By Dr Prudence Flowers
In the first quarter of 2019, 28 state legislatures introduced an abortion ban. To date, 9 states have passed laws dramatically limiting when abortion can occur. States such as Alabama banned abortion from the moment of conception, while Mississippi, Missouri, Ohio, Kentucky, Georgia, and Louisiana banned abortion from 6-8 weeks gestation (when a fetal heartbeat can first be detected). These bills are explicitly framed as a means to overturn Roe v. Wade (1973) and end legal abortion in the United States.
This wave of activity is a direct response to Donald Trump’s victory in November 2016. Anti-abortionists have been delighted by Trump’s rhetoric, by the esteem he has bestowed on the movement, and by his attacks on national and international family planning programs. However, Trump is not innovating so much as accelerating long-standing Republican policies and tactics. A President Ted Cruz, Marco Rubio, or Mike Huckabee would be doing many of the same things, albeit with less bombast.
Absolutist anti-abortionists (who reject all form of compromise) have been particularly energised by Trump’s inauguration. In January 2017, Janet Porter of Faith2Action and the creator of the heartbeat strategy, suggested that God had granted the movement an “open door of opportunity.” Because allies now controlled the White House and both houses of Congress, “we are going to quit debating and regulating; we’re actually going to end abortion in nearly every case.”
Neither Porter’s heartbeat bill nor more incrementalist right-to-life legislation gained traction at a federal level, but this disappointment was forgotten well before the 115th Congress came to a close. On 27 June 2018, Justice Anthony Kennedy announced he was retiring from the Supreme Court. The departure of Kennedy, a crucial swing vote on abortion, meant that in his first 18 months in office, Trump could fill 2 vacancies on the nation’s highest court.
The last nationally significant abortion case was Whole Woman’s Health v. Hellerstedt (2016). By a 5-3 majority, the Supreme Court found onerous Texas regulations about the provision of abortion to be unconstitutional. Now there are 5 Republican appointed justices on the bench. Eric Johnston, head of the Alabama Pro-Life Coalition, cited Brett Kavanaugh’s confirmation hearings as the motivation for his sweeping ban, for “all the stars were lining up.”
Since 1980, the Republican Party Platform has included a plank calling for the appointment of judges “who respect … the sanctity of human life.” Although Supreme Court nominees refuse to answer confirmation hearing questions about how they might rule on specific issues and assert their respect for precedent, absolutists are confident that a Republican appointed Supreme Court justice will be a reliable and predictable opponent of Roe.
The incrementalist arm of the movement has learnt a different lesson from history. In the 1980s, opponents of abortion were heartened by the increasingly strong anti-abortion language in Supreme Court dissents issued in 1983 and 1986. They were delighted that Republican Presidents Ronald Reagan and George H.W. Bush had the opportunity to fill multiple Supreme Court vacancies. They interpreted the ruling in Webster v. Reproductive Health Services (1989) as an invitation to directly revisit the constitutionality of abortion. The National Right to Life Committee (NRLC) exulted, the “post-Roe world is now clearly visible and beckoning through the portal.”
In 1992, legal abortion seemed to hang in the balance. On 5 April, 500,000 to 700,000 pro-choice Americans attended the March for Women’s Lives in Washington, D.C. This rally was timed to occur two weeks before the Supreme Court heard oral arguments about a Pennsylvania abortion law. There were 7 likely votes to overturn Roe: 5 Reagan-Bush appointees and the original 2 dissenting justices from 1973.
In a move that shocked activists on both sides of the abortion debate, Justices Sandra Day O’Connor, David Souter, and Kennedy, a triumvirate of Reagan-Bush appointees, helped uphold Roe 5-4. The majority opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) declared “liberty finds no refuge in a jurisprudence of doubt” and argued that respect for precedent meant Roe must be upheld. While abortion was preserved as a constitutional right, a majority also upheld 4 of the 5 regulations in the Pennsylvania law, outlining a new “undue burden” framework that allowed states greater leeway in restricting abortion.
Although they were devastated by the verdict, incrementalist groups such as Americans United for Life (AUL) and the NRLC were quick to see potential in this new regulatory framework. Since Casey, they have worked diligently to shape the way that abortion is provided and people access it. The AUL and the NRLC helped states draft and pass legislation mandating abortion counselling, ultrasounds, waiting periods, and parental consent requirements for minors. At a federal level, they successfully worked to outlaw so-called “partial-birth abortions” (more accurately, intact dilation and extraction).
Since the 2010 midterms and the conservative landslide at the state level, hundreds of new abortion laws have been passed, most drafted and promoted by the NRLC and AUL. The current strategy focuses on banning abortion after 20 weeks gestation (on the basis of fetal pain), along with targeted regulation of abortion provider (TRAP) bills. TRAP bills reframe the pregnant person as a potential victim of predatory doctors and insist that abortion care providers require heightened levels of regulation and medical control. In the face of this onslaught, over 160 abortion providers closed or stopped offering terminations between 2011 and 2016.
