The expectation that the U.S. Supreme Court will reverse Roe v. Wade and abandon any federal constitutional right to an abortion by June or July has unsurprisingly excited people in the anti-abortion movement, while alarming their pro-choice opponents. But as the days tick by before the announcement of a decision in Dobbs v. Jackson Women’s Health Organization, potentially important divisions are becoming apparent in the ranks of those happy anti-abortion activists and their captive national political party, the Republicans.
In tailoring state legislation in anticipation of Dobbs, the GOP has two front-and-center models from which it can choose: the Mississippi law (a strict ban on abortions after 15 weeks of pregnancy), which the Supreme Court is more than likely going to approve; or the Texas law (a much more radical abortion ban after six weeks of pregnancy), which has been bouncing around the federal courts since last September.
Serious life-begins-at-conception activists naturally prefer the stricter Texas law, while pragmatic (or cynical) Republican politicians are inclined to begin the post-Roe political struggle with the less onerous ban. There’s not a great deal of logic to a 15-week ban (other than discredited theories about the onset of the possibility of fetal pain), but it would leave first-trimester abortions, which are most common, legal for the time being. Mississippi-style laws also have the benefit of not relying on guesswork about what the courts will eventually do with the Texas law, which has evaded substantive judicial review thanks to its devious vigilante-enforcement scheme.
This choice and its political fallout are being played out right now in Florida, where Governor Ron DeSantis and Republican legislators are pushing through a 15-week ban over the objections of activists on both sides of the abortion barricades. As the state senate advanced the ban in a committee on a party-line vote last week, there was a noticeable amount of angst exhibited by those favoring a stricter ban, as the Washington Post reported:
One prominent antiabortion lobbyist, Andrew Shirvell, executive director of Florida Voice for the Unborn, has publicly called on DeSantis to join fellow GOP Govs. Kristi L. Noem of South Dakota and Greg Abbott of Texas to back stricter bans. To date, the strongest abortion law signed by DeSantis, who is up for reelection this year and widely seen as a potential presidential candidate, is a 2020 measure requiring parental consent.
“We’ve had pro-life majorities in our legislature for close to 30 years and a Republican governor for decades. There is really little excuse for this,” Shirvell said. “If you believe that abortion is murder, then you need to act like it.”
Republican proponents of the 15-week ban are marketing their legislation as a compromise between Texas-style total bans and the viability standard that has prevailed since Roe v. Wade was handed down in 1973 (which holds that women have a clear right to abortion before around 24 weeks of pregnancy). Some lawmakers are basically arguing that they should get brownie points for tolerating what they consider baby-murdering in early pregnancy:
In the Florida House, Republican Rep. Dana Trabulsy said 15 weeks was a “long time.”
“Because I believe life begins at conception, that’s, that’s — generous,” she said.
The alleged generosity of the bill is belied by the decision against providing any exceptions to the ban for pregnancies caused by rape, incest, or human trafficking. These very popular exceptions were voted down in committee by the bill’s Republican supporters.
Florida Democrats are sure to make the new law, once it has been adopted and then activated by the Supreme Court, a major midterm-campaign issue. But DeSantis, who may have an interest in becoming president of the United States in 2024 or later, has a dual problem. He must defend what is likely to be an unpopular law during his own reelection campaign this year, while dealing with the perception of him as a RINO squish by the anti-abortion activists who are an immensely powerful force in the Republican presidential nominating process. If the Court’s ruling in Dobbs appears to be broad enough to make Texas-style bans constitutionally permissible, then DeSantis could always change his position and go for a more draconian law at the risk of making his own reelection a bit harder and possibly splitting his own party. The timing is tricky, but it’s the natural outcome of the devil’s bargain the GOP struck with the anti-abortion movement many years ago. It’s like a mortgage with a giant balloon payment coming due.