Tag: conservative majority

In Texas case, it’s politics vs. race at the Supreme Court, with control of Congress at stake

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WASHINGTON — The Texas redistricting case now before the Supreme Court turns on a question that often divides judges: Were the voting districts drawn based on politics, or race?

The answer, likely to come in a few days, could shift five congressional seats and tip political control of the House of Representatives after next year’s midterm elections.

Justice Samuel A. Alito, who oversees appeals from Texas, put a temporary hold on a judicial ruling that branded the newly drawn Texas voting map a “racial gerrymander.”

The state’s lawyers asked for a decision by Monday, noting that candidates have a Dec. 8 deadline to file for election.

They said the judges violated the so-called Purcell principle by making major changes in the election map “midway through the candidate filing period,” and that alone calls for blocking it.

Texas Republicans have reason to be confident the court’s conservative majority will side with them.

“We start with a presumption that the legislature acted in good faith,” Alito wrote for a 6-3 majority last year in a South Carolina case.

That state’s Republican lawmakers had moved tens of thousands of Black voters in or out of newly drawn congressional districts and said they did so not because of their race but because they were likely to vote as Democrats.

In 2019, the conservatives upheld partisan gerrymandering by a 5-4 vote, ruling that drawing election districts is a “political question” left to states and their lawmakers, not judges.

All the justices — conservative and liberal — say drawing districts based on the race of the voters violates the Constitution and its ban on racial discrimination. But the conservatives say it’s hard to separate race from politics.

They also looked poised to restrict the reach of the Voting Rights Act in a pending case from Louisiana.

For decades, the civil rights law has sometimes required states to draw one or more districts that would give Black or Latino voters a fair chance to “elect representatives of their choice.”

The Trump administration joined in support of Louisiana’s Republicans in October and claimed the voting rights law has been “deployed as a form of electoral race-based affirmative action” that should be ended.

If so, election law experts warned that Republican-led states across the South could erase the districts of more than a dozen Black Democrats who serve in Congress.

The Texas mid-decade redistricting case did not look to trigger a major legal clash because the partisan motives were so obvious.

In July, President Trump called for Texas Republicans to redraw the state map of 38 congressional districts in order to flip five seats to oust Democrats and replace them with Republicans.

At stake was control of the closely divided House after the 2026 midterm elections.

Gov. Greg Abbott agreed, and by the end of August, he signed into law a map with redrawn districts in and around Houston, Dallas, Fort Worth and San Antonio.

But last week federal judges, in a 2-1 decision, blocked the new map from taking effect, ruling that it appeared to be unconstitutional.

“The public perception of this case is that it’s about politics,” wrote U.S. District Judge Jeffrey V. Brown in the opening of a 160-page opinion. “To be sure, politics played a role” but “substantial evidence shows that Texas racially gerrymandered the 2025 map.”

He said the strongest evidence came from Harmeet Dhillon, the Trump administration’s top civil rights lawyer at the Justice Department. She had sent Abbott a letter on July 7 threatening legal action if the state did not dismantle four “coalition districts.”

This term, which was unfamiliar to many, referred to districts where no racial or ethnic group had a majority. In one Houston district that was targeted, 45% of the eligible voters were Black and 25% were Latino. In a nearby district, 38% of voters were Black and 30% were Latino.

She said the Trump administration views these as “unconstitutional racial gerrymanders,” citing a recent ruling by the conservative 5th Circuit Court.

The Texas governor then cited these “constitutional concerns raised by the U.S. Department of Justice” when he called for the special session of the Legislature to redraw the state map.

Voting rights advocates saw a violation.

“They said their aim was to get rid of the coalition districts. And to do so, they had to draw new districts along racial lines,” said Chad Dunn, a Texas attorney and legal director of UCLA’s Voting Rights Project.

Brown, a Trump appointee from Galveston, wrote that Dhillon was “clearly wrong” in believing these coalition districts were unconstitutional, and he said the state was wrong to rely on her advice as basis for redrawing its election map.

