ABORTION
The Vice President Matters in 2024
Kamala Harris is the Prosecutor Defending Reproductive Rights
Will Kamala Harris have any effect on the presidential election in 2024? Politicians and pundits imagine that vice presidents provide electoral advantage but political scientists have demonstrated that vice presidents don’t reliably help in their home states or affect the national vote. When Kamala Harris became the first woman — also woman of color, Black American, and South Asian American — to serve as vice president of the United States some analysts suggested that this historic ceiling smasher might have wider implications for women in politics.
As 2024 approaches, much of what is said about Harris is similar to past vice presidents, though some have suggested that Biden’s age will lead voters to scrutinize Harris and her approval numbers have dropped since 2020. I want to suggest that the overturning of Roe v. Wade creates a unique opportunity for the vice president to matter — as a prosecutor defending reproductive rights as freedom, routine health care, and women’s autonomy and equal citizenship.
I’m going to set aside the criticisms of Harris as unlikable and how they should be understood in the context of sexism against other female-identifying leaders. My concern is how the prominence of abortion as an issue for the presidential election, Joe Biden’s historic reluctance to emphasize abortion, Harris’s prosecutorial skills, and her positionality as a woman might come together in this election season.
There is no doubt that access to abortion presents a challenge for Republicans in November. Former President Donald Trump understands that total bans on reproductive care are unpopular with voters and, since the overturning of Roe v. Wade, Republicans have lost important referenda in reliably Republican strongholds like Kansas, Kentucky, and Ohio as well as a swing state like Michigan.
This week, the former president attempted to thread a political needle. He claimed credit for appointing the three Supreme Court justices (Gorsuch, Kavanaugh, and Barrett) responsible for ending abortion as a constitutional right. But he also said that he opposed a national ban on access to abortion and that the newly empowered 1864 Arizona law that criminalizes abortion and makes no exceptions for rape or incest went too far. Trump has been inconsistent on abortion because the issue is political. He will say what he needs to win an election.
Joe Biden has consistently supported access to abortion but he is not at ease with the word. His 2024 State of the Union contained only one mention of abortion and he has not framed the presidential election as one over the Supreme Court.
Enter Kamala Harris.
Nerds and political scientists who have watched her grill judicial nominees, former Attorneys Generals Jeff Sessions and William Barr, and Supreme Court Justice Brett M. Kavanaugh know that Harris is at her very best asking questions that reveal inconsistencies. As a former prosecutor, she was one of the senators able to lead traps for the witnesses. Donald Trump called her a “sort of a mad woman…because she was so angry and so — such hatred with Justice Kavanaugh.” But many saw her as an effective litigator making a legal case.
As soon as the Supreme Court overturned Roe in June 2022, Harris began her opening argument on abortion. She emphasized access to abortion as freedom. No government — national, state, or local — had the power to dictate decisions about a person’s body: “In America, freedom is not to be given. It is not to be bestowed. It is ours by right…And that includes the freedom to make decisions about one’s own body — not the government telling you what to do.”
Republicans and Tea Partyers have effectively used the legacy of “liberty” for their causes such as gun rights or rights for people who are religiously orthodox. Many Democrats have yielded the banner of the Revolution and liberty but Harris effectively uses the language of liberty and government interference (classic American Revolutionary language) to defend access to reproductive rights. In every situation, she links freedom and abortion — without hesitation.
Since 2022, Harris has honed her argument to the jury. Her case for abortion has three prongs. In addition to emphasizing unbridled government power violating bodily freedom, Harris defines abortion as routine health care that 1 out of 4 American women will access in their lifetimes. She states the principle then offers evidence using stories of ordinary women who ran afoul of new state laws when they needed treatment. She frames the end of Roe as a health care crisis — one made by Donald Trump.
