Sunday Sermon

Today, I will be delivering a talk–shared below– to Danville’s UU Congregation, addressing our legislature’s assault on trans children.

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Let me begin this talk by quoting from the introduction of a recent article in the New York Times:

When the Supreme Court declared a constitutional right to same-sex marriage nearly eight years ago, social conservatives were set adrift.\

The ruling stripped them of an issue they had used to galvanize rank-and-file supporters and big donors. And it left them searching for a cause that — like opposing gay marriage — would rally the base and raise the movement’s profile on the national stage.

“We knew we needed to find an issue that the candidates were comfortable talking about,” said Terry Schilling, the president of American Principles Project, a social conservative advocacy group. “And we threw everything at the wall.”

What stuck to that wall was the issue of transgender identity, particularly that of young people. As the article went on to detail, the effort to restrict transgender rights has supplanted same-sex marriage as an animating issue for social conservatives. It has reinvigorated a network of conservative groups, increased rightwing fund-raising and set the Right’s agenda in school boards and state legislatures, including Indiana’s.

Nothing like fear of a demonized “Other” to gin up the troops….

I was asked to address the legal issues triggered by the Indiana General Assembly’s efforts to keep trans children from receiving appropriate medical care. I will do that—but before I do, I think it is critically important to point out that what we are experiencing in the U.S. right now, not just in Indiana, isn’t just an attack on the autonomy of women and the existence of trans people; it’s a political calculation that is also part of a wholesale attack by MAGA partisans on the Bill of Rights and long-settled principles of American jurisprudence.

The purpose of the Bill of Rights was—in Justice Jackson’s immortal words—”to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and establish them as legal principles to be applied by the courts.” Or, less eloquently, as I used to tell my students, the Bill of Rights answers a deceptively simple question: who decides? Who decides what book you read, what God you worship (or if you do), what politics you endorse, who you choose to marry, whether you choose to procreate…who gets to dictate what philosophers call your telos—the ultimate aims and objectives that you have chosen and that shape your life?

From 1967 to last year, America’s Courts answered that question by upholding a doctrine called substantive due process—often called the individual’s right to privacy or personal autonomy. That doctrine recognizes the existence of an intimate “zone” that governments have no right to enter— a set of personal decisions that must be left up to the individuals involved.  That doctrine, first enunciated in Griswold v. Connecticut, recognized the libertarian principle embraced by the nation’s founders.

Those who crafted America’s constituent documents were significantly influenced by the philosophy of the Enlightenment, and its then-new approach to the proper role of the state. That approach rejected notions of monarchy and the “divine right” of kings (in other words, the overwhelming authority of the state) in favor of the principle that Individuals should be free to pursue their own ends–their own life goals–so long as they did not thereby harm the person or property of someone else, and so long as they were willing to accord an equal liberty to their fellow citizens.

When I was much younger, that principle, and the importance of limiting government to areas where collective action was appropriate—keeping the state out of the decisions that individuals and families have the right to make for themselves– was a Republican article of faith. It was basic conservative doctrine. Ironically, the MAGA folks who inaccurately call themselves conservative today insist that government has the right—indeed, the duty– to invade that zone of privacy in order to impose rules reflecting their own particular beliefs and prejudices.

That process requires the use of other inaccurate labels. We’re hearing a lot about “parental rights,” for example—but we sure aren’t hearing about the rights of parents who want to treat their children’s gender dysmorphia or who want their children to have access to a wide range of books, or to be taught accurate history. In MAGA world, parental rights extend only to parents who agree with them. (A more accurate label would be “parental privileges.”)

Indiana’s legislature has now gone home, but before they left, the culture warriors who dominate that legislature passed measures doing irreparable harm to trans children. That same gerrymandered legislature was first in the nation to pass an almost complete ban on abortion after Dobbs was handed down. It was the same legislature that ignored law enforcement warnings and passed “permit-less carry,” and the same legislature that has conducted a years-long effort to destroy public education in Indiana.

I think it’s really important to understand that denying medical care to defenseless trans children isn’t a “stand-alone” position. It’s part of an entire worldview that is anti-choice, pro-gun, anti-immigration, racist, anti-Semitic and homophobic, a worldview that is autocratic and profoundly anti-American. The good news is that it’s a worldview held by a distinct minority of Americans—and that minority has gotten substantially smaller since the recent judicial and legislative assaults on women and LGBTQ+ people. The bad news, of course, is that—thanks to gerrymandering– that minority controls far too many legislative bodies, very much including Indiana’s.)

