Winning after Roe

People want the vast majority of abortions to be legal

I think abortion should be very broadly legal. Without the constitutional protections offered by the Roe v. Wade decision, abortion is going to become much less broadly available, which is bad.

I also in general am not a huge fan of the practice of the Supreme Court vetoing acts of state legislatures and Congress, so while I happen to agree with the vetoing that occurred in Roe, I don’t find it all that outrageous that the Supreme Court looks to be saying that in the future it will decline to veto abortion-related legislative acts. That being said, there is zero indication that the anti-Roe judges are making a principled move in that direction. They are simply saying that with the court in more firmly conservative hands, they will now be vetoing progressive legislation but not conservative legislation.

The systemic problem we’re going to be facing for the next 10 to 30 years is a very conservative judicial system vetoing progressive acts of Congress and state legislatures, and we’re going to need to counter that with rhetoric and politics of popular constitutionalism that takes aim at judicial overreach.

But we also need to think about defending abortion rights in the electoral arena. As a sense of what we’re up against, Ramesh Ponnuru has a column in Bloomberg scolding progressive alarmists for worrying about a national blanket ban on abortions. But then in a Twitter thread promoting the piece, he says that he favors a national ban on abortions. Is one likely to happen? No. Will Republicans face significant pressure to enact one if they end up with huge congressional majorities? Yes.

The key is to avoid scenarios that lead to Republicans securing huge congressional majorities.

There’s some discussion of whether Democrats will benefit politically from the backlash to overturning Roe, or from the backlash to GOP overreach on abortion. I think they certainly might. But I think the larger political benefit to Democrats is likely to come from a different angle — the loss of Roe should serve as a powerful reminder to the college-educated liberals who control the commanding heights of Democratic Party politics that losing elections is really bad. When people are scared to lose, they make smart decisions. Right now, we’re not quite there yet. Chuck Schumer wants to hold a pro-choice message vote and is choosing to do it on an expansive measure that zero Republicans and fewer than 50 Democrats will vote for. When asked why he isn’t instead dividing the opposition by getting behind a more modest bill backed by Susan Collins and Lisa Murkowski, he explained, “we are not looking to compromise on something as vital as this.”

Marianne LeVine @marianne_levine

Schumer on why he's not bringing up Collins-murkowski bill: "we are not looking to compromise on something as vital as this "

That moral logic is backward. Avoiding state-level total bans on abortion with potentially dystopian enforcement mechanisms is vital, and it’s worth compromising to achieve that goal.

Public opinion on abortion is pretty clear

I think the journalistic cliche about public opinion on abortion being nuanced, contradictory, complicated, etc. isn’t actually true.

If you ask the question the way that pro-choice people like it to be asked, a very solid majority of the public says that abortion should be legal in all or most cases. But then if you look at a specific question that pro-choice groups would oppose, like a ban on abortions after 15 weeks of pregnancy, that polls very well.

There was a helpful Economist/YouGov poll recently that I think shows a very clear story: voters favor legal abortion in the first trimester but not after that.

For my whole career, taking that median voter position — abortion should be legal in the first trimester but restricted afterward — would lead pro-choice groups to consider you their enemy. As a result, Democrats running for office routinely take a much more sweeping view. In the wake of the leak of Samuel Alito’s opinion, I’ve seen Democratic Party candidates for governor in Ohio and Texas take the orthodox pro-choice view that late-term abortions should be allowed.

Given that lots of Republicans are going to take unpopular stands in favor of a heartbeat rule or a total ban, it’s certainly not the case that supporting late-term abortions is a political loser in all contexts.

But if you’re talking about a state like Texas or Ohio where Democrats are swimming against the tide, I think the safer bet would be to stand for legal abortion in the first trimester. And while of course pro-choice groups should advocate for the position that they believe in, I think they ought to consider as a political strategy whether they consider this “good enough” to make it worth supporting a candidate. After all, there is a very real risk that abortion is going to be totally illegal under all circumstances in Texas and Ohio very soon. That is not a stance that polls well in any state, so there will be some backlash against it in Texas and Ohio if it happens. But Texas and Ohio are conservative states with conservative views on lots of issues. Republicans there can face a backlash and survive. If we want to preserve the right to choose for Texas and Ohio women, we’re going to have to really work for it.

I think “early abortions should be legal” versus “total ban” is winning politics in Texas. But “total ban” versus “no restrictions” is a loser.

And it’s worth returning to the baseline finding that there’s strong public support for the view that abortion should be legal in most cases. According to Guttmacher Institute data, most abortions happen in the first eight weeks of pregnancy.

A ban at 12 or even 10 weeks would still allow well over two-thirds of actual abortions that take place. You’re talking about securing much more than half a loaf here, and refusing to settle for it runs a real risk of ending up with nothing at all across huge swathes of the country.

The details matter

Personally, I think the mushy-middle view of abortion is probably wrong. Women are not just waiting around 20 weeks into pregnancy and then flippantly getting abortions for no good reason. These are invariably cases that involve problems of some kind.

