The GOP Has Its Final Anti-Abortion Victory in Sight

Stripping voter rights. Rigging the Supreme Court. Dull procedural tricks. It’s all paying off at once.

Brian Kemp of Georgia
Gov. Brian Kemp, who oversaw an election he participated in, and signed Georgia’s abortion ban this month. Mark Wilson/Getty Images

Shouts broke out on the Alabama Senate floor last Thursday when Lt. Gov. Will Ainsworth tried to rush through a motion without a roll-call vote. If that sentence bored you—even with the shouting—you’ve already grasped something basic: The dullness of these procedures is why most of us have trouble understanding them or paying attention, even when there’s cheating involved. We should try. In this case, the motion would have removed an amendment—supported by some Republicans—to exclude cases of rape and incest from an abortion ban that had already passed the House. Ainsworth believes Americans impregnated by rapists should be made to give birth, so he tried to rush the motion through without a roll-call vote, bending the rules to get his way.

State Senate Minority Leader Bobby Singleton stalled the attempted circumvention through sheer force of will, shouting his objections until the vote was delayed. But this is not a happy story: The controversial bill ended up passing the Senate on Tuesday night—with no exceptions included—and will go to Gov. Kay Ivey’s desk. Its intention is to strip Americans of a constitutional right, on the assumption that a friendly Supreme Court will soon declare that removal legal. The path to that end point is not short, but neither is it far-fetched. It will take only one of these abortion bans to survive the ultimate judicial challenge for Americans with uteruses to be forced by the state to carry fetuses against their will.

If Alabama’s turns out to be the one, we’d do well to remember that one link in that chain of events was Republicans trying to proceed without a roll-call vote. That’s a simple procedural violation, the sort one might hesitate to get too upset over. But those kinds of violations stack up. They stack up until they form a basis for disenfranchising half the country. And at a certain point, there’s nothing to be done but insist that what few rules remain be followed. After last week’s fracas, the New York Times quoted Democratic state Sen. Vivian Figures as saying to her Republican colleagues, “You all are going to get your way, but at least treat us fairly and do it the right way.” This is where we are in a nutshell. Those who wish to preserve constitutionally protected abortion rights are left appealing to the denatured process that got us here: At least have the decency to strip our rights fairly.

Alabama isn’t alone. Just a few days ago, Georgia passed a law criminalizing abortions after six weeks, set to take effect in 2020, and Gov. Brian Kemp signed it. It’s a total abortion ban for reasons you can read here. It’s the most extreme law ever passed, and it’s supposed to be: GOP members across several states have said they’re “excited” to pass illegal laws that defy a settled Supreme Court ruling so that the current court can overturn it. The Georgia bill redefines fetuses as legal persons with rights while, again, stripping the rights and bodily autonomy of citizens who actually exist. Though some activists on both sides want to believe this unlikely, the bill clearly allows for those who actively refuse to give birth to face lifelong imprisonment or the death penalty. Even those who leave the state to abort would be subject to punishment.

Then there’s the Ohio bill, similar in structure and passed in April, which will condemn an 11-year-old child who was raped to forced birth—which must be understood as rape in reverse. Kentucky and Mississippi passed similar bills this year (Kentucky’s was struck down, as was Iowa’s, passed last year). These bills aren’t just astonishing and punitive and misnamed (the “heartbeat” is not a heart but a collection of cells in the fetal pole that may one day become one). They’re ignorant even of the actual reproductive biology they purport to regulate. Several would criminalize miscarriages, and one invents a medical procedure whereby ectopic pregnancies—which tend to be fatal—could not be aborted but would be “reimplanted” in the uterus. That is not a medical procedure you can get; it’s a suggestion that doctors experiment on women whose lives are in danger. Never mind. That is not, at least for the moment, the point. The rights of women and the marginalized seldom are.

The point is this web-like convergence, across multiple states, that’s closing like a net around Americans capable of getting pregnant. Multiple states, with multiple paths to the Supreme Court. A law passed to invoke the high court can’t be dismissed as a “strategy” or a “tactic”—the law is exactly what it says. And it was passed to satisfy the beliefs of a minority. Take Georgia: 70 percent of Georgian voters and 68 percent of American voters don’t believe Roe v. Wade should be overturned.* It doesn’t matter. That isn’t stopping Georgia’s government. We’re long past democracy working, even if many have yet to realize it, because so much of its dismantling has been invisible to the public thanks to dark money, gerrymandering, voter suppression, and maneuvers like Ainsworth’s, all of which we’ve been encouraged to consider merely improper. A long campaign to hobble and constrain our representative government at every turn is now paying off dramatically. For decades, extremists have been seizing control through the kind of procedural malfeasance that gets continually mislabeled as assholery or poor etiquette. Over and over, Americans have made the mistake of responding to Republican misbehavior by treating each case as an isolated insult to be transcended. The mature thing, we’ve been told, is to “rise above.”

The Georgia bill in particular reflects the cost of letting individual instances of Republican overstepping go unchallenged in the name of bipartisanship. (I’m not saying that it would have been easy to challenge, or that no one has.) But cheats and transgressions accrue like compound interest, and the technical wins Republicans gained and keep gaming have given them a stranglehold. That most Americans didn’t see this as a crisis isn’t shocking: There’s nothing Americans like less than detail-oriented bureaucracy. A lot of us confuse that impatience with an ability to see through B.S.; there’s a lamentable tendency to see procedural violations as dull or unimportant. This is dismissiveness at worst and civic confusion at best, but it has led many of us to think that the citizens’ groups and organizations that have been calling attention to these violations—and bringing lawsuits and doing their best in this whack-a-mole fight to stop a takeover by an extremist minority—are overreacting.

