With Election Day less than two weeks away, and more than 12 million ballots already cast, the outlook for Democrats in the 2022 mid-term elections is pretty bad – almost as bad as before the Supreme Court boosted Democrats by overruling Roe v. Wade.
Surveying polling indicators last December, I predicted that Democrats would lose control of both houses of Congress, dropping two or three Senate seats and 30 to 40 House seats. High inflation, rising interest rates, and a lot of recession talk made things worse during the first half of this year.
Then along came the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, overruling Roe and making clear the stakes of control of the Senate. The Dobbs decision, issued on June 24, set off a long, steady shift in voter preference from Republican to Democrat. Unfortunately, the Dobbs effect peaked in September, and has almost entirely receded since then.
On June 24, FiveThirtyEight.com’s election forecast model gave Democrats a 12 percent chance of retaining control of the House and a 47 percent chance of retaining control of the Senate. Post-Dobbs, Democrats’ chances in the House rose to 32 percent, peaking at that number as recently as October 2, before sliding steadily back down to 19 percent as of yesterday. The Senate odds got as high as 71 percent as recently as September 20, dropping to 54 percent as of yesterday. In both cases, Democrats are only trivially better off than they were on June 24.
FiveThirtyEight calls only three Senate races toss-ups: Georgia, Pennsylvania and Nevada. Other races where Democrats thought they had a shot have moved fairly decisively toward Republicans: Florida, North Carolina, Ohio and Wisconsin. Only New Hampshire has moved as decisively toward Democrats, although Arizona has moved almost as much – but those seats are already held by Democrats.
Even a small systematic bias in the polls could mean an election result far different than the predictions. Polls collectively showed a small pro-Democratic bias in both 2016 and 2020, although in fairness the polling bias in the last mid-term elections, in 2018, was slightly pro-Republican. The distrust of institutions aggressively sewn by Donald Trump’s Republican Party over the past few years has introduced a systematic “nonresponse bias” into polling – Trump supporters disproportionately decline to answer pollsters’ questions. We only find out for sure about polling bias when the votes are counted.
For what it’s worth, betting markets, which have a pretty good (but not perfect) record in recent years, are slightly more Republican-favorable than 538’s forecast model.
Aside from polling bias, there’s always the question of late-deciding voters. Voters who are honestly undecided until the last minute can’t be measured by any polls except exit polls. It’s common for late-deciding voters to break disproportionately one way on Election Day, and, regrettably, I expect this time that late-deciding voters will break for Republicans, responding to the party’s fear-based campaign emphasis on supposedly high crime rates and actually high inflation rates. Democrats have not been effective in getting voters to focus on the consequences of Republican control of either house, much less both houses of Congress.
Democratic losses won’t be confined to Washington. FiveThirtyEight’s model calls three Democrat-held governorships toss-ups, and only one Republican-held. Democrats are at risk of losing Wisconsin, Nevada, and Oregon – yes, Oregon, one of the bluest states in the country. Even the New York race, which 538 still labels solidly Democratic, was called “too close for Democrats’ comfort” by a New York Times headline writer. Democrats’ only reasonably sure pick-up is in Massachusetts, where the popular Republican governor is retiring.
A lot of attention has been given to Republicans’ bright prospects in a number of races for secretaries of state, and for other positions with authority over elections. Much less attention has been given to Republicans’ prospects of adding to their considerable national advantage in state legislatures. Republicans already control 62 of 99 state legislative houses (Nebraska’s legislature is unicameral). There are some bright spots for Democrats, like Michigan and Pennsylvania, where redistricting reduced the pro-Republican bias of previous district lines. But nationwide, in an election distinctly favoring Republicans, I would expect Republicans to pick up a significant number of state legislative seats. Two of the more important risks for Democrats are North Carolina and Wisconsin, where Republicans have an outside shot at reaching veto-proof majorities in both houses, rendering the states’ Democratic governors all but moot – assuming, in the case of Wisconsin that the state still has a Democratic governor next year. (North Carolina’s governor is not up for re-election.)
That leaves me close to where I started. I’m expecting Republicans to pick up two or three Senate seats and 25 to 35 House seats, plus two or three governors and scores of state legislative and other offices. Now, if you really want to cheer up your day, go back and re-read my call to arms last December. Looking back on it now, my predictions for what Republican control will mean may have been too modest. More on that in another post.
Violent crime is the mythical beast of American politics: everyone knows what it is, and we can describe it in detail, even those of us who’ve never seen it up close. The only problem is, our understanding of crime is warped by misconceptions. This warping of reality into belief was vividly illustrated by a now-famous exchange in this week’s gubernatorial debate in Oklahoma.
Attacking the policies of incumbent Republican Governor Kevin Stitt, Democratic candidate Joy Hofmeister said, “The fact is the rates of violent crime in Oklahoma are higher under your watch than New York and California. That’s a fact.”
Stitt responded by laughing. Hofmeister’s assertion was so self-evidently wrong, so obviously ludicrous, that Stitt turned to the debate audience to enlist their ridicule: “Oklahomans, do you believe we have higher crime than New York or California? That’s what she just said.”
Just like everyone knows that crime rates are always rising, everyone knows that violent crime is something that happens in inner cities, not in more rural places like Oklahoma.
The first problem, which has gotten a fair amount of notice in the days since the debate, is that Hofmeister was right, and Stitt, along with most Americans, was wrong. The second problem, which has gotten rather less notice, is that Stitt, the governor of Oklahoma, apparently had no earthly idea of his own state’s violent crime rate. The possibility that his state might have a high rate of violent crime was so far from his awareness and understanding that it struck him as laughable.
The statistical fact is that Alaska has the highest rate of violent crime of any American state – 837.8 violent crimes for every 100,000 people in 2019. Of the ten most violent states, eight are run by Republican governors; only two by Democrats. Oklahoma ranks 13th, with 458.6 violent crimes per 100,000 population. California and New York come in 16th and 26th, respectively, with 442.0 and 363.8 per 100,000.
New Jersey, often stereotyped as a haven for crime, is our fifth least violent state. Of our ten least violent states, only two are red states: Idaho and Wyoming.
Over the last five reporting years, from 2016 to 2020, violent crime rates in the United States remained level: from 397.5 per 100,000 in 2016 to 398.5 in 2020. During that time, violent crime rates plummeted in New Jersey (from 243.5 to 195.4), dropped significantly in New York (from 374.6 to 363.8) and ticked down in California (from 444.8 to 442.0). Meanwhile, violent crime in our most violent states exploded: in New Mexico, for instance (from 699.4 to 778.3), and in Arkansas (from 554.3 to 671.9). Oklahoma’s violent crime rate rose modestly during that time: 455.3 to 458.6.
