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Today's posting is over 10,000 words. Normally it is much less, but there was a lot of news since Saturday. We'd be interested in hearing from you if you think our average postings are too much, just right, or you'd like even more.

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:

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.

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.

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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