What is my evidence for the assertion that these are minority positions?

According to a Pew Research Center poll conducted in 2021, before Dobbs, 59% of Americans believed that abortion should be legal in all or most cases, while 39% believed it should be illegal in all or most cases. In a Gallup poll earlier this year—after Dobbs— 35% of Americans said abortion should be legal under anycircumstances, and another 50% said the procedure should be mostly legal, but with some restrictions. Only 13% responded that it should always be illegal. (What’s that old saying? You don’t know what you have until you lose it…)

It isn’t just abortion.

In a 2021 Gallup poll, 56% of Americans said they believe gun laws should be stricter, while 43% said they should remain as they are or be less strict.

In a Pew poll from 2021, 60% of Americans said that immigrants strengthen the country, while 37% said that they burden the country.

In another poll that year, 70% of Americans supported same-sex marriage while only 28% said it should be illegal. That level of support explains why the GOP has shifted its main focus from same-sex marriage to transgender people; the public is less familiar with transgender people, so they can more easily be demonized.

With that background, let me turn to the legal issues. On April 5th, Indiana’s ACLU– joined by the national organization– filed a 47-page complaint challenging the discriminatory and cruel anti-trans measure signed by Governor Holcomb. Let me just read the opening paragraph of that Complaint:

Over the sustained objection and concern of medical professionals, Indiana passed Indiana Senate Enrolled Act 480, effective July 1, 2023, which prohibits transgender minors from receiving what the law labels as “gender transition procedures.” These prohibited interventions are evidence-based and medically necessary medical care essential to the health and well-being of transgender minors who are suffering from gender dysphoria, a serious condition that can lead to depression, anxiety and other serious health consequences when untreated. By denying this medically necessary treatment to minors, the State of Indiana has displaced the judgment of parents, doctors, and adolescents with that of the government. In so doing, the State has intruded on the fundamental rights of parents to care for their minor children by consenting to their receipt of doctor-recommended and necessary care and treatment. This violates due process. Additionally, by singling out for prohibition the care related to “gender transition,” the law creates a facial classification based on sex and transgender status, violating the equal protection rights of transgender adolescents. It also violates their bodily integrity and is fundamentally irrational, which violates due process. And, to the extent that it prohibits the provision of essential services that would otherwise be authorized and reimbursed by Medicaid, the law violates the federal requirements of the Medicaid Act and the Affordable Care Act. It also intrudes on the First Amendment rights of doctors and other practitioners.
Speaking of intrusions on Constitutional rights, the ACLU has also filed two cases challenging Indiana’s abortion ban. The first case argues that the ban violates Indiana’s constitution. In my view, the second case is the really important challenge—it’s based upon religious liberty. Your Unitarian Church—along with several other Christian denominations, the Jewish community, and an assortment of other minority religions– has an extremely important interest in both its argument and outcome.

I’m one of many people who are convinced that abortion bans are prompted by a desire to return women to a subservient status– but those bans are publicly justified by equating a fertilized egg with a human person. As doctors will confirm, that is a religious precept, not a medical one. It’s a belief held by some Christian sects, but it is at odds with doctrinal beliefs held by other Christian denominations and by adherents of other religions. In Judaism, the health of the pregnant woman takes priority over that of the fetus throughout pregnancy, and the fetus does not have equal moral status with the mother until the head emerges from the womb.

If the Indiana Supreme Court upholds the ban, it would be favoring one part of one religion over others—a violation of the First Amendment, and ironically, a violation of Indiana’s version of the Religious Freedom Restoration Act., or RFRA. As you will all recall, that act was passed in order to justify discrimination against LGBTQ+ citizens. (What’s that saying about karma??) I’m relatively optimistic about Indiana’s Supreme Court, since none of its justices appear to be clones of Clarence Thomas or Samuel Alito.

So here we are.

MAGA Republicans are waging culture war against a fundamental premise of American governance—what Justice Brandeis once called “the right to be left alone”—a premise that animates the Bill of Rights and for the past 56 years has been protected by the explicit doctrine of substantive due process—the premise that there are decisions government doesn’t get to make.