Two weeks ago, John Oliver devoted his main segment on Last Week Tonight to the ways that mass media crime reporting contributes to popular misconceptions about crime. The segment picks up from a slow start, and I recommend watching the entire 27 minutes. I leave to others the question why a British comedian is a better source of American crime data than the governor of Oklahoma.
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Crime isn’t the only subject in which blue states, and especially big cities, are viewed through misconceptions and stereotypes by the country at large. Another example recently came to my attention, by way of an episode of the PBS show Nova devoted to AIDS.
Popular misconception is that American’s highest rates of HIV infection occur in America’s “gay Mecca” cities, like Washington and San Francisco and New York. And while it’s true that AIDS is more prevalent among gay men than other American populations, the Nova episode pointed out that the country’s highest rates of new HIV infections occur in the Southeast. After the District of Columbia, the list is topped, in order, by Georgia, Florida, Louisiana, Nevada, Mississippi, Maryland, Texas, South Carolina and North Carolina.
A literal majority – 51 percent – of new HIV diagnoses in 2020 occurred in the South. The 13 states that had refused the expanded Medicaid option offered by the Affordable Care Act accounted for 42 percent of new infections, the “lion’s share” occurring in Texas, Florida, Georgia and North Carolina.
The connection to Medicaid expansion supplies a causal clue – not just to HIV infection rates, but also to violent crime rates. It’s Democrats, not Republicans, who believe that government initiatives can improve lives and solve social problems. Sometimes government programs fail completely, sometimes they succeed partially, and occasionally, they succeed exceptionally well. But the point is to try. Right now, it’s Democrats who believe in trying.
It’s hard to see my own experience with student loans as especially burdensome. I went to two Ivy League schools, college and law school, that were surely two of the most expensive in the country. I benefited tremendously from student loans – the simple fact is, without those loans, the option of an elite private education, and the career options that education made available, would not have been open to me.
Higher education costs were a whole lot lower back then. My freshman year tuition, for the 1974 – 1975 school year, came to a whopping grand total of about $3,500. The cost went up each year, and law school was a lot more expensive than college. I finished law school in 1981 with loans totaling $24,300 – about $95,000 in today’s dollars. With federally subsidized interest rates, my loan payments totaled less than $300 per month, for 120 months.
I was privileged by federal student loan programs to be able to attend two Ivy League universities. I was privileged to be able to use that education to pursue the career of my choice.
I was privileged. And a foundation of my politics is that privilege like that should be entitlement. Everyone who wants to go to college should be able to go to college, and everyone should be able to go to any college they can get into.
The fairness of President Joe Biden’s student loan forgiveness program was criticized from both sides – roughly speaking, from the left for not doing enough; from the right for doing too much. I generally agree with the former – it would be great if higher education was available on equal terms to all who want it, if students’ educational opportunities were not so heavily influenced by the wealth of their parents. But I also believe that doing something good is better than doing nothing.
The lead criticism from the right is that Biden’s loan forgiveness program benefits university students who will for the most part become members of the middle class, while doing nothing for blue collar workers, who are in greater need.
The first problem with that argument is that’s not true. Everyone talks about student loans as if loans go only to college students, and those making the unfairness argument typically focus on students at elite four-year universities who go on to become medieval history professors, all the better to contrast their notion of student loan recipients to the humble American working stiff.
But the fact is that student loans go to students at trade schools and in certificate programs as well. Huge swaths of the blue collar work force benefit from federal student loan programs: skilled construction workers, for instance, like brick masons, plumbers, welders and electricians; vehicle maintenance workers, like auto mechanics, tractor trailer mechanics and aviation mechanics. And lots of two-year community college graduates use federal student loan programs to get to middle income white collar jobs, from medical technicians to computer technicians to paralegals to preschool teachers.
Trade schools, certificate programs, and community colleges can be expensive, but they are on the whole less costly than four-year colleges. And student loan debt for their students runs correspondingly lower. For graduates of these programs, Biden’s $10,000 federal loan forgiveness initiative will cover much larger proportions of their debts than for graduates of four-year degree programs – for some, especially for those whose Pell grants make them eligible for forgiveness of $20,000 in debt, Biden’s initiative will zero out their loan balance.
The second problem with the unfairness argument is that following it to its logical conclusion would lead to some pretty ridiculous results. For instance: home mortgage interest is tax deductible, but home rental payments are not. If you’re buying, the government will help you out; if you’re renting, you’re on your own. Homeowners are, on average, 40 times wealthier than home renters, and therefore renters are in greater need. Shall we repeal the home mortgage interest deduction? Good luck with that.
The third problem is that the people arguing that Biden’s program is unfair to working people are pretty much the same people who reliably oppose assistance to working people. Free tuition for community college students? We’re against it. Expanded child income tax credits? We’re against it. Higher minimum wage? We’re against it. Increased subsidies for Obamacare premiums? We’re against it. Investment in public schools in lower income neighborhoods? We’re against it. Mandated paid sick leave, or family care leave? We’re against it. Repeal of “right-to-work” laws and expansion of unionization protections? We’re against it. Guaranteed minimum income? We’re really, really against it.
An important argument in favor of Biden’s loan forgiveness program is one that its critics prefer to ignore. Biden’s program mitigates one of the most fundamental injustices of American society: the “persistent and extreme” gap between the average net worth of African-American and white families. A much higher percentage of African-American students take out loans than white students, and African-Americans’ average student loan debts are much greater than white Americans’. These facts both reflect and perpetuate the racial wealth gap. African-American students are less likely to have parents who can afford to fully fund their educations, and then African-American graduates are more heavily burdened with student loan repayment obligations. The Biden administration estimates that its loan forgiveness program will, in one stroke, move one-quarter of African-Americans from negative net worth to positive net worth.
Ten or twenty thousand dollars of loan forgiveness doesn’t magically get us to equal educational opportunity for all Americans. But it’s a big first step.
New York Attorney General Letitia James this week filed her long-expected lawsuit against Donald Trump, his corporations, his children, and two of Trump’s chief corporate financial officers. The complaint will prove the undoing of the Trump brand – economically, at least, if maybe not politically.
But it will take a while.
The complaint is massive – not because it runs more than 200 pages, but because it details more than 200 instances of fraudulent conduct by Trump’s corporations. And James claims to have the goods on Trump himself – the complaint repeatedly alleges his direct involvement in the described frauds. As more than one commentator has put it, Letitia James has the receipts.
