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How Will Dobbs Change America

The Supreme Court decision to uproot Roe v. Wade will stop people in half the states from getting legal abortions. That much is clear. But there are probably other changes as a result, some of them less obvious. Politico talked to historians, lawyers, women's health experts and others to get some more ideas about what might change. Some of the people interviewed are clearly partisan, some are not. Here is a brief rundown of the views of 18 of them:

• People will circumvent the laws: Rachel Rebouché of Temple University sees abortion being even more dominated by telehealth and abortion pills than it already is. Since December 2021, patients don't have to see a physician in person. A video consultation will do. She sees a huge uptick in people getting a video consultation, abortion pills being mailed to the patient from a blue state, and the patient self-managing the abortion. Red states will try to ban this, but enforcing it will be difficult since: (1) local postmasters won't know which boxes from California with a return address of some P.O. box in Los Angeles contains abortion pills and (2) tampering with the U.S. mail is a federal felony, no matter what state laws say.
  
  
• Young people won't see this country as a democracy: Erin Kaplan, a journalist in Los Angeles, thinks that the rollback of Roe will convince many young people that the U.S. is no longer a democracy, if it ever was. They will think it is a mean, small-minded, and flat-out-oppressive place run by a minority and movements for the collective good are a pipe dream. Whether they will give up, fight like hell, or leave remains to be seen.
  
  
• Every race for every office will now be about abortion: Charlie Sykes, editor-at-large of The Bulwark thinks the decision will put abortion in the middle of every race at every level. You are running for dogcatcher? We don't care how you feel about dogs. How do you feel about abortion? The already boiling culture wars will get even hotter. The country will be even more polarized than ever. Red states will impose criminal penalties on abortion providers and maybe even abortion recipients while blue states will expand taxpayer funding for abortion. It will be like two countries.
  
  
• Both parties will get the chance to move to the center: Michael Wear, author of a book about the future of faith in America, thinks the Democrats will adopt a more nuanced view about abortion. He also thinks Republicans will adopt less draconian views on abortion in order to reach a lasting national consensus. We think he is living on a distant planet far from Earth. Although one with oxygen, since oxygen is required for combustion, and he's clearly also smoking something.
  
  
• There will be more violence: Aziz Huq, a professor of law at the University of Chicago and author of The Collapse of Constitutional Remedies, thinks this is the starting gun for more abortion-related violence. Some states allows bystanders to use deadly force if necessary to protect a person. What's to prevent vigilantes from setting up roadblocks on roads going from Indiana to Illinois to see if there are any pregnant women in the car who might be going to get an abortion? And what if the Indiana state troopers have been instructed not to bother the vigilantes?
  
  
• I am hopeful our communities will heal: Kristan Hawkins is president of Students for Life Action. His group will educate Americans about how abortion will end a child's life. Then pregnant women who don't want a child will turn to pregnancy resource centers which will try to talk them into having the baby and then giving it up for adoption.
  
  
• The issue won't do much at the national level: Sarah Isgur was the DoJ spokesperson in the Trump administration. She doesn't think the decision will have a lot of impact at the national level. Yes, more people want to keep abortion legal than in past years, but it's just Democrats who want that and their turnout in 2018 and 2020 was already high, so that won't change, is her view. There is no evidence that Republicans are changing their minds.
  
  
• Women of color will be placed at great risk: Keisha Blain is a professor of African Studies at Brown University. She says the CDC estimates that one-third of abortion patients are Black women. They will be most affected by the ban, especially those in red states. By making abortions that could negatively impact the health of the mother illegal, maternal mortality for Black women will go up. In other words, Black women will die as a result of the Court's decision.
  
  
• The American people will be forced to reason together: O. Carter Snead is a professor of law and director of the Ethics Center at Notre Dame University. He thinks there will be a patchwork of laws across the country, with different states doing what their populations want. This will bring more democracy to the country and more peace to U.S. politics. Contraception, same-sex marriage, and inter-racial marriage are not on the chopping block. Women will continue to rise in their quest for full and equal participation in the economic and social life of the nation. We would suggest he's residing on the same planet and/or smoking the same substances as Michael Wear.
  
  
• Parents will not be able to use genetic testing and prenatal screening: Joanne Kenen is a journalist at Johns Hopkins School of Public Health. Parents in red states will probably be forbidden from using techniques to check on the health of their fetuses because the only point of doing these tests is to have an abortion if a severe abnormality is detected. If that abortion is illegal, what's the point of doing the test? You can't do anything about it no matter what the result is.
  
  
• Partisan and regional divisions will only get worse: Daniel K. Williams teaches in the history department at the University of West Georgia and authored Defenders of the Unborn: The Pro-Life Movement before Roe v. Wade. He thinks The number of abortions nationwide probably won't decrease much because women who want an abortion in a red state will either go to a blue state for one or get pills from a blue state for one. In fact, there are already so few abortions in red states due to current state laws, that this decision may not matter so much in the end. The anti-abortion movement will be furious that the actual number of abortions in the country won't really drop much. What will happen is that regional and partisan hatred will harden.
  
  
• There will be a civil war: Linda Hirshman is the author of The Color of Abolition. She expects the fight to ban abortions will go nationwide, with opponents of the practice trying to get Congress to forbid it nationwide. If Republicans get control, we could see a Fugitive Woman Act that makes it a federal crime for a woman to cross state lines to get an abortion and for anyone to help her do so. The FBI will be required to monitor blue-state abortion clinics and also monitor the Internet usage of all women of childbearing age. Women caught crossing state lines will be sent back home and referred to pregnancy centers where they will be pressured to give up their babies for adoption.
  
