The Shifting Politics of Abortion
Pro-choice and anti-abortion demonstrators stage concurrent events outside the United States Supreme Court Building, Washington DC, April 26, 1989. Photo by Lorie Shaull from St Paul, United States, CC BY-SA 2.0
The last few weeks have been a bit of an upheaval in abortion politics. Two weeks ago, the Arizona Supreme Court decided that an 1864 law banning all abortions, passed 48 years before Arizona women got the right to vote, was effectively the law of the land.
Attempts by Democrats to repeal that law have failed. Republicans have been scrambling for cover on the issue, notably failed gubernatorial candidate Kari Lake (R-Toontown) who made pro-choice noises before affirming her supposed pro-life stance. Soon after, failed Presidential candidate Donald Trump (R-OANN) indicated he would wouldn’t seek an abortion ban if re-elected and almost sounded pro-choice in calling for any ban to kick in toward the middle of the second trimester, all while still taking credit for the Dobbs decision that struck down Roe. This was not long after the Florida Supreme Court signed off on Florida’s ban at six weeks, which is proving unpopular enough that a referendum on the issue is likely to hit the ballot in November.
All of this has given the Democrats high hopes going into what looks to be a tough election year. They face a huge uphill battle to hold the Senate. They are trying to take the House back. And Biden is unpopular and statistically tied with Trump in the election (which actually means he’s losing because Trump can lose the popular vote by five or six points and still win an electoral majority). They feel like if they can make abortion a big part of the campaign, their electoral prospects will improve.
The result is the biggest shift in abortion politics ever. Republicans are suddenly on the defensive and Democrats are on the attack. But … this is not surprising. This change in the politics of abortion in the post-Dobbs era was as predictable as an Atlanta Hawks playoff flop. While Roe still stood:
- The Republicans were free to say anything they wanted on abortion, knowing they would never have to deliver. Oh, they could nibble on the edges of the issue with things like parental notification laws. But, in the end, Roe kept them from enacting the most unpopular parts of their agenda and gave them someone else to blame for it. Abortion moderates could vote for them knowing it was unlikely they’d ever fulfill their promises.
- The Democrats constantly threatened that Roe would be struck down if Republicans won even a single election. But for forty years, nothing happened. The threat was abstract. In the meantime, they were forced to demonstrate their abortion bona fides by taking positions that were popular with the base but unpopular with the public, such as legalizing abortion up until birth. Even worse, cultural figures would have “salutes to abortion” and “shout your abortion” that tried to portray the destruction of a potential human life as a good thing, which riled the mushy middle, where most Americans have settled on this issue. Many people see abortion as necessary; few see it as something worth celebrating.
Post-Dobbs, things have changed. The Democrats can now take defensible positions on the issue while the Republicans suddenly have to deliver what they have been promising. And since complete bans on abortion poll at about 13% while “legal up to 20 weeks; legal for reasons thereafter” polls at 70%, the Democrats are on the attack.
In this light, what Trump and Lake are doing is, on the surface at least, sensible — stating a personal opposition to abortion while touting limits as a political necessity. In fact, this is where the vast majority of the public is. Even most “pro-life” people would accept abortion early in pregnancy if it were banned late. And most “pro-choice” people would accept limits as long as it remains legal early and there are exceptions. This is a standard political two-step that politicians have been doing since Urgh ran for Chief of Olduvai Gorge. The Democrats did this for years with “safe, legal and rare”.
The problem for the Republicans is this: for twenty years, the GOP has portrayed any compromise on any issue as RINOism in the First Degree. For eight years, the Republicans have burned every principle — morality in high office, fiscal conservatism, balanced budgets, free trade — on the alter of Trumpism. Abortion was the only issue they did not sacrifice and the only issue they can claim actual legislative success on. For eight years, the Republican Party has moved away from capable politicians to people like … well, like Donald Trump and Kari Lake — political populists unmoored from anything approaching a principle defined entirely by their demonization of the other side.
In this environment, it is almost impossible for any Republican to compromise on the issue without enraging a base that has come to expect absolute adherence to whatever they believe at the moment. But it’s also almost impossible for them to get elected without compromising on the issue. In very red states, they can win. In blue states, they aren’t winning anyway. But in purple states like Arizona, the issue is likely to be a political death sentence. Republicans can’t win the primary without being extremely pro-life. But they can’t win the general while being extremely pro-life.