Attorney General James’s case is a civil lawsuit – jurisdiction to prosecute criminal cases of financial fraud lies with district attorneys. In New York, civil litigation moves excruciatingly slowly. There will be lots of procedural motions, and lots of requests for extensions. Pre-trial discovery, the process by which the parties gather information for potential use at trial, will be protracted. The validity of every discovery request and the sufficiency of every discovery response can be disputed simply by submitting an objection to it, and challenge to the objection is made by motion to the presiding judge, whose rulings are subject to appeal, which itself can be protracted. Trump has spent a lifetime avoiding accountability by aggressive obstruct-and-delay tactics, and we’re sure to see lots of that in this case. I’ve predicted that Trump’s 2024 presidential campaign will be long over before James’s lawsuit is concluded.
James’s investigation was prompted by former Trump attorney Michael Cohen’s February 2019 testimony before Congress, to the effect that Trump routinely overstated or understated the value of his assets, according to his interests at the moment. He gave different valuations to tax authorities, banks, insurers – he even falsified his “net worth” statements for Forbes magazine’s wealthiest lists.
Presumably, the investigation followed the usual route – from lower to higher in the chain of command, and from farther away (accountants and other third parties) to closer in (high-level executives, including the Trump family). By that route, Trump himself would be last to be interviewed.
So when James got a court order last February compelling Trump to submit to an interview, it was clear that the investigation was largely complete, and that a lawsuit was coming just as soon as Trump’s interview could be done. Trump resisted, of course, and he wasn’t ultimately interviewed until August. He didn’t add anything important – he declined to answer questions, invoking his Fifth Amendment privilege against self-incrimination. The civil complaint followed this week.
The biggest surprise about James’s lawsuit is that she is not seeking dissolution of the Trump Organization and its various offshoots and subsidiaries. I had expected her to seek dissolution, on the ground that the corporations are corrupt enterprises – that those corporations have engaged in fraud and other corrupt activities so routinely and so pervasively that the corporations cannot be allowed to continue operation.
James was asked about dissolution at her press conference; she answered that she is not seeking dissolution, but she didn’t explain why.
Still, there should be no doubt that James is asking for judicial rulings that would financially devastate Trump’s corporations, and quite likely Trump himself. As is customary, the very last section of the complaint is entitled “prayer for relief,” which is lawyer talk for the judicial actions James will request upon conclusion of the trial.
The first request is that the Trump corporations’ “doing business” certificates be canceled. Businesses may not operate in New York without filing certificates with the state, and therefore cancelation of a business’s certificate revokes that business’s right to operate in the state. Some of Trump’s most important properties are in New York State, so revocation of his ability to do business in the state would be devastating.
Two other requests for relief stand out. The first is the request that Trump, his family, and his companies, be made to “disgorge” all of the “financial benefits” they received from their fraudulent practices. The complaint estimates the total “disgorgement” at $250 million, but James at her press conference said that figure is the minimum she expects to be able to prove at trial.
James’s request for “disgorgement” includes the standard request for interest. In New York, interest on monetary liabilities runs at 9 percent per year, from the date of the fraud until the date the judgment is paid. That means for every million dollars of frauds proved, Trump and his companies will owe $90,000 per year; if James proves anything like what she alleges, $250 million in frauds going back many years, and if Trump drags the litigation out, the interest award alone could easily exceed $100 million.
The second is the request that Trump and his companies be barred for five years from borrowing from any financial institution chartered by or registered with New York State. New York City being the financial capital of the country, and arguably of the world, pretty much any lender doing or aspiring to do large-scale corporate finance is registered with New York State. A ban on borrowing from a New York-registered lender is pretty close to a ban on borrowing at all, at least on any scale.
Trump is famous for his lack of liquidity, his assets typically being heavily mortgaged, leaving relatively little cash on hand at any given time. (Trump once bragged that he is “the king of debt.”) It’s unlikely that Trump could pay a judgment of a several hundred million dollars without selling off a good chunk of his assets.
There’s a collateral aspect to these two requests for relief. Any lender who sees James’s lawsuit as a threat to repayment of its loan is no doubt reviewing Trump’s loan contracts to determine whether, when and on what conditions the lender can “call the loan” – that is, demand repayment now, regardless of the loan term. James’s lawsuit might have cascading effects on Trump’s liquidity problems.
There’s another collateral aspect to Attorney General James’s lawsuit to consider – James’s lawsuit may make criminal prosecution of Trump more likely, and sooner.
James announced at her press conference that she had referred her findings to federal prosecutors in the Southern District of New York, and to the Internal Revenue Service, and she observed that Manhattan District Attorney Alvin Bragg’s investigation remains open. James’s complaint directly accused Trump and his companies of violating “a host of state criminal laws,” and, in a footnote, she helpfully mentioned two federal criminal laws that were “plausibly violated.”
So maybe the detail in the complaint was intended for the benefit of prosecutors. But maybe the detail was intended to put public and media pressure on prosecutors, who have been accused of going soft on Trump. Bragg was widely reported early this year, shortly after taking office, to have expressed skepticism about the strength of his investigators’ case against Trump, prompting high-level resignations from his office. Commentators have anguished over the lack of federal indictments against Trump – the party line being that U.S. Attorney General Merrick Garland is too cautious.
I agree that Garland is being cautious, but I think he’s a closer to charging Trump than is generally assumed. I recently speculated that we’ll see federal charges in November, after the midterm elections.
When Alaska was admitted to the Union in 1959, Democrats expected to dominate the state’s politics. And sure enough, all five of the state’s first state-wide elected officials were Democrats: Governor William Egan, Lieutenant Governor Hugh Wade, Senators Bob Bartlett and Ernest Gruening, and Representative Ralph Rivers. But Democrats didn’t maintain their hold on Alaska. Republican presidential candidates have won Alaska every four years since 1964; Democrats haven’t come within 10 percent since 1992. Until this week, Democrats hadn’t won a single state-wide election since 2008.
Although Alaska leans Republican, a vein of partisan independence runs deep. A significant majority of Alaskan voters are registered as independents, and Alaska is one of only three states since World War II to elect an Independent as governor. And Alaskans have a moderate streak – in 2010, after Republican Senator Lisa Murkowski lost her party’s primary to a Tea Party extremist, she won re-election as a write-in candidate – only the second senator in history to win by write-in.
When Republican Representative Don Young died last March, he was the longest-serving Republican in the history of Congress, having taken office in 1973. Pundits predicted a Republican romp in the special election to replace him.
