Yesterday, the Deseret News invited me to write an op-ed on Dobbs. I thought I would have some time to think about it, but the Court moved quicker than I expected.

My Op-Ed is titled, “On abortion, justices demonstrate courage under fire.” This piece builds on my essay “Judicial Courage” in the Texas Review of Law & Politics.

Here is the introduction:

In 1973, Roe v. Wade created a constitutional right to abortion. Two decades later, in Planned Parenthood v. Casey, the Supreme Court refused to reverse that controversial decision, writing that “to overrule (Roe) under fire … would subvert the Court’s legitimacy beyond any serious question.”

Today, Roe was overruled in the Dobbs v. Jackson Women’s Health Organization decision. And in doing so, the majority demonstrated real courage “under fire.” Five justices were willing to take this bold and correct legal step in the face of never-ending personal attacks, efforts to pack the court, fallout from the leaked draft opinion, protests outside their homes and even an assassination attempt.

Dobbs, which is a triumph for originalism and sound constitutional law, also signals that the court is infused with judicial fortitude. This virtue, more than any particular method of deciding cases, guarantees that the court will steadfastly safeguard the rule of law.

And the conclusion:

Two years ago, I dubbed the final month of the Supreme Court’s term as “Blue June.” In case after case, the court’s purported conservative majority went to the left. Chief Justice John Roberts, the swing vote, found creative ways to strike balances that did not really resolve contentious issues, but avoided any obvious conservative victory. He hewed closely to a jurisprudence of public relations.

Two years later, we are in a very different time — call it “Red June.” Today, the court overruled Roe v. Wade; yesterday the court held that New York’s restrictions on concealed carry were unconstitutional. These two decisions, separated by 24 hours, were handed down in the face of immense pressure from every facet of our society. Yet the justices did not falter. They are infused with judicial courage. And if they stick to their guns, come what may, the rule of law will be steadfastly safeguarded.

I will have much more to say about Red June, or perhaps Red Flag June in due course.

You should also check out Joel Alicea’s piece in City Journal, titled “An Originalist Victory.”

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To acknowledge this achievement is to acknowledge the constitutional theory around which the coalition that brought it about rallied for a half-century: originalism. It was originalism that the pro-life movement adopted after Roe and supported through the confirmation defeat of Robert Bork; the attempted defeats of Clarence Thomas, Samuel Alito, and Brett Kavanaugh; and the setback of Casey. The goal of overruling Roe and Casey bound the conservative political movement to the conservative legal movement, and originalism was their common constitutional theory. Dobbs thus had the potential—as I argued in an earlier essay—to exacerbate the tensions over originalism within the conservative legal movement. It would be viewed as the acid test of originalism’s ability to translate theory into practice, and there would be no avoiding the stakes for the conservative legal movement in the case: “complete victory or crisis-inducing defeat,” as I put it. We now know that it was a complete victory, and it was, in large part, originalism’s victory.

I count Joel, Sherif Girgis, and a few others, as leaders in the conservative legal movement who helped advance the debate in Dobbs.

Republicans are celebrating the Supreme Court’s decision to overturn Roe v. Wade as a win for the anti-abortion movement that was decades in the making.

After a draft version of the opinion was leaked to Politico in May, Republicans expressed optimism, but largely withheld expressions of triumph. They didn’t hold back on Friday, reveling in the immediate shift that began taking place after the decision, as red states invoked laws to further restrict abortion and as congressional Republicans began planning new anti-abortion policies.

“What an historic day this is and what a great victory for life. And it’s not just a victory for life. It’s a victory for millions of people who have been part of this pro-life movement for decades, who have gone to state legislatures, who have gotten involved in the political process, who prayed … The decades of work [are] celebrated today,” House Republican Whip Steve Scalise (R-LA) said during a press conference on Friday.

For most Republicans, the decision presented an opportunity to tout their party’s ability to deliver on long-running campaign promises as they head into the midterms. But for Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK) — who supported the confirmations of some of the conservative justices who joined the opinion based on the assumption that they wouldn’t overturn Roe — it was a moment of reckoning.

“This decision is inconsistent with what Justices Gorsuch and Kavanaugh said in their testimony and their meetings with me, where they both were insistent on the importance of supporting long-standing precedents that the country has relied upon,” Collins said in a statement.

Most Republican lawmakers didn’t share Collins’s frustrations, and have made clear that the end of Roe is a launching pad for the anti-abortion movement, not an endgame. For months, they’ve been outlining a longer-term goal of imposing new restrictions on abortion nationally if they retake control of Congress.

How far they actually go could be limited by public opinion: Gallup’s tracking poll has found 85 percent of voters think abortion should be legal in some or all circumstances. Former President Donald Trump reportedly predicted that the decision could ultimately hurt Republicans politically, especially among suburban women who helped propel him into office in 2016.