  
• The anti-abortion movement will focus on getting yet more anti-abortion judges: Mary Ziegler is a law professor at Florida State and author of Abortion and the Law in America. Red states will try to prevent blue states from carrying out abortions on out-of-state women. They will try to get laws to allow them to do this and judges who will enforce those laws. The Supreme Court will get cases and more cases ad infinitum.
  
  
• The Court could reinstate Roe in 10 years: David S. Cohen is a professor of law at Drexel University's Kline School of Law and co-wrote Obstacle Course: The Everyday Struggle to Get an Abortion in America. He observes that Justices Samuel Alito and Clarence Thomas are over 70 years old. They might not be on the Court in 10 years. Depending on the president and which party controls the Senate, the makeup of the Court could be quite different in 10 years. A different court could revisit last week's decision and conclude it was decided wrongly.
  
  
• Conservatives must embrace a whole-life approach: Abby McCloskey has been a policy director on Republican campaigns. She doesn't see the fever breaking any time soon. Conservatives should not only continue to oppose abortion, but should push for programs that help poor mothers take care of their babies. Once women know that the state will help them raise their babies, they are less likely to want an abortion.
  
  
• Making abortion illegal won't change the number of abortions: Randall Balmer is a professor of religion at Dartmouth and author of Bad Faith: Race and the Rise of the Religious Right. This decision will be like the Eighteenth Amendment, which banned alcohol. Religious zealots cheered it, but it was impossible to enforce and led to an era of lawlessness and eventually repeal. The outcome here will be similar. If people want to reduce abortions, they should argue strongly for better sex education and widespread availability to contraceptives. Then there will be fewer unwanted pregnancies and very few abortions.
  
  
• Laws will increasingly prioritize the fetus over the pregnant woman: John Culhane is a law professor at Delaware Law School and author of the book More than Marriage: Forming Families after Marriage Equality. He thinks many women will die in the coming years as their rights to make their own health decisions will be taken away from them. We know this from the experiences of other countries. Pregnant women will come to be seen as vessels, rather than people. The goal of the anti-abortion movement is full personhood for a fetus, meaning killing one is homicide, plain and simple. If that happens, some forms of contraception will logically also be banned.
  
  
• Abortion opponents will not be appeased until all abortions are banned: Robin Marty is the author of The New Handbook for a Post-Roe America and operations director for an abortion clinic in Tuscaloosa, AL. She is not looking forward to telling the patients with appointments in the coming weeks that their abortions have been canceled and there is nothing the clinic can do to help. The same thing will happen in two dozen other states in next month or so. Abortion opponents won't stop until they gain the national trifecta and pass a law banning all abortions nationwide.

The above comments are from the reporting of one team at Politico. Another team went out and asked Republican strategists and party officials what they thought of the Supreme Court decision. They got quite a different story. John Thomas, a GOP strategist who works on House campaigns, said: "This is not a conversation we want to have. We want to talk about the economy. We want to have a conversation about Joe Biden, about anything besides Roe."

A former Republican congressman, who preferred to remain nameless, said that Roe will help the Democrats. "It isn't everything, but maybe instead of picking up 45 seats, we will pick up only 30," he observed.

No professional Politico talked to thinks the impact will be enough to save the House for the Democrats. Dave Carney, a strategist in New Hampshire, said: "You go to any diner in America, and nobody's talking about this." Of course, after the Democrats dump $150 million into ads about it, things could change. Further, political professionals tend to be extremely invested in past precedent, and tend to struggle to wrap their minds around new and different circumstances.

Sarah Longwell, a moderate Republican, says the Republicans are now "the dog that caught the car." Now what? She feels the people who lost will be lean and hungry and the people who won will grow fat and lazy.

Another operative Politico talked to said the biggest impact will be on swing voters who lean Republican. This could give them a reason to vote for a Democrat. Other Republicans agree with that view. Of course it is too soon to tell, but few, if any, Republicans think the Court decision will help them. It's just a matter of how bad the hit will be. (V)

House Republicans in Swing Districts Are Worried

Rep. Steve Chabot (R-OH) represents a district that went for Joe Biden by 9 points. When a reporter asked him if he would support a bill guaranteeing abortion rights nationwide, he said: "I have a flight now." Perhaps he was late for his flight, but we note that his answer is four words more than a simple "yes" or "no." In contrast, Rep. Brian Fitzpatrick (R-PA), whose old district was R+1 released a 300-word statement saying that he wants a bipartisan consensus that protects both a woman's autonomy and the sanctity of human life. There's certainly something for everyone there.

These aren't the only Republicans who are nervous. Every Republican in a swing district full of college-educated suburban women is (to use one of Lyndon Johnson's favorite expressions) as nervous as a long-tailed cat in a room full of rocking chairs. The problem, of course, is that Roe is popular with a large majority of voters and especially popular with college-educated suburban women. Every Democrat running in a district full of them is going to make his or her campaign about Roe, abortion, and the Supreme Court. If the Republican grabs the nearest Bible, points to it, and says: "look here!" that is not going to work. Even if they manage to hold it right side-up.

Many Republicans are praying that the issue goes away and they can run on a platform attacking inflation, crime, and immigration. At least, that is what Rep. Tom Emmer (R-MN), chairman of the NRCC, hopes. Former NRCC chairman Tom Cole (R-OK) said that maybe the decision will cost his party one or two seats, no more. But he added that in heavily Latino districts, it would help, so no problem.