This was the first test of Alaska’s new voting system, and it sure was interesting. Candidates of all parties run in a common primary, and the top four vote-getters proceed to the general election. In the general election, voters can rank their choices, from first choice to fourth choice. One candidate is eliminated after each round, and their ballots are reallocated to the remaining candidates, until someone has a majority of votes.
To further complicate matters, Alaska held two overlapping elections for Young’s seat: a special election, for the remainder of Young’s term, and a regular election, for the term beginning next January. The primary for the special election was held on June 11, and both the special election and the primary for the regular election were held on August 16.
The June 11 special election primary featured 48 candidates, mostly candidates of dubious seriousness. The top four vote-getters were Republican former governor and John McCain running mate Sarah Palin, with 27.0 percent of the vote; Republican Nick Begich with 19.1 percent; Democrat-turned-Independent Al Gross at 12.6 percent; and Democrat Mary Pertola, a first-time state-wide candidate, with 10.1 percent.
After the votes were tallied, Gross dropped out of the race, citing personal reasons, so only three candidates appeared on the August 16 special election ballot. Meanwhile, 22 candidates were on the August 16 primary ballot for the general election.
The first thing you notice in the August 16 results is that the special election primary from June 11 functioned both legally to winnow the special election candidates to four, and practically to winnow the general election candidates as well. The top four June 11 primary finishers (counting Gross) took 68.8 percent of the vote, whereas the top four August 16 primary finishers took 97.0 percent of the vote. Obviously, having seen the results of the June 11 primary, Alaskans weren’t so interested the second time around in wasting their votes on non-contenders.
The second thing you notice in the August 16 results is how much voters shifted between the June 11 and August 16 primaries. Begich, Palin and Pertola each took a greater share of the August 16 votes than they had taken on June 11, but the biggest gain, by far, was by Democrat Mary Pertola. Palin’s vote share rose from 27.0 percent to 30.2 percent; Begich went from 19.1 percent to 26.2 percent; and Pertola shot from 10.1 percent to 36.8 percent – from fourth place in the June 11 special election primary to first place in the August 16 general election primary.
No doubt Pertola’s rise was partly due to Gross dropping out – but Gross had taken just 12.6 percent of the June 11 vote, so that wasn’t the whole story. Presumably some of Pertola’s increase came from becoming a credible state-wide candidate. Her candidacy gained a great deal of attention, post-June 11, because she would be the first Alaska native ever elected to Congress. But at least part of Pertola’s break-through must have reflected the national trend toward pro-choice Democrats following the June 24 Supreme Court decision overruling Roe v. Wade.
The other August 16 result – the ranked-choice selection among Begich, Palin and Pertola – closely mimicked the August 16 primary results. Pertola took 39.7 percent of the vote, Palin won 30.1 percent, and Begich got 27.8 percent. Begich was eliminated, and his ballots were reallocated to their second-choice candidates. Although a substantial majority of Begich voters opted for Palin as their second-choice candidate, a significant minority preferred Pertola, and the majority was not large enough to overcome Pertola’s first-round lead. Of Begich’s 54,000 first-round votes, about 15,000 went for Pertola in the second round, about 27,000 chose Palin, and the rest made no second choice.
So, on Wednesday night, Mary Pertola became the first Democrat to win Alaska’s at-large House seat in half a century.
Pertola will take office when the House reconvenes on September 13, and absentee ballots start going out about ten days later. In other words, Pertola’s incumbency will have only symbolic affect on what is now her re-election campaign.
That suggests to me that general election voting on November 8 will be driven largely by the same dynamics as drove the August 16 votes. Turnout will presumably be higher, just because general election turnout is almost always higher than special election and primary election turnout. But Pertola will presumably still benefit from the pro-choice views of moderate Republicans, Alaskans will presumably still be turned off by Palin’s history of abandoning her pragmatic governorship to elope with the Tea Party, and Begich’s voters will presumably divide their second-choice votes more or less as they divided them in the August 16 vote.
One qualification – the ranked-choice voting system is new to Alaskans, and the special election-general election overlap must have added to voter confusion. There’s some chance that the 11,000-plus Begich voters who voted for no second-choice candidate acted out of confusion rather than intention. If so, and if Palin can motivate those voters, she might just pull out ahead in November.
Some of the pundits who saw the special election as a Republican romp are calling the general election a toss-up – RealClearPolitics, for instance, and the Cook Political Report. But not all see it that way – FiveThirtyEight gives Pertola a one-in-five chance of re-election, with Begich holding a slight edge over Palin.
I’m not willing to predict a Democratic win in the House this November – not in Alaska, and not nationwide. But I will say this: if Alaska is in play, there won’t be a red tidal wave.
In one sense, the Supreme Court decision overruling Roe v. Wade should have had no political effect, since we’ve long known it was coming. We knew it on September 18, 2020, when Justice Ruth Ginsburg’s death created a vacancy for President Donald Trump and Senate Majority Leader Mitch McConnell to fill with a fifth “originalist” justice. Anyone who held to the hope, or the delusion, that the originalist majority might give the Roe v. Wade precedent the respect that they had extravagantly displayed during their confirmation hearings should have been set straight on May 2, when Politico published a leaked draft of the Court’s decision in Dobbs v. Jackson Women’s Health Organization, showing that all five of the Court’s originalists had already voted to overrule Roe.
Evidently, though, knowing a thing will happen hits less hard than knowing the thing has happened.
Last December, I surveyed the national political environment and predicted that Democrats would lose control of both houses of Congress. On June 18, I titled a midterm update “From Bad to Worse,” largely due to the rolling waves of bad economic news in the intervening six months, reflected in President Joe Biden’s collapsing approval ratings.
Then on June 24, the Supreme Court issued the Dobbs decision, casting a half-century’s abortion rights out of the constitution in a single stroke. We can see from two data points that the real event hit much harder than the knowledge that it was coming.
The first data point is from FiveThirtyEight.com’s Senate midterm prediction model. When 538 rolled the model out on June 1, it gave Democrats a 40 percent chance of retaining control of the Senate. Since June 24, the model has moved dramatically toward Democrats, giving them a 63 percent chance.
The second data point is the Congressional generic ballot. On June 24, 538’s aggregation of generic ballot polling said that 45.0 percent of responders wanted Republicans in Congress, compared to 42.7 percent who wanted Democrats. By August 4, Democrats had pulled just the slightest bit ahead, their first lead in 538’s aggregation since November 15. Today’s aggregation gives Democrats 43.9 percent and Republicans 43.5 percent. (A note of caution – Republicans’ national gerrymandering advantage is such that most experts estimate that Democrats have to win the nationwide popular vote for House seats by about 3 percent to hold the House. That’s a large part of the reason 538 still gives Republicans nearly four-to-one odds of taking control of the House.)