He was joined by a second district judge in putting the new map on hold and requiring the state to use the 2021 map that had been drawn by the same Texas Republicans.

The third judge on the panel was Jerry Smith, a Reagan appointee on the 5th Circuit Court, and he issued an angry 104-page dissent. Much of it was devoted to attacking Brown and liberals such as 95-year-old investor and philanthropist George Soros and California Gov. Gavin Newsom.

“In 37 years as a federal judge, I’ve served on hundreds of three-judge panels. This is the most blatant exercise of judicial activism that I have ever witnessed,” Smith wrote. “The main winners from Judge Brown’s opinion are George Soros and Gavin Newsom. The obvious losers are the People of Texas.”

The “obvious reason for the 2025 redistricting, of course, is partisan gain,” Smith wrote, adding that “Judge Brown commits grave error in concluding that the Texas Legislature is more bigoted than political.”

Most federal cases go before a district judge, and they may be appealed first to a U.S. appeals court and then the Supreme Court.
Election-related cases are different. A three-judge panel weighs the facts and issues a ruling, which then goes directly to the Supreme Court to be affirmed or reversed.

Late Friday, Texas attorneys filed an emergency appeal and asked the justices to put on hold the decision by Brown.

The first paragraph of their 40-page appeal noted that Texas is not alone in pursuing a political advantage by redrawing its election maps.

“California is working to add more Democratic seats to its congressional delegation to offset the new Texas districts, despite Democrats already controlling 43 out of 52 of California’s congressional seats,” they said.

They argued that the “last-minute disruption to state election procedures — and resulting candidate and voter confusion —demonstrates” the need to block the lower court ruling.

Election law experts question that claim. “This is a problem of Texas’ own making,” said Justin Levitt, a professor at Loyola Law School in Los Angeles.

The state opted for a fast-track, mid-decade redistricting at the behest of Trump.

On Monday, Dunn, the Texas voting rights attorney, responded to the state’s appeal and told the justices they should deny it.

“The election is over a year away. No one will be confused by using the map that has governed Texas’ congressional elections for the past four years,” he said.

“The governor of Texas called a special session to dismantle districts on account of their racial composition,” he said, and the judges heard clear and detailed evidence that lawmakers did just that.

In recent election disputes, however, the court’s conservatives have frequently invoked the Purcell principle to free states from new judicial rulings that came too close to the election.

Granting a stay would allow Texas to use its new GOP friendly map for the 2026 election.

The justices may then choose to hear arguments on the legal questions early next year.

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David G. Savage

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November 25, 2025
Sonia Sotomayor Should Retire Now

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On Election Day in 2006, Justice Antonin Scalia was 70 years old and had been serving on the Supreme Court for 20 years. That year would have been an opportune time for him to retire—Republicans held the White House and the Senate, and they could have confirmed a young conservative justice who likely would have held the seat for decades to come. Instead, he tried to stay on the Court until the next time a Republican president would have a clear shot to nominate and confirm a conservative successor.

He didn’t make it—he died unexpectedly in February 2016, at the age of 79, while Barack Obama was president. Conservatives nevertheless engineered some good fortune: There was divided control of government, and then–Senate Majority Leader Mitch McConnell refused to even hold confirmation hearings for Merrick Garland, Obama’s nominee to the seat. Donald Trump won that fall’s election and named Neil Gorsuch to the seat that McConnell had held open.

But imagine for a moment that Hillary Clinton had won the 2016 election, as many expected. By running a few points stronger, she might have taken Democratic candidates across the finish line in close races in Pennsylvania and Missouri, resulting in Democratic control of the Senate. In that scenario, Clinton would have named a liberal successor to Scalia—more liberal than Garland—and conservatives would have lost control of the Court, all because of Scalia’s failure to retire at the opportune moment.

