By Susan Roberts
Conservative attacks on reproductive rights are once again in the news. Headlines were made when Amy Coney Barrett was confirmed to the Supreme Court, and pro-choice advocates could only imagine the restrictions on access to abortion that would result. Alabama Governor Kay Ivey made headlines by enacting the nation’s most restrictive bill on prevention of abortion at the sign of a fetal heartbeat, and pro-lifers anticipated a snowball effect of similar pieces of legislation around the country.
Most recently, Arizona GOP legislator Walter Blackman made headlines when he said his pro-life proposal was “perfect” because it would prosecute women having abortion for homicide, and providers characterized the legislation as “nothing less than appalling.” Indeed, pro-life advocates are very encouraged, and pro-choice activists are very worried.
The pace of abortion restrictions enacted in 2021 is unprecedented, and this pace is unlikely to let up. On April 27, Governor Brad Little of Idaho signed the latest in a line of abortion restrictions laws, legislation so sweeping as to include a “heartbeat” provision. In just four months 2021 has eclipsed 2011 in term of abortions restrictions enacted into law. Indeed 2011 was the high-water mark in anti-abortion legislation. From January 2021 through April 29, 61 of the 536 abortion restrictions proposed were enacted. In comparison, 2011 saw 42 restrictions pass. Even more astonishing is the fact that 28 of 2021 laws were enacted within a four-day window, April 26 through April 29.
Why are states important in abortion access?
Just as with voting rights legislation, analysts of state politics should be looking at the politics of access to abortion. If it isn’t already in your state, pro-life legislation is coming to a state near you. South Carolina was the first state in 2021 (on February 18) to pass legislation banning abortion after a detectable heartbeat. As with other states with these bans, the law is almost immediately challenged in courts, and none are currently in effect. Such initiatives, however, are not limited to legislation. Vermont, Iowa, Kentucky, Kansas, and Iowa are among the fourteen states that have introduced anti-abortion amendments to their state constitutions this year.
Why is the Pro-Life Movement so poised to succeed?
Anti-abortion politics have the edge in each of the three most influential political arenas to dramatically curb access to abortion: judicial appointments, control of state legislatures, and interest group activism. These arenas provide rich opportunities for conservatives to dramatically restrict abortion access. Moreover, these contexts overlap and intersect. For example, Texas legislators have crafted a bill they argue will withstand judicial scrutiny, a particularly important consideration in challenge to Roe v. Wade.
Judicial confirmations cement the anti-abortion infrastructure.
First, the confirmations of Trump appointees, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, guarantee a decidedly conservative majority on the Supreme Court. Despite thinly veiled claims that he would not ask nominees about Roe v. Wade, all three of Trump appointments were pro-life. While not iron clad, political scientists Lee Epstein and Eric Posner have shown a “loyalty effect” among Supreme Court justices in which their views coincide with those of the president who appointed them.
Trump’s judicial triumphs were by no means limited to the Supreme Court. According to the Pew Research Center, Trump appointed more than 200 federal court judges. These numbers are significant, as is the age of these judges. They are younger, and their ideologies are decidedly, if not exclusively, conservative.
One recent judicial example is the very contested debate on medication abortion and its distribution during the pandemic. Just days ago, President Biden directed the FDA to make mifepristone, better known as the “abortion pill,” available by telemedicine and by mail, an order directly countering the Court’s January 12, 2021 ruling in the case Food and Drug Administration v. American College of Obstetricians and Gynecologist, a decision which upheld the distribution of such medicine in person only.
States such as Arkansas are inviting the Supreme Court to rule on the heartbeat legislation which passed on March 10, 2021. In fact, Governor Asa Hutchinson said explicitly that the law was “in contradiction of binding precedents of the U.S. Supreme Court, but it is the intent of the legislation to set the stage for Supreme Court overturning current case law.”
Republicans slowly and surely capture the abortion battlegrounds.
Second, Republicans have continued to make gains in state legislatures. This can be measured is the increase in number of Republican “trifectas.” A “trifecta” is simply a term for a state in which the same party controls the governorship and has a majority in both chambers of the legislature. As of 2021, there are currently thirty-eight trifectas; twenty-three are controlled by Republicans as opposed to twelve for the Democrats.
