Did Elizabeth Warren suddenly transform the abortion debate?

I'm about to read Andrew Sullivan's new column, "Elizabeth Warren Just Transformed the Abortion Debate."

Warren, as you might have noticed, has come out in favor of what isn't a new idea but simply a seemingly newly urgent idea: protect the right to abortion with a federal statute. The idea is that it won't matter if the Supreme Court overrules Roe v. Wade if there's a federal statutory right. So, Congress, just pass that statute, if you can, and as long as there's no successful constitutional challenge to the new statute, there will be a right to have an abortion... subject to repeal by Congress.

Abortion politics intensifies. First, members of Congress will be pressured to take a position, even now, just because Warren has proposed it. Later, there may be a bill to vote on, and if it passes, there will be endless political efforts to repeal it, and, if it is repealed, to enact it again. And we'll still fight about who gets on the Supreme Court, because we will still care about the constitutional rights, even if they are replicated in statutes, because statutes can be repealed and because the statute will be challenged as beyond Congress's legislative powers.

When Congress passed a statute banning "partial-birth" abortion, the Supreme Court upheld it, but Justice Thomas, joined by Antonin Scalia, wrote a concurring opinion, to "note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court." The pro-choice parties who challenged that law were not the sort of people who argue for a limited interpretation of the commerce power issue, but you can bet that if Congress passed a law protecting access to abortion, it would be challenged by people who don't mind making that argument.

Now, let me get on with my reading. What does Sullivan have to say?

Elizabeth Warren is... right. Congress can legislate on abortion; the matter can be settled through politics, rather than through a strained parsing of the Constitution by the courts. Political arguments can be made, and countered. Voters can go to the polls to support candidates who will vote for such a law, which will make any previous Supreme Court ruling irrelevant.

This is the process called politics. And America, for 46 years, has tried to keep abortion out of it. It’s encouraging to see Warren jump into the fray to bring legislative politics back to the subject — and to call the right’s bluff on taking that approach. It’s amazing it has taken this long.

It's not amazing to me. Sullivan is missing the complexity of the law and politics. Does he think Warren came up with a new idea here, that a statute could be passed and would remain intact and isn't subject to a challenge in court, and that there wouldn't be a threat to repeal the statute?

The idea of a federal statute is an old one, so the question should be, why don't we already have it? I think if the Court already had overruled Roe v. Wade, we would already have seen this statutory effort (and if in the future it does, we will). The failure of Congress to provide the statutory right to abortion isn't a mere oversight. It's a political choice.

Will Elizabeth Warren's prominent call for this statute change anything (any more than things are already changed by new state statutes restricting abortion and by new Justices on the Supreme Court)?

I do not think Warren's call will get that statute passed any time soon, but it will create the occasion for questioning abortion rights proponents in Congress about why they are not using their legislative power right now to secure the right. They are in default! Opponents of abortion who are running for Congress will be able to stir up pro-lifers with the argument that overruling Roe v. Wade — the long-sought goal — won't matter if the Democrats win the 2020 elections. So which side is helped by talking about this statute? See why it hasn't been talked about much?

The second-to-last sentence in Sullivan's column is: "What we desperately need to do is take this issue out of the polarizing abstractions and into the nitty and the gritty of democratic give and take."

I think we've had "polarizing abstractions" and "the nitty and the gritty of democratic give and take" all along, and we can highlight the possibility of a federal pro-abortion-rights statute but we'll still have polarizing abstractions and nitty-gritty democratic give and take.