For now, however, those fears aren’t stopping red states and national Republicans.

Red states immediately started moving to further restrict abortion

At least 13 states have “trigger laws” that were designed to outlaw abortion after the Supreme Court overturned Roe. Some of them activated those laws in the immediate aftermath of the decision on Friday.

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Within minutes of the Supreme Court’s decision, Missouri’s Republican attorney general issued an opinion that “triggers” parts of a 2019 law to effectively end abortion in the state. That law bans abortion after eight weeks of pregnancy unless there is a critical medical reason, with no exceptions for rape, incest, or human trafficking. It also explicitly bans abortions for fetuses that might have Down syndrome and requires minors to notify their parents or guardians before getting an abortion in most cases.

Texas has yet to trigger its own law, though that will likely happen in about a month. But Texas Attorney General Ken Paxton warned Friday that prosecutors could start seeking criminal charges against abortion providers immediately based on old state abortion bans that were enacted before Roe and that were never repealed by the legislature. The few remaining abortion providers and funds in the state consequently announced that they would be shutting down for fear of legal repercussions.

“Although these statutes were unenforceable while Roe was on the books, they are still Texas law,” Paxton wrote. “Under these pre-Roe statutes, abortion providers could be criminally liable for providing abortions starting today.”

Virginia Gov. Glenn Youngkin, a Republican, also announced Friday that he had enlisted state lawmakers to craft legislation that would ban most abortions after 15 to 20 weeks of pregnancy with exceptions for when the pregnant person’s life is endangered and in cases of rape and incest. He told the Washington Post that his preference would be a 15-week cutoff, but that 20 weeks might be a feasible compromise in the split state legislature.

“The truth is, Virginians want fewer abortions, not more abortions. We can build a bipartisan consensus on protecting the life of unborn children, especially when they begin to feel pain in the womb, and importantly supporting mothers and families who choose life,” he said in a statement.

Republicans are already calling for a nationwide abortion ban

Republicans have also started to build a foundation to further restrict abortion access in the US, especially if they retake control of Congress.

“Having been given this second chance for Life, we must not rest and must not relent until the sanctity of life is restored to the center of American law in every state in the land,” former Vice President Mike Pence tweeted Friday.

House Republican leaders — including Minority Leader Kevin McCarthy, Republican Study Committee chair Jim Banks, and Judiciary ranking member Jim Jordan — are already lining up to support legislation that would impose a nationwide ban on abortion after 15 weeks of pregnancy, CNN reported.

That ban could pass the House if Republicans recapture the majority in this year’s midterm elections, as they are widely expected to, but it probably wouldn’t win support from a filibuster-proof majority in the Senate, even if the GOP regains control of the chamber. It is possible that Republicans could choose to eliminate the filibuster to pass the ban, but so long as a Democrat remains in the White House, they would veto any such legislation.

Republicans have also indicated that they plan to reintroduce the “Born-Alive Abortion Survivors Protection Act” if they recapture the House majority. That bill would put in place requirements for the care of infants born after failed, late-term abortions and could send doctors to prison if they fail to comply. Reproductive rights and physician groups have previously opposed the legislation on the basis that it could criminalize doctors and is duplicative of existing laws that already support infants in these very rare cases.

And those plans appear to be only the beginning of their ambitions.

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“In the days and weeks following this decision, we must work to continue to reject extreme policies that seek to allow late-term abortions and taxpayer dollars to fund these elective procedures,” McCarthy said in a statement Friday. “As we celebrate today’s decision, we recognize the decades of advocacy from the pro-life movement and we acknowledge much work remains to protect the most vulnerable among us.”

Meanwhile, this same Supreme Court makes it harder to vote, makes it easier to suppress the vote, and allows partisan gerrymandering that makes a mockery of equal representation. The Senate is so breathtakingly undemocratic that five of the six Republican-appointed justices were confirmed by Republican majorities having earned fewer votes and representing fewer people than the Democratic minority.

There are ways to mitigate the inequities in our system: statehood for Washington, D.C., and Puerto Rico if they want it, Supreme Court expansion and term limits, a federal ban on partisan gerrymandering, etc. But none of that will happen if historical trends maintain and Republicans take control of the House or Senate.

What’s worse: Holding our ground isn’t enough. We have to gain seats to break the Senate logjam and disempower Send. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona. We also need the cushion, because the 2024 map is tough, and unless President Joe Biden can turn his approval ratings around, a Republican trifecta would be the end of whatever rights we have left. They wouldn’t even need a Supreme Court at that point. 

So yes, it’s hard to argue for voting as the solution, when voting has proved so impotent to this point. And therein lies something else I feel viscerally: the disempowerment of our supposed majority. In fact, it feels like we’re in the minority. Because functionally, we are. And I can sense that permeating through—not just from the politically engaged, but even among the kinds of people who only perk up around presidential election time. I’m even sensing it among the apolitical. 