The Dobbs decision has given Democrats something important and compelling to talk about other than the economy. Democrats’ position on the economy was defensive and technical – a sure loser in modern politics. Democrats had to convince voters that inflation was largely caused by COVID-related supply chain problems and exacerbated by the Russian invasion of Ukraine; that inflation in this country is actually lower than in most other industrialized countries and therefore reflects well, not badly, on Democrats’ economic policy; and that two contributing causes of inflation, the unprecedented federal grants of COVID relief aid and the large and continuing wage increases following the Great Resignation, are actually good things, and well worth the inflationary costs.
Democrats’ case on abortion is much more compelling: my Republican opponent wants to deny abortion access to all American women, including victims of rape and incest, including pregnant 10-year-olds, and even including women carrying dying fetuses, whereas I want to kick the government out of the medical discussion between a woman and her doctor.
While Roe v. Wade remained the law, conservative state legislators’ opposition to abortion rights was largely performative. Red states had long since gone pretty much as far as Roe would allow them to go. Abortion restrictions beyond that point had no legal effect; enacting those restrictions was about virtue signaling, demonstrating the strength and purity of one’s opposition to abortion. One state’s legislators would perform their opposition to abortion by enacting strictest-in-the-nation restrictions, prompting another state’s legislators to perform their opposition by coming up with even stricter limitations. Even as the performances became ever more extreme, and the restrictions on women became ever more draconian, legislators didn’t have to deal with any real-world consequences of their votes.
Post-Dobbs, of course, anti-abortion legislators’ performances have legal effect. Anti-abortion legislators now have to face up to their disregard for the lives, health and well-being of pregnant women; they have to face up to the limitations they have imposed on women’s freedoms. Republican candidates who made their names by supporting broad abortion bans with inhumanely few and narrow exceptions, can’t simply reverse course. They are stuck with their very public records – the point of performing their opposition to abortion, after all, was to indelibly imprint their hardline positions on the public mind.
Gerrymandering will largely mitigate the effect of Dobbs on House elections: the politicians have chosen their voters, as the saying goes, and their voters mostly don’t mind the harsh consequences of hardline anti-abortion laws. But Senate districts – that is, states – can’t be gerrymandered. Republicans can’t count on even fairly conservative states, like Kansas, to support the extreme positions they’ve staked their careers on. A voter’s support for abortion rights won’t necessarily decide the voter’s choices in the midterm elections, but, for many voters, especially moderates and independents, it will tilt the scale toward Democrats.
There are, of course, other things going on. Democrats finally got it together and passed the Inflation Reduction Act. The IRA was a stripped-down version of the gargantuan Build Back Better plan, but it nonetheless included the most important climate change measures in the history of the nation, the most significant improvements to federal health insurance programs since Obamacare passed in 2010 – and, for good measure, modest progressive improvements to our tax code.
President Biden’s approval ratings did not improve following the Supreme Court’s abolition of constitutional abortion rights – in fact, his ratings continued to fall, from net negative 16.5 percent on June 24, to a nadir of net negative 19.7 percent on July 21. Then, on July 27, Senate Majority Leader Chuck Schumer and West Virginia Senator Joe Manchin announced agreement on the Inflation Reduction Act. The bill passed the Senate on August 7, the House on August 12, and President Biden signed it into law on August 16. Biden’s approval ratings are still terrible, but, at net negative 13.0 percent, his ratings are less terrible than at any time since early June, and they’re still headed up.
In all likelihood, Democrats will still lose the House, although the loss is unlikely to be the historic trouncing Republicans were hoping for just a few weeks ago. Before the Dobbs decision, Democrats were wallowing in pessimism. After Dobbs, and after the Inflation Reduction Act, progressive voters are re-energized, independents and moderates are ripe for Democratic picking, and Democratic candidates and operatives are rejuvenated by renewed purpose.
As we head into Labor Day, the traditional start of general election campaigns “in earnest,” Democrats have the best arguments that they’ve had so far in this midterm election cycle.
With just a week left in his presidency, President Donald Trump was impeached for the second time by the House of Representatives. All 222 Democrats voted to impeach the president for “incitement to insurrection”; ten of 207 Republicans joined them.
There have always been members of the House willing to vote to impeach presidents of their own party. Two of the 13 articles of impeachment against Andrew Johnson drew one favorable vote from Democrats. The three articles of impeachment against Richard Nixon drew as many as six Republican votes in the House Judiciary Committee (Nixon resigned before the full House could vote on impeachment). As many as five Democrats voted for Bill Clinton’s four articles of impeachment. Technically, no Republicans voted for Trump’s first impeachment, although Michigan’s Justin Amash voted for both articles, having recently switched from Republican to Independent.
So it wasn’t unprecedented that Republicans voted for Trump’s second impeachment; what was unprecedented was that there were ten who were willing to impeach a president of their own party. The president was gone from office before he was even tried by the Senate, where he was acquitted – voiding the House impeachment vote of legal significance. Still, the backlash was fast and furious.
Four of the impeachment Republicans opted to retire rather than run for re-election on such hostile terms. Of the six who ran for re-election, four lost their primaries – including, most prominently, Wyoming Representative Liz Cheney, who lost last night to a Trump-endorsed candidate. Only two of ten Republicans who voted to impeach Donald Trump survived until their first post-impeachment general election: Dan Newhouse of Washington, and David Valadao of California.
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When President Joe Biden signed the $1 trillion infrastructure bill in November 2021, Democrats loudly touted the bill as “bipartisan,” but in fact only 13 Republicans voted for the bill in the House. The bill was regarded by Democrats and Republicans alike, and was presented by the media, as a massive legislative victory for President Biden. The result, all too predictably, was backlash against the 13 “yes” votes.
But compared to the backlash against the ten impeachment Republicans, the backlash against the 13 infrastructure Republicans was short-lived. Two of the 13 have not yet faced their primaries – both are from New York, which holds its primary next week – but both are heavily favored to win their races. If that proves out, then six of the 13 infrastructure Republicans will have won their primary races, and only one will have lost – West Virginia Representative David McKinley. The numbers are even starker if you leave out the four who voted for both impeachment and infrastructure – those are the four who retired. Of the remaining nine, who sinned against the Republican Party by voting for a major Democratic legislative priority, but did not sin against Donald Trump by voting for impeachment, six won or will win their primaries, one lost, one retired (New York’s Tom Reed, who resigned from Congress under allegations of sexual misconduct), and one died (Alaska’s Don Young).