Justice Sonia Sotomayor will turn 70 in June. If she retires this year, President Joe Biden will nominate a young and reliably liberal judge to replace her. Republicans do not control the Senate floor and cannot force the seat to be held open like they did when Scalia died. Confirmation of the new justice will be a slam dunk, and liberals will have successfully shored up one of their seats on the Court—playing the kind of defense that is smart and prudent when your only hope of controlling the Court again relies on both the timing of the death or retirement of conservative judges and not losing your grip on the three seats you already hold.

But if Sotomayor does not retire this year, we don’t know when she will next be able to retire with a likely liberal replacement. It’s possible that Democrats will retain the presidency and the Senate in this year’s elections, in which case the insurance created by a Sotomayor retirement won’t have been necessary. But if Democrats lose the presidency or the Senate this fall—or both—she’ll need to stay on the bench until the party once again controls them. That could be just a few years, or it could be longer. Democrats have previously had to wait as long as 14 years (1995 to 2009). In other words, if Sotomayor doesn’t retire this year, she’ll be making a bet that she will remain fit to serve until possibly age 78 or even 82 or 84—and she’ll be forcing the whole Democratic Party to make that high-stakes bet with her.

Steven Mazie: The Supreme Court justices do not seem to be getting along

If Democrats lose the bet, the Court’s 6–3 conservative majority will turn into a 7–2 majority at some point within the next decade. If they win the bet, what do they win? They win the opportunity to read dissents written by Sotomayor instead of some other liberal justice. This is obviously an insane trade. Democrats talk a lot about the importance of the Court and the damage that has been done since it has swung in a more conservative direction, most obviously including the end of constitutional protections for abortion rights. So why aren’t Democrats demanding Sotomayor’s retirement?

Well, they are whispering about it. Politico reported in January:

Some Democrats close to the Biden administration and high-profile lawyers with past White House experience spoke to West Wing Playbook on condition of anonymity about their support for Sotomayor’s retirement. But none would go on the record about it. They worried that publicly calling for the first Latina justice to step down would appear gauche or insensitive. Privately, they say Sotomayor has provided an important liberal voice on the court, even as they concede that it would be smart for the party if she stepped down before the 2024 election.

This is incredibly gutless. You’re worried about putting control of the Court completely out of reach for more than a generation, but because she is Latina, you can’t hurry along an official who’s putting your entire policy project at risk? If this is how the Democratic Party operates, it deserves to lose.

The cowardice in speaking up about Sotomayor—a diabetic who has in some instances traveled with a medic—is part of a broader insanity in the way that the Democratic Party thinks about diversity and representation. Representation is supposed to be important because the presence of different sorts of people in positions of power helps ensure that the interests and preferences of various communities are taken into account when making policy. But in practice, Democratic Party actions regarding diversity tend to be taken for the benefit of officials rather than demographic groups. What’s more important for ordinary Latina women who support Democrats—that there not be one more vote against abortion rights on the Supreme Court, or that Sotomayor is personally there to write dissenting opinions? The answer is obvious, unless you work in Democratic politics for a living, in which case it apparently becomes a difficult call.

I thought Democrats had learned a lesson from the Ruth Bader Ginsburg episode about the importance of playing defense on a Court where you don’t hold the majority. Building a cult of personality around one particular justice served to reinforce the idea that it was reasonable for her to stay on the bench far into old age, and her unfortunate choice to do so ultimately led to Amy Coney Barrett’s appointment and a string of conservative policy victories. All liberals have to show for this stubbornness is a bunch of dissents and kitsch home decor. In 2021, it seemed that liberals had indeed learned their lesson—not only was there a well-organized effort to hound the elderly Stephen Breyer out of office, but the effort was quite rude. (I’m not sure screaming “Retire, bitch” at Stephen Breyer was strictly necessary, but I wasn’t bothered by it either—he was a big boy, and he could take it.) But I guess maybe the lesson was learned only for instances where the justice in question is a white man.

