Could Dobbs Deliver Florida?

The Biden campaign is suddenly crowing about the political possibilities wrought by a conservative Supreme Court.

Erin Schaff/the New York Times via AP, pool
Justice Samuel Alito in 2021. Erin Schaff/the New York Times via AP, pool

If the question of abortion turns Florida blue this fall, President Biden will owe Justice Samuel Alito hosannas. It was he who in Dobbs v. Jackson Women’s Health declared that “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” That hour has now struck in the Sunshine State, just as it has, or will, clang across America. It is part of the remit to the democratic process that Dobbs is delivering. 

The return to Dobbs comes as Florida’s Supreme Court on Monday set a course centered on twin rulings. The first held, by six to one, that the state’s constitutional privacy protections do not apply to abortions. That allows a six week ban, passed in May, to take effect. The jurists, too, by a slimmer four to three vote, allowed a proposed constitutional amendment to proceed to November’s ballot that would protect abortions “before viability.”

This is what it looks like for Dobbs to be the law of the land. Abortion’s foes can celebrate the decree that Florida’s privacy promise — “every natural person has the right to be let alone and free from governmental intrusion into the person’s private life” — does not mean a Roe v. Wade-like constitutional guarantee of the right to abort. The court simply said that the amendment’s authors, in 1980, didn’t dream of defending abortion.

Mr. Biden calls that ruling “extreme” and “outrageous,” and reiterates his call for Congress to “pass a law restoring the protections of Roe v. Wade in every state.” He has elsewhere lamented the “devastating consequences” of Dobbs and, like a diehard Jacobite pinning his hopes to Bonnie Prince Charlie, pined for a restoration of the old regime — Roe — long past its sell by date. Constitutional genies rarely get put back in bottles.      

It is strange, then, to turn from White House warnings to the jubilation of Mr. Biden’s reelection campaign. Consider a memorandum penned by that campaign’s manager, Julie Chavez Rodriguez, and obtained by NBC News on the very day the decisions came down. It is titled “Biden’s Opening in Florida” and pronounces the state, of late red-hued, as “winnable” because “abortion will be front and center in Florida.”

In other words, Ms. Chavez Rodriguez and her boss are suddenly delighted about Dobbs and busy “investing in Florida as a pathway to victory.” They realize that abortion “is mobilizing a diverse and growing segment of voters to help buoy Democrats up and down the ballot.” For an aged president with sagging approval ratings and a base roiled by Gaza, the presence of abortion on the ballot in Florida could amount to a stroke of luck

Can Mr. Biden, though, have it both ways? Can he attack the court that delivered Dobbs only to welcome its downstream effects as a path to winning the electoral prize of Florida, which could cinch the election. It would be remarkable if Dobbs, the product of a court shaped by President Trump, were responsible for trapping him at Mar-a-Lago rather than bringing him back to the White House. Could Mr. Biden learn that heeding the Constitution has its perks?

The New York Sun

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