Charlie Cook hasn't released all of the new PVIs yet, but currently there are 30 House Republicans in districts that are R+5 or bluer. These members are the ones at risk. The states with the most Republican-held swing districts are New York (5 districts), Florida (4), California (4), Ohio (3), Minnesota (2), Illinois (2), and Iowa (2). Seven other states have one Republican at risk. However, given the gerrymandering in Florida and Ohio, the actual number of Republicans at risk may actually be smaller than these numbers indicate.

All of this said, recall that the Democrats don't actually need to gain seats to hold the House. They just need to hold on to the number they already have. There is, of course, zero chance that they hold onto every seat they've got right now, given gerrymandering and all the Democratic retirements. But if Democratic turnout is way up, and the party only bleeds a handful of seats it currently holds, it could be in a position to make up the losses with a few Republican pickups and to hold serve. Democratic enthusiasm (and possible crossover voting) will matter a lot, and will not be easy to poll accurately. (V)

Can Biden Do Anything about Roe?

If Joe Biden wants to make the case that he is relevant, he needs to take some action on abortion. Short of announcing that Marbury v. Madison was decided wrongly, there are some things he could do. Some are more difficult than others, but if he wants to reset his presidency, he might have to swing for the fences. Here are a few things he could do now.

• Lease federal buildings to abortion clinics: Federal law pre-empts state law. If the federal government leased space in federal buildings to women's health clinics, there is probably nothing a state could do about such a clinic in its state any more than it can tell the federal government what it can and cannot do on an Army base. In fact, the clinic could be on an Army base, making it very difficult for protesters to picket it. The Hyde Amendment bars the use of federal funds to pay for abortions, but leasing a federal building to a health provider wouldn't be spending federal funds. Rather the opposite. The clinic would pay the government the market rent for using the property, so the federal government would gain money from the project, not lose it.
  
  
• Allow service members stationed anywhere to travel to get abortions: As commander in chief, Biden could instruct the Armed Forces to allow any service member wishing an abortion who can't get one locally to be taken to a state where it was available. This could also apply to family members. Maybe it could also apply to civilian employees of the federal government.
  
  
• Declare a health emergency: When Donald Trump wanted to build the Great Wall of Trump, he declared a federal emergency. Biden could, too. He could then provide states experiencing an influx of abortion patients with federal funds to cope with the emergency. This is routine when a hurricane hits, so why not when a health emergency hits?
  
  
• Travel vouchers: The federal government could provide travel vouchers for people on Medicaid to travel to a blue state to get an abortion. As long as the voucher was only for travel and lodging, and the patient paid the clinic's fees, this would probably be legal. In any event, Biden could do it and then when the Republicans sued, try to tie it up in court until at least Jan. 20, 2025.
  
  
• Allow every pharmacy to sell abortion pills: Currently only a limited number of suppliers may sell the abortion pills. Biden could issue an executive order allowing every pharmacy to do it with no paperwork required.
  
  
• Relax import rules for abortion pills: As we noted on Saturday, overseas groups like AidAccess allow women to have a video consultation with a physician outside the U.S. resulting in a pharmacy in India shipping the women the pills. The legality of this is questionable. Biden could issue an executive order (possibly after declaring an emergency) making it legal. At the very least he could instruct federal agencies not to waste their time prosecuting anyone for violating any import laws relating to the pills.
  
  
• Make the pills over the counter: If Biden really wanted to swing for the fences, he could instruct Robert Califf, Commissioner of Food and Drugs to classify the abortion pills as an over-the-counter medicine, like aspirin. No prescription would be required. People in red states could just go to the website of CVS or Walgreens or any national drugstore chain and order them, the same way they can order Tylenol online. Heck, Amazon, Walmart, and Target sell medications online, too. Local postmasters in red states could hardly open and inspect every box coming from a national chain's distribution center. Doing so would certainly violate HIPAA and other federal laws and any postmaster trying this could be arrested by federal agents and tried for interfering with the mail and more.
  
  
• Encourage companies to provide travel vouchers to employees wanting an abortion: A number of large companies. including Airbnb, American Express, Bank of America, J.P. Morgan Chase, Disney, Levi Strauss, Meta, Microsoft, Netflix, PayPal, Starbucks, Tesla, Yelp, and others are providing employees in red states travel vouchers to go to blue states for an abortion. Biden could praise them and encourage other companies to join in.
  
  
• Require federal contractors to provide travel vouchers: Biden could require that all new federal contracts have a provision requiring the contractor to provide travel vouchers for employees in red states to get abortions. A huge number of companies have at least one federal contract. For example, if McDonalds has one restaurant on a military base or in a national park, that would bind the company to the rule. Such a clause would affect millions of people.
  
  
• Fight states that try to ban abortion pills: The federal government has primacy over the states. If a state banned the abortion pills, Biden could ask the attorney general to sue the state on the grounds that since the FDA has approved the pills, no state can ban them since that would be allowing states to override federal regulations, which they can't do. In fact, he might not even have to ask, since AG Merrick Garland already issued a statement saying he was planning to do just that.
  

And these are just a few of the things Biden could do. Some of them might be shot down by the courts, but Biden should instruct all federal agencies to appeal every loss up to the Supreme Court. The Court might hand Biden loss after loss, but at the price of pissing off Democrats time and time again, and increasing the chances of the Democrats doing something to rein in SCOTUS at their first opportunity.