One obvious response to this argument is that the president is also old—much older, indeed, than Sonia Sotomayor. I am aware, and I consider this to be a serious problem. But Democrats are unlikely to find a way to replace Biden with a younger candidate who enhances their odds of winning the election. The Sotomayor situation is different. Her age problem can be dealt with very simply by her retiring and the president picking a candidate to replace her who is young and broadly acceptable (maybe even exciting) to Democratic Party insiders. And if Democrats want to increase the odds of getting there, they should be saying in public that she should step down. In order to do that, they’ll have to get over their fear of being called racist or sexist or ageist.

This article was adapted from a post on Josh Barro’s Substack, Very Serious.

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Josh Barro

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March 18, 2024
Republicans Can’t Figure It Out

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Democrats yesterday continued to perform better at the polls than in the polls.

Even as many Democrats have been driven to a near panic by a succession of recent polls showing President Joe Biden’s extreme vulnerability, the party in yesterday’s elections swept almost all the most closely watched contests. Democrats won the Kentucky governorship by a comfortable margin, romped to a lopsided victory in an Ohio ballot initiative ensuring abortion rights, and easily captured an open Pennsylvania Supreme Court seat. Most impressive, Democrats held the Virginia state Senate and were projected to regain control of the Virginia state House, despite an all-out campaign from Republican Governor Glenn Youngkin to win both chambers. Among the major contests, Democrats fell short only in the governor’s race in Mississippi.

The results extended the most striking pattern from the 2022 midterm election, when Republicans failed to match the usual gains for the party out of the White House at a time of widespread public dissatisfaction with the president. Democrats, just as they did last November, generated yesterday’s unexpectedly strong results primarily by amassing decisive margins in urban centers and the large inner suburbs around them.

The outcomes suggested that, as in 2022, an unusually broad group of voters who believe that Democrats have not delivered for their interests voted for the party’s candidates anyway because they apparently considered the Republican alternatives a threat to their rights and values on abortion and other cultural issues.

“The driving force of our politics since 2018 has been fear and opposition to MAGA,” the Democratic strategist Simon Rosenberg told me. “It was the driving force in 2022 and 2023, and it will be in 2024. The truth is, what we’re facing in our domestic politics is unprecedented. Voters understand it, they are voting against it, and they are fighting very hard to prevent our democracy from slipping away.”

The surprising results yesterday could not have come at a better time for Democratic leaders. Many in the party have been driven to a near frenzy of anxiety by a succession of recent polls showing Biden trailing former President Donald Trump.

Yesterday’s victories have hardly erased all of Biden’s challenges. For months, polls have consistently found that his approval rating remains stuck at about 40 percent, that about two-thirds of voters believe he’s too old to effectively serve as president for another term, and that far more voters express confidence in Trump’s ability to manage the economy than in Biden’s.

But, like the 2022 results in many of the key swing states, the Democrats’ solid showing yesterday demonstrated that the party can often overcome those negative assessments by focusing voters’ attention on their doubts about the Trump-era Republican Party. “Once again, we saw that what voters say in polls can be very different than what they do when faced with the stark choice between Democrats who are fighting for a better life for families and dangerous candidates who are dead set on taking away their rights and freedoms,” Jenifer Fernandez Ancona, the chief strategy officer of Way to Win, a liberal group that focuses on electing candidates of color, told me in an email last night.

Even more than a midterm election, these off-year elections can turn on idiosyncratic local factors. But the common thread through most of the major contests was the Democrats’ continuing strength in racially diverse, well-educated major metropolitan areas, which tend to support liberal positions on cultural issues such as abortion and LGBTQ rights. Those large population centers have trended Democratic for much of the 21st century. But that process accelerated after Trump emerged as the GOP’s leader in 2016, and has further intensified since the conservative majority on the U.S. Supreme Court overturned the constitutional right to abortion.

Across yesterday’s key contests, Democrats maintained a grip on major population centers. In Kentucky, Democratic Governor Andy Beshear carried the counties centered on Louisville and Lexington by about 40 percentage points each over Republican Attorney General Daniel Cameron.