Trump is in a unique position on this, of course, because the Cult would support him even if he were performing abortions on the White House lawn. Furthermore, both pro-choice and pro-life advocates know that anything he says about the issue is meaningless. If the Republicans take Congress and pass a national abortion law, he will sign it no matter what he says. He will continue to appoint Federalist Society judges who will do whacky things like decide an 1864 law is governing precedent or that they have the power to overturn a quarter-century old FDA decision based on junk science. So the end result, like everything in this era, may be to advance his political prospects while damaging the rest of the GOP.
The gripping hand with Trump and abortion is that he does not really care about the issue. He’s not a woman. He’s not a fetus. And abortion will always be legal for the rich. So I expect him to bend and sway with whatever populist breeze that blows. He can do that because of his devoted following. The rest of the GOP can’t. And that may make a big difference come November.
I would love to know how many abortions Trump has paid for or otherwise been responsible for.Report
I suspect he has paid for them. Politically, however, it wouldn’t matter.Report
Is that wacky? Maybe laws should expire and need renewal every twenty years, but as of now they don’t. As policy, I don’t like the law any more than you do, but if it is, in fact, a legally enacted part of the state code that has not been overridden by any more recent legislative action, then that seems like the correct ruling. I’m not familiar with Arizona law on abortion; is there a tenable argument that this is not, in fact, the most applicable law on the issue in Arizona?
If the legislature or governor are refusing to amend the law, that’s on them, not the court.Report
The issue with saying “well if you wanted it different you should have PASSED A LAW” is that fifty years ago there was a Supreme Court decision saying that we didn’t need to pass a law.
Like, the “governing precedent” for two entire generations has been Roe v. Wade, and if you want to say “well that’s their own fault for depending on a court decision that could be overturned in an afternoon instead of codifying things with a law”, sure maybe, but it’s not like there was no rational reason to say “this is the established practice and isn’t likely to change”.Report
About half of the states had some kind of “trigger law” to go into effect after Roe.Report
I meant that the legislature and government should have passed a new law immediately after the ruling. Judges are supposed to rule on what the law is, not what they think it should be. Making law is the legislators’ job.Report
“ Making law is the legislators’ job.”
Does anyone think this anymore? Reading the reactions to the FTC non compete refs, people agree or disagree on the outcome but hardly anyone seems bothered by the fact that this was done by administrative fiat.
It called to mind this old SNL cold open re executive orders: https://m.youtube.com/watch?v=JUDSeb2zHQ0Report
These aren’t the same things. Whether one agrees with the policy decision or not the FTC rule went through administrative rulemaking, which is a Congress created statutory process (the Administrative Procedure Act). The FTC itself is established by an act of Congress and has a statutory mandate. Congress could also eliminate these laws if it chose to do so.
Now, it’s entirely possible the courts say that the FTC exceeded its authority, and there are of course small handfuls of legal scholars that say any delegation of authority by Congress is unconstitutional, but it isn’t administrative fiat. This stuff only happens because Congress put laws on the book.Report
I didn’t say they were the same things, or that either was “unconstitutional.” My point is that people generally don’t seem to care about democratic process, just about getting their preferred outcome.Report
Certainly a fair point. At the same time we’re operating in a system of indirect democracy. We have the power to democratically elect representatives who could override or alter any of this. The systems were all put in place by democratically elected politicians.Report
I agree partially but … once Kennedy retired, it became obvious Roe was in danger, if not doomed. Dems needed a post-Roe strategy and they never put one together.Report
Personally I think there was a lot of complacency that the worst that was going to happen was a Roberts-Kavanaugh axis allowing a much greater level of interference at the state level than was seen before without expressly overruling Roe/Casey or endangering access to those vast majority of abortions happening far before viability. Or maybe that’s just what I thought only to be proven wrong.Report
We were told for years that no one actually wanted to ban abortion, that this was all just rube-running and ha ha of course they didn’t really mean it and any suggestion they were willing to hang women and doctors for murder was just hysterical smears.
But of course they do. Even if only a minority want to go that far, the majority won’t do anything to stop them and will turn a blind eye and pretend it isn’t happening.