It’s nothing new to note that today’s Republican Party is much more about personality – specifically, the personality of Donald Trump – than about policy. All my comparison of the ten impeachment Republicans and the 13 infrastructure Republicans adds is a rough quantification of that well-established fact.
President Joe Biden’s Department of Health and Human Services issued a memorandum last week reminding hospitals of their obligation under federal law to render emergency care to all comers. By itself, that’s not news. Federal law has long required every hospital that accepts Medicare funding – that is, almost every hospital in the country – to treat every person who comes in with a medical emergency, without regard to that person’s citizenship, legal status, insurance coverage or ability to pay.
The law is called the Emergency Medical Treatment and Labor Act, known as EMTALA, passed in 1986.
The HHS memo discussed at length one specific type of medical emergency: “emergency medical conditions involving pregnant patients.” The memo pointedly observed that federal law applies “irrespective of any state laws or mandates that apply to specific procedures.” If an abortion is necessary to stabilize an emergency medical condition, then the abortion must be performed, even if state law prohibits such an abortion.
Quick – guess which state sued to invalidate the HHC memorandum. You guessed right, it was Texas.
Three days after the HHS memo went out, Texas Attorney General Ken Paxton filed suit in federal court in Texas to invalidate the memorandum, which he called the “Abortion Mandate” – a term Paxton liked so much he used in 27 times in a 20-page complaint. Paxton argued that the memorandum exceeded HHC’s authority under EMTALA, and he staged conservatives’ usual cast of characters: constitutional limits on federal spending power, constitutional limits on delegation of legislative power, the Tenth Amendment, and so on.
So we have a legal battle between Texas and the federal government; nothing new there. But this particular battle is between a Democratic federal government administration that says a hospital must perform an abortion if necessary to protect a woman’s life or health, and a Republican state attorney general who says, you can’t make our hospitals perform abortions even in cases of medical emergencies. Going into the midterm elections, the optics could hardly be more Democrat-favorable: on the issue of women’s health and lives, Democrats are “pro” and Republicans are “con.”
Paxton is running an unexpectedly close re-election campaign, and he has obviously made the calculation that he needs to shore up his base more than he needs to attract moderate voters. Paxton likes the optics – he wants to be seen as fighting hard against abortions, even to protect the life or health of the mother.
The twist to the case is that the HHS memo doesn’t claim to be changing the law, just reminding everyone of one of the applications of existing law – specifically, the application of EMTALA to pregnant women. The memo says right up at the top of the first page: “This memorandum is being issued to remind hospitals of their existing obligation to comply with EMTALA and does not contain new policy.” Therefore, the memo doesn’t “mandate” an abortion in any circumstance in which federal law doesn’t already mandate an abortion. The memo can be taken as HHS’s opinion about the scope and applicability of EMTALA, but as such it has no legal effect.
Paxton gets to argue that EMTALA doesn’t mandate abortions, even in cases of medical emergencies – expressing his own opinion, in effect, and disagreeing with HHS’s opinion. And he gets to argue that, if HHS’s opinion is right, and EMTALA does mandate an abortion in any case, EMTALA is unconstitutional. But the memo has no legal effect, and Paxton’s legal challenge to it is a mere gesture – optics, as I say.
Even our current Supreme Court won’t say the HHS memo has legal effect even though HHS says it doesn’t. More likely, the Supreme Court might take the Paxton lawsuit as a challenge to EMTALA itself, as applied to pregnant women, and find a reason to hold that it is invalid.
But that judgment is likely many months away. In the meantime, we have the midterm elections, with Ken Paxton running against Rochelle Garza, a former ACLU attorney who once beat Paxton in litigation over an illegal immigrant’s right to an abortion.
And we have those optics – Democrats putting a high priority on the lives and health of women; Republicans, not so much.
On July 1, the Indy Star, the Indianapolis daily newspaper, ran an article about abortion access in the wake of the Supreme Court’s decision overruling Roe v. Wade. The Star led the article with an anecdote about a 10-year old rape victim from Columbus, Ohio, who had to travel to Indianapolis, Indiana, to get an abortion, because Ohio outlaws abortions after six weeks of pregnancy, with no exception for rape victims.
The abortion was performed by Dr. Caitlin Bernard, an Indianapolis OB/GYN who was the Star‘s source for its report.
For advocates of abortion bans, the rape victim is the hard test. The logic of the “unborn life is sacred” position compels the conclusion that conception of a life by rape does not justify terminating that life. But even advocates of abortion bans can see the strong popular revulsion at that logic. Possessed of the courage of their convictions, anti-abortion advocates would straightforwardly acknowledge that they don’t want rape victims, even child rape victims, to be allowed to terminate their pregnancies. But most anti-abortion advocates lack the courage of their anti-abortion convictions.
So they act as if rape pregnancies don’t exist. Mostly, they don’t say so out loud, they just ignore rape pregnancies. But occasionally, they do say so out loud. In 2012, for instance, Missouri Republican Senate candidate Todd Akin offered his opinion that, in cases of what he called “legitimate rape,” a woman doesn’t actually get pregnant. Last year, Texas Governor Gregg Abbott said that he planned to “eliminate rape” in Texas: no rape victims, no rape pregnancies. On Thursday, an anti-abortion advocate testified to Congress that termination of a 10-year old rape victim’s pregnancy “would not be an abortion,” and therefore would be allowed even in states that ban such abortions.
After the Indy Star reported Dr. Bernard’s story, anti-abortion politicians and media responded by suggesting, or saying outright, that the report was false. They criticized the Star for running the report based on a single source. They doubted Dr. Bernard’s truthfulness because, they said, the rape had not been reported to the local police in Ohio, and because, they alleged, Dr. Bernard had not reported the abortion to Indiana authorities as required.
As far as I know, no one questioned the 10-year old’s claim to have been raped – probably, because she is just 10 years old. But skepticism of rape reports will certainly be one of the stock responses in cases involving adult rape victims – denying that a rape is a rape is another way of denying that abortion bans need to include exceptions for rape pregnancies.
In any event, it turned out that the Columbus police had received a report of the rape on June 22, and that Dr. Bernard had fulfilled her reporting requirements in Indiana on July 2 – the Indy Star obtained a copy of her report on July 13, the same day the Columbus Dispatch reported the arrest of the alleged rapist.