While reproductive rights advocates watch this activity with alarm, absolutists view it as reflective of pragmatism and timidity rather than strength. In their opinion, Roe still stands because the Supreme Court has been asked to review laws that tinker at the edges rather than focusing directly on the constitutional rights of the fetal subject. Further, they believe that incrementalists are now primarily focused on bolstering their own reputations and appeasing their political allies. Mirroring the priorities of elected officials will always be a mistake because, according to absolutists such as Genevieve Wilson of Georgia Right to Life, “Politicians are like water. They go to the lowest point.” As Janet Porter insisted after Trump’s victory, “It’s time that we actually make good on those pro-life promises that we’ve been hearing about from all these leaders, all these representatives, all these senators, for literally decades.”
Tension over legislative strategy extends to the thorny issue of whether there are instances in which abortion might be legally permissible (exceptions), and if so, what these might be. Absolutists speak of needing to present a “perfectly clean” bill to the Supreme Court. In Alabama, after heated debate, the Senate refused to include rape and incest exceptions, allowing abortion only if there is a “serious health” risk to the pregnant person. The heartbeat bill promoted by Janet Porter does not include rape and incest exceptions and of the states that have recently passed this ban, only Georgia has deviated from this model.
Technically, absolutists oppose all exceptions, although in the 1990s they stopped fighting to block “life of the mother” exception. Absolutists are particularly opposed to rape and incest exceptions, arguing that the nature of conception has no bearing on the fundamental legal, medical, and ethical principles at stake. However, incrementalists believe that laws without exceptions will be opposed by the public, by politicians, and by judges. After Webster, when the NRLC wrote model legislation that it hoped would provide a test case to overturn Roe, it included tightly framed rape and incest exceptions.
Since the 1990s, a majority of Americans have supported legal abortion in all or most circumstances, with that figure currently sitting at 58%. When asked about scenarios where a pregnancy was caused by rape or incest that number reaches 77%. The NRLC’s own 2014 polling found similar results: 11% of respondents believed abortion should never be allowed, 14% believed it should be allowed to save a life, and 28% believed it should be legal in cases of rape, incest, or to save a life.
In the 2012 and 2016 elections, Republicans such as Representatives Todd Akin (R-MO), Representative Trent Franks (R-AZ), Senator Marco Rubio (R-FL), and Senator Ted Cruz (R-TX) attracted notoriety for their opposition to rape and incest exceptions. Akin’s claims that in a “legitimate rape” the “female body has ways to try to shut the whole thing down” became particularly infamous. After each of these controversies, the Republican leadership moved quickly to disavow a position that it views as extreme and politically damaging. During the 2016 campaign, Trump insisted that he would “absolutely” update the Republican Party Platform to include rape and incest exceptions.
Thus in 2019, leading Republicans, including Senate Majority Leader Mitch McConnell (R-KN) and House Minority Leader Kevin McCarthy (R-CA), have distanced themselves from legislation that lacks rape and incest exceptions. Trump tweeted that his stance was “the same position taken by Ronald Reagan.” Pat Robertson, a leading televangelist and one of the last of the 1970s-era Religious Right leaders, accused Alabama legislators of going “too far.” This concern has a political and legal basis. As Robertson bluntly declared, Alabama “is not the case that we want to bring to the Supreme Court, because I think this will lose.”
Absolutists in Alabama and Georgia are confident that all 5 conservative justices are keen to overturn Roe, but there have been no preparatory test cases to gauge sentiment. Some, such as Justice Clarence Thomas, the longest-serving member of the court, have a very clear track record. In February 2019, Thomas forcefully reiterated his longstanding opposition to legal abortion, describing Dred Scott v. Sanford and Roe as two of the Supreme Court’s “most notoriously incorrect decisions.” Other figures, such as Chief Justice John Roberts, are more opaque. Evidence strongly suggests that Roberts is personally opposed to abortion. He has voted in favour of abortion restrictions, but has not written an opinion that talks about the future of Roe. Legal scholars and court watchers have noted Robert’s strong interest in the history and reputation of the court. He has also voted in ways that confound conservatives, notably helping uphold the Affordable Care Act in 2012. With the departure of Kennedy, Roberts is widely seen as the new swing vote on abortion.
The fate of the current crop of abortion bans will not be known for years. Enforcement will almost certainly be blocked as legal challenges wind their way through the lower federal courts. Although absolutists have celebrated their clean right-to-life laws, these measures essentially force justices to cast an up-or-down vote on Roe. Most commentators predict that the Supreme Court will simply decline to hear arguments.
Incrementalists believe that the Supreme Court is not interested in an “ideal test case,” nor do they think that a flurry of state activity will “force” the Court’s hand. Clarke Forsythe, senior counsel for AUL, recently and provocatively described heartbeat bills as the strategy “least likely to attract Supreme Court review.” Since Kavanaugh was confirmed, the court has declined or deferred several abortion matters, which Forsythe views as evidence that the court wants to “go slow.”
