A Vindication of Dobbs

Kansas voted overwhelmingly yesterday to retain the state constitution’s protection of abortion rights. The pro-choice side views this as a big victory, and in a sense, of course, they’re right. The Washington Post carries the story:

In the biggest news of a high-stakes primary night, Kansas voters rejected a ballot measure on Tuesday that would have removed protections for abortion rights from the state constitution in the first electoral test of support for abortion rights since the Supreme Court overturned Roe v. Wade in June.

Votes against the ballot measures led “yes” votes early Wednesday morning 59 percent to 41 percent. The high turnout and double-digit margin in support of access to abortion are the strongest signals yet that abortion is a motivating issue for voters in red and blue states alike….

The victory for abortion rights advocates came in a state that hasn’t backed a Democrat for president since Lyndon B. Johnson in 1964 and hasn’t elected a Democratic senator since 1932 (although Kansas Gov. Laura Kelly is a Democrat who supports abortion rights), indicating that Republicans also voted to protect abortion access. 

As our colleague Annie Gowen noted last week in her dispatch from Kansas, “an Associated Press VoteCast survey of 2020 election voters in Kansas found that 54 percent said abortion should be illegal in most or all cases, while 44 percent said it should be mostly or always legal, compared with 59 percent nationwide who felt abortion should be legal.”

This is probably a minority view, but I see the Kansas vote as both a legal and a political victory for conservatism properly understood. The backdrop of my take on it is the substantial real world likelihood that, post-Dobbs, abortion will remain widely available in the United States, both because at least half the states will continue to have few if any restrictions on surgical abortions, and because “abortion pills” will be even more available than they are now, with means to curtail their distribution and receipt next to impossible. All the “Handmaiden’s Tale” scare stories were bunk to begin with, and remain bunk.

If one believes, as I do that, for good or ill, and regardless of the fervor of the moral arguments, abortion will continue to be available essentially to anyone determined to get one, the positives of last night’s vote become clear.

The most obvious of these takes root in Dobb’s central holding — that the federal Constitution simply does not address abortion and therefore that the subject is left to the political processes of the states. OK, we had such a process yesterday, in one of the most Republican and culturally conservative states in the country. And what happened? The Handmaiden’s Tale? No, the opposite. It turns out that conservative voters aren’t women-enslaving ogres after all.

The political upsides of the Kansas vote become clear once this is understood. The core of the Democrats’ post-Dobbs scaremongering was that SCOTUS had all but “outlawed abortion.” This was never remotely true, as was known by anyone paying attention, but was an easy sell to low-information voters. The Kansas result makes that sell a good deal harder.

The truth is that, as honest polling has shown, Americans as a whole are moderates on abortion. Most tend to support the option to have one very early in pregnancy and in cases of rape and incest. Most tend to oppose it late in pregnancy and for reasons like sex selection and harvesting organs for sale. Of course there are a large number of medically complicated and morally fraught questions in deciding where, in between those two positions, the lines should be drawn. The genius of Dobbs was that it removed the power to draw those lines from the federal courts, who have neither the constitutional portfolio nor the expertise to do the job, and gave it back to the electorate.

It’s true, of course, that the electorate also may lack any particular expertise, and may be influenced by its “instincts” (as if judges aren’t). But in a country founded on the belief that the law should be decided by the people who have to live under it — not to mention on the reality that we have a Constitution that says what it says and doesn’t say what it doesn’t say — this was easily the right choice. On the more mature view, Kansas’ result yesterday underscores this fact.