life after roe

Will Republicans Really ‘Defer to the States’ on Abortion?

Abortion-rights advocates have had the upper hand politically after the Supreme Court gave their opponents the upper hand legally. Photo-Illustration: Intelligencer. Photos: Getty Images

Sometimes, polling can tell you something you strongly suspect but don’t actually know. That’s the case with a data point from the new American Values Survey conducted by the Public Religion Research Institute, which reporter Grace Panetta spotlighted in The 19th News:

The PRRI survey … found a rise in voters who now say abortion is a litmus test for their vote: 24 percent of voters in the 2022 American Values Survey said a candidate must share their views on abortion to earn their vote, up from 20 percent who expressed that view in 2020 and 18 percent in 2012. 

Notably, the partisan divide on the question has also flipped in 2022: 35 percent of Democrats and 21 percent of Republicans say a candidate must share their views on abortion in 2022, compared with 32 percent of Republicans and 17 percent of Democrats who said so in 2020. 

That makes sense when you think about it. In 2020, the abortion-policy status quo, policed by a Supreme Court that still respected the Roe v. Wade precedent, was one of legalized abortion prior to fetal viability in all 50 states. Republicans, who more or less officially became the anti-abortion party by 1980, wanted to overturn that status quo, so they made this not only a voting issue but a matter of party discipline (as can be deduced from the slow but steady disappearance of the once-robust pro-choice wing of the GOP). Democrats might have been concerned about the many efforts of state-level Republicans to make abortion less available (mostly through hostile regulation of providers), but core abortion rights were assured — or so they thought.

The shoe is on the other foot now that Roe v. Wade has been overturned. Republicans have won half their argument with the federal constitutional right to abortion being abolished. So naturally, they are inclined to rest on their laurels for a bit and draw attention to other issues while the backlash to the Supreme Court decision burns itself out (or so they hope). Additionally, unlike the Democrats of yore, Republicans know their opposition (generally speaking) to legalized abortion places them in a distinct minority in public opinion. So it’s an electoral loser for them nationally, one made more dangerous by the existence of a significant minority of Republican voters (perhaps more than one-third of them) who, unlike their politicians, actually favor abortion rights and are thus all but disenfranchised on this issue.

The defensiveness of many Republicans on abortion is best demonstrated by the rapid back-pedaling of GOP candidates for Congress away from anything like federal legislation to ban abortion nationally. Yet in the current Congress, 166 House Republicans and 18 Senate Republicans are co-sponsors of the Life at Conception Act, the most radical national ban anyone could imagine, as I explained in August:

The Life at Conception Act is a classic “personhood” bill treating every fetus, embryo, and fertilized ovum as just like me and you when it comes to fundamental rights. While the bill does say it does not “authorize the prosecution of any woman for the death of her unborn child,” there’s no exception to the “right to life” for pregnancies involving rape, incest, or even threats to the life of the mother. Most legal scholars believe “personhood” statutes could ban morning-after pills or the use of IUDs. The Life at Conception Act is not a constitutional amendment, but in the wide-open post-Dobbs legal landscape, it would set national policy at the federal level and presumably preempt any contrary state laws, codifying “fetal personhood.”

If you can find a Republican incumbent in a highly competitive congressional race this year who is owning up to this desire to ban certain forms of contraception, you’ve cornered a rare beast. What you’re instead hearing now from actual or would-be federal officeholders is that abortion is “up to the states” and none of their beeswax. Indeed, when Senator Lindsey Graham injected a proposal to impose a new national ban on abortions after 15 weeks (a more liberal position than most state-level Republicans are willing to accept) into the overheated midterms environment, an angry revolt of colleagues basically told him to shut up.

Many Republican members of Congress can point to prior statements favoring abortion as a states’-rights issue for the simple reason that “returning it to the states” was the next step in the anti-abortion movement’s long march to the promised land of a 100 percent national ban prior to June 24, 2022. But it’s unclear that anyone not in federal office actually favors letting the states decide this issue. It is clear that the anti-abortion activists who have long held a mortgage on the GOP’s soul will not long tolerate an abstemious attitude if Republicans gain control of Congress in less than two weeks. The party will come under intense pressure to discard all that “defer to the states” rhetoric as a short-term tactical accommodation before facing the moral imperative of saving all the babies.

So get ready for some more whiplash on abortion if the GOP does very well on November 8. Fetal-personhood fans who turned into states’-rights advocates after the Supreme Court flipped the script may turn again if they’re in a position to pass a national abortion ban. Until then, a defensive crouch is the appropriate posture for Republicans in competitive races.

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Will Republicans Really ‘Defer to the States’ on Abortion?