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The Resilience of Roe: US Abortion Bans and the 2020 Election

25 Jun 2019
By Dr Prudence Flowers
Alabama Governor Kay Ivey signs a ban on abortion on 15 May 2019. Source: Official United States Air Force Website

Abortion will be one of the political flashpoints in the 2020 US election. While right-to-life activists target the Supreme Court’s 1973 Roe v. Wade decision, in the short-term their political strategies are unlikely to have much legal significance.   

On 15 May 2019, Alabama Governor Kay Ivey signed into law a measure that bans all abortions from the moment of conception, except in cases where there is a “serious health” risk to the pregnant person. Alabama now has the dubious distinction of having passed the most restrictive of the many abortion bills being considered in legislatures across the United States. In addition to Alabama’s outright ban, Mississippi, Missouri, Ohio, Kentucky, Georgia, and Louisiana have passed “heartbeat bills” that ban abortion from 6 to 8 weeks gestation. Right-to-life state legislators are passing explicitly unconstitutional laws, hoping to trigger a legal challenge that fundamentally alters the reproductive rights landscape in the United States.

Their target is Roe v. Wade (1973), a Supreme Court decision that found that the constitutional right to privacy extends to the abortion decision. Over the past 46 years, Roe has withstood repeated judicial, legislative, and constitutional challenges. Although it is politically divisive, its popularity with the general public has remained stable. In polling dating back to the late 1980s, a majority of Americans support the ruling; in 2018 64 percent supported Roe and only 28 percent wanted to see the decision overturned. Similarly, even as abortion is stigmatised and contested, it is a routine health care procedure. Almost a quarter of American women will have an abortion over the course of their reproductive lives.

Roe’s enduring significance stems from the fact that it galvanised activists who committed themselves to ending legal abortion via either the legislative or judicial branches of government. The right-to-life movement, which united Catholics and fundamentalist Protestants, has wielded disproportionate levels of influence because of its ties to the Republican Party. This alliance has ensured that abortion remains a politically controversial issue in the United States, in contrast to other Western countries such as the UK, Canada, and Australia.

In the late 1970s, under the leadership of Ronald Reagan, Republicans began to position themselves as the “party of life.” Since 1980 they have consistently pledged support for efforts to add a Human Life Amendment to the US Constitution and to appoint justices who respect “the sanctity of innocent human life.” It took time for the base and for elected officials to catch up to this stance. Throughout the 1980s and early 1990s there were prominent moderate Congressional Republicans who were pro-choice and did battle on behalf of reproductive rights. As late as 1995, 49 percent of Republican voters supported legal abortion while 48 percent opposed it. Partisan polarisation over abortion has become much more acute in the last 25 years. In 2018, 59 percent of Republicans opposed legal abortion and only 36 percent supported it. There are currently no pro-choice Republicans in the House of Representatives and only two Senators who sometimes vote for pro-choice measures.

Abortion is as an important part of Republican electoral strategies. In a system with non-compulsory voting, religiously and socially conservative Americans represent a dedicated and highly motivated demographic.  For decades, every serious Republican contender for the White House has positioned themselves as a staunch opponent of abortion, even if their actual track record was a tad murky, as was the case for George H.W. Bush, Mitt Romney, and Donald Trump. Republican politicians are not called on to directly end legal abortion, for the movement and the party long ago abandoned any pretence of working for a Human Life Amendment. Instead, Republicans are expected to support policies that are hostile to reproductive rights and most importantly, to fill Supreme Court vacancies with sympathetic justices.

Although Trump once identified as “very pro-choice,” opponents of abortion have been excited and emboldened by his  “pro-life administration.” Trump and Vice President Mike Pence have combined provocative rhetoric, potent symbolism, and policy action at home and abroad to bestow immense favour on the anti-abortion movement. With the appointment of Justice Brett Kavanaugh to the Supreme Court in October 2018, the balance of power now seems to have shifted to give conservatives on the bench a slim majority. The current wave of abortion bans, which represent an abrupt escalation of the abortion wars, are a direct response to these events.

Yet these laws are proving politically problematic, indicating divisions among state and federal Republicans and between the priorities of the party and right-to-life activists. Most of the laws do not include exceptions that would allow abortion in instances of rape and incest. Current polling indicates that 77 percent of Americans support these exceptions, as do a considerable number of people who otherwise oppose abortion. For decades, Republican politicians have treated rape and incest exceptions as non-negotiable components of anti-abortion legislation and have worked to marginalise voices that reject them.

Leading Republicans, including Senate Majority Leader Mitch McConnell (R-KN) and House Minority Leader Kevin McCarthy (R-CA), have thus distanced themselves from many of the new bans. Trump, who also supports rape and incest exceptions, warned anti-abortionists, “We must stick together and Win for Life in 2020. If we are foolish and do not stay UNITED as one, all of our hard fought gains for Life can, and will, rapidly disappear!” In encouraging anti-abortion voters to focus their energies on the electoral cycle, he is emphasising partisan unity over ideological or moral purity. This has been the stance of all the Republican presidents, who have encouraged right-to-lifers to view victory at the ballot box as a substitute for their ultimate goal.

However, the political strategies that once served to placate the base may be starting to come undone, facilitated by realignments that predate Trump. After conservatives captured a large number of state legislatures in 2010, hundreds of abortion laws were passed, regulating abortion providers and clinics, excluding abortion from state health insurance policies, and implementing new restrictions on second trimester terminations. More confrontational strategies, such as heartbeat bills and personhood amendments, also emerged and as legislators engaged in increasingly combative attacks on abortion rights, these marginalised approaches gained traction. The current push for sweeping bans, which is occurring organically at the local level, reflects both anti-abortion optimism and impatience. They feel that they have tempered their expectations for decades and have earned the right to pursue their ideal model. After all, Trump is the fourth “pro-life President” to sit in the White House and Republicans have filled 11 Supreme Court vacancies since 1973, yet Roe still stands.

Although the current crop of high-profile bans has attracted a great deal of political and media coverage, they are likely to have little legal significance. Most commentators believe that for the foreseeable future, the Supreme Court will avoid a simple up-or-down judgement on Roe. However, the political implications are already clear. As Trump pushes the base to focus on his re-election and Republicans position themselves as militant soldiers in the ongoing culture wars, contenders for the Democratic nomination have come out with increasingly strong and uncompromising statements in support of reproductive rights. The pro-choice fight has also erupted at the state level, with New York, Vermont, and Illinois passing laws that protect and extend abortion rights. It seems all but guaranteed that abortion will be one of the political flashpoints in the 2020 election.

Dr Prudence Flowers is a lecturer in US History the College of Humanities, Arts and Social Sciences at Flinders University. She is a researcher and regular commentator on abortion politics in the United States. She is the author of The Right-to-Life Movement, the Reagan Administration, and the Politics of Abortion (Palgrave Macmillan, 2019).

This article is published under a Creative Commons Licence and may be republished with attribution.