With two new Trump appointees on the Supreme Court creating a conservative majority, conservative states are jostling to claim the title of enacting the nation's most aggressive abortion laws. According to the Guttmacher Institute, as of mid-April, 34 new abortion restrictions have been enacted in 2019. Most recently, Georgia joined a growing group of states that have signed fetal "heartbeat" bills into law that aim to effectively ban abortion at six weeks, and Alabama passed a law that criminalizes providing an abortion once the fetus is "in utero," making it punishable with up to 99 years of imprisonment. The state legislatures and governors enacting these restrictions know that they will be challenged in court, but this is the point. While the rush to be the first to the Supreme Court with the hope of overturning Roe v Wade has shown the anti-abortion movement's confidence and eagerness, it has also exposed and potentially created vulnerabilities.
The history of roughly the past four decades of abortion politics has arguably been one of constraining the anti-abortion movement. The creation of the Christian Right as a political constituency in the 1980s fundamentally changed abortion politics. It both broadened the base of voters invested in the dispute and injected it with a sense of urgency by publicly framing the conflict in the starkest terms. As the "pro-life" moniker states, abortion was seen as a matter of life and death with the country now seen as sanctioning a form of murder. Framed in this way it is not surprising that a faith in traditional politics soon turned into street protests and outright violence as Roe persisted in spite of having a President in Ronald Reagan who opposed abortion and endorsed the Christian Right.
As the anti-abortion movement's image became tied to extremism it fell further away from the majority of the country's more moderate abortion views. In order to regain traction with the public the movement needed to adapt. Part of this process was guided by the stream of court cases challenging state efforts to restrict abortion. Of these, Planned Parenthood v. Casey (1992) was arguably the most important.
Casey replaced Roe in terms of how courts evaluate abortion regulations, but it also provided the parameters that allowed the mainstream of the anti-abortion movement to change its public appeal and the corresponding policies it pursued. In short, Casey announced that states not only had an interest in protecting the life of the fetus, but also the health and life of women.
In response, the movement transitioned from a focus on saving the fetus to one on protecting women. The new frame not only had potential in court, but it also provided a way to counter the view that the movement only cared about the fetus and not women. With the new parameters for abortion politics in place the mainstream of the movement had, in Ralph Reed's words, a "strategy…to pass as many pro-life laws as we can at the state level with…bold incrementalism." This strategy has dominated and held – until now.
The appointments of Justices Gorsuch and Kavanaugh to the Supreme Court has emboldened anti-abortion activists to cast aside the political lessons and corresponding constraints of the previous decades. Heartbeat bills and the overt criminalization of abortion directly undermine the anti-abortion movement's rhetorical claim to be invested in protecting women, refueling the abortion-rights movement's criticism that they never cared about women in the first place. While this might be seen as simply removing a thin veil it can also be seen as posing a real threat to the anti-abortion movement's cause.
Abandoning incrementalism for more aggressive legislative efforts threatens to inhibit a Court that typically shies away from dramatic moves, especially in controversial areas and where it would upend established precedent. The strategy also threatens the movement's position in national politics. Regardless of court case outcomes, the efforts to establish the most restrictive and punitive abortion laws in the country can crystalize the stakes in abortion for the public, even perhaps mobilizing moderates against the Republican party. In their rush to the Supreme Court, then, anti-abortion advocates might inadvertently end up creating the political conditions that warrant their current urgency.
Joshua C. Wilson is Associate Professor of Political Science at the University of Denver. He is the author of The New States of Abortion Politics and The Street Politics of Abortion: Speech, Violence, and America's Culture Wars.
The views expressed in this article are the author's own.