It feels like November 2016, when Trump “defeated” Hillary Clinton despite receiving three million fewer votes. 

We all know what history says about midterm elections—the party that controls the White House usually gets walloped, particularly during a new president’s first term. There are several reasons for that, such as a president’s inability to deliver campaign promises through our broken Congress. But the biggest reason is quite simple—the minority motivates. The Tea Party movement emerged after Barack Obama’s election. The Resistance emerged after Donald Trump’s selection. QAnon hit the big time after Joe Biden won, fueling school board protests over masks and the “CRT” boogeyman. 

Meanwhile, those in the majority become complacent. “We won, mission accomplished!” That, along with dissatisfaction with the pace of accomplishments, led to a double-whammy situation where the opposition party is highly motivated and mobilized, the party in power is moribund. More often than not, a wave election sweeps the opposition to legislative power. 

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Who is in the minority today? 

Republicans, sure. Democrats control the presidency, House, and nominally, the Senate. 

But who is really in the minority today? We are.

Every liberal who cares about gun safety, about abortion, about core privacy rights, about keeping the conservative theocratic agenda out of our lives. We can’t even safeguard public health during a pandemic because of these conservative ideologues. We may not even be done this Supreme Court term, as the court may literally strip the Environmental Protection Agency of the power to protect our environment (in a decision that would gut the federal government’s agency power). 

Even if we gained Senate seats and got rid of the filibuster next year, would the Supreme Court allow D.C. statehood? Would they allow a genuine voting rights bill? Of course not! This is a renegade Court, literally inventing nonsensical rationales to push their unpopular agenda on all Americans. Somehow, the Second Amendment’s plaintext “well-regulated militia” has morphed, thanks to a supposed “originalist,” into a perverse blanket right for all gun fetishists to threaten society.

It viscerally feels like we’re in the minority because we are, in fact, in the minority.

Thus November puts us in uncharted territory. Yes, Joe Biden is unpopular. Yes, inflation and gas prices are high. Yes, history says the party out of power gains seats. But it’s the party out of power that is currently winning. The rules are being rewritten. 

Republicans have gotten big mileage out of their single-issue abortion and gun owners. Evangelicals may love Trump today, but they were originally unhappy with the amoral philanderer crook who ripped off his own charity and had sex with a porn star while his wife was at home with their baby. That didn’t stop them from voting for him, because abortion. Nothing else mattered. Meanwhile, liberals love to complain about all the ways a candidate fails us, and it costs us. 

But now, we may now be seeing the birth of the single-issue liberal voter. Kerry Eleveld wrote about an intriguing poll of the Pennsylvania governor and senate races. Respondents were asked their top priorities. 

Women respondents were more apt to cite abortion as their top priority in the Senate race, clearly not yet understanding that abortion is explicitly on the ballot in their governor’s race as well. That’ll come, undoubtedly. 

Women then preferred the Democratic candidate in the Senate race by 23 points, and in the governor’s race by 16 points. In other words, the more abortion mattered to women, the stronger their support for the Democratic candidate, overriding concerns over the economy that would normally be front and center in a midterm election. 

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To be clear, this is a single data point, so we need more information, but it certainly supports my gut feeling that traditional dynamics have been upturned. Why else would Democrats be leading in Wisconsin as well? If Democrats are leading (if slightly) in two of the most evenly divided states in the union, that certainly suggests that we’re not in business-as-usual territory. And note, both those polls were conducted before this decision hit with the force of a neutron bomb. 

One more anecdotal data point is this dynamic: 

My apolitical, hyper-religious, large Latino family group chat is on-fire angry about this decision. My partner reports the same, with women realizing that even their fertility treatments are at risk. You might be seeing the same on your social media feeds and group chats. Keep an eye on people you considered apolitical, or even Republican-leaning. If you’re seeing what I and others are seeing, chime in the comments. I’m really curious to learn, even anecdotally, what others are experiencing. 

In a perfect world, this outrageous conservative overreach galvanizes progressive (and even non-progressive) turnout on behalf of Democrats, who take advantage of the moment by campaigning heavily against the Supreme Court, promising reforms to restore balance and strengthen our democratic right to vote. 

Add votes on contraception, too, and that’s a real solid plan heading into November. 

Today, we saw Nancy Pelosi read some stupid poem, House Democrats sing “American the Beautiful” on the steps of Congress, and House Whip Jim Clyburn claim the decision to end Roe was “anti-climactic.” We need better leaders, and a better approach these next few months, to maximize our chances for victory. We need fire. 

But it may not matter in the end, just like Evangelicals voted for Trump. With abortion on the ballot, in every state, red or blue, we may see the kind of mobilization we’ve never seen before, especially in a mid-term election. It’s either that, or we start a countdown for the next cherished right on the chopping block.