In Ohio, abortion-rights supporters dominated most of the state’s largest communities. That continued the pattern from the first round of the state’s battle over abortion. In that election, as I wrote, the abortion-rights side, which opposed the change, won 14 of the state’s 17 largest counties, including several that voted for Trump in 2020.

The results were equally emphatic in yesterday’s vote on a ballot initiative to repeal the six-week-abortion ban that the GOP-controlled state legislature passed, and Republican Governor Mike DeWine signed, in 2019. The abortion ban was buried under a mountain of votes for repeal in the state’s biggest places: An overwhelming two-thirds or more of voters backed repeal in the state’s three largest counties (which are centered on Cleveland, Columbus, and Cincinnati), and the repeal side won 17 of the 20 counties that cast the most ballots, according to the tabulations posted in The New York Times.

Democrats held the Virginia state Senate through strong performances in suburban areas as well. Especially key were victories in which Democrats ousted a Republican incumbent in a suburban Richmond district, and took an open seat in Loudoun County, an outer suburb of Washington, D.C.

The race for an open Pennsylvania Supreme Court seat followed similar tracks. Democrat Daniel McCaffery cruised to victory in a race that hinged on debates about abortion and voting rights. Like Democrats in other states, McCaffery amassed insuperable margins in Pennsylvania’s largest population centers: He not only posted big leads in Philadelphia and Pittsburgh, but he also built enormous advantages in each of the four large suburban counties outside Philadelphia, according to the latest vote tally.

Read: America’s bluest state loves its Republican governor

From a national perspective, the battle for control of the Virginia state legislature probably offered the most important signal. The Virginia race presented the same competing dynamics that are present nationally. Though Biden won the state by 10 percentage points in 2020, recent polls indicate that more voters there now disapprove than approve of his performance. And just as voters in national polls routinely say they trust Trump more than Biden on the economy and several other major issues, polls found that Virginia voters gave Republicans a double-digit advantage on economy and crime. Beyond all that, Youngkin raised enormous sums to support GOP legislative candidates and campaigned tirelessly for them.

Yet even with all those tailwinds, Youngkin still failed to overturn the Democratic majority in the state Senate, and lost the GOP majority in the state House. The principal reason for Youngkin’s failure, analysts in both parties agree, was public resistance to his agenda on abortion. Youngkin had elevated the salience of abortion in the contest by explicitly declaring that if voters gave him unified control of both legislative chambers, the GOP would pass a 15-week ban on the procedure, with exceptions for rape, incest, and threats to the life of the mother.

Read: Why deep-red Kentucky reelected its Democratic governor

Youngkin and his advisers described that proposal as a “reasonable” compromise, and hoped it would become a model for Republicans beyond the red states that have already almost all imposed more severe restrictions. But the results made clear that most Virginia voters did not want to roll back access to abortion in the commonwealth, where it is now legal through 26 weeks of pregnancy. “What Virginia showed us is that the Glenn Youngkin playbook failed,” Mini Timmaraju, the CEO of Reproductive Freedom for All, an abortion-rights group, told me last night. “We showed that even Republican voters in Virginia weren’t buying it, didn’t go for it, saw right through it.”

Youngkin’s inability to capture the Virginia state legislature, even with all the advantages he enjoyed, will probably make the 2024 GOP presidential contenders even more skittish about openly embracing a national ban on abortion. But Timmaraju argued that yesterday’s results showed that voters remain focused on threats to abortion rights. “Our job is to make sure that the American people don’t forget who overturned Roe v. Wade,” she told me.

None of yesterday’s results guarantees success for Biden or Democrats in congressional races next year. It is still easier for other Democrats to overcome doubts about Biden than it will be for the president himself to do so. In particular, the widespread concern in polls that Biden is too old to serve another term is a problem uniquely personal to him. And few Democrats really want to test whether they can hold the White House in 2024 without improving Biden’s ratings for managing the economy. Trump’s base of white voters without a college degree may be more likely to turn out in a presidential than off-year election as well.