I may disagree with your choice of religion or politics or life partner, but my disapproval is irrelevant. Even if a majority of Americans disagree with your choices, in our system, they are yours to make. Absent harm to others, government must “butt out.”

The Indiana legislature’s assaults aren’t just against women or trans people—these assaults should be seen for what they are: an effort to overturn a fundamental principle of American government.  And if that effort is successful, it won’t just be trans children who suffer. None of us will have rights that government will be obliged to respect.

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Time For A Realignment

Recent events have increased my belief that the U.S. is at a political tipping point.

In the past few weeks, in addition to the mass shootings that are now horrifyingly routine, we’ve seen Tennessee’s gerrymandered White Republican legislature expel two young Black Democrats who breached “House Order”–despite that body’s unwillingness to expel White Republicans accused of sexual misconduct and criminal activity.

Immediately after a jury found a defendant guilty of intentionally murdering a Black Lives Matter demonstrator, Greg Abbott vowed to pardon him.

Then, thanks to Pro Publica– in deeply-researched reports which have once again underlined the importance of a free and vigorous press–Americans learned that Clarence Thomas’ corruption extends well beyond his widely-criticized refusal to recuse himself from cases involving organizations with which his wife has been active. Not only did Thomas accept trips on yachts and luxurious accommodations worth millions from his “dear friend” Harlan Crowe (a “friendship” that began five years after Thomas joined the Court), not only did Crowe’s purchase of real estate from Thomas (at an evidently inflated price)  go similarly unreported, we’ve also learned that Crowe’s creepy collection of memorabilia includes two pictures painted by Hitler and a signed copy of Mein Kampf. 

We also learned that, early in their “friendship,” Thomas had reported some of those gifts, but when those reports generated criticism, rather than stop accepting them, Thomas stopped reporting them.

It isn’t just Clarence Thomas.

For years, the American public ignored the legal profession’s exhortations about the importance of the judicial branch, and the need to vote against lawmakers intent upon elevating ideologues to the bench. It’s not just Thomas and the rabidly conservative bloc that now dominates the Supreme Court; thanks to a rogue Texas Judge,  a lot more people understand the importance of an intellectually honest, honorable and professionally competent judicial branch.

A federal judge in Texas issued a preliminary ruling invalidating the Food and Drug Administration’s 23-year-old approval of the abortion pill mifepristone, an unprecedented order that — if it stands through court challenges — could make it harder for patients to get abortions in states where abortion is legal, not just in those trying to restrict it.

Kacsmaryk’s ruling wasn’t unexpected. Since Trump placed him on the bench, this poster boy for judicial activism has been the choice of forum-shopping rightwing extremists who’ve responded to clear signals that he would ignore legal precedents that conflicted with his religious beliefs.  Among other numerous legal deficits, this particular decision ignored a six-year statute of limitations, rules governing standing, and sound science.

Worse–as two hundred drug companies pointed out in a letter blasting the decision,

“The decision ignores decades of scientific evidence and legal precedent,” the drugmakers wrote. “Judge Kacsmaryk’s act of judicial interference has set a precedent for diminishing FDA’s authority over drug approvals, and in so doing, creates uncertainty for the entire biopharma industry.”

Should the decision be upheld, the consequences of second-guessing the experts at the FDA decades after the fact would threaten investment in all new medications, not just those related to reproduction.

Meanwhile, Rightwing activists and lawmakers are continuing their attacks on local school boards and libraries, and Republican legislators in Red states continue to focus mean-spirited and dishonest attacks on trans children and the medical professionals who treat them.

The narrow focus on transgender folks is strategic. Polling has confirmed that significant majorities of Americans now support same-sex marriage and anti-discrimination laws protecting LGBTQ+ citizens, making wholesale attacks on the gay community politically  unwise.

Nearly eight in ten Americans (79%) favor laws that would protect gay, lesbian, bisexual, and transgender people against discrimination in jobs, public accommodations, and housing, including 41% who strongly support them.

Trans children are more vulnerable–in more ways than one.

As Jennifer Rubin wrote in the Washington Post

It is one thing to gin up the base on invented threats from critical race theory or the “great replacement theory.” But when the MAGA movement’s judges begin to inflict radically unpopular edicts on those outside the right-wing audience, that risks sparking a counter-response: a determined, broad-based movement insistent that the United States not turn the clock back on decades of social progress….