They weren’t. And the best proof is that a bill seeking to legalize executing women for their reproductive choices was signed into law by a governor who was elected after a massive procedural campaign to disenfranchise voters less likely to support him. As Georgia’s secretary of state, Brian Kemp presided over an election in which he was a candidate. In the former capacity, he stalled more than 50,000 voter registrations for predominantly black voters. His office was found to be using amateur “handwriting analysis” by untrained people to reject absentee ballots, voiding the votes of disproportionately black voters. He launched an investigation into his opponent Stacey Abrams’ New Georgia Project, which was registering black voters. (No wrongdoing was found.)

You might wonder—as many Americans who think “the system” still works do—how Kemp got away with closing 214 polling locations in Georgia, most of them in disproportionately poor and minority communities. Or how county boards in Georgia could get away with dispatching deputies with court summonses demanding that (mostly black) voters give proof of residence or lose their right to vote. The answer is that a conservative Supreme Court struck crucial portions of the Voting Rights Act, which used to protect Southern minority voters from measures like these, in 2013.

The court has grown even more conservative since then thanks to another “procedural” violation that was seen more as a rupture with norms than a soft takeover. Senate Majority Leader Mitch McConnell refused to hold a hearing for President Barack Obama’s Supreme Court nominee, Merrick Garland. Democrats objected strenuously at the time, but there was nothing much they could do: Thanks to the structure of the Senate, Republicans hold a dangerously durable majority. McConnell took pleasure in this: “One of my proudest moments was when I looked Barack Obama in the eye and I said, ‘Mr. President, you will not fill the Supreme Court vacancy.’ ”

My theory is that partly because McConnell took obvious pleasure in it, that loss is remembered more clearly as an asshole move than a government-changing upheaval that would cost many Americans their rights. Republicans have encouraged this perspective: “Get over it” has become a kind of GOP mantra. The opposition is supposed to “get over” everything from Merrick Garland to Russian interference to child separations and plenty more. That’s smart framing by the dominant party: It encourages a personal response to a public offense. You’re supposed to “get over” Republican overstepping rather than, say, retaliate. You don’t feed the trolls, and when a jerk flips you off in a parking lot, you let it go. You rise above.

This, ultimately, is the problem with talk of bipartisanship among the Democrats, and of asking—or begging—to be “treated fairly” even as the other party holds all the cards. (Or indeed predicting that Republicans will have “an epiphany” and seek consensus, which appears to be Joe Biden’s plan.) “Get over it” is a spiritual recipe, not a political one. And it doesn’t work against the parliamentary politics McConnell excels at, which consists, in part, of choosing battles too recondite and fiddly for the public to get angry about. For instance, he has now made a standard practice of defying the “blue-slip rule” when it comes to confirming judicial nominees. Given how little the public knows about the protocol, they’re primed to miss the effect. McConnell has been advancing nominees without the approval of their home-state senators, locking out the minority from the process, and stocking the judiciary with radical right-wing conservatives.

These are not matters of etiquette. Individually they haven’t seemed like enormous changes (well, maybe the Garland denial did), but they are serious and consequential, and together they are changing history. And there is no recourse for any of this. Yes, a judge found that Kemp’s practices raised “grave concerns for the Court about the differential treatment inflicted on a group of individuals who are predominantly minorities.” It didn’t matter. He’s the governor now. In the name of what he called “voter maintenance,” the man canceled 1.4 million voter registrations in his tenure as secretary of state. He “won” his election by 55,000 votes. The thousand cuts he inflicted on Georgia worked: By the time that court decision came around, it was only a week before the election. Too much damage had been done. Kemp won—technically, but technical wins are all you need—and that yearslong series of cheats has empowered him now to sign a bill that would authorize punishing women for exercising their constitutional right to an abortion.

Women will die because of laws like these that became possible thanks to stacks of technicalities. It wasn’t enough for Republicans to legalize “crisis pregnancy centers” that give women dangerously inaccurate information about their options. Or to force doctors to lie to their patients about abortion. Or to try to force patients to get transvaginal ultrasounds for no medical reason. Republicans are now doing everything in their power to drag a tragic past into the present. We are moving closer to a world where reproductive health moves underground, and where women are afraid to seek care—or as in the past, get interrogated by police when they do.

But never mind: The point is how we got here. After decades of accruing small technical advantages, it’s not crazy to say that the modern GOP is on the precipice of achieving one of its highest aims—made possible thanks to some closed polling stations here, a gerrymandered district there, judges confirmed against tradition and precedent, a president who lost the popular vote. Some of these were obvious—and later camouflaged by suggestions that we “get over it”—but the bulk of those strategic advantages were secured more quietly, distributed across statehouses and carried out without arousing too much public alarm, because none of this is what the public wants. It doesn’t matter. And it’s almost too late.

As the net closes in, we must remember how it was made, strand by strand, by extremists wishing to impose their religious doctrine on a country founded on the separation of church and state. We can be grateful that these laws have so far been struck down in two states thanks to suits brought by the American Civil Liberties Union. But there will be more. Stemming the tide would require an absolutely massive outpouring of voters to overcome a deck this stacked—and that alone will not be enough to reverse course. Redundancy is built into this strategy, and the judiciary is immune to those votes. More restrictions will pass. Some will fall. Appeals will be filed. And the Supreme Court, with its new, young, and life-tenured justices, will wait patiently for the chance to subordinate women to fetuses and bring the full power of the state against those who would refuse to comply.

Correction, May 15, 2019: This piece originally misstated that 70 percent of Georgians and 68 percent of Americans don’t believe Roe v. Wade should be overturned. It’s 70 percent of Georgian voters and 68 percent of American voters.