Alabama or Georgia may end up being a footnote in the abortion wars, but this does not mean abortion rights are safe. AUL estimates that there are currently 20 abortion cases in the federal courts which the Supreme Court might choose to review in the next few years. There is also the more immediate issue of a Louisiana law mandating abortion providers must have hospital admitting privileges, a near mirror image of the Texas law that was struck down in 2016. The Supreme Court is currently considering whether to grant a writ of certiorari and review the case.
Dan McConchie of AUL defends incrementalism because there is not “a constitutional right to abortion being convenient.” The language of convenience obfuscates what is at stake. If the Louisiana law is upheld, only 1 clinic would be able to remain open to serve the approximately 10,000 Louisianans who seek an abortion each year. Louisiana would join 6 other states which now have a single clinic operating. Roe and Casey might remain the law of the land for some time, but if access is so fundamentally eroded, the constitutional right to abortion will be meaningless for an ever-growing number of Americans.
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).
Photo Credit: Alex Wong/Getty Images
 Guttmacher Institute, “Radical Attempts to Ban Abortion Dominate State Policy Trends in the First Quarter of 2019, April 2019 https://www.guttmacher.org/article/2019/04/radical-attempts-ban-abortion-dominate-state-policy-trends-first-quarter-2019
 Mara Gordon and Alyson Hurt, “Early Abortion Bans: Which States Have Passed Them?” NPR, 5 June 2019.
 Johnston quoted in Elizabeth Dias, Sabrina Tavernise and Alan Blinder, “‘This Is a Wave’: Inside the Network of Anti-Abortion Activists Winning Across the Country,” New York Times, 18 May 2019.
 “Republican Party Platform of 1980,” 15 July 1980 https://www.presidency.ucsb.edu/documents/republican-party-platform-1980
 James Bopp and Richard Coleson, “Webster Opens Door to Post-Roe v. Wade World,” NRL News, 13 July 1989, 1.
 Karen De Witt, “Huge Crowd Backs Right to Abortion in Capital March,” New York Times, 6 April 1992.
 Planned Parenthood of Southeastern Pennsylvania. v. Casey, 505 US 833 (1992).
 Guttmacher Institute, “The 334 abortion restrictions enacted by states from 2011 to July 2016 account for 30% of all abortion restrictions since Roe v. Wade,” 2016 https://www.guttmacher.org/infographic/2016/334-abortion-restrictions-enacted-states-2011-july-2016-account-30-all-abortion.
 Esmé Deprez, “Abortion Clinics Are Closing at a Record Pace,” Bloomberg Business, 24 February 2016.
 Wilson quoted in Ruth Moon, “Taking Exception: The Strategy That’s Dividing the Pro-life Movement,” Christianity Today, 2 June 2014.
 Porter quoted in Claire Chretien, “Congress to hold hearing today on banning abortions of babies with beating hearts,” Life Site News, 1 November 2017.
 Erin Durkin, “‘It goes after Roe directly’: Alabama’s abortion bill heads to state senate,” The Guardian, 15 May 2019.
 Faith2Action, “The Pro-Life Heartbeat Bill Q & A” https://secure6.afo.net/f2a/includes/QnA_support.pdf; Mara Gordon and Alyson Hurt, “Early Abortion Bans: Which States Have Passed Them?” NPR, 5 June 2019.
 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.
 Hannah Hartig, “Nearly six-in-ten Americans say abortion should be legal in all or most cases,” 17 October 2018 https://www.pewresearch.org/fact-tank/2018/10/17/nearly-six-in-ten-americans-say-abortion-should-be-legal/
 National Right to Life Committee, “The State of Abortion in the United States,” January 2014, 10 http://www.nrlc.org/uploads/communications/stateofabortion2014.pdf
 Lori Moore, “Rep. Todd Akin: The Statement and the Reaction,” New York Times, 20 August 2012.
 David Wright, “Trump: I would change GOP platform on abortion,” CNN Politics, 21 April 2016.
 Zeeshan Aleem, “Trump and top Republicans distance themselves from Alabama’s controversial abortion law,” Vox, 19 May 2019.
 Robertson quoted in “Televangelist Pat Robertson: Alabama abortion law ‘has gone too far,’ is ‘ill-considered,’” USA Today, 16 May 2019.
 Jessica Gresko, “Justice Clarence Thomas’ moment may finally have arrived,” AP News, 5 May 2019.
 Clarke Forsythe, “Heartbeat Bills’ Might be the Abortion Laws Least Likely to Attract Supreme Court Review,” National Review, 9 May 2019.
 Forsythe, “Heartbeat Bills’ Might be the Abortion Laws Least Likely to Attract Supreme Court Review.”
 McConchie quoted in Olga Khazan, “Planning the End of Abortion,” The Atlantic, 16 July 2015.