Except for South Dakota, “heartbeat” bills have been introduced in each of these GOP trifectas. Abortion restrictions labelled “heartbeat” measures prohibit an abortion at the first instance of a detectable fetal heartbeat. Some of these bills have been passed but blocked by the courts. Republicans just picked up two trifectas in Montana and New Hampshire, both of which have advanced anti-abortion legislation in 2021, including heartbeat legislation.
In addition to the current trifectas, the GOP has slowly but steadily picked up seats in state legislatures across the country. David Byler writes “it didn’t happen overnight, and it won’t reverse itself soon.” While Roe v. Wade is still the precedent for the abortion rights, the action is, as it has been, in the states. These electoral gains make it more and more possible for the passage of restrictive abortion measures just as we are currently seeing with voting rights.
Moreover, these gains will reap rewards for Republicans as reapportionment and redistricting results from the 2020 census. With these down ballot gains for the Republicans come the power to draw district maps. FiveThirtyEight sees these as “the best case scenario for Republicans,” estimating Republicans can control redistricting of 188 congressional seats as opposed to 73 for the Democrats.
Extending these state house gains, Republican more than doubled the number anti-abortion women in the House of Representatives bringing their numbers to over thirty. A Washington Post article quotes Marjorie Dannenfelser that “our women are not just kind of pro-life but really pro-life.”
Activism is both incremental and accelerated.
Third, activism for anti-abortion advocates has extended beyond the well-established pro-life groups such as the National Right to Life organization. Groups such as Americans United for Life, Faith2Action and the Personhood Alliance are working to further pro-life causes with different approaches and with different emphases. None of these are well known to the general public.
My research has demonstrated the success of Americans United for Life’s (AUL) incremental approach of using model legislation. AUL has over fifty pieces of model legislation to offer interested states ranging from fetal homicide to assisted suicide. Instead of drafting its own legislation, states can adopt or adapt the language of the AUL bill. The organization has a decidedly incremental and strategic approach in ending abortion state by state and bill by bill instead of the dramatic and often faith-based efforts of other groups. In addition to their secular approach, AUL frames abortion restrictions as a matter of women’s health, a further reason for their many success in promoting pro-life legislation.
Faith2Action, an explicitly Christian based group, uses model legislation to advance their belief that abortion should be banned after any detectable fetal heartbeat. Nurtured by Faith2Action, the Texas Senate in late March passed a package of anti-abortion legislation, one of which was a heartbeat bill. Janet Porter, the founder of Faith2Action Ministries, has been called the “mastermind” between every piece of heartbeat abortion. Porter anticipates more states to pass heartbeat legislation in 2021.
The National Personhood Alliance is least likely to have a direct impact on legislation. Describing itself as “Christ centered, biblically informed organization,” Personhood Alliance and its twenty-eight state affiliates believe a fertilized egg is a human being with all the rights of citizenship under the 14th Amendment. Much more radical than most disaffected pro-lifers, the Alliance has a no-exception stance, meaning abortions are never justified, not even in the case of rape or the life of the mother. Perhaps just as important the affiliates provides its supporters with solidarity and a sense of agency.
The concept of “personhood” itself is not new, but its scholarly discussion is more visible. In early April, New York Times columnists Ross Douthat and Michelle Goldberg wrote on the contested arguments from theologians and legal scholars, disagreeing on its potential impact on the future of abortion rights. Goldberg saw these arguments as highly theoretical and often abstruse, but the Personhood movement demonstrate a grassroots approach, one which isn’t concerned with an academic argument.
Why consider these stakeholders, and why now?
Quite simply, the convergence of judicial, legislative, and interest group attempts to end access to abortion go beyond a pattern. These are interlocking pieces of a puzzle. Arguably, our political environment is fractured in fundamental and disturbing ways. The New York Times has portrayed the current political climate as political sectarianism marked by an a us versus them mentality. It only takes one piece of legislation in one state with one sympathetic judge to unleash a highly charged fight over abortion at exactly the time the nation doesn’t need one.
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Dr. Susan Roberts is a professor of political science at Davidson College. She tweets at @profsuroberts.
