WE COULD CRUSH YOU IF WE DECIDED TO

When you argue that Samuel Alito's draft abortion ruling portends a future in which the Supreme Court also concludes that there's no constitutional protection for contraception, same-sex marriage, or other rights we thought we'd secured, it's curious that the right/libertarian rebuttal isn't so much "That can't happen based on the text of this ruling" as "That won't happen because those things are way more popular."

Even if Griswold v. Connecticut were overturned, making it once again legal to ban contraception, that throws it back to the states, and where is the political constituency for state legislatures passing a ban?

— Megan McArdle (@asymmetricinfo) May 5, 2022

Second, public opinion on abortion remains deeply divided (it hasn't shifted much in 50 years, from what I understand), and the issue has remained extremely important to those on both of the policy question. https://t.co/8Wu5dUySec pic.twitter.com/Q9fzSVfqQ8

— Orin Kerr (@OrinKerr) May 4, 2022

That's in contrast to an issue like same sex marriage. About 70% of the public supports SSM these days, and that support is bipartisan: A majority of Republicans support it, too. https://t.co/cq7L1HI1Gu

— Orin Kerr (@OrinKerr) May 4, 2022

The Gallup poll graph Kerr posts does not say what he thinks it says, of course. It says support for a total ban on abortion, which will be the law in many states by the Fourth of July and possibly nationwide by mid-decade, has never risen above 19%. (Roy Edroso paraphases Kerr's argument: "Look at this chart, which shows that if you split the pro-abortion side in two, the country is badly divided!")

But McArdle and Kerr are giving the game away: Constitutional protections based on a right to privacy can survive only as long as they're not controversial -- in a political environment in which the party that made abortion extremely divisive in America is also highly skilled at making things they associate with liberals unpopular, or at least controversial. They're good at concocting wedge issues out of matters most people aren't thinking about very much. They created the Critical Race Theory moral panic out of nothing. Why should we believe that they won't do the same to contraception or same-sex marriage, or interracial marriage, if they think it's politically advantageous?

I think interracial marriage is safe in the near future -- and not just because Clarence Thomas has a white wife. Two Republicans who, if elected, would be among the most extreme right-wingers in the next Senate class have spouses they couldn't have married in many states prior to the 1967 Loving v. Virginia ruling: J.D. Vance of Ohio, whose wife is of Indian descent, and Kelly Tshibaka of Alaska, whose husband is of Congolese descent.

But that's now. When the most influential propagandist on the right is Tucker Carlson, who openly embraces the idea that a "Great Replacement" of whites with non-European immigrants is taking place, who's to say that Vance and others won't be thrown under the bus in a future racial purity crusade?

In the meantime, the movement Vance champions, which (as I noted in my last post) argues for second-class citizenship for the childless and wants to promote marriage and fertility, could easily be turned against same-sex marriage, and certainly against the LGBT community overall. The right fought for fifty years to overturn Roe; these folks know how to play the long game. They're starting with attacks on trans youth, which inevitably will be extended to trans adults -- I think it will be illegal to be trans, at any age, in many states by the end of the decade. Will they keep going from there? Don't bet the rent money that they won't.

Same-sex adoptions are very much at risk. This is a joke, but I think it reflects the gut beliefs of many Republicans, regardless of what some of them are telling pollsters:

White Nationalist Vincent James calls for kidnapping children away from gay people pic.twitter.com/zbHHOnVdaI

— chris evans (@notcapnamerica) May 4, 2022

For now, I have trouble imagining that they'll go after contraception. However:

Would a red state try legislation that denied Eisenstadt (and not Griswold) as a trial balloon?

— joan_mediator (@joan_mediator) May 3, 2022

Yup:

People talk about Griswold v. Connecticut all the time, but Griswold decriminalized contraception for MARRIED couples.

Single ladies? You didn't get the legal right to use contraception until 1972 in Eisenstadt v. Baird.

So that's fun.

— ⚓️Imani Two-Kitchens Gandy⚓️ (@AngryBlackLady) February 22, 2022

A future GOP that's intensely natalist could lead to state ordinances banning contraception for people who aren't married. I can't see this happening today, but in the future, if GOP politicians have laid the groundwork by demonizing some of the unmarried people who use contraception, it's possible to imagine a positive response among the Republican voter base. Kerr and McArdle say such laws wouldn't be popular? Purplish states with unified GOP control of government (Texas, Georgia, Florida) routinely pass laws -- on abortion, on guns -- that are unpopular. I don't see even a partial contraception ban passing now, but in a Vanced, Carlsonized future, I don't rule anything out. And if it happens, an Alitoized Supreme Court will let such laws stand.