Abortion Politics and the Court: How the Left is Winning by Losing
David French, a hugely important intellectual voice in the pro-life movement, wrote a stunning essay in the New York Times last week about the state of abortion in America after Dobbs. He observed that abortions have actually gone up in the aftermath of the case, and that every abortion referendum since Dobbs has been won by the pro-choice side.
French made these comments in the context of his announcement that in order to save conservatism he had to vote against Donald Trump and for Kamala Harris. On abortion politics specifically, he said the following:
After Dobbs the pro-life position is in a state of political collapse. It hasn’t won a single red-state referendum, and it might even lose again in Florida, a state that’s increasingly red yet also looks to have a possible pro-choice supermajority. According to a recent poll, 69 percent of Floridians support the pro-choice abortion referendum, a margin well above the 60 percent threshold required for passage.
If the ultimate goal of the pro-life movement is to reduce the number of abortions, not just to change legal precedent, then these numbers and these electoral outcomes are deeply alarming. If present trends continue, then abortion opponents will have won an important legal battle, but they’ll ultimately lose the more important cultural and political cause.
I have been radically pro-choice since 1971 when, at 13 years old, I snuck into my mother’s consciousness raising meetings and heard horrible stories of friends of friends who died due to back alley abortions. There was also much discussion of why women must be able to control their own bodies. I was all in.
Yet, I have always argued that Roe and Casey were wrongly decided both on legal and pragmatic grounds. On the practical side, my argument for years has been that, although it would have been wonderful if the American people had accepted Roe and Casey enthusiastically and protected abortion rights firmly in a constitutional law framework, that was never going to happen (and it didn't). On the legal side, well that’s a different post.
Backlash against Roe led to an invigorated political movement against women's reproductive rights, with Evangelicals joining Catholics to elect socially conservative Republicans. This movement helped the right raise substantial money, win elections, and dramatically alter our nation’s politics and confirmation hearings for federal judges. The Federalist Society paid close attention to the role Evangelicals played in the 1980 election when the Society began in 1982.
Over time, things got so bad in the political sphere that politicians, judges, and justices started making up fake scientific names for medical procedures about abortion to scare women and influence the vote. For example, the entire controversy about “partial birth abortion” was based on an absolute lie. There is simply no medicine or science behind the term "partial-birth abortion." But, the false idea that doctors were taking entire babies out of pregnant women ignited fundraising for the right and likely affected numerous elections, even though the narrative was scientifically false.
Meanwhile, from the late 1970’s to 2022, poor women in rural counties across America had an enormously difficult time obtaining safe abortions while Republican legislatures, state and national, kept passing more and more laws to make abortions much more difficult to obtain. These restrictions were enacted despite consistent polling demonstrating that over half the country wanted and wants abortions safe and secure, at least in the first trimester.
One explanation for that curious phenomenon is that the debate about abortion has been just as much over the appropriate role for the Supreme Court in our country's most serious social and cultural issues as it was about the right balance between women's reproductive freedoms and the interest of the state in the potential life of the fetus.
We also know that all over the world abortions happen regardless of what the positive law says about the subject. As many of us used to say when debating the issue with pro-life forces, the issue is not whether there will be abortions but only whether they will be safe and affordable. The post-Dobbs landscape underscores that point. The number of abortions has not declined but we now know that women in banning states are taking abortion pills without medical supervision and women with serious health complications even during wanted pregnancies are being denied care, with potentially deadly consequences.
Roe and Casey did less to further access to abortion than many on the left believe, making French’s observation that winning the legal battle has so far caused the pro-life movement to lose the political one so important and worthy of future academic study. FWIW, I believe abortion rights would be mostly secure today but for the interference of the Court 51 years ago.
But even if I’m wrong about that, it is clear that, since at least 1980, abortion debates hurt progressives, liberals, and the left politically in virtually every sphere except abortion until Dobbs came down. Was it worth it? Does Trump win in 2016 without Roe? Do we get an Evangelical/GOP connection this strong without Roe and Casey? Does the Court decide Heller the way it did without Roe and Casey on the books? These are all important questions.
My dream is of an America where abortion rights are given the same status as speech and religion rights. I favor a constitutional amendment securing that right. But I also know many disagree and that we live, or are trying to live, in a representative constitutional democracy. But one thing seems clear to me: Americans prefer making their own decisions when it comes to deeply contested moral issues and do not want to be told how to live their lives by the Supreme Court. So with that in mind, I’ll end this post with a slightly revised version of what I tweeted on Monday.
Language matters. I am radically pro-choice. We don’t want to bring back Roe. We want full reproductive freedom for women protected by statutory law or constitution. And it is coming. Right now, Dems need to discuss abortion and women's rights directly. Court reform is surely needed, but not because of reproductive freedom, which is more urgent and more achievable.