By Dr Prudence Flowers
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. Doctors who perform abortions could be charged with a felony and face a potential 99-year prison sentence. Alabama now has the dubious distinction of having passed the most restrictive of the many abortion bills currently being considered in legislatures across the United States.
In addition to this outright ban, Mississippi, Ohio, Kentucky, and Georgia have enacted heartbeat bills, with Missouri and Louisiana poised to join them. Heartbeat bills outlaw abortion after 6 weeks gestation (when a fetal heartbeat can first be detected by transvaginal ultrasound). In practice, this would all but end legal abortion, for the procedure is banned shortly after a pregnant person has missed their first period. Arkansas and Utah have also enacted laws outlawing abortion at 18 weeks gestation. All these new laws represent a direct attack on abortion rights in the United States.
After the implosion of constitutional amendment efforts in 1983, a Supreme Court decision that overturns Roe v. Wade (1973) has long been the sole path for right-to-lifers to end legal abortion. The recent flurry of legislation is responding to the 2018 retirement of Justice Anthony Kennedy, a crucial swing vote. These states are essentially issuing an invitation to the Supreme Court to revisit its landmark decision in Roe.
However, the wave of abortion bans also reveal some of the profound divisions that exist amongst opponents of abortion about how to engage with their current crop of allies in the executive, judicial, and legislative branches. Eric Johnston, founder of Alabama Pro-Life Coalition and drafter of the Alabama bill, has dismissed those working for anything less than a total ban, provocatively asking, “Why not go all the way?” These bills represent a direct challenge to the priorities and authority of the oldest, largest, and most influential anti-abortion organisations, the National Right to Life Committee (NRLC) and Americans United for Life (AUL).
In the late 1970s, the NRLC and AUL concluded that public opinion and political sentiment meant a complete abortion ban was not possible. Instead, they embraced an incrementalist strategy, working to erode rights via multiple rounds of legislation and lawsuits. Leading figures in the NRLC believe that as abortion rights become increasingly restricted, Americans will “recognize once again that they do not need abortion on demand.” Constant legislative activity works to reframe abortion as an aberration, permissible only in rare and highly emotive circumstances.
Incrementalism allowed the NRLC and AUL to thrive despite sometimes devastating setbacks. In Planned Parenthood v. Casey (1992), the Supreme Court issued a shock decision upholding Roe. The movement was forced to abandon (at least temporarily) its goal of completely ending legal abortion. Incrementalists quickly adjusted their tactics to focus on provision, while discursively emphasising that they seek to protect women and fetuses. This approach has accelerated since the 2010 mid-term elections. Thousands of abortion bills were introduced in newly conservative state legislatures and hundreds of so-called Targeted Regulation of Abortion Provider (TRAP) laws passed.
However, there has always been an absolutist element that will only support outright bans. This strand sometimes describes itself as immediatist or abolitionist, rhetorically furthering their claim to be part of a moral crusade akin to the anti-slavery struggle of the nineteenth century. Absolutists view incrementalists as conceding the fundamental principle that abortion is murder and as being pragmatists who play politics with fetal life. Incrementalists accuse absolutists of throwing away opportunities to limit abortion in pursuit of impossible perfection, warning that an “all-or-nothing approach will gain us nothing.”
We are now witnessing another chapter in the split between these factions. In the last 15 years, there have been several unsuccessful absolutist challenges to Roe. In 2006, South Dakota passed a sweeping ban that made it a felony to perform an abortion unless a pregnant person’s life was jeopardised. In 2009, Personhood USA began lobbying for adoption of state amendments that granted legal rights to embryos, gaining significant traction in states such as Colorado, North Dakota, Alabama, Oklahoma, and Mississippi. In 2011, Janet Porter, a Religious Right and family values leader, debuted the current heartbeat strategy. Until 2019, this was on the margins of right-to-life activity, experiencing limited success in states such as Alabama, Arkansas, Iowa, North Dakota, and Ohio.
Although absolutists are normally on the fringes of right-to-life politics, incrementalists are scathing and combative in their response to them. James Bopp, General Counsel of the NRLC, has dismissed absolutist motivations, claiming “there has always been a division between those who want to concentrate on what will make a difference, and those who are more interested in making a statement that makes them feel better.” In 2015, as heartbeat bills gained national attention, he described them as a “pointless and futile strategy” not worth the “time, money, and effort” of right-to-lifers.