The more the Supreme Court diverges from overwhelming public sentiment on issues such as abortion, guns and voting rights, the more strength and more allies the progressive movement may gain.

Add to all this the ongoing antics of the buffoons in Washington whose behavior continues to prevent anything remotely resembling thoughtful governance, the  constantly unraveling spectacle that is Donald Trump, and the increasingly overt racism and misogyny that pervades today’s GOP.

Walter Dean Burnham once argued that there’s a 30–38 year “cycle” of political realignments.

We’re overdue, but the signs are there.

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Let’s Talk About Federalism

Ah, federalism! In the abstract, “laboratories of democracy” and a component of those “checks and balances” the Founders established.

Two hundred plus years later, a mess.

Very few students came into my classes with an understanding of the term or the multiple and often confusing ways in which federalism operates in the 21st Century. (That confusion was clearly shared by the author of a recent Washington Post essay who didn’t seem to understand when state-level prosecutors like Bragg can charge violations of both state and federal laws in a single prosecution. In all fairness, however–as I so often told my students– it depends, and it’s complicated.)

Actually, in addition to gerrymandering, the Electoral College, the filibuster, and the number/ terms of Supreme Court Justices, it’s also past time to revisit and revise the divisions of authority between state and federal governments.

Our relatively strong federal government was founded in reaction to the serious and multiple problems the country experienced under the Articles of Confederation, which gave states far too much authority.  In recent years, however, we seem to have forgotten about the very negative consequences of government fragmentation that prompted the Founders to establish a strong central government.

Obviously, not all policies need to be nationally uniform–there are plenty of areas where local control is appropriate. However, questions about who is entitled to fundamental rights–and what those rights are–isn’t one of them, as the patchwork of approaches to reproductive freedom that’s emerging is likely to demonstrate. Forcefully.

The (belated) application of the Bill of Rights to state and local governments was meant to establish a floor–to ensure that a citizen moving from say, New York to Indiana, would not thereby experience a reduction of her fundamental rights as an American citizen. Justice Alito’s evisceration of the substantive due process clause is–among other incredibly negative things– a step back toward the fragmentation of the Articles of Confederation.

The need for substantial national uniformity isn’t confined to civil liberties. Over the 200+ years of American statehood, the need to rationalize and unify large areas of the law gave rise to the work of the Uniform Law Commission; that body developed the Uniform Commercial Code– a comprehensive set of laws governing all commercial transactions in the United States. It has national application, but it isn’t a federal law–it had to be adopted by each state’s legislature.

As the Commission’s website explains,

Uniformity of law is essential in this area for the interstate transaction of business. Because the UCC has been universally adopted, businesses can enter into contracts with confidence that the terms will be enforced in the same way by the courts of every American jurisdiction. The resulting certainty of business relationships allows businesses to grow and the American economy to thrive.

Commerce is hardly the only area where uniformity is desirable and/or necessary. Federal action in the face of a pandemic would certainly seem to qualify, and before the incompetence and massive ignorance of the Trump administration, the federal government largely directed public health responses to threatened outbreaks.  A lot of people died as a result of Trump’s decision to leave COVID response to the states.

I won’t even address the insanity of leaving gun laws to the states in a country as mobile as the U.S.

Then there’s the environment. ( Air and water don’t stay in Indiana.)

The Indiana Capital Chronicle recently reported on efforts by Indiana lawmakers to give the General Assembly power over decisions that are currently left to state agencies  staffed with experts who implement state and federal environmental laws— a move that  would put Hoosiers’ health and environment in jeopardy.

A sweeping, 54-page amendment was added last week to the administrative rulemaking bill, which additionally seeks to put lawmakers in charge of new pesticide regulations and prevent state environmental regulators from making stricter coal ash rules than federal ones.

Indiana’s legislators already believe they know more than doctors; now they think they’re experts in environmental science. Given their consistent subservience to the state’s utilities, passage of this bill would be a huge step backwards.

No serious student of governance believes that, in a country as large and diverse as the United States, all decisions should be made at the federal level. The question with which we should be grappling is “which responsibilities are properly federal and which matters are properly left to state or local governments?” .

