Just in time for the 2020 election, state-level Republicans have decided to stop being cautious and force the Supreme Court to decide whether to uphold Roe v. Wade. After the passage of a series of state laws meant to make abortions almost impossible to obtain while leaving in place a microscopic fig leaf of legality, the Alabama legislature has gone all the way, The Washington Post reported May 14:
“Alabama lawmakers voted Tuesday to ban virtually all abortions in the state - including for victims of rape and incest - sending the strictest law in the nation to the state’s Republican governor, who is expected to sign it.
“The measure permits abortion only when necessary to save a mother’s life, an unyielding standard that runs afoul of federal court rulings. Those who backed the new law said they don’t expect it to take effect, instead intending its passage to be part of a broader strategy by antiabortion activists to persuade the U.S. Supreme Court to reconsider the landmark 1973 Roe v. Wade ruling, which legalized abortion nationwide.
” ‘This bill is about challenging Roe v. Wade and protecting the lives of the unborn because an unborn baby is a person who deserves love and protection,’ Alabama state Rep. Terri Collins (R), the sponsor of the bill, said after the vote Tuesday night. ‘I have prayed my way through this bill. This is the way we get where we want to get eventually.’ “
There are many aspects to this story, but for the moment I want to focus on what it says about the two parties, how they conceive of public opinion, and what constraints they believe it imposes on them.
To begin, one must understand that while we often talk about abortion as though the issue is defined by a line running down the center of the American electorate, liberals on one side and conservatives on the other, that’s not remotely true. In fact, the overwhelming majority of Americans rejects the Republican position on abortion.
That position is that Roe ought to be overturned and abortion made illegal. Let me quote to you from the 2016 GOP platform, which is consistent with the position the party has held for decades: “we assert the sanctity of human life and affirm that the unborn child has a fundamental right to life which cannot be infringed. We support a human life amendment to the Constitution and legislation to make clear that the Fourteenth Amendment’s protections apply to children before birth.”
If an embryo is a person under the Fourteenth Amendment whose right to life “cannot be infringed,” that would mean that no exceptions to an abortion ban would be permitted - not for rape or incest, and not to protect the health or even the life of the woman carrying that embryo (or later in the pregnancy, that fetus).
Now it’s true that many, perhaps most elected Republicans do not actually take the extreme stance laid out in their party’s platform. But what almost all of them agree on is that Roe should be overturned.
That is a distinctly minority opinion. Support for Roe in polls usually runs between 60 and 65 percent, with a few polls showing even greater support. Take out the people who don’t give an answer, and at most it’s about 30 percent of Americans who support the Republican position on this issue.
Despite our lengthy arguments about abortion, the shape of public opinion has been remarkably stable over the years. So how have Republicans responded? While there was a majority on the Supreme Court in favor of upholding Roe, they focused on chipping away at abortion rights and finding ways to make obtaining abortions as difficult and humiliating as possible, especially for poor women. These included TRAP laws (targeted regulation of abortion providers) imposing ludicrous requirements on abortion clinics; waiting periods to make obtaining abortions inconvenient; and things like forced ultrasounds and laws requiring doctors to lie to their patients about the supposed effects of having an abortion.
But the reason Republicans didn’t do what Alabama just did was simple. They weren’t waiting for public opinion to come around. They were waiting until they had an anti-abortion majority on the Supreme Court. Which, since Brett Kavanaugh joined the court seven months ago, they now do.
We should note here that like every other Republican-appointed justice on the Supreme Court did before him, Kavanaugh pretended during his confirmation process that he would vote to uphold Roe, so deep and profound was his respect for precedent. Precisely nobody, with the exception of the impossibly gullible Sen. Susan Collins, R-Maine, actually believed that.
There is some chance that once the Mississippi law or one of the “heartbeat bills” passed in other states reaches the court, they will decline to overturn Roe. The only way that would happen is if Chief Justice John Roberts decides that once again the GOP must be saved from itself, because the political fallout of overturning the decision would be disastrous.
But the rest of the party doesn’t much care. Their attitude comes down to this: We know the public isn’t with us on this. But it’s what we want. Now we finally have the chance, so we’re going to take it. We’ll deal with the political consequences later.
That is essentially what the Republican Party says on all the things it would like to do. They know that cutting taxes for the wealthy and corporations isn’t popular, but it’s what they want, so they do it. They know that the public doesn’t want to see environmental regulations gutted, but it’s what they want, so they do it. Every once in a while the potential danger of a particular action is overwhelming enough to get them to pull back (like with their longtime dream of privatizing Medicare), but for the most part they just do what they want.
And when the next election rolls around, they find other issues on which they can focus the public’s attention. It doesn’t always work (see the 2018 election, for example), but what’s important is that when they have power, they use it.
And Democrats? Never in a thousand years would Democrats pursue a hugely high-profile policy change supported by only 30 percent of the public. It’s hard to get them to act vigorously on policies that have clear majority support, because they’re always terrified that they’ll offend somebody.
Fortunately for them, most of their policy agenda is overwhelmingly popular. But imagine what would happen if Democrats had the same attitude the Republicans have, one defined by moral certitude and ambition, not by fear. Who knows what they could accomplish.
Paul Waldman is an opinion writer for The Washington Post’s Plum Line blog.