by Josh Stanfield

(Josh Stanfield is a member of the Central Committee of the Democratic Party of Virginia and ran unsuccessfully for DPVA Chair while advocating for 2022 House of Delegates elections.)

Over the past week, Virginia Democrats have reacted to the leaked SCOTUS draft opinion overturning Roe v. Wade by insisting that they’re the only line of defense, the “brick wall” preventing Republicans from limiting or banning abortion in Virginia the moment SCOTUS makes a final ruling in Dobbs v. Jackson Women’s Health Organization

What Democrats don’t say – and won’t say publicly – is that they’re asking us to trust State Senator Joe Morrissey not to cut a deal with Republicans for the next year and a half.

Trusting Morrissey is a risky proposition, but in this case it’s strategically unnecessary and potentially dangerous.

As Bob Lewis noted in the Virginia Mercury:

“But on the issue of abortion, Morrissey, a Roman Catholic, finds himself more aligned with Republicans. He has said he would consider limits on abortions, perhaps after 20 weeks – about five months. That aligns with what Gov. Glenn Youngkin has proposed.”

Indeed, in the 2022 session Senator Morrissey co-patroned the “Pain-Capable Unborn Child Protection Act” alongside chief-patron Republican Amanda Chase, a bill which would have effectively banned abortion after 20 weeks.

Former Democratic Delegate Lashrecse Aird has already announced her campaign to primary Senator Morrissey in 2023, telling the Mercury that abortion policy in Virginia “rests with him solely and allowing him to remain in the Senate.”

That leaves at least a year for General Assembly Republicans to make Morrissey a deal he can’t refuse to secure his vote on abortion legislation – and for Governor Youngkin to then call a special session, as Article V Section 5 of the Virginia Constitution allows, at his whim.

But even if Aird defeats Morrissey in a Democratic primary next summer, Morrissey – though wounded and desperate – would still be in office for several more months, perhaps with a bone to pick with Democratic voters.

The only alternative to handing Morrissey this perverse leverage is for Paul Goldman to succeed in his federal lawsuit asking for 2022 House of Delegates elections in new, constitutional districts. Virginia Democrats would then have a shot at taking back the House of Delegates this November and stopping Republican legislation on abortion at least until 2024.

The strategic necessity of 2022 elections for protecting abortion rights in Virginia, however, was not Goldman’s concern in his recent motion to add the leaked SCOTUS opinion as a supplemental authority for the Court to review in his case.

Instead, Goldman points out that the leaked opinion expands the role of state legislatures in determining our rights and thus makes it even more crucial we have constitutionally legitimate state legislatures in the first place.

Goldman claims that there’s “nothing likely more dangerous to the required credibility” of Virginia’s legislature than waiting until 2024 to seat constitutionally elected Delegates and, importantly, that “such unconstitutionality hang[s] over the state legislature on all matters, since at any time, it can have thrust upon it the most contentious of public issues.”

In essence, Goldman is reminding the Court that if they do not order House of Delegates elections this year, and SCOTUS fully empowers state legislatures on the issue of abortion, the unconstitutionality of our state legislature may create a crisis of legitimacy when it comes to contentious legislative acts.

Judge David Novak (Eastern District of Virginia), the Trump-appointed judge overseeing Goldman’s case as part of a three-judge panel, issued an order rejecting Goldman’s motion and warned him that “neither draft opinions nor press reports have any impact on the decisions of this court.” We haven’t heard from the other two judges on the panel, Obama-appointed Judge Stephanie Thacker (4th Circuit Court of Appeals) and Clinton-appointed Judge Raymond Jackson (Eastern District of Virginia).

Judge Novak’s objections notwithstanding, Goldman’s point should unsettle anyone who believes institutions require credibility and public trust in order to remain strong and resilient. Would Virginians accept abortion limits or bans passed by the current House of Delegates as legitimate in the most basic democratic and constitutional sense? Should Virginians accept their rights being stripped by incumbents elected in blatantly unconstitutional districts?

Democratic Party leaders in both the General Assembly and state party who’ve been actively suppressing support for Goldman’s legal efforts – or burying their heads in the sand – find themselves twisted into a pretzel of hypocrisy on voting rights

But in doubling down on ignoring the Goldman case, they now find themselves stuck with the worst strategy to protect abortion rights.

Let’s just hope that in being forced to trust Joe Morrissey with abortion rights, we aren’t being led down a path that ultimately forces us to lose trust not only in Democratic leadership, but in the General Assembly as a legitimate institution of democratic governance.

By vascope

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