But a clear message from the party’s performance yesterday is that, however disenchanted voters are with the country’s direction under Biden, Democrats can still win elections by running campaigns that prompt voters to consider what Republicans would do with power. “We have an opening here with the effective framing around protecting people’s freedoms,” Fernandez Ancona told me. “Now we can push forward on the economy.”

Yesterday’s results did not sweep away all the obstacles facing Biden. But the outcome, much like most of the key contests in last fall’s midterm, show that the president still has a viable pathway to a second term through the same large metro areas that keyed this unexpectedly strong showing for Democrats.

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Ronald Brownstein

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November 8, 2023
Abortion Pills Will Be the Next Battle in the 2024 Election

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The next front is rapidly emerging in the struggle between supporters and opponents of legal abortion, and that escalating conflict is increasing the chances that the issue will shape the 2024 election as it did last November’s midterm contest.

President Joe Biden triggered the new confrontation with a flurry of recent moves to expand access to the drugs used in medication abortions, which now account for more than half of all abortions performed in the United States. Medication abortion involves two drugs: mifepristone followed by misoprostol (which is also used to prevent stomach ulcers). Although abortion opponents question the drugs’ safety, multiple scientific studies have found few serious adverse effects beyond headache or cramping.

Federal regulation of the use and distribution of these drugs by agencies including the FDA and the United States Postal Service has long been overshadowed in the abortion debate by the battles over Supreme Court nominations and federal legislation to ban or authorize abortion nationwide. But with a conservative majority now entrenched in the Court, and little chance that Congress will pass national legislation in either direction any time soon, abortion supporters and opponents are focusing more attention on executive-branch actions that influence the availability of the pills.

Read: The abortion backup plan no one is talking about

“The reality of abortion care has been changing very, very rapidly, and now the politics are catching up with it,” Celinda Lake, a Democratic pollster who served as one of Biden’s advisers in 2020, told me.

Tens of thousands of anti-abortion activists will descend on Washington today for their annual March for Life—the first since the Supreme Court last summer overturned Roe v. Wade, the 1973 decision that established a nationwide right to abortion. The activists will cheer the swift moves by some two dozen Republican-controlled states to ban or severely restrict abortion since the Court struck down Roe.

But even as abortion opponents celebrate, they are growing more frustrated about the increased reliance on the drugs, which are now used in 54 percent of U.S. abortions—up dramatically from less than one-third less than a decade ago, according to the Guttmacher Institute, a research group that supports abortion rights. “With the overturning of Roe, [with] COVID, and with President Biden’s loosening of the restrictions on these [drugs] … there is a new frontier that everyone is pivoting to,” Rebecca Parma, the legislative director for Texas Right to Life, a prominent anti-abortion group, told me.

George W. Bush and Donald Trump, the two Republicans who have held the presidency since the drugs were first approved under Democratic President Bill Clinton, in 2000, took virtually no steps to limit their availability. But conservative activists are already signaling that they will press the Republican presidential candidates in 2024 for more forceful action.

“Our job is to make sure … this becomes an issue that any GOP candidate will have to answer and address,” Kristan Hawkins, the president of the anti-abortion group Students for Life of America, told me. “No one can be ambivalent again; it will simply not be an option.”

The challenge for Republicans is that the 2022 midterm elections sent an unmistakable signal of resistance to further abortion restrictions in almost all of the key swing states that tipped the 2020 presidential election and are likely to decide the 2024 contest. “Would you really want to be Ron DeSantis or Donald Trump running in a close election saying, ‘I’m going to ban all abortion pills in Michigan or Pennsylvania’ right now?” says Mary Ziegler, a law professor at UC Davis, who has written extensively on the history of the abortion debate.

Sunday is the 50th anniversary of the original Roe decision, and the Biden administration will mark the occasion with a defiant pro-abortion-rights speech from Vice President Kamala Harris in Florida, where GOP Governor DeSantis, a likely 2024 presidential contender, signed a 15-week abortion ban last April.