Biden really needs to be much more aggressive. Members of his own party are telling him that in no uncertain terms. In addition, focus groups show that 75% of voters 18-34 say that protecting access to abortion is important to them. They don't think the Democrats are doing enough to protect it. If Biden were to do all of things in the list above and more, he would get much more credibility with young voters and probably wouldn't even suffer much if the courts threw some of them out, especially if the throwing out part came after the midterms.

On issues like these and many others, there is a huge difference between Trump and Biden. Trump did things his base wanted without any regard to their legality, such as using Pentagon money to build his wall and banning people from Muslim countries. If the courts later threw out his plans, so be it, but he could show his base he tried. Democrats are much more timid and don't dare do things that some court might throw out later. It would be far more motivating to just charge ahead with things for which a good case can be made and prepare good arguments in advance in hopes of convincing the judge if it comes to that. Put another way, you miss 100% of the shots you don't take. And yes, that means that Wayne Gretzky has now been incorporated into the conversation on abortion. (V)

Blue City D.A.s in Red States Won't Prosecute Abortion Providers

Joe Biden may or may not take any of the steps outlined above, but he is not the only with the power to do something about abortions. Many district attorneys in blue cities in red states have said they won't prosecute abortion providers. In fact, 84 D.A.s in 29 states and D.C. have signed a statement saying that prosecutors make decisions every day about which cases to pursue and which ones not to pursue given their limited resources. This is known as "prosecutorial discretion." The group said their resources are better used to go after real criminals, not people who have made a personal medical decision the state legislators don't happen to agree with. Signatories come from Alabama, Louisiana, Mississippi, Missouri, Tennessee, and Texas, all of which are set to ban (almost) all abortions.

It is not clear what effect, if any, this statement will have. Abortion providers in their states are all likely to close up shop and shut down. It won't matter if the local prosecutor isn't interested in going after abortion providers if there aren't any. However, if a state passes a law making it a crime to abet an abortion—for example by driving a pregnant woman to a blue state—then the decision by a D.A. not to prosecute the abettor (?) does matter.

In some states, the state AG can step in and take up a case that a local D.A. refuses to take. In states where the AG doesn't have that power, the legislature could pass a law giving the AG that power. But as a practical matter, the state AG's office also has finite resources and if it starts using its limited number of prosecutors to go after people abetting an abortion, that means less attention to other crimes. AGs are elected, and if an AG directs his or her staff to focus largely on abortions and crime goes up in the state, at the next election, the Democrat is going to blame the increased crime on the AG neglecting actual crime to focus on indicting and convicting Uber drivers. (V)

Noem Plans on Banning Telehealth Abortions

Gov. Kristi Noem (R-SD) appeared on Face the Nation yesterday. Margaret Brennan asked her about women who have a video consultation with an out-of-state doctor who then prescribes abortion pills. Noem said the state will ban this. If the base was watching, they were probably salivating over the delicious red meat.

But then Brennan, ever the reporter, got into the details. She asked: "Are you actually going to seize the mail?" and "How would you stop women from actually receiving this federally approved medication?" Noem repeated that the bill would ban telemedicine abortions.

This is where it gets tricky. The legislature could pass a law banning residents from talking to doctors on video, but that has multiple problems. First, it is far from clear the state has the authority to ban residents from talking to a doctor of their own choosing, as that is pretty clearly a First Amendment issue. Is there anything that would more clearly constitute "political speech" at this moment in time than a conversation about abortion? Oh, and it's also a HIPAA issue. Second, South Dakota is a poor rural state. Many people depend on telemedicine because they live far from a doctor. Completely banning telemedicine would be a disaster. That problem might be resolved if the law says that telemedicine is legal only with in-state doctors, who could plausibly be regulated more aggressively than doctors out of state, but that is not likely to stand up to scrutiny either. The conversation with an out-of-state doctor would be interstate commerce, and the federal government, not South Dakota, regulates interstate commerce. And that's before the talk about the Internet service, which is also an interstate concern.

As Brennan continued to try to pin Noem down, the Governor got more and more evasive. For example, when Brennan asked point blank: "If it [mifepristone and misoprostol pills] is sent in the mail, will you intercede and stop it from being received?" Noem replied ("answered" would be incorrect here): you know there's—it's certain rights that are protected—there are certain protections that are guarded under the Constitution of the United States. The rest of these items are left to the states, the Tenth Amendment guarantees us that." Brennan knows about the Tenth Amendment. The question was: Will South Dakota authorize state officials to burgle the U.S. mail?

The key issue here is how South Dakota (or any state) would enforce a ban on video consultations and abortion pills. It is possible that the state could pass a law requiring cellular and Internet providers to rat on anyone connecting to an out-of-state medical clinic. However, it is virtually certain the providers would resist that with everything they've got. They know they will get sued if they start monitoring (video) calls. And even if a service provider reported that someone in state had a call with an out-of-state medical clinic, the conversation could have been about anything from heart palpitations to toenail fungus. Providers do not record calls. All they have is the metadata (that is, what IP address was called at what time and how long the call lasted).

The other way the state could try to enforce the ban on telemedicine is searching incoming mail and opening packages. But the return address might be a post office box in some distant state. If the pill provider is really worried about interceptions, it could create a Delaware corporation for $89 and then use a return address that looks innocuous, like "Emily's Greeting Cards, P.O. Box xxx, Wherever." If South Dakota were really ready to try burgling the U.S. mail, Merrick Garland would no doubt perk up his ears and get on the case real fast. But make no mistake, every state that is going to ban abortions will have to deal with telemedicine and pills sent through the mail in a plain brown wrapper. The legal battles on this will be ferocious and probably end up in the Supreme Court.