Lots of ill-considered tweets by anti-abortion politicians, activists, or media figures, were quickly deleted – it turns out, the irresponsible party was not the Indy Star, which may (or may not) have reported its story based on a single source, but those anti-abortion figures who responded to the report with accusations, based on no sources at all. None of this has produced apologies – on the contrary, the Indiana attorney general has opened an investigation into Dr. Bernard, calling her an “abortion activist,” and threatening to have her medical license revoked.
I submit that the anger at Dr. Bernard isn’t really that she performed the abortion that terminated a 10-year old rape victim’s pregnancy. The anger against Dr. Bernard is that she made public the reality that anti-abortion crusaders need us to ignore – that women get raped, that children get raped, and that pregnancies result from rapes.
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I want to note a side point.
The decline of local daily newspapers has been widely observed; even some mid-sized cities now have no daily newspapers. The decline of local daily newspapers has real consequences for the health of our democracy, because local papers often provide the only real accountability of state and local officials. National newspapers do a fine job of reporting on national events, but as yet no adequate substitute for local paper news coverage has emerged.
The Indy Star was founded in 1903 and has been the only daily newspaper in Indianapolis since 1999. The Columbus Dispatch was founded in 1871 and has been the city’s only daily newspaper since 1985. Indianapolis and Columbus are the country’s 15th and 14th largest cities, with populations about 900,000, and they are the capital cities of their states. The value of strong daily newspapers in cities like Indianapolis and Columbus can hardly be overstated, and this case is a great example.
Kudos, then, to the Indy Star and the Columbus Dispatch for their hard work, and diligent accuracy, in the case of the 10-year old rape victim. And a reminder to all Americans that vigorous local newspapers have proved time and again their critical importance to American democracy.
Nominally, Benito Mussolini came to power legally: he was appointed prime minister by the Italian king, Victor Emmanuel III on October 29, 1922. But that appointment would not have happened but for campaign of violence that preceded it, culminating in the March on Rome the previous week.
The March was instigated by Mussolini and his National Fascist Party, and carried out by the Party’s militia, known as the Blackshirts, and associated militants. By the time the mob got to Rome, fascist bands had taken control of much of the country, burning the printing presses and meeting halls of their rival Socialists and seizing control of local governments. Fearing civil war, the king refused to approve armed suppression of the mob, instead asking Mussolini to form a government, even though Mussolini’s party held just 33 of 535 seats in the parliament.
Impressed, Adolph Hitler planned a similar march on Berlin. He decided to use Munich as the base for his march, and he hoped to enlist the support of right-wing figures, most importantly Gustav von Kahr, one of three “state commissioners” who held nearly dictatorial power in the German state of Bavaria. Hitler found his opportunity when Kahr planned a speech for the evening of November 8, 1923, at Munich’s Burgerbraukeller, a large beer hall in Munich often used for social and political gatherings.
Hitler ordered a detachment of the Sturmabteilung, known as the Brownshirts, to surround the beer hall. At gunpoint, Hitler demanded that Kahr and his fellow commissioners support his coup. Kahr, who had his own designs for a German dictatorship that did not include Hitler, refused.
The next morning, the Brownshirts marched on the Bavarian defense headquarters in Munich. Unlike in Rome, the Bavarian government authorized military force – 130 soldiers exchanged fire with about 2,000 marchers. The coup collapsed, and Hitler was arrested, tried, and sent to prison.
We usually think of coups d’etat as military operations: a military figure or group seizes control of a major media outlet to facilitate mass communication, occupies key government facilities, kills top government figures or takes them hostage, declares martial law, and assumes the power of government. But coups are not always military – many are led by groups of private citizens who describe themselves as members of militias.
A military coup is typically a surprise attack, planned in secret and executed with ruthless speed to minimize the opportunity for organized resistance. A private citizens’ militia coup tends to work differently.
A private militia coup typically begins with a campaign of intimidation. The goal of a government take-over may be kept quiet, but the campaign of intimidation must be public to be most effective. Long before the March on Rome, the Blackshirts engaged in violent suppression of Socialist Party activity. Hitler’s Nazi Party, having learned from its failed 1923 putsch, used squads of Brownshirts to harass and intimidate the Socialist and Communist parties in the early 1930s. In both cases, simultaneously with party-driven violence, Mussolini’s Fascists and Hitler’s Nazis sought legislative and executive office.
Until 2021, the closest American analogy to a private militia coup was the late-1800s Ku Klux Klan, which violently suppressed African-American voters and candidates and their white allies, ultimately displacing elected state and local governments run by Republicans with white supremacist governments run by Democrats. The post-Reconstruction era can thus be regarded as a systematic campaign of private militia coups directed at state and local governments, not at the national government in Washington.
In 2021, we faced our first attempted private militia coup against the national government. We didn’t fully realize it at the time, but the insurrectionist mob that invaded the Capitol Building on the day of the electoral vote count on January 6, 2021, was catalyzed by organized militia groups.
Beginning with Donald Trump’s 2016 presidential campaign and throughout his presidency, Trump diligently cultivated the loyalty of white nationalist groups, including militias. At the time, we thought Trump’s behavior reflected nothing more than his own white nationalist sympathies. But in retrospect, it’s clear that a comment like Trump’s “very fine people” assessment of the mob of neo-Nazis, neo-Confederates and neo-fascists who marched into Charlottesville was intended not as an expression of Trump’s own views, but as a communication – a message to the mob that he approved of their goal of uniting the disparate alt-right fringe groups, and their violent methods, including driving a car into a crowd of counter-protestors.
Trump conducted this commentary on television and on Twitter. We know Trump carefully monitored responses to his comments in both forums.
So after Trump said, during his first presidential debate with Joe Biden on September 29, 2020, that the Proud Boys should “stand back, and stand by,” Trump certainly knew that the Proud Boys responded, “Standing back and standing by sir.” And Trump certainly knew that the Proud Boys interpreted his command as an order to arm and prepare.
Before the January 6th Committee began its hearings, I assumed that the mob convergence on Washington on January 6 was initiated and planned by private citizens, and that Trump’s “be there, will be wild” tweet was an endorsement of a plan that already existed. But the Committee has revealed that the private groups had planned a rally late in January, after Biden’s inauguration, and that those plans were changed by Trump’s tweeted call for “protest” on January 6, 2021.
Trump’s blizzard of litigation challenging the outcome of the 2020 presidential election got him nowhere, and on December 14, 2020, the electoral votes were cast and submitted to be counted. With his legal options exhausted, Trump hosted a marathon meeting at the White House on December 18 to consider other options. Ideas floated included a military seizure of voting machines, re-running the election, and appointing Sydney Powell special counsel to investigate voter fraud.
