It’s been a wild year when it comes to state laws attempting to restrict abortion in clear contravention of Supreme Court precedent, with Republican legislators from across the country enacting outright bans on abortions at earlier and earlier stages of pregnancy, crowned by Alabama’s effort to prohibit abortions entirely. As Christine Vestal notes, the level of activity has been historic:
More state abortion laws were enacted this year than at any time since 1973, the year the U.S. Supreme Court decided in Roe v. Wade that women have a constitutional right to end their pregnancy.
Many of the new laws — either banning or protecting the right to abortion — came in reaction to President Donald Trump’s second nomination of a conservative justice to the high court, creating the possibility that the historic abortion rights decision could be overturned.
But this year of frantic anti-abortion legislation has come at a political price. Most obviously, laws like Alabama’s have terrified millions of Americans who had become complacent about reproductive rights. But just as important, efforts to outlaw most or all abortions have stepped all over the messaging of anti-abortion activists who had for years preferred a very different strategy, as I noted in May:
For many years, the chief political strategy of the anti-abortion movement has been to gradually chip away at reproductive rights by focusing on rare but lurid-sounding late-term abortions. It made sense, given the unpopularity of such procedures (particularly when presented without the context of the tragic circumstances involved) and the overwhelming popularity of legalized early-term abortions, whose criminalization is the movement’s ultimate goal. Once the regime set up by the Supreme Court in Roe v. Wade and Planned Parenthood v. Casey is unraveled, anti-abortion proponents thought, it might be time to stop the charade and go public with a more radical agenda …
[I]t’s kind of hard to pose as the party in the firm mainstream of public opinion on abortion, fighting those baby-killing Democrats, when one’s own Republicans are trying to ban the bulk of abortions that occur early in pregnancy. It’s not just a mixed message but arguably an honest statement of principles stepping all over a calculated lie.
Unsurprisingly, the strategists in the anti-abortion movement have been struggling to regain control of their own troops, as my colleague Irin Carmon observed:
[Republican state legislators] abandoned the official strategy of legislative gaslighting: Make abortion impossible to access, but don’t openly ban it to maintain plausible deniability, and change the subject to politically unpopular later abortions whenever possible. Indeed, the blowback to total bans in Alabama, Georgia, and beyond was so fierce even Trump’s tweets distanced the president from them.
And now, as Tennessee debates yet another set of extreme abortion restrictions, anti-abortion leaders are coming out forcefully to urge restraint, as Anna North reports:
Though the groups National Right to Life and Tennessee Right to Life oppose abortion, they also oppose the Tennessee ban, because they believe it would never stand up in court. If such a ban were to make it to the Supreme Court, the groups worry it would fail: “There is no objective evidence that we have more than one vote to overturn Roe v. Wade,” said James Bopp, general counsel of the National Right to Life Committee, which describes itself as “the nation’s oldest and largest pro-life organization,” in testimony against the bill …
“We think these kinds of early-gestation bans have been proven to be ineffective,” Steven Aden, chief legal officer and general counsel at the group Americans United for Life, told Vox. “There are more effective ways to express the state’s interest in protecting human life and women considering abortion.”
One wrinkle in the draft Tennessee bill was a legislative redefinition of “fetal viability” — a standard medical term for the point at which a fetus could survive outside the womb, which, since Roe, has been the point before which the right to an abortion is strongly protected. This Orwellian maneuver has clearly embarrassed anti-abortion leaders:
Some anti-abortion advocates have criticized the attempt to redefine viability. It “makes us look foolish,” said Bopp, the National Right to Life general counsel, at last week’s hearings. “And I do not want to look foolish.”
But they’ve also objected to the general strategy. Tennessee’s bill, like abortion bans in Alabama and elsewhere, is designed to make it to the Supreme Court and serve as a challenge to Roe. But Bopp said at the hearing that this was a dangerous gamble: “There is no majority on the Supreme Court that we can identify that would uphold such a thing.”
To be very clear, this positioning is entirely tactical, not a matter of substantive principle. As North notes, even as they recoiled at the bad optics of Alabama’s total ban, many anti-abortion activists felt constrained to give the legislators who passed it an attaboy for having the right intentions. But they prefer to hide their lights under a bushel and get back to indirect efforts that effectively restrict abortions without spurring a huge backlash or getting ahead of Trump’s efforts to give them an anti-abortion majority in every available federal court:
Of course, groups like National Right to Life and AUL still want to restrict abortion. It’s just that they want to keep using their incremental approach, not the more aggressive strategy that seemed to take hold earlier this year.
The step-by-step strategy has been very successful, leading to abortion clinic closures around the country; as of 2014, 90 percent of counties lacked a clinic, according to the Guttmacher Institute. And many believe it’s the strategy the Supreme Court might prefer — Murray and Aden both pointed to June Medical Services v. Gee, a case involving a Louisiana restriction on abortion clinics, as one to watch.
That Louisiana law may give SCOTUS an opportunity to reverse the most recent pro-abortion victory in the courts, the 2016 decision (Whole Woman’s Health v. Hellerstedt) that struck down so-called TRAP laws (Targeted Regulation of Abortion Providers) which were steadily eroding the availability of abortion services. Hellerstedt was a 5-3 decision (it came down during the vacancy created by Justice Antonin Scalia’s death, later filled by Neil Gorsuch), and since then one of the majority (Anthony Kennedy) has been replaced by Brett Kavanaugh, who, like Gorsuch, is universally thought to be hostile to reproductive rights.
Overturning Hellerstedt would be an appropriate first step toward a stealthier strategy of banning abortions by making them much harder to secure (certainly for low-income women in red states), until that great gettin’ up morning when there are enough Federalist Society members on the Supreme Court that a frontal assault on Roe can begin. Then, of course, the current divisions in the anti-abortion ranks will disappear, as the movement and its wholly owned subsidiary, the Republican Party, joyfully unite to use maximum government power to compel every pregnancy to be carried to term.