What Comes Next?

Plus: How I lost a Russia-Ukraine debate

(Photo: Chip Somodevilla/Getty Images)

(Cathy Young sits in again for Morning Shots.)

The Supreme Court ruling that came down on Friday overturning Roe v. Wade is essentially the same opinion as the draft that was leaked in early May; Justice Samuel Alito’s responses to the other justices’ concurrences and dissents are basically the only changes. One thing of note is that, while the vote to uphold the Mississippi law that precipitated the case (and which banned abortion after 15 weeks of pregnancy) was 6-3, the vote to strike down Roe altogether was 5-4: Chief Justice John Roberts was alone in voting to uphold the Mississippi law while retaining the Roe principle of a constitutional right to abortion.

As I laid out in a Bulwark essay last month, I am a moderate pro-choicer—that is, one who is fine with some restrictions on abortion, particularly later in the pregnancy. I believe that both female bodily autonomy and the value of fetal life in the womb, especially in the later stages of pregnancy, are principles worthy of respect.

Pro-choicers are wrong to depict pro-lifers as misogynists or subservient “handmaids”; pro-lifers are wrong to depict pro-choice Americans as libertines who hate babies. Pro-lifers often make little effort to understand why an unwanted pregnancy can feel like an intolerable imposition on one’s liberty even if one is fine with giving the child away for adoption after birth. And pro-choicers often make little effort to understand why pro-lifers find it appallingly hypocritical that the value of fetal life—right down to whether one calls it a “baby” or a ”fetus”—is determined solely by whether it is “wanted” or not.

All of which is to say that I would have much preferred if Roberts had been able to peel either Gorsuch or Kavanaugh off the conservative majority. And even leaving aside the welfare of women, I think the country would have been much better off without (another) political firestorm.

So what comes next? On Friday, The Bulwark ran a fine piece by AEI’s Brent Orrell on what pro-lifers should do post-Roe to promote a genuine “culture of life” in America and support women, families, and children. I would also urge pro-lifers, as they think about how to follow up on this long-desired policy victory, to keep two important limiting principles in mind.

First, Republicans and conservatives must remain serious about their commitment to federalism. That means not seeking to impose a national law in Congress restricting abortion, but leaving abortion laws up to the states. It also means not attempting to ban out-of-state travel for the purposes of getting an abortion. Such bans, as Justice Brett Kavanaugh indicated in his concurrent opinion, would be an unconstitutional infringement on the freedom of interstate travel. Both abortion-rights states and private charities can pitch in to ensure that low-income women have access to such travel.

Second, officials in states that institute a near-total ban even on first-trimester abortion procedures may be tempted also to ban the use of the “abortion pill,” mifepristone (RU-486). They should resist the temptation. Not only would enacting such a ban invite a new fight with the federal government (“States may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy,” said Attorney General Merrick Garland on Friday) but implementing it would be very difficult, since its enforcement would likely involve an aggressive campaign to stop or track the mail delivery. In practice, a ban on abortion pills would require a Communist Romania-level police state.

And what about the other side? Although some pro-choicers have been calling for Congress to codify Roe nationwide, it seems unlikely that Democrats have the votes to do so. Besides, a national law protecting abortion would still leave abortion rights at the mercy of political shifts (what one Congress can do today, another Congress can undo tomorrow) and even open the door to a push for a national abortion ban.

Instead, as pro-choicers increasingly turn their attention to fighting against abortion restrictions at the state level, I want to make one very short-term, one long-term, and one very long-term suggestion for pro-choicers.

In the short term, pro-choicers should focus on assistance to women in states with “trigger laws”—abortion-restrictive laws already in place, just waiting the overturning of Roe to be activated—who are suddenly having to deal with clinics closing and abortion appointments canceled.

In the longer term, pro-choice activists should grapple with the question of whether to expend massive political capital by trying to restore some semblance of the Roe status quo nationwide or to settle for a compromise: for instance, to live with abortion restrictions in some states as long as (1) they do not have time horizons that are too short (would the 15-week ban in some states be more acceptable than the 6-week ban in Ohio?); (2) they include reasonable exceptions permitting abortions when the life of the mother is endangered and in cases of rape and incest; (3) they do not interfere with interstate travel; and (4) they do not involve intrusive policing of abortion-pill use.

In the still longer term, the pro-choice camp must get much more aggressive about promoting (and facilitating access to) birth control. Lack of such access is one of the reasons abortion rates are much higher among black and Hispanic women than among white women. It’s all very well to talk about systemic inequities, but more outreach to make sure that low-income women not only have options for free or low-cost birth control but also know about those options is absolutely essential.

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How I Lost a Debate on Russia-Ukraine

On Thursday, I appeared in an Oxford-style debate organized by the Soho Forum, the venerable libertarian debate venue (which usually holds events in New York City) at Porcfest, a.k.a. the Porcupine Freedom Festival, a big libertarian event held every year since 2004. This was the proposition:

The U.S. response to a Russian invasion of another country should involve the provision of ample weapons, supplies, and military intelligence to that country, together with organizing aggressive economic, political, and cultural sanctions on Russia.

My opponent was Scott Horton, managing director of the Libertarian Institute, editorial director of the libertarian, non-interventionist website Antiwar.com, and host of Antiwar Radio for Pacifica Radio as well as a foreign policy podcast.

