Women Will Determine the 2024 Election

In his majority opinion terminating the constitutionally guaranteed right to abortion, Justice Samuel Alito cheerfully concluded that it was time to “return the issue of abortion to the people’s elected representatives.” He further explained that this decision “allows women on both sides of the abortion issue to seek to affect the legislative process” and that “women are not without electoral or political power.” There, there, he seemed to soothe—just go resolve the problem amongst yourselves, in the voting booth.

It would have sounded significantly more persuasive had Alito himself not been among the principal architects of a sprawling legal regime of extreme partisan gerrymandering, racialized vote suppression, and dark money in politics that makes it harder and harder to exercise one’s electoral and political power every single year. It’s not just that in Dobbs the conservative supermajority at the Supreme Court scoured the founding documents for a mention of women’s health or forced pregnancy and came up empty. (Apparently they just forgot that at the founding, women + law = property.) It’s that they had also worked hard in real time to power-wash these same interests right out of the voting booth.

But despite the trolliness of Justice Alito’s reassurances—and possibly even as a direct retort to it—a year and a half later, it’s clear that voters who wanted to see reproductive rights and bodily autonomy reinstated by way of direct democracy have gone to work to do just that. In the seven states that subsequently turned abortion rights over to their voters by way of ballot initiative or referendum, abortion has prevailed every time. Often by huge margins. Even in red states. Moreover, a Wisconsin Supreme Court election was decided this year on the express question of protecting abortion. An attempt last month to raise the threshold for ballot measures in Ohio went down in flames, thanks to organizing on the ground and voters who showed up in the heat of a sleepy summer. Score one, yet again, for what happens when women realize that Justice Alito was in fact correct: They are not without political power, and they must muscle their way into the fight to claim it.

Women and real legal power—the kind of power wielded to enormous effect by Letitia James in New York City, Fani Willis in Georgia, Gretchen Whitmer in Michigan, Judge Tanya Chutkan in Washington, D.C., Justice Janet Protasiewicz in Wisconsin, Ruby Freeman and Shaye Moss in the Georgia elections, and Ketanji Brown Jackson at the Supreme Court—are plainly winning in courthouses and statehouses around the country.* That was the secret sauce I clocked when I interviewed women organizers and attorneys in the Trump years for my book, Lady Justice. It’s still the secret sauce today. And were it only a matter of using these levers of the justice system and the ballot box, women’s interests would be winning hands down everywhere, in every state, and in every election. That big pink Barbie energy of the past year is kinetic. We don’t have to dream it. We own it. And it’s why—around the country—women’s efforts to seize hold of democracy are being countered by equal and opposing attempts to break democracy itself.

Whether it’s the ongoing GOP efforts to rig the reproductive rights ballot initiative in Ohio, the efforts to impeach Justice Protasiewicz in Wisconsin before she hears a single case, Alabama’s lawless refusal to abide by a Supreme Court decision from last June demanding voting maps that accurately reflect the Black population of the state, North Carolina’s new push to curb the governor’s power to make appointments to state and local election boards, the ongoing effort to strangle the power of duly elected state prosecutors, or campaigns of targeted harassment against election workers, the message women are receiving, having finally claimed their spaces and places in law, politics, and democracy after two centuries of being invisible, is that actually, no: Democracy would rather just take its ball and go home. And whether that happens by way of vote suppression, election subversion, threats of violent insurrection, or simply by rewriting state election law midgame and midfield, so be it.

As I suggested last year in the pages of Lady Justice, when democracy is allowed to flourish, women win. The 2022 midterms proved that again, unequivocally. As a result, and perhaps not surprisingly, more and more red state legislatures, and well-funded voter suppression projects, appear more than willing to quash democracy rather than share it equally.

The year and a half since Dobbs came down has proven that if the immiseration of women, pregnant people, vulnerable and poor minorities, and young people in red states was the objective, the “pro-life” forces have prevailed. Women are now denied lifesaving medical treatment for pregnancy complications related to miscarriage and childbirth, and others must travel great distances at great expense for routine pregnancy care. The stories chill your blood: Teen rape victims are mothers now. Vicious state campaigns to isolate pregnant people by punishing interstate travel, or criminalizing them as “abortion traffickers” and targeting all those who would assist them with frivolous litigation, conclusively prove that—contra Dobbs—the purpose of overturning Roe was never to return the issue to the states, but rather to bully and terrorize women nationwide. Women are prosecuted for the texts that they send, and providers offer service in fear of losing their licenses (or decline to do so out of that same fear). The threat to restrict perfectly safe medication abortion hangs over the nation. And in a surprise to nobody, we are seeing the correlates: Red states have seen increases in child hunger and poverty and a lack of adequate medical care for mothers and their babies. All of which puts the lie to the “pro-life” claims that those who seek to protect life want to afford dignity to the living. Miscarriage, IVF, birth control, LGBTQ+ rights, trans rights—the list of intimate, private liberties once protected under the umbrella of interests encompassed by Roe are up for grabs again. And the fatuous promise that “women are not without electoral or political power” is, in many instances, being replaced by shell games played by those using redistricting, vote suppression, threats of violence, and insurrection to lock them right out of it.

I finished the draft of Lady Justice in 2022 in the days before the Dobbs opinion came down. That June, I rewrote sections of it with an almost naïve conviction that even in the face of that disastrous defeat that evinced no interest in the medical, economic, or dignitary lives of women, women voters would organize and prevail. They did. They prevailed in the 2022 midterms, they prevailed on their state ballots, and women lawyers and their allies have prevailed in court challenges all around the country, organized around the fundamental principle that a regime of forced birth, unwanted parenting, and the denial of appropriate medical care for half the nation’s citizens during pregnancy would never appeal to more than a small minority of voters who would like to see women returned to the days in which they were rarely seen and never heard in the marketplace of democracy. In the year since those midterms, we have confirmed beyond a doubt what happens when women use their power to change the law. And the results of that experiment, now more than ever, are indeed magic. If this were a fair fight, women would be crushing the forces of illiberalism, authoritarianism, bigotry, and gratuitous cruelty. Because in this intervening year, we have learned that both the law and democracy itself are under threat from those who can’t win unless they cheat.

My money is still on the women, and the law, and the magic. I’ve seen too many women in too many living rooms, gathering too many signatures for too many causes, to believe they will be daunted now. I keep hearing from their sons and daughters in those same living rooms, making friendship bracelets to trade at Taylor Swift concerts. Those young people are signing up to vote because they care more about reproductive freedom, environmental protection, getting guns out of their schools, and the rights of their LGBTQ+ friends than any pollster could imagine or reflect in his polling.

We are hardly the first generation of women to know in our bones that progress comes in zigzags and waves, and occasional backlash. Equality never zooms up in straight lines. Two short years ago, most of us barely imagined that we’d be back to fighting prehistoric, violent misogyny in our own lifetimes, but here we are. And it turns out we’re great at this fight. And we will keep winning, because that’s our only alternative.