And as has been pointed out previously authoritarianism contains the seeds of its own destruction because it feeds off conflict not peace. It needs a constant source of enemies and battles and now the movement is eyeing contraception as the next enemy to be fought.Report
There are a lot of things that are fine sentiments.
These things that are fine sentiments are actively bad when law enforcement gets involved with them.
I think that most folks have a bunch of attitudes that say “yeah, people shouldn’t X” and then get really upset at the thought of police kicking down doors and shooting a dog making sure that people don’t X.
Heck, I agree that people shouldn’t X for a heck of a lot of Xs. But I don’t think that the cops should be involved in making sure that people don’t X.
I think that the sentiment that people avoid X is a good sentiment. I wish that society held it in higher regard. I think that people who say that “X is good, actually” are saying something bad and they may be involved in actively making the world worse.
But I don’t think that the cops should be involved. This isn’t the jurisdiction of law enforcement.
In the cases where the cops got involved, I’m not sure that the involvement of the cops has resulted in the world becoming materially better.
In a handful of cases, the cops stopping being involved (for example, Marijuana Legalization) has resulted in the world becoming a little bit better in the whole “not getting arrested for marijuana” category and a little bit worse in the whole “you used to be able to drive past Acacia Park without getting a contact high” category.
When it comes to abortion, I understand the sentiment that says that it should be avoided. But that doesn’t mean that I think that getting the cops involved will result in the world becoming a better place.
It’ll make things worse.
And the hypocrisy that says “WE SHOULD AVOID X!” that also says “but, yeah, people who really want X should have it readily accessible with a minimum of fuss” is probably the best way to go.Report
The issue, to me, is that a lot of people have the idea that laws aren’t rules, they’re position statements, and that actual rules come from government offices like the FTC, or the FCC, or the FAA, or the EPA, or the NHTSA. So they don’t see anything inconsistent about supporting an abortion ban and then being upset when doctors decide they’re gonna do Exactly What the Law Says Plus A Little Extra Just To Be Sure, because they see the Abortion Ban Law as a guideline, not a rule.
And given how much Congress has let its governing authority be arrogated by the Executive Branch bureaucracy, these people aren’t entirely wrong to feel that way!Report
All laws are by necessity vague statements intended to be clarified by bureaucratic rule or court opinion.
Unless you want a law that says “Abortion is allowable only if the patient’s blood pressure is 112/85, and her Pg/D level is 0.35 and the rate of O2 absorption is 35%/min….”
I mean, Republicans have been explicitly clear that they are afraid of giving doctors a safe harbor in determining when a woman’s life or health is in jeopardy, because doctors might interpret that a little too broadly and allow an abortion which Republicans don’t want.
So they deliberately kept it vague so as to force them to ,as you say, do Exactly What the Law Says Plus A Little Extra Just To Be Sure.Report
“All laws are by necessity vague statements intended to be clarified by bureaucratic rule or court opinion.”
Really? Why? You seem awful sure that when doctors declare that they won’t treat uterine haemorrhage and prefer to let women bleed out in the parking lot, that was the specific intent of the actual law that was passed. Don’t you think it would have been easy enough to write that into the actual law?Report
No.Report
No we don’t. To begin with it would nearly impossible to create an exhaustive list of conditions that were medically sound and politically acceptable that could constitute such a list. Never mind the march of medical understanding and technology that mean what endangers a life today doesn’t endanger a life in two or three decades. As flip as it sounds, solving the Israeli-Palestinian conflict is likely easier.Report
Phil, you don’t need to talk to me, you need to talk to Chip, who is quite certain that “women should die” was the outcome desired by the legislators here.
Or you need to talk to the doctors, who despite all their rhetoric about being servants of the ill are still content to do the calculus of “dying woman in a car” versus “my job” and determine that the latter is what they prefer.Report
What you’re postulating here about the doctors themselves isn’t grounded in how acute care providers work. The providers practicing there are subject to all kinds of rules and requirements that not only prohibit them from going rogue but make it extremely difficult even if they want to.