Unlike Biden, she is unafraid of tying abortion to women’s sexuality. She regularly — without sugarcoating — insists that state abortion bans condemn women for their sexuality. Legislators (Harris refers to them as “so called leaders”) frame abortion as something needed by women participating in irresponsible behaviors. Without any of Biden’s hesitation, Harris insists that women have consensual sex and they become pregnant. Some women do not wish to continue those pregnancies. Some do but they (or their doctors) judge the risk to the fetus or themselves to be too great.
Harris, who made her reputation in California prosecuting violent crimes against women and children, highlights that some women and children have no choice because they are the victims of violence: rape and incest. Inverting traditional anti-abortion morality rhetoric, she says that depriving a victim who has had their body violated of a reproductive choice or being silent on the issue of maternal moralist is the ultimate immorality. Most important to the national conversation about abortion, Harris frames abortion — and women’s sexuality — as ordinary life in America. She talks about sex in a way Joe Biden will (or can)not.
Harris’s third line of argument centers on autonomy and equality — and her claim is bold. American women — and any person with a womb — cannot be a free and equal citizen of the United States if the government has the power to force them to give birth. This is not the same as the Revolutionary “liberty” argument. Autonomy is more than freedom against tyrannical government — it assumes an equal right to make decisions and to be an equal member of the society.
The Supreme Court has generally framed access to birth control and abortion as privacy, not equality or autonomy. The Court has held that elements of the 1st, 3rd, 4th, 5th, 9th, and 14th amendment indicate an overarching concern for protecting private life from government interference that includes access to abortion. Even though the 9th amendment (written by James Madison) reads that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” the Supreme Court has generally relied upon the liberty clause of the 14th amendment (“nor shall any State deprive any person of life, liberty, or property, without due process of law”) to support a fundamental right to access abortion before the fetus is viable outside the womb.
This line of argument did not sit well with Justice Ruth Bader Ginsburg who maintained that reproductive autonomy was not privacy but a matter of equal citizenship. Women — as a class of people with wombs who might become pregnant — could not lead the same economic, social, familial, religious, ethical, or civic lives unless they had control over their reproductive lives. Ginsburg would have preferred an argument grounded in the equal protection clause of the 14th amendment: states cannot “deny to any person within its jurisdiction the equal protection of the laws.”
Justice Sandra Day O’Connor’s 1992 opinion in Planned Parenthood v. Casey emphasized elements of autonomy such as the “ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Harris is channeling Ginsburg here. Abortion is not about “private” matters that should be behind closed doors. It is about ordinary life, liberty, and women’s equality depends upon it. She asks for “any law that tells a man what he can do with body.”
Vice President Harris positionality in these debates is unique. She is more knowledgeable, passionate, and confident than Joe Biden or Donald Trump speaking about on abortion, miscarriage, rape, and women’s sexuality. She easily translates how complex policy affects ordinary people (e.g., when she talks regularly about EMTALA (Emergency Medical Treatment and Labor Act that requires hospitals to provide emergency abortions nationwide, including in the 21 states where the procedure is limited or banned). She is also a woman and a parent (though she did not give birth to her step-children). As the historic first woman vice president, she speaks as a woman and woman of color (who are disproportionately affected by abortion limits).
But she is also prosecutor-in-chief.
She personally connects Donald Trump to the overturning of Roe through his appointment of 3 SCOTUS justices and using his own words against him: “For 54 years, they were trying to get Roe v. Wade terminated, and I did it…I’m proud to have done it.” She forcefully makes the case for abortion. In her most recent campaign speech after Arizona reinstated its 1864 abortion ban, she casts Republicans as “extremists” that cause women to suffer. She forcefully insists that abortion is not the end: access to birth control, protection of marriage equality, IVF, and trans health care all are in jeopardy if Trump wins in November. In his most recent campaign ad, Biden says “Your body and your decisions belong to you — not the government, not Donald Trump.” This new ad is more Harris than Biden.
The vice president won’t affect whether Biden wins California but Harris as the first female prosecutor in chief is uniquely positioned to leverage the issue of abortion for Democrats. She is a prosecutor defending reproductive rigas freedom, routine health care, and women’s autonomy.