There's also another potential problem here that we have not seen mentioned anywhere. Let's say someone in a blue state wants to do harm to someone who lives in a red state, for example, a young female Republican state senator. Well, the blue stater can acquire some mifepristone or misoprostol, put it into a very clearly labeled box, and mail it to their red state foe. There is nothing in that entire chain of events that is the slightest bit illegal from the perspective of the blue stater. But the red stater could end up in serious trouble if red states really do try to criminalize abortifacients-via-mail.

Some states may pass laws making possession of mifepristone and misoprostol illegal, the same way the possession of heroin is illegal. Whether they can do this for drugs approved by the FDA is uncertain and sets up federal-state conflicts. Can states overrule the federal government? Some people thought that was settled in 1865, but maybe not. And Merrick Garland has already made clear his view that states may not ban FDA-approved drugs. In any event, there is certain to be a gray market for the pills no matter what the states do.

One state that is expected to be a flashpoint in the abortion wars is Illinois. It borders four states that are likely to ban all abortions: Iowa, Missouri, Kentucky, and Indiana. And Tennessee is only 46 miles from Illinois and Arkansas is 80 miles away. If Illinois constructs half a dozen clinics near its borders, one for each neighboring state, and staffs each one with a doctor and an ample supply of pills, it will be impossible for those states to prevent women from going to the Illinois clinic, getting a prescription and the pills, and taking the first one on the spot. Then they will only have to bring the four misoprostol pills home. It shouldn't be hard to hide them somewhere in the car in case state troopers try to search the car—which would probably be illegal absent a search warrant. But even if the troopers find the misoprostol, they won't have an airtight case because it is also used to treat ulcers. If the state troopers ask if the woman has an ulcer, they would be violating all manner of federal laws. (V)

States Can Sometimes Undermine the Supreme Court with Their Own Laws

Last week, the Supreme released rulings on three controversial issues: vouchers for religious school, gun laws, and abortion. Some of these decisions have gotten politicians and lawyers thinking about ways to make end runs around them at the state level.

Case in point: the decision about school vouchers. Maine passed a law saying that high school students who live in very rural areas with no public high school are entitled to tuition vouchers they can use at private schools, provided they are not religious schools. The Supreme Court said that if the state is giving out school vouchers, they can't stamp them with: "Not valid at religious schools." That would be discrimination against religion.

The Maine legislature anticipated this ruling and wasn't buying it. So it amended the law to say the vouchers could be used at religious schools, to conform to the Court's decision. But it also amended the law to say the vouchers could not be used at a school that discriminated against students based on their sexual orientation or gender identity. So a religious school that accepted any student who wanted to study there would be fine, but any school, religious or not, that banned gay students wouldn't be allowed to cash the voucher. Many religious schools very much want to discriminate against those students, so under the revised law, they still wouldn't get state money, but now for a different reason.

Specifically, the two schools that brought the case in the first place have said they would not change their admissions policy just to qualify for state money. Of course, they could sue again, but it would be years before the case got up to the Supreme Court again. Also, since the state has now explicitly said that religious schools are eligible as long as they don't discriminate against certain students, the Supreme Court might not see the new case as a freedom of religion case. In the new court case, the Maine AG would probably rhetorically ask in his brief: "Is a school eligible if its policy is not to admit Black people, Jews, Muslims, Latinos, immigrants, students in wheelchairs, etc.?" The state would try hard to make the case that it has the right to protect its taxpayers from helping schools that discriminate in ways that make them unworthy of public money in ways not related to religion.

Several other states, including Illinois, Maryland, Nevada and Vermont, offer private-school-vouchers to low-income students. None of these currently explicitly ban the use of the vouchers at schools that refuse to take LGBTQ+ students, although Maryland is working on it.

And using state laws to thwart Supreme Court rulings can be applied in other areas. In the ruling on the New York state gun law, Clarence Thomas wrote that states may ban guns in historically sensitive places, like courtrooms and polling places, and they may add new venues to the list if they wish. So a state would be free to ban guns on public transportation, schools and colleges, places where alcohol is served, and many others. It could be a very long list.

In a concurrence, Brett Kavanaugh and John Roberts wrote that states can still enact laws creating requirements for a public carry permit. These could include background checks, mental-health records checks, and training courses. Presumably a state could also require applicants to pass a tough test on state gun laws, a marksmanship test, and maybe even an interview with a psychiatrist to assess their mental state. And what if the necessary training course includes five sessions and the state only schedules one session per... Summer Olympics? It would take a mere 20 years to complete the course. And the costs for the training, tests, interviews, etc. would be for the applicant.

Another approach states could take is to require gun owners to have liability insurance, just as car owners must. That way, if a gun owner negligently (or intentionally) injured someone, there would be a way for the victim to collect. The law could also give insurance companies broad authority to determine who they were willing to insure and how much they could charge for their policies. And of course, owning a gun without the requisite insurance would be a felony with a heavy penalty. The fact that the courts have upheld state laws requiring car owners to have insurance would make it harder for the Supreme Court to say that analogous laws for guns are unconstitutional. But of course, it could do anything five justices want, without regard to the Constitution or state laws. Are there workarounds for Dobbs? We haven't heard any yet, but that noise you hear in the background is a bunch of sharp legal minds working on it. (V)

Elections in Five States Tomorrow

Usually the item about the week's elections is our top item on Mondays, but there is so much Roe news that it got pushed down to here this week. Still, there are interesting races in several states, so let's take a quick look.