Conservatives and moderates often point out that abortion laws in Western Europe are on their face considerably more restrictive than what American liberals push for, and almost invariably ban late-term abortions. But when you dig into the specifics in a country like France, which just a few months ago changed their time limit from 12 weeks to 14 weeks, they have an exception to the late-term abortion ban to protect the health of the mother. This health exemption is construed as including protection of the mother’s mental health and it requires the concurrence of two doctors. American anti-abortion activists tend to characterize health exemptions as huge loopholes that vitiate the idea of a ban, but it seems pretty clear that French feminists don’t see it that way. They invested considerable time and effort into pushing the line back two weeks.

The bigger deal is that in France, as in Germany and other European countries where abortion is limited to the first trimester, it is also either free for everyone or else free for poor women. In the United States, circumstances will often arise in which a woman doesn’t realize she’s pregnant until week five or six and then needs to start getting the money together for an abortion, which can take time.

A lot of states have also created large burdens to getting an abortion by making it hard to operate a clinic or requiring multiple visits. Logistical barriers plus cost barriers undoubtedly push some women to carry pregnancies to term that would otherwise have been aborted. But they also push lots of abortions back deeper into the pregnancy. Hard-core pro-lifers probably don’t care about this. But a European-style compromise in which you restrict late-term abortions while making it much cheaper and easier to get one early on would come much closer to accomplishing the median voter’s stated goals.

Removing financial barriers is important

The problem here is that in the U.S., public funding of abortions is very unpopular, so insisting on it as part of political strategy is unlikely to work very well. I do think it is probably worth trying to convince people on the merits that letting Medicaid cover abortions saves money and reduces late-term abortions, but it’s a tough one. Philanthropic abortion funds may need to fill the gap in practice.

The easier lift is making contraceptives cheaper and more broadly accessible. The abortion rate has been declining in the United States for years largely thanks to better contraceptives. In the most recent data, 49 percent of women who have abortions are below the poverty line and two-thirds are at less than double the poverty line (i.e., earning less than $26,,000 per year as a childless person). Some of this reflects low-income people’s concern about the financial burden of having a child, but some of it is about convenient access to contraceptives. In France they take this very seriously to the point where school nurses give out the morning after pill.

The Obama administration did a lot to expand contraceptive access while paradoxically abandoning the Clinton-era “abortion should be safe, legal, and rare” rhetorical framework that helps make that kind of thing maximally appealing. These issues are very important, and it seems like one clear way to make progress would be to authorize an over-the-counter birth control pill rather than making women’s reproductive autonomy subject to the doctors’ cartel. These pills are not addictive and we don’t need to worry about women diverting them to the black market. Women don’t need an expert’s guidance to ascertain whether or not they have the relevant condition.

IUDs, of course, are even more effective but have higher upfront costs. Thanks to the ACA, private insurance now has to cover IUD services and a large share of low-income women can get them thanks to Medicaid. Unfortunately, many states — including southern states that are likely to enact severe abortion curbs — have not expanded Medicaid. The Medicaid expansion issue is far and away the best argument for moderate Democrats running in red states to make, and I think the angle that it will help reduce the incidence of unplanned pregnancies and abortions is one worth offering.

Fighting to win

Right now, pro-choice people are still daydreaming about getting Democrats to end the filibuster and pass a federal abortion rights law. I am strongly pro-choice and anti-filibuster, but as a veteran of the filibuster wars, I can tell you that traditionally the choice groups were among the biggest critics of filibuster reform precisely because they are aware that absent the filibuster we are likely to see much more severe federal anti-abortion legislation. Given the geographical skew of the Senate, if the Supreme Court is not going to protect abortion rights, we are better off if this is more a state-focused issue and less a federalized one. And the more that a minority of strongly pro-choice senators can block things the better.

I favor filibuster reform anyway, but on the specifics of the abortion issue, the filibuster is progressives’ friend.

The big picture, though, is this. For years, the Roe decision was a huge gift to abortion rights but also a gift to the Republican Party. By taking extreme abortion restrictions off the table, it forced Republicans to only talk about popular ideas. It also created a situation where, to be considered an ally of the choice movement, Democrats were expected to sign on for some very unpopular positions. Eliminating Roe endangers abortion rights gravely, but also means the American people will be more exposed to extremist pro-life activist demands.

Still, the critical thing to realize is this: just because the pro-life activist position on abortion is unpopular, there’s no guarantee it will lose — the pro-choice activist position is also unpopular. In fact, both sides’ activist cores have hit upon positions that are roughly equal in their unpopularity.

The good news is that the popular moderate position isn’t really “in-between” the two stances. Between early-term abortions and pregnancies that involve serious health risks, the vast majority of abortions arise in situations where most voters think abortion should be legal. If pro-choice groups are willing to endorse and support candidates who support those positions, pro-choice politicians can win elections and defend abortion rights effectively. But if they are not, then there will be many fewer electoral wins and the law will end up even more restrictive.