None of the ideas gained consensus, and the meeting broke up after midnight without a plan of action. Alone with his Twitter account in the early morning hours of December 15, Trump sent out his call for a January 6, 2021, “protest.” Knowing that it was Trump who selected that date puts the events of January 6 in a whole new light – the only significance of January 6 was the electoral vote count, and the only reason to summon a mob to Washington on that day was to interfere with the count. Trump wasn’t interested in a protest rally after Biden’s inauguration; he fully intended to prevent Biden’s inauguration.
Trump had asked the Proud Boys not three months before to “stand by,” and he knew that the Proud Boys understood his request to be an order to prepare for armed action. Trump’s December 15 tweet scheduled that action.
And the Proud Boys, other militia groups, and Trump’s militant followers generally, understood his tweet as such. They knew, as Trump knew, that the only significance of January 6 was the electoral vote count, and they understood that Trump’s call to “protest” in Washington on January 6 was a call to interfere with the count. They planned accordingly. And Trump, who closely monitors responses to his every word, surely knew it.
Neither the collapse of the January 6 coup attempt nor the criminal prosecution of hundreds of its participants deterred the insurrectionists from continuing to pursue Trump’s return to power. Since January 6, these militias have to a startling degree become the de facto paramilitary arm of the Republican Party. By a mixture of legal and illegal tactics, they have begun to take actual control of Republican Party organizations and, through them, of local governments – for instance, in Miami-Dade County. When Trump runs for president in 2024, his allies and supporters will use violence and intimidation, in combination with legal campaign tactics, in pursuit of Trump’s restoration to power.
Historically, private militias have not necessarily disbanded after their leaders took power. Mussolini’s Blackshirts remained active throughout his rule, and Hitler’s Brownshirts remained active throughout his. Hitler’s campaign of violence against German Jews in the 1930s – including Kristallnacht, the November 1938 pogrom – was carried out by the Brownshirts. Mustafa Ataturk did not dissolve the derin devlet – the original “deep state” – after he took power. He used it to maintain power, to suppress opponents of his regime.
If Trump wins election in 2024, through whatever combination of legal and illegal tactics, his militias will not be disbanded – they will be deployed as needed to maintain Trump’s power, and to suppress opposition to it.
The law permits the use of force in self-defense that in other contexts would be criminal. In especially serious situations, the law permits a person to kill in self-defense – to use what the law calls “deadly force.” In recent years, the Supreme Court has planted self-defense law in the constitution itself, finding an individual’s right to carry firearms in that right to self-defense. Pretty much by definition, the right to use firearms in self-defense is the right to use deadly force.
In the lead-up to the Court’s repeal of abortion rights, many states enacted laws tightly restricting the availability of abortion, even beyond the restrictions in place before Roe v. Wade was decided in 1973. Much media attention has been paid to the cruelty of states that ban abortions even in cases of rape and incest. Somewhat less attention has been paid to limitations on abortions to protect the health or life of the mother.
On the face of it, even the strictest abortion bans allow for abortion to protect the life of the mother, and most allow abortion to protect the health of the mother. (At least three states, Arkansas, Idaho and South Dakota, do not allow abortion where the mother’s health, but not her life, is at risk.) Reporters and commentators generally leave it at that: a state either allows for protection of the life and health of the mother or it does not.
But it’s worth digging deeper. I’ve chosen Missouri for my illustration.
Missouri law provides that “no abortion shall be performed or induced upon a woman, except in cases of medical emergency.” The definition of “medical emergency” is detailed and technical:
“a condition which, based on reasonable medical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert the death of the pregnant woman or for which a delay will create a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman.”
Missouri law makes “medical emergency” an affirmative defense, not an ordinary defense. This may seem like a technical distinction, but in a courtroom, the distinction is huge. An ordinary defense must be disproved by the prosecution beyond a reasonable doubt, whereas an affirmative defense must be proved by the defendant.
Missouri’s general self-defense rules are typical of the rules found across the country, with the proviso that Missouri is a stand-your-ground state, not a duty-to-retreat state. In general, force may be used in self-defense when a person “reasonably believes such force to be necessary to defend himself or herself … from what he or she reasonably believes to be the use or imminent use of unlawful force” by another person. A person may use deadly force if “he or she reasonably believes that such deadly force is necessary to protect himself, or herself … against death, serious physical injury, or any forcible felony.”
Self-defense is an ordinary defense, not an affirmative defense: the prosecution must disprove self-defense beyond a reasonable doubt.
For the sake of argument, if we accept Missouri’s position that a fertilized egg is a person and that abortion is homicide, then a woman’s right to protect herself by abortion should be the same as a person’s self-defense protection in any other context. Comparison of the two involves three questions: when a person is justified in terminating another person’s life, who controls the decision whether to terminate the other person’s life, and how the validity of that decision is legally determined.
A person may use deadly force against another person to protect against death or serious physical injury. But a woman may get an abortion only to prevent the woman’s death, or to avoid a serious risk of substantial and irreversible physical impairment. Regular self-defense law doesn’t require that a “serious physical injury” be “irreversible.” Deadly force can be used to prevent force that might break a bone, for instance – not nice, but not an irreversible physical impairment. Justification for an abortion requires a much more serious threat.
Ordinary self-defense law is subjective – a person can use force, including deadly force, based on that person’s “reasonable belief.” The person’s belief need not be accurate – a person can be mistaken about the existence of a threat, or about the scope of the threat, as long as the person’s assessment was “reasonable.”
But a woman seeking an abortion cannot rely on her own assessment of the threat to her life or health, or her own tolerance of the risk to her life or health. In Missouri, only a doctor can induce or perform an abortion, and the mother must obtain medical approval for the procedure. The doctor’s interests may diverge from the patient’s – a woman’s tolerance of the risk to her own life and health may be quite different from her doctor’s tolerance of those risks, weighed against the risk of harsh legal consequences.
Finally, to overcome a claim of ordinary self-defense, the prosecution must prove beyond a reasonable doubt that the person acted unreasonably under the circumstances. In a case of abortion due to “medical emergency,” the defense must prove by a preponderance of the evidence that the abortion was necessary.
The legislative logic of deeming a fetus to be a person would lead to criminalizing abortions on the same terms as any other homicides – with the same protection for self-defense. By especially circumscribing the self-defense rules applicable to abortion, Missouri asserts that abortion is not the same as homicide, but somehow worse. This is most vividly, and most gratuitously, illustrated by the different allocations of the burden of proof: a homicide is justified until proved otherwise by the state, but an abortion is unjustified until proved otherwise by the mother and her doctor.
PoliticsByEcceHomo 