• Colorado: Colorado has three important statewide races. Colorado Republicans have a strange way of picking candidates. There are precinct caucuses and those determine who gets on the June ballot. Only two candidates qualified for the Senate race. Ron Hanks was in the military for three decades and later worked in the oil and gas industry. He is now a state representative. His first ad was him shooting a voting machine to emphasize the fact that he firmly believes Donald Trump was robbed of victory in 2020. His platform is to ban all abortions, eliminate mail-in ballots, and abolish the U.S. Dept. of Education. In a recent debate, he wouldn't commit to conceding if he loses. In case you couldn't guess, he is on Team Trump.
  
  The other candidate is Joe O'Dea, a wealthy construction company owner who is a moderate. He believes in climate change, does not oppose all abortions, and wouldn't vote to repeal the ACA. He also believes Joe Biden won in 2020. Colorado is a fairly blue state but Colorado Republicans are fairly right-wing. If Hanks wins, Sen. Michael Bennet (D-CO) can just stay in D.C. all summer, not run any ads, and save his money for 2028, and still win in a landslide. If O'Dea wins, Bennet will have to campaign hard.
  
  Gov. Jared Polis (D-CO) is running for reelection. Two Republicans will be on the primary ballot fighting for the chance to oppose him in November. Greg Lopez rejects human-caused climate change and thinks the 2020 election was affected by fraud. He was once the Democratic [sic] mayor of Parker, CO, (pop. 59,000) and is now a perennial (losing) candidate for state office. He also admitted he broke the law when he worked for the Small Business Administration. He opposes all abortions. Heidi Ganahl is a University of Colorado regent. She founded a pet-care facility, Camp Bow Wow. She thinks the 2020 election was honest. She opposes abortions except for pregnancies due to rape or incest.
  
  We saved the best statewide race for last. Incumbent Democrat Jena Griswold is running for another term as secretary of state. The best-known aspiring Republican challenger is Mesa County clerk Tina Peters, who was indicted earlier this year for election tampering in 2020. As county clerk, she could tamper only with one county's results. As secretary of state, she could tamper with every county's results. She is so far-out that the Colorado Republican Party called for her to drop out of the race. Her platform is abolishing the universal-mail-in-ballot system Colorado uses. Her main opponent is Pamela Anderson (no, not the Baywatch actress). This one is a former Jefferson County clerk. She says Colorado's voting system is fair and secure but she would like to improve the signature verification process. She supports sending every voter a ballot automatically. A third candidate is Mike O'Donnell, an economist with no experience running elections.
  
  Four House races are of interest. In CO-01, Rep. Diana DeGette (D-CO) is running for her 14th term. She is facing progressive candidate Neal Walia. DeGette has raised four times as much as Walia and looks fairly safe. You don't win 13 consecutive House elections without learning a thing or two about winning house elections. The winner, presumably DeGette, will face Jennifer Qualteri (R) in November.
  
  Democrats have a plan to get rid of Rep. Lauren Boebert (R-CO) in CO-03: they are asking Democrats to reregister as independents, which would allow them to vote for Boebert's opponent in the primary. A few thousand have done that, but it probably won't be enough and Boebert will probably be reelected.
  
  In CO-07, Rep. Ed Perlmutter (D-CO) is retiring, leaving behind a rare open seat, and one in a swing district to boot. The Democrats already have their candidate, progressive state Sen. Brittany Pettersen. Three Republicans want to oppose her. Erik Aadland is a former oil and gas executive. He wants to crack down on illegal immigration, but we're not sure if he is worried about the New Mexico border or the Wyoming border. He claims that Donald Trump won in 2020. Laurel Imer is a high school dropout who was Trump's chair for Jefferson County. She maintains that he won the election. Tim Reichert is an economist and CEO of a consulting firm. His issue is giving parents more say in what children are taught in school.
  
  Colorado got a new House seat in 2022 and CO-08 is the new district, which is an open seat, of course. Four Republicans are running. Tyler Allcorn wants to build a border wall, but he is explicit about it being with Old Mexico, not New Mexico. However, he doesn't believe that Trump won in 2020. Barbara Kirkmeyer is focused on agriculture, but she also wants to secure the Mexican border. Thorton Mayor Jan Kulmann is focused on energy issues. Weld County Commissioner Lori Saine says her top priority is blocking Joe Biden's agenda. The Democratic candidate will be state Rep. Yadira Caraveo.
  
  
• Illinois: Sen. Tammy Duckworth (D-IL) is up for reelection this year. Seven Republicans want her seat. Three have said Joe Biden stole Trump's victory. Two others have they have concerns about the election. None of the seven have a chance against Duckworth in November.
  
  Gov. J.B. Pritzker (D-IL) is running for reelection. Six Republicans want the GOP nomination to oppose him. Trump has made state Sen. Darren Bailey as his choice. Hedge fund billionaire and GOP donor Ken Griffin picked Richard Irvin, who is Black. Griffin backed up his endorsement with a donation of $50 million to Irvin's campaign, which is legal because it's a state, and not federal, campaign. Take that, Donald. These two will duke it out. The others have no chance. Pritzker definitely is hoping that Bailey wins, since: (1) he is much too right wing for Illinois and (2) he won't benefit from Griffin's money.
  
  In the attorney general's race, Incumbent Kwame Raoul (D) will face either a perennial (losing) lawyer or a dedicated anti-vaxxer.
  
  Long-time Secretary of State Jesse White (D), who is 88 and has been in office since 1999, is retiring. Four Democrats and two Republicans are running to replace him.
  