Most of them may not even be employed by the hospitals but by a practice group with privileges. No one knows where the limits on these laws are and you’re not going to get a bunch of orderlies, nurses, PAs, technicians and other types to find out at the expense of their livelihoods nor do the hospital administrators want the places to be sanctioned, charged with crimes, or lose funding for carrying out illegal procedures. Real life is not ER where the music starts and George Clooney pops out to do whatever needs to be done, damn the rules and consequences.Report
If you want to claim that doctors are Just Workin’ Here and are due no more respect or forbearance than the dude who changes my oil at Jiffy Lube, well, I guess I can’t greatly disagree with you.
You’ll have to take it up with them, though, because I’m pretty sure they’d be ticked if you said something like that right to their face.Report
No, I’m making what I would think is the fairly obvious observation that laws prohibiting a particular activity will tend to have a chilling effect not just on the specific activity prohibited, but on things that could kind of sort of go near it, especially when we’re talking about highly regulated industries like healthcare. I understand it is frustrating that this vindicates what I would call the moderately pro-choice side’s strongest criticisms of the pro-life movement, that being that they are operating outside of how the real world works, but it is what it is.
You’re the one that wants to morph it into some kind of meta criticism about about individual caregivers for not living up to a made up standard of selflessnes, as if that’s what this is all about.Report
When it comes to abortion, I understand the sentiment that says that it should be avoided. But that doesn’t mean that I think that getting the cops involved will result in the world becoming a better place.
It’ll make things worse.
And the hypocrisy that says “WE SHOULD AVOID X!” that also says “but, yeah, people who really want X should have it readily accessible with a minimum of fuss” is probably the best way to go.
We tried that and have fought over it for 50 years. The people for whom that has been unacceptable for those 50 years have, for now, won. Why can’t they just see reason? Can we understand why they don’t?Report
Why can’t they just see reason?
They have something better than reason. They have Deontology.
Can we understand why they don’t?
Some can, some can’t.
Because this is a democracy, they will watch themselves lose the ability to instantiate their ruleset.
Some will say “we should have been utilitarians instead!”
Some won’t.Report
Today the Arizona House voted to repeal the 1864 law. A similar bill passed its first reading in the AZ Senate last week. If it gets to her, the Democratic Governor will certainly sign it.
At that point, the binding law in AZ will be the 15-week ban passed in 2022 while the Republicans held a trifecta.Report
Yeah, even the GOP knows that law is gonna kill them in AZ if they don’t do something about it.Report
GOP anxieties about the politics of a near-total abortion ban have led to an unlikely, albeit temporary, alliance between Democrats, a small number of Republican lawmakers mostly in swing districts and allies of former president Donald Trump — including Senate candidate Kari Lake, who had initially reversed her position on the ban and had made personal appeals to GOP lawmakers, urging them to repeal the law.
Three.
Three Republican legislators voted to repeal the law. All the others, 28 or so, want it to remain law.Report
Yes. Modify North to be “a small number of the GOP legislators know”. I haven’t looked, but would be willing to make a small wager that they’re all from suburban districts in Maricopa County. For them, the 1864 law is just the most recent straw: party opposition to the successful 2020 recreational marijuana initiative; the (shady) 2021 Republican audit of Maricopa County’s vote that found no evidence of any sort of fraud (Biden gained 12 votes, IIRC); and the attempt this year to dismantle the very popular mail ballot system.Report
Accepted. I so, so, hope that this lineup of sh*t sandwich policies convinces the Arizonans to finally kick the GOP to the curb this year a la Colorado.Report
I think they’ll get there. AZ is doing it in the reverse order of CO. Statewide offices first, then district-level. Governor, AG, Secretary of State, and both US Senators are (D). At this point, the (R)s hold the statehouse and a majority of US House seats.
Colorado’s tipping point was when the Gang of Four local billionaires decided to flip the state legislature, and worry about the rest later.Report
Yes, I think this year should give us a very good idea if the trend is durable.Report
The two big stories of political geography in the US over the last 30 years is the huge swing from blue-to-red in the Midwest (as a whole), and the red-to-blue swing in the West (as a whole). The NE urban corridor media finally seemed to notice the Midwest thing in 2016 (the “collapse” of the blue wall), but still seems to regard the Mountain West as hopelessly conservative despite the eight-state Mountain West having more Democratic US Senators than the 13-state Midwest.Report