The new politics of abortion rights

Pro-choice positions have become more popular; can they be made more salient?

Overturning Roe v Wade turned the Republican Party into the proverbial dog that caught the car.

In the paradigm, with abortion rights safeguarded by the Supreme Court, America’s broad pro-choice majority mostly wasn’t focused on the issue. Highly engaged anti-abortion activists were loyal GOP footsoldiers, deeply invested in winning — even with extremely non-pious people like Donald Trump leading the party— in an effort to change the balance of power in the judicial branch. But on a practical basis, the only abortion measures up for debate were relatively popular restrictions around the margin.

With Roe gone, that’s all changed.

It’s suddenly relevant that a majority of House Republicans have backed a bill declaring that “life begins at conception” and that any fertilized embryo has the full rights of a legal person under the 14th Amendment. That would, of course, lead to a national ban on abortion. It would also, in practice, make IVF clinics impossible to operate. I’m not sure even die-hard anti-abortion people have fully thought through the implications for miscarriages. If a person drops dead in your house, the police and the coroner are going to have some questions about what happened — a person dying is a serious thing. And I think the idea of investigating miscarriages as potential homicides sends a chill down the spine of any halfway rational person.

Less fanatical Republicans are aware they have a problem here and are trying to step away from the cliff by pushing a national ban on later-term abortions while staying vague about the party’s real goals. Two years ago, I thought this strategy might work.

But it’s now clear that the underlying politics of abortion are shifting.

While several states have banned abortion, a bunch of other states have made it easier to get medication abortions and otherwise reduced restrictions with the result that there were actually more abortions in 2023 than in previous years. And abortion rights is getting more popular. A new Fox poll showed that 70 percent of the public believes mifepristone should be legal and the previously popular idea of a 15-week ban is now underwater 43-54. Abortion rights have become a millstone around the GOP’s neck, and the more people argue about this, the more they seem to be moving in favor of abortion.

The bad news for abortion rights

The bad news for abortion rights is that very same Fox poll shows Joe Biden losing to Donald Trump. The Economist’s polling average has gotten more favorable to Biden since Christmas, but that still means the race is at best neck-and-neck. And the Fox poll is a reminder that there’s no necessary contradiction between “abortion is a winning issue for Democrats” and “Democrats are losing the election” — it’s not the only issue on the ballot.

Thus far, access to abortion overall has held up okay post-Dobbs, that very well might not continue if Trump wins.

One big risk is that the judicial branch is likely to become extremely right-wing. You see right now a divide between the bulk of Republican Party elected officials, who are pushing fetal personhood, and the ones who actually need to run in tough races, who are desperate not to talk about this. You have to assume that many if not most of the judges Republicans put on the bench have the rough policy views of safe seat members rather than the cautious views of those in swing districts. And the whole point of the federal judiciary in the United States is that judges are insulated from electoral accountability and free to hand down whatever kind of nutty rulings they want.

The aim of personhood legislation is to establish the constitutional rights of embryos, but you don’t need a bill to that. You just need some judges to go along with you.

Right now, the Supreme Court is hearing a lawsuit that aims to yank mifepristone’s FDA approval. It seems like the current set of justices is disinclined to do that. But there are lots of courts in the country and there may be lots of vacancies. And, of course, a new administration will directly control the FDA and other federal agencies. Thus far, nobody has managed to conduct an actual interview with Trump in which they ask him about this stuff. But the risks if Trump wins are very real and very large, and he stands a very good chance of winning, notwithstanding the progressive turn on abortion public opinion.

The rise of abortion on demand

The unpopularity of the 15-week ban caught the world (and me) by surprise because abortion polling had consistently, for a long time, registered mushy middle results. Polls always showed that Roe was popular, and they also showed that many restrictions — including restrictions that weren’t allowed under Roe and Casey — were popular. At times, these results called into question whether respondents had any idea what these judicial rulings even said.

But under the table, there was a huge shift in public opinion.

The General Social Survey asks a lot of questions about whether abortions should be allowed under various circumstances. It’s a slightly annoying survey series because their specific questions don’t correspond to any actual legislative proposals. So for example they ask if a woman should be allowed to get an abortion “if she is married and does not want any more children” or “if the family has a low income and cannot afford any more children.” This is not what any specific abortion fight is about, so it’s a slightly odd question to ask. On the other hand, it does tell us something about society.

But one question they ask is should a woman be allowed to get a legal abortion “if the woman wants it for any reason.” That is, in practice, how a pro-choice legal framework works. Women don’t actually get abortions for capricious or arbitrary reasons, but they also don’t need to justify their decision to anyone in particular. It’s up to them to do what they think is best. As recently as 2006, this was an unpopular view (38-59). But since then, it’s taken off like a rocket ship.

That’s a sea change that makes it inherently much harder to politically defend any kind of restriction on abortion.

It’s not 100 percent clear why this happened, but I assume it’s related to sharply declining religiosity during this period and to issues like growing acceptance of gay relationships and legal marijuana. The United States, always a fairly individualistic country, has become much more so. That’s really left Republicans with nowhere to hide on this topic.