White House officials see access to abortion medication as “the next battlefront” in the larger struggle over the procedure, Jennifer Klein, the director of the White House Gender Policy Council, told me. She said she expects Republicans to mount more sweeping efforts to restrict access to the drugs than they did during the Bush or Trump presidencies. “The reason you’ve seen both Democratic and Republican administrations ensure access to medication abortions is because this is the FDA following their evidence-based scientific judgment,” she said. “So what I think is different now is you are seeing some pretty extreme actions as the next way to double down on taking away reproductive health and reproductive rights.”

Federal regulation of the abortion drugs has followed a consistent pattern, with Democratic presidents moving to expand access and Republican presidents mostly accepting those actions.

Read: The other abortion pill

During the 2000 presidential campaign, for instance, George W. Bush called the Clinton administration’s initial approval of mifepristone “wrong” and said he worried it would lead to more abortions. But over Bush’s two terms, his three FDA commissioners ignored a citizen petition from conservative groups to revoke approval for the drug. Under Barack Obama, the FDA formalized relatively onerous rules for the use of mifepristone. Physicians had to obtain a special certification to prescribe the drug, women had to meet with their doctor once before receiving it and twice after, and it could be used only within the first seven weeks of pregnancy.

The FDA loosened these restrictions during Obama’s final year in office. It reduced the number of physician visits required to obtain the drugs from three to one and increased to 10 the number of weeks into a pregnancy the drugs could be used. The revisions also permitted other medical professionals, such as nurses, to prescribe the drugs if they received certification, and eliminated a requirement for providers to report “adverse effects” other than death. Trump didn’t reverse any of the Obama decisions. He did side with conservatives by fighting a lawsuit from abortion-rights advocates to lift the requirement for an in-person doctor’s visit to obtain the drugs during the COVID pandemic. But by the time the Supreme Court ruled for the Trump administration in January 2021, Biden was days away from taking office. Within months, women seeking an abortion could consult with a doctor via telehealth and then receive the pills via mail.

On January 3 of this year, the FDA took another major step by allowing pharmacies to dispense the drugs. In late December, the Justice Department issued a legal opinion that the Postal Service could deliver the drugs without violating the 19th-century Comstock Act, which bars use of the mail “to corrupt the public morals.”

The paradox is that the impact of these rules, for now, will be felt almost entirely in the states where abortion remains legal. Obtaining abortion pills there will be much more comparable to filling any other prescription. But 19 red states have passed laws that still require medical professionals to be present when the drugs are administered, which prevents pharmacies from offering them despite the FDA authorization. And although the FDA has approved use of mifepristone for the first 10 weeks of pregnancy, medical professionals cannot prescribe the drugs in violation of state time limits (or absolute bans) on abortion. In terms of anti-abortion states, the Biden administration’s actions have had “basically no impact,” Greer Donley, a University of Pittsburgh law professor who studies abortion law, told me in an email.

Although the red states have largely walled themselves off from Biden’s efforts on medication abortion, conservatives have launched a multifront attempt to roll back access to the pills nationwide. Students for Life has filed another citizen petition with the FDA, arguing that doctors who prescribe the drugs must dispose of any fetal remains as medical waste. In a joint letter released last week, 22 Republican attorneys general hinted that they may sue to overturn the new FDA rules permitting pharmacies to dispense the drugs. In November, another coalition of conservative groups filed a lawsuit before a Trump-appointed judge in Texas seeking to overturn the original certification and ban mifepristone. Jenny Ma, the senior counsel at the Center for Reproductive Rights, says that decision could ultimately have a broader effect than even the Supreme Court ruling overturning Roe: “This case,” she told me, “could effectively ban medication abortion nationwide. It means people in every state … may not be able to get abortion pills.”

Republicans will also ramp up legislative action against the pills, although their proposals have no chance of becoming law while Democrats control the Senate and Biden holds the veto pen. Republican Senator Cindy Hyde-Smith of Mississippi is planning to reintroduce her “SAVE Moms and Babies Act,” which would restore the prohibition against dispensing abortion drugs through the mail or at pharmacies.