Obviously, while the proposition referred to “another country” in the abstract, the debate ended up being almost entirely about Ukraine.

The gist of my introductory remarks was that I can respect a principled anti-interventionist position with regard to Russia and Ukraine, but that, unfortunately, anti-interventionists often seem unable to defend this position without (1) denigrating pro-freedom aspirations in the neighboring countries the Kremlin seeks to bully and (2) recycling lies and distortions that come straight from the Kremlin propaganda machine.

Then, for the next hour, Horton proceeded to do exactly that. His position was that, while Russia’s invasion of Ukraine was bad, it was eminently provoked, and Putin’s demands and grievances against both the United States and Ukraine were entirely reasonable up to the point of the invasion. Every single claim Putin made was treated as the gospel truth. (When I pointed this out, Horton retorted that accusing anti-interventionists of echoing Kremlin talking points was a tried-and-true interventionist talking point.) That the “color revolutions” in former Soviet republics were the product of U.S. malfeasance—rather than the desire of those countries’ citizens to distance themselves from an increasingly authoritarian Russia and grow closer to the West—was taken as self-evident.

Horton repeated the familiar claims that there is an audio intercept showing American diplomat Victorian Nuland “plotting a coup” in 2014 (a claim that I believe the actual evidence overwhelmingly disproves) and that Ukraine’s armed forces were teeming with Nazis from the Azov battalion ( a complicated story I delved into recently; the upshot is that while the Azov militia’s founder in 2014 was indeed a militant white supremacist, there is plenty of evidence that the current Azov Regiment, integrated into the Ukrainian National Guard, has separated itself from its unsavory roots). Rather amusing for a libertarian, Horton even cited the FBI as a source for the assertion that several American neo-Nazis who had been involved in the Unite the Right rally in 2017 had previously trained with Azov. (This claim was based on a single allegation in a subsequently dismissed complaint.)

Horton’s tactic, essentially, was to toss out so many dramatic claims that one couldn’t possibly start rebutting them. For instance:

• the Biden administration deliberately baited Russia into attacking Ukraine, in the expectation that the Ukrainian government would quickly fall and there would be an insurgency that the United States could support and that would be a thorn in Russia’s side.

• The United States deliberately drove the Russian economy into the ground in the 1990s to trample and humiliate its vanquished Cold War rival, in contrast to past U.S. policies to rebuild Germany and Japan after World War II. (I don’t know, the fact that the United States actually occupied both those countries for a while and forced Japan to accept a U.S.-imposed constitution could certainly be construed as “humiliation.”)

• The United States was friendly with Boris Yeltsin and accepted Russia into the G-7? Oh, that was all part of the dastardly plan to destroy Russia.

• Besides, we even supported anti-Russian Islamist terrorist in Chechnya! (Another Putin claim Horton repeated as fact, even though there is no evidence to support it. U.S. officials did meet with some moderate Chechen separatists; but, apparently, to Horton, separatists are only legitimate in Eastern Ukraine, not in Chechnya where Russia waged an incredibly brutal war with indiscriminate slaughter of civilians and carpet-bombings of cities.)

• Russia wanted a peaceful resolution in 2014 via the Minsk Agreements which required Ukraine to achieve a peaceful settlement with the separatists in the Donbas, but instead Ukrainian forces kept attacking separatist-held areas. What was Putin to do? (Actually, Russia and its proxies constantly violated those agreements, and Russia opposed all forms of neutral peacekeeping and monitoring that would have allowed them to be effectively enforced.)

When all was said and done, my debate with Horton strongly reminded me of Steve Bannon’s infamous “flood the zone with shit” quote.

Horton also claimed that his real concern was for the people of Ukraine who are the victims in a U.S. proxy war against Russia and that the best way forward for Ukrainians was to negotiate peace and make concessions that would end the war. I pointed out that Ukrainians remain overwhelmingly in favor of continuing to fight and refusing territorial concessions. That, Horton replied triumphantly, might have something to do with the fact that the United States was inundating Ukraine with all those weapons! Yep, that makes a lot of sense: If you give people weapons, they’ll want to fight and die in a completely unreasonable war when they could negotiate a much better peace.

Et cetera, et cetera.

In the end, I lost. In an Oxford-style debate, the winner is determined by who shifts more votes in his or her favor from the pre-debate vote to the post-debate one. My position remained at 1.7 percent of the vote, which tells you a lot about the audience. (It’s a libertarian festival, with lots of bitcoin and cannabis booths!) The opposing view went from about 70 percent to over 90 percent.

I’m cool with losing a debate. (I had won a previous one with the Soho Forum in 2017.) I certainly don’t have any complaint about the Soho Forum organizers, who were very gracious, or about the festival (several people came up to me afterward to compliment me for venturing into hostile territory to defend the resolution). But I think, as a matter of principle, that Horton should have lost votes if only for repeatedly referring to the Ukrainian leadership as a “Nazi junta” (a Nazi junta which previously had a Jewish prime minister, now has a Jewish president, and is overwhelmingly supported by Ukraine’s Jewish community!) and referring with a straight face to the “plebiscite” in the Donetsk and Luhansk region where people voted to be annexed by Russia under the guns of pro-Russian insurgent gangs.

Maybe the anti-interventionists have some soul-searching to do.