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For decades, lawmakers in Republican states have been able to vote and pass highly restrictive abortion laws without suffering the political consequences, as the laws were typically ordered by the courts even before they came into force. Politicians were able to tick the important pro-life box for a segment of their constituents without their constituents ever living under these strict laws. This minimized the political reaction to their votes.
This month, the Supreme Court called those lawmakers a bluff by leaving Texas abortion law in effect. Now the country’s most restrictive abortion law is under the political microscope and Republicans in Washington are unusually silent – at least in part because they feel this law will do more to motivate the opposition than it does. will do it to rally the faithful.
Already, Democrats keep talking about it. After a brutal August that mired the Biden White House in one cycle of bad news after another, the Supreme Court’s decision on Texas was like rain shattering a long drought for Democratic agents. The issue allowed Democrats to unite their warring factions on the Hill, shifted the news cycle of wall-to-wall coverage of Biden’s botched withdrawal from Afghanistan, and raised money for Democratic candidates .
If major historical trends hold, Republicans would be favored to reclaim the House in 2022, but the question now is whether anti-abortion advocates have just handed a besieged White House the key to energizing their pro-abortion voters and potentially avoid a landslide GOP. By finding a legal loophole that allowed Texas law to come into effect, did they win the battle but lose the war?
In answering this question, first of all, we should not pay too much attention to abortion surveys. Generally speaking, thematic polls are deeply flawed in that they ask people to summarize their often complex and conflicting views in responses such as “agree” and “strongly agree”. And unlike campaign polls – plagued by their own shortcomings – the results are never verified by an actual election.
In addition, abortion is particularly poorly surveyed. Whether someone identifies as “pro-life” or “pro-choice” – which are strongly correlated with partisanship – is not helpful in debating, for example, whether a woman should be forced to have an ultrasound beforehand. to abort a pregnancy. Ask respondents if Roe deer should be overturned is only useful if the pollster is actually trying to determine whether voters think abortion restrictions should be decided by federal courts or state legislatures. “Do you believe abortion should be legal in all or most cases” gives us no information about the voter who believes that eight-month abortion should be banned and six-week abortion should be legal.
The most relevant question is therefore whether the issue of abortion motivates voters in both political camps and on which side it motivates the most.
Some research shows that abortion doesn’t motivate Republican voters so much. As Ryan Burge, assistant professor of political science at Eastern Illinois University, found out from the 2018 database, “a lot of white evangelicals don’t give much importance to abortion… and other issues like immigration and race issues may be even more effective in transforming the base in the future.
The problem with this data, however, is that it was collected before the confirmation of Justices Brett Kavanaugh and Amy Coney Barrett, at a time when the court was overturning most abortion restrictions. It is therefore not surprising that these researchers also discovered that the same voters believed that it was very unlikely that the previous two SCOTUS confirming a constitutional right to abortion, Roe deer and Casey, would never be knocked down. In other words, it’s possible that voters stopped caring about abortion because they knew they couldn’t get far on the issue. This could mean that if the new 6-3 court actually shifts the ball across the court – so to speak – later this year, those voters would be much more motivated to vote on their anti-abortion beliefs.
Meanwhile, abortion is showing signs of motivation for Democrats, who are fighting to retain control of the House and Senate in 2022. According to a Morning Consult poll last week, the share of Democratic women who say “issues such as abortion, contraception and gender equality pay are their top voting concerns ”has fallen from 8% to 14% since the Texas law came into effect. It might not seem like much, but if the midterm elections are primarily about motivating your own voters, then having an issue that can increase turnout by a few percentage points is often the difference between winning and losing a top race. level.
Thus, both parties have reason to believe that this problem can motivate their base under the right circumstances. But only Democrats have the motivation for fear – both in the form of a blatantly unconstitutional law that is currently being used to stop abortions in a state they hope to overturn again in 2022 and the now much more realistic threat. the adoption of similar laws. in states with open Senate seats – like Pennsylvania and North Carolina.
The second point to consider is that the abortion debate will only gain momentum next year, an election year. Due to the legal quirks of Texas law, she will continue to make her way through the courts for months to come and appear in the news from time to time. But the real national fight against abortion will come when the Supreme Court issues an opinion on Mississippi’s 15-week abortion ban, likely next June – just four and a half months before the 2022 election. ( SCOTUS will hear the case later this year.) This – not the Texas case – represents the real challenge for Roe deer and Casey.
If the Supreme Court rules that there is no longer a constitutional right to obtain an abortion, or that such a right only exists until about the end of the first trimester, individual states could pass laws restricting the access to abortion or Congress could pass a law recoding a federal right to access abortion. It could make every legislative race and congressional election a referendum on abortion law in a way the country has never seen. And the unpredictability of the outcome of a fight of this magnitude should worry both sides.
Third, Texas law divides the law. There are two major dividing lines in the anti-abortion movement, and Texas law exacerbates them both.
A dividing line is whether the goal of the anti-abortion movement should be to ban abortion or to end abortion. The abortion ban crowd wants to pass laws that ban abortions. The end of abortions, however, wants to use all effective means to reduce the number of abortions in the country. They are quick to point out that there are fewer abortions today than in 1973, when abortions were banned in large parts of the country, proving that laws banning abortion will never end the practice. of themselves. There are a lot of people in this crowd who think that the reliance on the Texas “abortion bounty hunter” law, as some call them, to report abortions is a crass and counterproductive idea that will do more. to distract people from the movement only to win hearts and minds to the cause.
Another divide within the movement is reflected in almost all political struggles – progressives versus absolutists. Texas law imposing a 6-week abortion ban and punishing those who help and encourage anyone who has an abortion after that time is absolutist. Absolutists knew it was unconstitutional under the current Supreme Court precedent and will likely be overthrown, but they think it will have been worth it as long as it can save a few lives during the few weeks it is actually in effect. Progressives, on the other hand, wrote the law in Mississippi – a consensus-based 15-week abortion ban in Western European countries, which restrict almost all abortions after the first trimester. Most jurists believe that this law could be the means used by the conservative court to restrict or nullify Roe deer and Casey. These more incrementalist anti-abortion defenders still want to end abortions in the United States, but they are willing to play a game of thumbs up to get the ball into the end zone rather than throwing a pass that has a high probability of it. be intercepted by Chief Justice Roberts. .
The result is that the anti-abortion movement is divided against itself. Supporters of the Texas law claim the rationale, but the “ending abortion” mobs question its effectiveness. Progressives argue it’s counterproductive, and legal conservatives point out that the same concept could now be used by liberals to create bounties on other constitutional rights like gun ownership and religious exercise. . This leaves important parts of the GOP base divided against themselves ahead of a midterm term that will require thousands of grassroots staff and volunteers across the country to all row in the same direction.
The Supreme Court in Roe deer supposed to settle the abortion issue almost 50 years ago, but instead judges have only shifted the fight from the ballot box to the courts themselves. As a federal judge put it this month, “wresting responsibility from state legislatures and turning it over to judges has resulted in acrimony and results-oriented decisions.” It’s no coincidence that judicial confirmation fights have become more controversial since Roe, as elected branches increasingly appeal to the courts in their political battles. In the first half of 2021, state legislatures passed more anti-abortion regulations than in any year since Roe deer was decided in 1973 – all of which will be taken to court.
If the Supreme Court withdraws from the abortion case in the run-up to the 2022 election, it will be up to voters and lawmakers to decide the matter for themselves. Midterm elections historically favor the ruling party, but Republicans may have just handed Democrats the question they needed to motivate Democratic voters who often stay at home between presidential elections.
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