In the wake of the Supreme Court decision striking down Roe v. Wade and giving the job of dealing with abortion back to the Legislative branches of the state and federal governments, some Progressives have been shocked, shocked they tell you, to learn that Congress could have done exactly that, long ago. Twice, the Democrats had the presidency and majorities in Congress – and still they failed to do what that noted conservative powerhouse Ruth Bader Ginsberg told them they needed to do – codify abortion in statute.

In the first half of Bill Clinton’s first term, he had a unified Congress and a slim majority. They could have passed some form of abortion legislation.

But that would’ve involved compromise – at the time, giving on parental notification and waiting periods. And the extremists (of the day – seeing today’s pro-infanticide howler monkeys, “parental notification” and waiting periods almost seem quaint – would have none of that:

As CQ explained:

[FOCA] would have the effect of overturning existing state laws that require 24-hour waiting periods and would nullify some parental notice and consent laws for minors. Many House members and senators want to allow precisely those types of restrictions on abortion. But abortion rights groups and their allies in Congress are adamantly opposed to such limits.

FOCA’s legislative text made plain that no state could restrict abortion “at any time” in pregnancy so long as the procedure was needed to protect the “health” of the mother. The term “health” was left undefined, and an open amendment process could have narrowed its meaning, so that the bill would protect only those with serious physical — as opposed to psychological — health issues.

And again, in the first half of Barack Obama’s first term, there was a similar layout; the Democrats had the Presidency, the Congress, and a pro-Roe majority on the SCOTUS.

And again, the move came up against the extremists:

There were many Democrats back then, including Joe Biden, who opposed taxpayer funding but supported Roe, just as Joe Manchin does today. There were at least 20 pro-choice House Democrats who voted for an amendment limiting taxpayer funding, and at least three House Republicans who supported Roe (Charlie Dent of Pennsylvania, Mary Bono Mack of California, and Rodney Frelinghuysen of New Jersey).

If Pelosi had the muscle to get Obamacare through the House, why didn’t she try to ram through a bill protecting Roe? Three factors were at play. First, there were six sitting Supreme Court justices who supported Roe. Second, it had taken significant political capital to pass Obamacare, and a vote on FOCA would have been politically painful. Third, the same sorts of divisions that had killed FOCA in 1993 were still at play in Congress in 2009 — there was likely majority support for some right to abortion, just not for one as broad as FOCA’s.

So it may not have been easy – but given even the most minimal compromise, they could have headed off Dobbs.

But they didn’t. Apparently having a perennial bloody shirt to wave, and having an angry mob at their disposal, suits them.

So – when Justice Alito’s draft opinion on Dobbs leaked (I’m sure the FBI will be getting to that any day now), the Left and Media (ptr) furtively warned that gay marriage might be next.

Like Roe, Obergefell – the SCOTUS case that legalized same sex marriage nationwide – was an incursion into the Congress and the States’ enumerated powers. And, like Roe, it was another area where Democrats in Congress would need to:

• Stop cowering behind the robes of a thin minority of appointed justices, and
• Get out and convince legislators, and thus voters, which would inevitably mean needing to
• Compromise on the most extreme parts of their agenda in order to get the votes they need.

And in theory, codifying same sex marriage should be much easier than abortion would have been:

Gay marriage is not the controversial issue that it was a few decades ago. The religious Right is not the force it once was — the Republican electorate, like the rest of the country, is increasingly secular and un-churched. As a result, its views on theologically informed issues such as marriage are more liberal: As of 2021, 55 percent of Republicans support same sex marriage. Among Americans writ large, support sat at 70 percent — a ten-point increase from 2015. In other words, it wouldn’t be politically toxic for Democrats to hold a vote on codifying same-sex marriage. If anything, as the progressive author Sasha Issenberg argued, a legislative push to codify Obergefell “might actually be politically wise for Democrats”: “The massive and still growing popularity of the gay-rights movement’s signal political achievement lets Democrats flip the script and make the culture wars work for them,” Issenberg wrote. “Reigniting the debate over same-sex marriage could give Democrats the perfect wedge issue.”

Pushing for same sex marriage right now could be as perfect a wedge for Democrats today as it was in Minnesota in 2012, when they used it to help crush the MNGOP in that very ugly year, taking down an otherwise popular Voter ID amendment initiative with it.

So – why don’t they?

Part of it, as Nate Hochman notes in the NR piece above, is that the Democrats may just be incompetent; they didn’t anticipate the weakness of Roe anymore than they did the collapse of Aghanistan.

Part of it? Keeping their voter base in a smugly-ill-informed panic suits them.