Key voters may not care

Abortion rights was clearly a huge boost for Democrats in the 2022 midterms and has continued to help them perform well in special elections.

In some quarters of the internet, this has helped fuel a somewhat complacent mindset, one that suggests we should dismiss the presidential election polls because Democrats have done well in “actual elections.” I think this underscores the extent to which many progressives are having trouble internalizing the changing nature of the party coalitions. Nobody was confused by the idea that some relatively disengaged (mostly young) people who voted for Obama in 2008 and 2012 didn’t go to the polls in 2010 and 2014 — or by the idea that these sporadic voters might differ in systematic ways from regular voters.

The difference is that now, according to polls, these sporadic voters mostly prefer Trump. And as Rachel Cohen explores here, these same surveys suggest that sporadic voters are mostly pro-choice but also care less abortion than regular voters.

These are people who are not that interested in politics (their defining characteristic is they are not that interested in voting), not that ideological (again), and heavily swayed by materialist concerns. These voters, as far as we can tell, are very annoyed by inflation, associate Trump with the solid economic conditions of 2019, and do not credit Biden for the fact that unemployment dropped back down to the pre-Covid level after the pandemic.

It is certainly possible that these voters either do not exist or else are not being surveyed properly. If there were to be a big survey error, after all, then you would expect it to show up with a disengaged population. But nothing that has actually happened — not Democrats doing well in the midterms, not Democrats doing well in special elections, not the decently strong Nikki Haley protest vote in primaries — debunks the idea that there is a pro-Trump constituency of largely disengaged, disproportionately Black and Hispanic (but still mostly white), mostly young people.

It’s important, though, that even some of these voters are pro-choice! They’re just not focused on the topic.

How Democrats have created more urgency

Back on January 12, NRCC Chair Richard Hudson told Punchbowl how Republicans could win on abortion:

“Republicans don’t have a policy problem. We have a branding problem,” Hudson said. “We need to point out that the Democrat position is abortion for any reason, up until the moment of birth, paid for by taxpayers. That’s extreme.”

Republicans now, in fact, have a very serious policy problem because, per those shifting GSS numbers, even this fairly caricatured portrait of the progressive position on abortion polls pretty well!

Meanwhile, Hudson also says that “[GOP candidates] need to articulate their position to the voters, because the voters think the Republican position is like, ‘We’ll throw you in jail if you get an abortion.’”

And I think in emphasizing the absurdity of this position, Democrats have been able to increase the salience of the issue — because obviously the Republican position is, in fact, on some level that people should go to prison over abortions. That’s how laws work: If people break the law, you’re supposed to punish them.

So far, Republicans have managed to ban abortion in a bunch of states without throwing a ton of people in jail. Voluntary compliance with abortion bans has been fueled, in part, by the knowledge that interstate travel options to obtain an abortion are still available in many (though certainly not all) cases.

But there have been prosecutions. In Indiana, for example, we had the case of a 10 year-old rape victim who traveled from Ohio to Indiana for an abortion because Ohio’s abortion ban had no exception for even this sort of case. That attracted national attention, which was bad for anti-abortion causes and prompted Indiana’s attorney general to launch an investigation into the doctor, essentially to punish her for drawing attention to the case. There is also the Brittany Watts case in Ohio, where she was charged after a miscarriage. Those charges were officially for improper handling of the fetus and were dropped, but the whole thing was, again, sufficiently embarrassing to the right that Rep. Shontel Brown hosted Watt’s mother at the State of the Union.

Both of these cases made the anti-abortion cause look bad, even to those with more moderate positions on the issue. As did the case of Kate Cox, who lost in court in Texas when she tried to get permission to terminate a pregnancy where the fetus had trisomy 18. Cox eventually resolved the situation by traveling to another state to get the procedure.

These have all been powerful messaging opportunities that arose organically from the manifest injustice of hard-right abortion politics.

Stories like this drive up the salience of a bad issue for conservatives and make it harder for Republicans execute their preferred strategy of not talking about abortion while appointing die-hard fetal personhood advocates to key jobs.

We haven’t yet seen the kind of coordinated, deliberately staged acts of civil disobedience that can sometimes transform politics (Rosa Parks, as I think most people know, wasn’t a random woman who was tired of sitting in the back of the bus — she was executing a deliberate activism strategy to force the daily injustice of segregation onto the front pages).

But as someone who has been critical of leftists for being too eager to engage in edgy, confrontational activism, I do want to say that this topic strikes me as the contemporary issue that is best suited to this kind of aggressive strategy. People hate the rules Republicans are making, Republicans themselves are embarrassed to talk about enforcing them, and the biggest substantive risk to abortion rights isn’t that people don’t agree with the cause, it’s that many people may just not be thinking about it enough. Anything that forces more attention to the issue and prevents it from fading from view is constructive, and dramatic events that make real-world news are much more impactful than paid television ads.