What laws need to be uniform if we are to be the United States of America, rather than a haphazard collection of Red and Blue fiefdoms?

I’m willing to leave zoning decisions up to local municipalities, and a substantial portion of criminal justice measures up to the states. When it comes to guns, the environment or fundamental rights, not so much…

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A Pyrrhic Victory

I never thought I would view Justice Alito’s deeply dishonest opinion in Dobbs as a gift, but I’ve come to that conclusion. 

Whatever one’s position on abortion, it is impossible to ignore the political effect of that Supreme Court decision. Some (male) strategists insist that Democrats’ continued emphasis on the issue is risky or misplaced, but I respectfully disagree. Absent the presence of some other massively salient issue, GOP candidates now look a whole lot like the dog that caught the car. (Furthermore, two of the most salient issues these days are gun control and democracy–both of which also favor Team Blue.)

As Michelle Goldberg recently wrote in the New York Times, 

Having made the criminalization of abortion a central axis of their political project for decades, Republicans have no obvious way out of their electoral predicament. A decisive majority of Americans — 64 percent, according to a recent Public Religion Research Institute survey — believe that abortion should be legal in most cases. A decisive majority of Republicans — 63 percent, according to the same survey — believe that it should not. When abortion bans were merely theoretical, anti-abortion passion was often a boon to Republicans, powering the grass-roots organizing of the religious right. Now that the end of Roe has awakened a previously complacent pro-choice majority, anti-abortion passion has become a liability, but the Republican Party can’t jettison it without tearing itself apart.

Back in September of 2021, I wrote:

This year, the Supreme Court will review Mississippi’s ban on virtually all abortions after the 15th week of pregnancy. A Court created by Donald Trump is likely to overrule–or eviscerate–Roe v. Wade. If it does so, Republicans may come to rue the day.

Without Roe, the single-issue anti-choice voters that have been a mainstay of the GOP will be considerably less motivated. Pro-choice voters, however, will be newly energized–and polling suggests they significantly  outnumber “pro-life” activists.

The de-nationalization of Roe wouldn’t just mobilize pro-choice voters who’ve relied on Roe to protect their rights. It would redirect liberal and pro-choice energies from national to state-level political action. And that could be a huge game-changer….

As I have repeatedly noted, the current dominance of the Republican Party doesn’t reflect  American majority sentiments–far from it. GOP membership has been shrinking steadily; some 24% of voters self-identify as Republican (and thanks to vaccine resistance, those numbers are dwindling…) GOP gerrymandering and vote suppression tactics are artifacts of state-level control. With Roe gone, purple states–including Texas–will more quickly turn blue.

If Roe goes, the game changes. File under: be careful what you wish for.

In her Times column, Goldberg enumerated the the multiple, continuing GOP assaults on abortion rights at both the state and federal levels, including but not limited to the following:

In the last Congress, 167 House Republicans co-sponsored the Life at Conception Act, conferring full personhood rights on fertilized eggs. In state after state, lawmakers are doing just what the R.N.C. suggested and using every means at their disposal to force people to continue unwanted or unviable pregnancies. Idaho, where almost all abortions are illegal, just passed an “abortion trafficking” law that would make helping a minor leave the state to get an abortion without parental consent punishable by five years in prison. The Texas Senate just passed a bill that, among other things, is intended to force prosecutors in left-leaning cities to pursue abortion law violations. South Carolina Republicans have proposed a law defining abortion as murder, making it punishable by the death penalty.

Goldberg’s column preceded the decision by the Trump-appointed federal judge in Texas, suspending FDA approval of mifepristone, one of the two drugs commonly used for medication abortions, despite its demonstrated safety over the past 20 years–a decision certain to raise the stakes–and the immediacy– of the abortion debate.

I agree with Goldberg that Republicans “are adopting a self-soothing tactic sometimes seen on the left”–blaming messaging. They insist they’re losing elections because they’ve failed to communicate clearly, not because their position is unpopular.

“When you’re losing by 10 points, there is a messaging issue,” the Republican Party chairwoman, Ronna McDaniel, said on Fox News, explaining the loss in Wisconsin.

But you can’t message away forced birth. Republicans’ political problem is twofold. Their supporters take the party’s position on abortion seriously, and now, post-Roe, so does everyone else.

