump judges deemed “not qualified” by the nonpartisan American Bar Association.

Yet neither the broader public nor progressive voters have focused on the courts with the same intensity as conservatives. And Chief Justice John Roberts has been careful to keep it that way — e.g., by delaying consideration of a lawsuit to strike down the ACA until after ballots are cast — even as he has quietly worked to privilege the Trump administration and gut key women’s health protections.

The first major abortion case of the Brett Kavanaugh era, June Medical Services v Russo, is a prime example. Slate legal expert Dahlia Lithwick called it “a major blow to the left [cloaked] in what appears to be a small victory for it.” The Louisiana law at stake this year was virtually identical to a Texas law struck down by the Court just four years ago in Whole Woman’s Health. Yet four justices were ready to brazenly overturn the 2016 precedent simply because the Court’s composition has changed.

Such an outcome would have ignited a public firestorm and damaged the mythos that the Court acts impartially. Instead, Roberts voted with the four liberals, but rejected their reasoning. His vote pacified the Left and fired up the Right, even as his concurring opinion openly invited future attacks on abortion rights. Just two months later, the notoriously anti-abortion Eighth Circuit Court of Appeals used Roberts’ concurrence to reinstate a slate of anti-abortion laws in Arkansas that had been previously invalidated under Whole Woman’s Health.

Roberts’ savvy votes in several other high-profile cases this year seemed similarly designed to shield the Court from claims of partisanship (despite its clear partisan record) and slow the push for bold court reform while subtly tilting even liberal victories rightward. As several legal analysts noted at the time, his decision to vote with the majority on Bostock v. Clayton County, a case extending Civil Rights Act protections to LGBTQ employees, didn’t alter the outcome but did allow him to assign the majority opinion to Gorsuch instead of a more liberal justice.

But even as the Court’s public moves have been carefully stage-managed to avoid rousing public alarm, the Court’s rarely scrutinized “shadow docket” of summary orders (often just one sentence

long) has become highly partisan in the Trump era, with enormous consequences for progressive priorities.

As University of Texas Law Professor Steve Vladeck warned in August, the shadow docket is “quietly shaping the rules of the upcoming elections, how governments can (and can’t) respond to COVID, the resumption of the federal death penalty, and more.” By the time you read this, that list may have grown to include re-imposing a deadly obstacle to safe abortion care during the pandemic (the FDA’s travel requirement for abortion pills, suspended by a federal judge in July) with no oral argument and little public notice. As Vladeck notes:

[I]n their impact, the justices’ rulings to date [in the shadow docket] reveal three problematic trends: Republican federal and state government parties fare far better than their Democratic counterparts; the impact these orders have upon the public has disappeared from the legal analysis; and the justices are even more sharply partisan in these cases than in those that receive more attention.

Here, too, the election will make all the difference. Congress has the authority to shape the Court’s rules, and the president and Senate together have the ability to reform the courts’ composition. But only if voters demand action.

This year, vote like your life (for at least the next decade) depends upon it, because it does.