The NRLC has also worked behind the scenes to undermine absolutist measures when they are considered by legislatures. It warns political allies that such bans are damaging to the cause and that the Supreme Court might use them to strengthen or expand abortion rights. In some states, the NRLC’s local affiliate has actively lobbied against absolutist bills, while in Congress, the NRLC refuses to acknowledge or engage with rival legislation.
Thus it is no surprise that the NRLC has remained silent about the recent high-profile anti-abortion legislation, making no statements on its website, its daily news blog, in recent issues of National Right to Life News, or via its highly active Twitter account. Right to Life (@nrlc) has used the trending #StopTheBans hashtag to disseminate anti-abortion arguments and imagery but has not discussed the Alabama or Georgia laws that inspired the hashtag. In contrast, AUL has tweeted repeatedly about the current crop of restrictive legislation. AUL is the legal arm of the anti-abortion movement and although it is incrementalist, it understands its role in utilitarian terms. In 2006, after South Dakota passed its sweeping ban, AUL’s vice president Daniel McConchie explained, “As much as this isn’t the best strategic thing to do, it’s there and it’s the law of South Dakota now … We’ll defend our position now — which is to oppose abortion.”
Eric Johnston of Alabama Pro-Life Coalition recently proclaimed, “It’s almost like you can smell it [the end of Roe] in the air.” However, incrementalists are proceeding as though it is business as usual. In recent months, the NRLC has repeatedly emphasised that the movement’s “highest legislative priorities” are stopping abortion after 20 weeks gestation and outlawing the dilation and evacuation procedure. These long-running goals reflect the NRLC’s focus on chipping away abortion rights, provision, and access.
Designating one faction of the right-to-life movement as incrementalist is not intended to suggest that these activists are less resolute in their opposition to abortion. Incrementalists and absolutists share the goal of completely ending access to legal abortion in the United States. Where they differ is strategy and tactics. Incrementalists believe (with good reason) that an ill-timed assault on Roe can hinder rather than help the cause.
Roe is now vulnerable in a way that it has not been since the early 1990s, but the most significant threats to abortion rights may not come from high-profile absolutist bills. At an organisational level, the anti-abortion movement as a whole is unlikely to rally for such measures, for the NRLC does not believe that the Supreme Court will uphold these laws. It is also notable that leading Republican and Religious Right figures have distanced themselves from Alabama’s sweeping ban. While media and public commentary has focused heavily on these dramatic new laws, the most significant short-term threat to reproductive rights remains the incrementalist strategy, which seeks to create a situation where rights exist without meaningful access.
Dr Prudence Flowers is a Lecturer in the College of Humanities, Arts and Social Sciences at Flinders University and is the author of The Right-to-Life Movement, the Reagan Administration, and the Politics of Abortion (Cham, Switzerland: Palgrave Macmillan, 2019).
 K.K. Rebecca Lai, “Abortion Bans: 8 States Have Passed Bills to Limit the Procedure This Year,” New York Times, 17 May 2019.
 Johnson quoted in “Lawmakers Vote to Effectively Ban Abortion in Alabama,” New York Times, 14 May 2019.
 Mary Ziegler, After Roe: The Lost History of the Abortion Debate (Cambridge: Harvard University Press, 2015).
 Jack Willke to Paul Marx, 24 July 1990. Papers of Father Paul Marx. Box 5, Folder 12, Willke, Dr. Jack. University of Notre Dame Archives.
 Melody Rose, “Pro-Life, Pro-Woman? Frame Extension in the American Antiabortion Movement,” Journal of Women, Politics, and Policy, Vol 32 No 1 (2011): 1-27.
 Jack Willke to Paul Marx, 25 May 1990. Papers of Father Paul Marx. Box 5, Folder 12, Willke, Dr. Jack. University of Notre Dame Archives.
 Bopp quoted in Erik Echkholm, “Anti-Abortion Groups Are Split on Legal Tactics,” New York Times, 4 December 2011.
 Bopp quoted in Prudence Flowers, The Right-to-Life Movement, the Reagan Administration, and the Politics of Abortion (Cham: Palgrave Macmillan, 2019), 145.
 McConchie quoted in Monica Davey, “South Dakota Bans Abortion, Setting Up a Battle,” New York Times, 7 March 2006.
 Johnson quoted in Erin Durkin, “‘It goes after Roe directly’: Alabama’s abortion bill heads to state senate,” The Guardian, 15 May 2019.
 “Editorials: The Pro-Life Counter-Offensive shifts into high gear,” National Right to Life News (April 2019), 3; Ingrid Duran, “Pro-lifers respond to the Canary in the Coal Mine,” National Right to Life News (May 2019), 5.