  
• New York: Sen. Chuck Schumer (D-NY) is up for reelection. He'll win in a landslide.
  
  The governor's race is more interesting. Three Democrats are running: Gov. Kathy Hochul (D-NY), NYC Public Advocate Jumaane Williams (D), and Rep. Tom Suozzi (D-NY). As the sitting governor, Hochul is clearly the favorite here, even though she didn't win a gubernatorial election to get the job. She was lieutenant governor when Andrew Cuomo was forced out.
  
  Four Republicans are running to oppose her. Rep. Lee Zeldin (R-NY) is the choice of the GOP state convention, but he's not home free. Andrew Giuliani thinks the name is magic. "Andrew" makes people think of the disgraced former governor and "Giuliani" makes people think of his father, the disgraced former mayor. What a combination! We're not sure which is more "magical." Rob Astorino served two terms as Westchester County executive. He lost reelection in 2017. Losing reelection in a county where you are well known probably isn't the key to statewide office. Finally, Harry Wilson is a wealthy businessman. Zeldin is certainly the front runner here, but there would have to be a very big red wave in November to reach as far inland as Albany.
  
  The primaries for the U.S. House and the state Senate were moved to Aug. 23, when a judge threw out the maps as being too gerrymandered
  
  
• Oklahoma: The lucky people of Oklahoma will get to vote in not one, but two, Senate races. There is the regular election for the seat of Sen. Jim Lankford (R-OK) and the special election created by the announcement by Sen. Jim Inhofe (R-OK) that he is going to retire in January. Gov. Kevin Stitt (R-OK) is also on the ballot. Executive summary: This is Oklahoma. The Republicans are going to win all the marbles.
  
  Lankford is plenty Trumpy, but he has a challenger, businessman Jackson Lahmeyer, who is even Trumpier. Lahmeyer has criticized Lankford for voting to certify the 2020 election. Nonetheless, Lankford will win this race easily. Is there a Democrat running? We're not sure. But it doesn't matter, actually.
  
  The other race is more exciting since it is an open seat. Ten Republicans jumped in, since open seats in Oklahoma are pretty rare. Inhofe is supporting his aide, Luke Holland, but Holland has plenty of competition, including Rep. Markwayne Mullin (R-OK), former state House speaker T.W. Shannon, state Sen. Nathan Dahm, and former EPA administrator Scott Pruitt. Mullin has raised the most money and is leading in the polls. All the candidates have sworn allegiance to Donald Trump, all are against abortion, and all think the schools are teaching too much sex and socialism. The Democrat in this race is former representative Kendra Horn, who is unopposed.
  
  Gov. Kevin Stitt (R) is an enrolled member of the Cherokee Nation, which has denounced his actions as governor. Still, as a sitting governor he is the favorite. Nevertheless, he has three primary opponents. Mark Sherwood (R) is a naturopathic doctor and former Tulsa SWAT team officer. He wants to ban abortions totally and completely. He has falsely said COVID-19 vaccines contain fetal tissue, so he is strongly anti-vaccine. He is also strongly anti-mask, presumably because he thinks masks also contain fetal tissue. Many Republicans believe life begins at conception, but Sherwood beats them all since he believes life begins before conception. Joe Kintsel (R) calls himself a Ronald Reagan Republican. He says that education should not be politicized. Moria McCabe (R) is a stay-at-home mother, saying she is an abolitionist against murder. She wants to end eminent domain. She probably should have stayed home, because that's pretty far out, even for Oklahoma.
  
  The leading Democratic candidate is State Superintendent of Public Instruction Joy Hofmeister (D), although she used to be (R). She wants to raise the age for purchasing a gun from 18 to 21 and introduce a 3-day waiting period after purchase. Connie Johnson (D) wants to be the first Black Indigenous female governor. Good luck to both; they're gonna need it.
  
  There is no election for secretary of state. The position is filled by a gubernatorial appointment subject to confirmation by the state Senate. There is an election for attorney general but no Democrat bothered to file. Incumbent AG John O'Connor will easily brush off his one Republican challenger, Gentner Drummond, and coast to reelection.
  
  
• Utah: Utah is a deep-red state, so most of the action is in the Republican primaries. Sen. Mike Lee (R-UT) is not home free. He has two primary challengers, Becky Edwards and Ally Isom. Edwards served for 10 years in the state House. Isom was the former deputy chief of staff for former governor Gary Herbert. Lee is the favorite, but he was apparently in close contact with Mark Meadows during the coup attempt, and if more comes out about that, it could hurt him. The Democrats are not going to bother nominating a sacrificial lamb. Instead, they are backing independent Evan McMullin, who ran for president in 2020 and get over 20% of the vote. If Lee is badly damaged due to the hearings, McMullin might actually have a shot at it.
  

So, lots of action this week. (V)

Gun Bill Becomes Gun Law

The House followed the Senate and Friday approved the bill that would put some new but minor limits on gun ownership. The vote was 234-193, with every Democrat voting for it. In addition, 14 Republicans also voted for it. The bill was then sent to Joe Biden, who signed it on Saturday.

The bill sets up tougher background checks for buyers under 21, but if a buyer does not have a criminal record, the purchase can go through. The bill also allocates billions of dollars for mental health services, but most would-be shooters don't think they have mental health issues and are unlikely to go seek out mental health care, even if Uncle Sam is paying for it. It also creates criminal penalties for people who buy guns for someone else, but the loopholes are big enough to drive every tank in the Ukrainian army through.