From the May 2022 issue: The future of abortion in a post-Roe America

However these legal and legislative challenges are resolved, it’s already apparent that the 2024 GOP presidential field will face more pressure than before to propose executive-branch actions against the drugs. “That’s going to be our clarion call in 2024,” says Kristi Hamrick, a long-term social-conservative activist, who now serves as the chief strategist for media and policy at Students for Life.

Katie Glenn, the state-policy director at Susan B. Anthony Pro-Life America, told me that, at the least, the group wants 2024 Republican presidential candidates to press for restoring the requirement to report adverse consequences from the drugs. Former Vice President Mike Pence, a likely candidate, has already suggested that he will support a ban on dispensing the pills through the mail. But the anti-abortion movement’s long-term goal remains the same: ban mifepristone altogether. Hawkins shows the growing fervor GOP candidates will face when she says, “This pill is a cancer that has now metastasized throughout our country.”

Simultaneously, abortion-rights advocates are pushing the Biden administration to loosen restrictions even further. “Medication abortion … has been overregulated for far too long,” Ma told me. Many advocates want the FDA to extend permitted use of mifepristone from 10 to 12 weeks, eliminate the requirement that the professionals prescribing the drugs receive a special certification, and begin the process toward eventually making the drug available over the counter.

The immediate question is whether the Biden administration will challenge the red-state laws that have stymied its efforts to expand access. Advocates have argued that a legal case can be made for national FDA regulations to trump state restrictions, such as the requirement for physicians to dispense the drugs. But Biden is likely to proceed cautiously.

“We don’t have a lot of answers … because, frankly, states have not tried to do this stuff in hundreds of years,” Ziegler, the author of the upcoming book Roe: The History of a National Obsession, told me. Even so, she added, it’s a reasonable assumption that this conservative-dominated Supreme Court would resist allowing the federal government to preempt state rules on how the drugs are dispensed.

These mirror-image pressures in each party increase the odds of a clear distinction between Biden (or another Democrat) and the 2024 GOP nominee over access to the drugs. Democrats are generally confident they will benefit from almost any contrast that keeps abortion prominent in the 2024 race. Some, like Lake, see access to the pills as a powerful lever to do that. The issue, she argues, is relevant to younger voters, who are much more familiar than older people with the growing use of medication abortion and are especially dubious that pharmacies can offer certain drugs in some states but not in others.

The impact of abortion on the 2022 election was more complex than is often discussed. As I’ve written, in the red states that have banned or restricted the practice, such as Florida, Ohio, and Texas, there was no discernible backlash against the Republican governors or state legislators who passed those laws. But the story was different in the blue and purple states where abortion remains legal. In pivotal states including Arizona, Michigan, Pennsylvania, and Wisconsin, a clear majority of voters said they supported abortion rights, and, according to media exit polls, crushing majorities of them voted against Republican gubernatorial candidates who pledged to restrict abortion. Those Democratic victories in the states likely to prove decisive again in 2024 have left many Republican strategists leery of pursuing any further constraints on abortion.

What’s clear now is that even as abortion opponents gather to celebrate their long-sought toppling of Roe, many of them won’t be satisfied until they have banned the procedure nationwide. “It is totally unacceptable for a presidential candidate to say, ‘It’s just up to the states’ now,” Marilyn Musgrave, the vice president for government affairs at the Susan B. Anthony group, told me. “We need a federal role clearly laid out by these presidential candidates.” Equally clear is that abortion opponents now view federal regulatory actions to restrict, and eventually ban, abortion drugs as a crucial interim step on that path. The U.S. may seem in some ways to be settling into an uneasy new equilibrium, with abortion banned in some states and permitted in others. But, as the escalating battle over abortion medication makes clear, access to abortion in every state will remain on the ballot in 2024.

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Ronald Brownstein

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January 20, 2023