With the news last night of the leaking of the draft opinion of the Supreme Court reversing Roe v. Wade, abortion choice will now become nationally the paramount issue in this year’s midterm elections. This issue more than any other will become decisive in determining control of the next Congress, even more than the issues of inflation and foreign policy. The Democrats see this issue nationally as their ultimate means of motivating their base and snatching victory from the jaws of defeat.
Abortion choice has now become the most significant issue in the Tom Malinowski- Tom Kean, Jr., campaign for the New Jersey 7th District Congressional seat, relegating all others into insignificance. Abortion choice has elevated the reelection campaign status of the incumbent, Democratic Congressman Tom Malinowski from even money to that of the clear favorite. And with his vote as a state senator against the Freedom of Reproductive Choice Act, the abortion issue is one of extreme vulnerability for the putative Republican challenger, Tom Kean, Jr.
In order to clarify the impact of the abortion choice issue on Campaign 2022, it is first necessary to quickly review the history of US Supreme Court decisions on abortion choice. Its 1973 decision in Roe v. Wade created the federally protected right of abortion choice which is the focus of the current controversy.
Specifically, in Roe, the Supreme Court created a federal protection for a woman’s right to choose to have an abortion, free from state interference, The High Court found that such a right existed under a “penumbra of privacy” present within the Ninth Amendment to the United States Constitution. The High Court, in a nutshell, determined that this right of choice would exist until the end of the second trimester, to wit, the first 24 weeks of pregnancy. The rationale of the 24-week date is that it marks the beginning of “fetal viability;” i.e.; the ability of a fetus to survive outside the uterus.
It didn’t take any special genius on my part to make this prediction. Anybody who follows the Supreme Court and the careers of its justices could easily have made the same forecast, although I must credit myself with some remarkable prescience in estimating the six-month time period for reversal!
A few weeks later, I authored a column regarding the consequences of overturning of Roe v. Wade. The reversal of Roe v. Wade by the Supreme Court will result in the legality of abortion becoming a matter for each state to decide.
There are 24 states that have statutes making abortion illegal in those jurisdictions. These statutes, which were superseded by Roe, would once again become fully operative prohibitions against abortion the moment Roe v. Wade is reversed.
In New Jersey, there is no statute prohibiting abortion or affirming the right of abortion choice. A woman’s right to choose has been affirmed by the state courts.
The New Jersey issue involves the possibility of those state court decisions being reversed. As we have learned from the Roe v. Wade saga, if the political climate changes and new right wing state justices are appointed, all these pro-choice decisions are subject to reversal. If future appointed right-wing judges in New Jersey hold that abortion is murder, this would make women exercising abortion choice subject to criminal prosecution.
Accordingly, in New Jersey, protection from judicial interference of a woman’s right to choose can only be implemented by passage of a statute affirming a woman’s right to abortion choice. New Jersey enacted such protection in 2022 with the passage of the Freedom of Reproductive Choice Act (S49/A6260), which codifies the constitutional right to freedom of reproductive choice in New Jersey.
Yet Tom Kean, Jr. as a departing state senator in 2022 voted against this basic abortion choice legislation. With the reversal of Roe v. Wade, and without passage of the Freedom of Reproductive Choice Act, which Kean, Jr. opposed, women in New Jersey would have no protection from judicial abrogation, partial or complete, of their right to choose. Tom Kean, Jr.now has left himself extremely vulnerable to attack by Democrats portraying him as anti-woman.
In Brad Lawrence and Steve DeMicco, Malinowski has two of the most effective media and message consultants in modern New Jersey political history. They are proficient in crafting both positive and negative media. We can fully anticipate they will create commercials with the following basic campaign message.
The fellow Republicans of Tom Kean, Jr. on the US Supreme Court have now deprived women of federal protection of their right of safe and legal abortion choice. And Tom Kean, Jr. has voted against state protection of a woman’s right to choose.
This message is devastating to Kean, Jr, but his situation is worsened by his embrace of GOP authoritarian cultural war tactics in this campaign. He has gone so far as to duplicate the misleading GOP troglodyte claims of inclusion of gender identity and pornography in the curriculum of lower grades in the public schools.
And he recently produced a commercial reinventing himself as a “cultural warrior.” Kean, Jr. looks absurd and inauthentic in this commercial. It is truly the equivalent of the 1988 Presidential campaign commercial of Michael Dukakis looking like a foolish figure wearing an Army uniform and riding in a tank.
Tom Kean, Jr. abandoned his authenticity and donned the authoritarian cultural war uniform in an attempt to avoid any problems in the forthcoming Republican Congressional primary. Tom Kean, Jr. is neither an authoritarian nor a Trumpian, but he has enlisted in the right-wing authoritarian cultural war. And now that he is a soldier in this war, he cannot retreat on the abortion issue without risking a substantial desertion of the GOP authoritarian base.
In this campaign, there are a number of consultants boosting the Kean, Jr. candidacy, hired either by the campaign itself, by national party committees, or by independent groups. For them, the Kean, Jr. campaign is a cash cow. They will attempt to give the Kean, Jr. campaign the cloak of continued viability post-Roe reversal by noting that the 7th District was represented by an anti-abortion GOP Congressman, Mike Ferguson, from 2001 to 2009.
This comparison spin is inapposite, however. At the time Ferguson represented the district, there was no foreseeable prospect of reversal of Roe v. Wade. Voters could ignore his abortion views and focus on the views and actions of Ferguson that they liked. With the imminence of Roe reversal, 7th District voters no longer have this luxury.
Tom Kean, Jr. is good man, an ethical man, a fair man. The problem is that in this campaign, he is not running as his own man. Instead, he is reminiscent of the Churchillian phrase, the pudding that has no theme. And that is a prescription for a disastrous defeat.
Alan Steinberg served as Regional Administrator of Region 2 EPA during the administration of former President George W. Bush and as Executive Director of the New Jersey Meadowlands Commission.