That the bill got 14 Republican votes is itself amazing since the entire House Republican leadership called for a "no" vote and so did Donald Trump. Those 14 are likely to be primaried the next time the opportunity arises. Nevertheless, Republicans should be overjoyed that the bill passed and will soon be law. The Democrats are certain to campaign this fall in oppositon to the Supreme Court's decision to kill a New York State law that restrict gun purchases. Now the Republicans can say: "Don't blame us. Congress just passed a new law limiting gun purchases. Problem solved." Of course, the law is very feeble and the problem is not at all solved, but most people won't be looking at the details. All they will remember by November is that Congress did pass some gun-related bill and Biden signed it into law. (V)

New Polls on Roe and Trump Published

It didn't take long before the first poll about Dobbs was released. A CBS News/YouGov poll taken Friday after the decision came down and Saturday shows that 59% of American adults disapprove of the ruling and 41% approve. Among women it is 67% disapprove and 33% approve. In addition, 52% see it as a step backward and 31% see it as a step forward.

One question that is likely to make Republicans in swing districts full of suburban women nervous asks if this decision will make life better or worse for women. On this question, 56% of women say "worse" and only 16% say "better." That's more than 3 to 1.

Across demographic groups, young people, moderates, liberals, Latinos, and Black voters largely disapprove. Among whites, a very small majority disapproves. Approval is high among Republicans, conservatives, and evangelical Christians. Who knew?

An interesting question asked of people who approve of Roe being overturned is: "How do you feel?" Here are the responses (and percentages): hopeful (79%), happy (70%), relieved (70%), motivated (51%), surprised (47%), and scared (12%). Among people who don't approve of the ruling, the main reactions are upset (78%), angry (72%), and scared (62%).

The big question (for us) is not how people feel, but how people will vote. The poll suggests that it will not be a huge motivator but among people who said it will motivate them to vote, the effect is much bigger among Democrats than Republicans. And it is worth noting that "angry" and "scared" are generally the two easiest emotions for politicians to channel. Still, it is a bit early to take this seriously. Wait until the $100+ million ad campaign hits a TV near you.

Another CBS News/YouGov poll taken earlier in the week asked about Donald Trump in light of the Select Committee's Hearings. Here, 50% said that Trump tried to stay in office by illegal means while 30% said he tried to stay in office by legal means. An absolutely astounding 20% said he did not plan to stay in office. We didn't realize that 20% of the country was living in a cave in Montana where there is no TV, no Internet, and no cellular service.

Additionally, 46% think the Committee should recommend that Trump be charged with crimes, 31% think he should not be charged and 23% think the Committee should not make a recommendation. Actually the second and third categories are the same thing as it is inconceivable that the Committee comes to a formal conclusion that Trump should not be charged. So saying that he not be charged is essentially saying there should be no recommendation. The pollster didn't ask: How come? Some people may think that the Committee should not recommend a charge because he is innocent while others are afraid a recommendation will scare off AG Merrick Garland, who desperately wants to avoid looking political.

On the question of what happened on Jan. 6, 2021, 82% of Democrats and 27% of Republicans said it was an insurrection while 14% of Democrats and 55% of Republicans said it was defending freedom.(V)

What Do Polls Measure?

The polling industry is in trouble. And that is also a problem for sites like this one that report on polls and aggregate them. The reason is that partisanship is now so strong that Democrats and Republicans have completely different sets of facts that they base their opinions on. A recent CBS News/YouGov poll showed that Democrats were 41 points more likely to say the economy was in good shape than Republicans. Democrats were also 29 points more likely to say the number of jobs had increased this year. The latter is just raw factual data, but Republicans don't want to believe that jobs have increased because that would make Joe Biden look good. So the facts have to take a backseat to the goal of making Biden look bad.

The results of other questions showed a similar divide. Republicans were 22 points more likely than Democrats to say they were forced to cut back on driving due to the economy. They even reported much more (25%) delay in getting online purchases delivered. To Democrats the economy is doing pretty well. To Republicans it is a complete disaster. There is virtually no agreement even on basic facts now.

Pollsters also noted a big shift after Biden took office. When Trump was president, Republicans said the economy was great and Democrats said it was in the pits. When Biden took over, that flipped almost immediately.

It is not entirely clear where this divide comes from. Certainly, part of it comes from highly partisan news sources. Fox viewers are constantly told how bad the economy is, whereas viewers of CNN and MSNBC are generally fed the truth. Part of it could also be that Republicans simply can't believe that the economy could be good (e.g., very low unemployment) when Democrats are in charge because they have been trained to believe that Democrats are completely incompetent.

It is also possible that when a pollster calls, people intentionally take the most extreme position possible favoring their side. They may very well know that it is wrong, but want the poll to reflect their position as strongly as possible. That is especially so on questions like their willingness to quit their job over vaccine mandates. Telling a pollster that you would quit before getting a vaccination makes your point and has no downside. Actually quitting rather than getting vaccinated has a huge downside.

One experiment, done in 2008, showed that there is a lot of conscious lying to pollsters. One group of respondents was asked basic economic questions and given a small monetary reward for getting the right answers. The control group didn't get any rewards. In the rewards group, the difference between Democrats and Republicans was much smaller than in the other group.

To some extent, some of this doesn't matter. When it comes to the midterms, a voter who honestly believes the economy is awful and one who knows it isn't but says that anyway, are probably going to vote the same way. Still, having large numbers of people lying to poll questions on a regular basis is a massive problem for pollsters, with no solution in sight. (V)

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