Sloppy Originalism, Pro-Choice Majorities and Why You Should Vote

An Interview with Political Scientist Erin McAdams

Today I’m so happy to host one of my dear friends and colleagues, political science professor Erin McAdams. Erin and I started at Presbyterian College the same year, and she is one of my professional role models. A dynamo in the classroom, she directs our Pre-Law Program (seriously, go to a liberal arts college to get ready for law school—it’s all reading), supports our WGST program with courses like Women in U.S. Politics, and is our Faculty Senate Chair, among many other roles. As a social scientist, she has real-world insight and data fluency to back up ideas with material evidence, a skill (as a humanities scholar) I still find dazzling. Read on for how legal upsets like Roe might affect state and national politics.

Emily: What was most disturbing to you about the Supreme Court decisions overturning Roe? 

Erin: Obviously, the fact that the Supreme Court no longer recognizes that a woman’s fundamental rights over making decisions about her own body and health are Constitutionally protected was devastating. But even more disturbing was the language that Justice Alito used in the majority opinion explaining the Court’s decision, which was a marked shift in judicial philosophy toward interpreting the language of the Constitution in the same way as the Founders did when the Constitution was written (what is known as “originalism” in legal circles). Even more disturbing than that, though, was how the Court applied that philosophy in such a sloppy and illogical way.

Let me give you two examples. Justice Alito wrote that abortion is not “deeply rooted in [U.S.] history and tradition,” and insisted that abortion rights were not recognized in the U.S. until Roe was decided. But that’s a false interpretation of history. As this Women Health article notes, abortion practices have been practiced in North America as early as the 1600s, and in the U.S., no ban on abortion before “quickening” (when a woman felt the movement of the fetus) existed until the 1960s. So this practice IS deeply rooted in U.S. history and tradition – the justices in the majority are merely bending history to justify their decision, which is applying the philosophy of originalism in an illogical way.

Justice Alito also wrote that abortion cannot be Constitutionally protected because it is not explicitly listed in the U.S. Constitution. But the Founders, anticipating that future rights might be recognized, included the 9th Amendment to ensure that the explicit listing of certain rights (or “enumeration”) should never be interpreted to infringe on other rights that people have; in other words, just because certain rights are listed (like freedom of speech press) doesn’t mean that we don’t have other rights that the Constitution should protect. That’s the original intention of that amendment.

Unfortunately, what the current Supreme Court’s interpretation as indicated in the Dobbs decision is that any of the rights that the 9th Amendment has been used to support are being threatened, including right to privacy, contraception rights, the right to marry the person of your choice, and more. While the Court’s majority opinion indicated that this decision only applied to abortion, it’s clear that others on the Court are ready to begin repealing other rights as well – all using the same sloppy application of originalism as this one did.

Emily: I was so shocked and pleasantly surprised at the Kansas vote. Can you tell us how the fall of Roe might be transforming American politics? 

Erin: The fall of Roe means that state legislatures will now be the battleground as to whether or not abortion is legal in a particular state and, if so, what restrictions are placed in the path of a woman seeking an abortion. The vote in Kansas really wasn’t all that surprising in the sense that the vast majority of people in the U.S. – including conservatives – support the legality of abortion, even though many feel that it should be available only in certain circumstances. (See this data from Gallup – 85% of those in the U.S. think that abortion should be legal in all or some circumstances, and only 13% think it should be legal in no circumstances). So even though Kansas is typically a deep red, Republican state in terms of presidential elections, the people there are similar to people everywhere in the U.S. and they support having their state constitution to continue to protect abortion rights. It was very important in Kansas that citizens were able to vote on this policy directly, and it was also important that the fall of Roe inspired so many women who were previously not registered to vote to do so and turnout. The unusually high level of new women eligible to vote helped to protect abortion rights there.  

I actually wouldn’t be surprised at all if we continue to see a split between state legislatures and state populations, too. Republican legislatures are going to continue to attempt to ban abortion or place severe restrictions on it (like here in South Carolina), despite the fact that the public does not support such legislation at all (even here in South Carolina). In states in which citizens will be able to vote for on abortion policy directly, it will likely remain legal and protected. This is another way in which Roe has transformed U.S. politics – and it’s a huge threat to our democracy. Neither the Supreme Court nor these state legislatures (nor the national Congress, if it returns to Republican control in November) are actually enacting abortion policies that reflect public opinion. David Leonhardt discusses this theme well in this New York Times article.

Emily: Have all the upheavals lately (Trump and the aftermath, Roe, inflation, the war in Ukraine) changed expectations for midterm election voter turnout? 

Erin: Voter turnout in midterm elections is typically lower (around 40%) compared with presidential elections (around 60%). But 2018 broke that trend, with 50% of eligible voters actually voting in that midterm election, and I anticipate that this midterm election will reach or exceed that amount. Early research demonstrates that many women registered to vote in some states after the fall of Roe, and this – among other issues – should drive up voter turnout this year. While many midterm elections are determined by voters’ opinions of local or state-wide issues, it’s clear that national issues are dominating campaigns & voter behavior.

Emily: What can polling tell us about possible election outcomes this fall? Any recommendations for sites to follow? 

Erin: Accurate polling remains tricky when many U.S. citizens, particularly President Trump’s supporters, are wary of completing polls. But in general, the polling numbers indicated that the Dobbs decision gave a great boost to Democrats’ chances of keeping control of the Senate because Democrats have committed to protecting them. More recent polling, though, indicates that abortion and reproductive rights are no longer at the forefront of people’s minds. Instead, they are nervous about the economy and gas prices, which play well into Republicans’ hands. Even though many people may support abortion rights, they may end up voting for candidates of the party that is opposed to abortion rights – just because it’s not the most important issue to them at that moment. I recommend Nate Silver’s FiveThirtyEight polling project for the most comprehensive and reliable polling data.

Emily: What advice to you give to people dismayed by the state of US and South Carolina politics? 

Erin: If they haven’t done so already, they need to catch up on all of your Hot Feminism newsletters as well as your article in Ms. Magazine, “Let’s Imagine the South as a Place for Feminism.” And I’m not just saying that to win brownie points! These have been weekly inspirations for me to keep breathing, keep moving, and keep fighting, and they have also shared perspectives that have helped me to frame what being a non-native Southern feminist in the South is like – in ways that I obviously would not be able to express myself.

As far as U.S. and South Carolina go, many people – when dismayed by the state of politics – tend to pull away from it. But the threats to our democracy are too great and dangerous for us to do that now. And while it’s important for us to engage in politics broadly by protesting, writing to our politicians, and more, the most essential thing that we can do is VOTE. That is the only way to shape who is actually making decisions on these policies and appointing judges to decide what is and is not allowed. Election Day is Tuesday, November 8, and many states have options for early & absentee voting. Check out vote.gov for more information on what you need to do to exercise your vote.