As Alex Shepard wrote in The New Republic, the problem Republicans face is both simple and unsolvable, because an idealized middle ground that would be palatable to the diehards in the GOP base simply doesn’t exist.

In Dobbs, Justice Alito gave the Republicans something they had long claimed to want–a complete victory on an issue that the GOP had used for fifty years to motivate its base and generate turnout.

Sometimes, victories are pyrrhic.

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Sending A Message

A recent article in the New York Times reminded me how dramatically political sorting has changed the electoral landscape.The lede focuses on just one of the article’s examples

Eric Genrich is running a full-throated campaign in support of abortion rights, reminding voters of his position at every turn and hammering his anti-abortion opponent in television ads. At a recent event, he featured an obstetrician who now commutes to a state where abortion is legal to treat patients and a local woman who traveled to Colorado to terminate a nonviable pregnancy.

There’s just one inconvenient reality: Mr. Genrich is running for re-election as mayor of Green Bay, Wis., an office that has nothing to do with abortion policy.

As the article goes on to detail, Genrich is just one of several candidates for municipal offices on the ballot this spring in races in Wisconsin, Chicago, St. Louis, Lincoln, Neb., and elsewhere “who are making their support for abortion rights — and often their opponent’s past opposition — a centerpiece of their campaigns, even though abortion policy in all of these places is decided at the state level.”

If the mountains of polling post-Dobbs are correct, this is a pretty transparent effort to hang an unpopular and very salient issue around the neck of Republican candidates, whether or not they will have any authority to weigh in on the issue.

I should be conflicted over the tactic, which falls under the old “sending a message” justification.  I used to tell my students that passing laws intended to “send a message,” laws that could only be selectively enforced–if at all–undermined the rule of law. Prime examples were the “anti-sodomy” laws in many states. In some states, those laws only applied to LGBTQ folks (a clear violation of equal protection and an equally clear invitation to selective enforcement). In others, the laws applied even to married couples,  theoretically inviting local magistrates into the conjugal bedroom to ensure proper fornication.

Since the real-world likelihood of that intrusion was something less than zero, the laws were usually defended as efforts to “send a message” and/or “set a standard for moral behavior.” What they really did was reduce respect for the rule of law.

Given the clear inability of municipal candidates to affect state-level abortion law, isn’t the use of a “hot” political issue a variety of sending a message? And if it is, is it any more defensible than the moral posturing of which I’ve previously disapproved?

Actually, it is different and defensible, partly because the political environment is different.

Thanks to gerrymandering, the Electoral College and various other anti-democratic practices, very few Americans are able to cast truly meaningful votes. That disenfranchisement is somewhat ameliorated in states that allow citizen referenda; in places like Indiana, where a massively-gerrymandered legislature is in thrall to a super-majority of the most retrograde MAGA Republicans, there is no possibility of an initiative or referendum and thus no mechanism available to a majority of citizens who disagree with whatever that legislature is doing.

Dobbs allows the states to grant or withhold what had for fifty years been deemed a fundamental right. Aside from all the other legal arguments about that decision, it rested on the premise that voters in each state would determine that state’s policies on the matter. But Americans no longer live in a democracy, if democracy is defined by majority rule.

As political life in America has become nationalized, Democratic strategists have recognized that– in today’s tribal politics– “the precise responsibilities of an office matter less than sending a strong signal to voters about one’s broader political loyalties.” Granted, there is also an element of “turnabout is fair play.” The Times notes that, for decades, local Republican candidates ran on issues like abortion, immigration and national security, despite having no power to affect any of those issues.

Of course, also for decades, political party affiliation didn’t track perfectly with positions on issues like abortion. Both parties had their racists and anti-racists, misogynists and advocates for gender equality,  homophobes and  LGBTQ allies. Partisan identity was more likely to signal differences on economic issues than cultural ones.

A position on reproductive choice is a pretty reliable indicator of a candidate’s worldview–a “marker” that tells voters where that candidate stands in the culture wars. Candidates’ approach to abortion serves to signal their likely perspectives on a broad array of issues.

Wisconsin is the most gerrymandered state in the country, but you can’t gerrymander a statewide election. Judge Protasiewicz’ sent a message by making her support for reproductive rights very clear; voters sent an equally clear message to the anti-choice Republicans who control that state.

It was a message that ought to resonate beyond Wisconsin and into 2024.

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