In a pre-Super Bowl Saturday news dump, the Washington Post made a remarkable disclosure about the politics of abortion in America, with far-reaching implications for the future.
The impolitic statements of Virginia Gov. Ralph Northam and Del. Kathy Tran about a bill to deregulate abortion—suggesting that abortions could be performed while a woman is in labor, and that newborns with deformities might be killed after birth—have caused political turmoil in the commonwealth and beyond. Yet these statements also raise questions as to whether the pro-life movement is prepared for what our politics might look like if the U.S. Supreme Court were to overturn Roe v.Wade.
According to the Post, the comments on late-term abortion from Northam and Tran “disrupted carefully laid plans to bolster abortion rights across the nation that are under threat from an increasingly conservative Supreme Court — and thrust the issue into the 2020 elections.” These plans are ambitious: “Fueled by heightened political activity by women and increasing Democratic strength in state legislatures, abortion rights supporters have pushed initiatives that would expand access to birth control and reproductive care in about half of the states.”
On the issue of late-term abortions, Andrea Miller, the president of the National Institute for Reproductive Health, “declined to say exactly where her group hoped to push measures that would loosen restrictions on late-term abortions.” The Post, with considerable understatement, characterized Miller’s refusal as “a sign of how delicate the issue is.”
The revelation that abortion rights activists have geared up to push radical legislation in as many as 25 states, recently succeeding in New York state, throws a spotlight on the misleading media coverage of the issue.
The desire to keep the campaign under wraps might explain, for example, why The New York Times ran an editorial on January 21 advocating for these sorts of battles, but did not provide follow-up news coverage when the state enacted its extreme legislation the next day. Similarly, the Post ran an op-ed by the aforementioned Miller on January 23 about the effort in New York and other states, but its follow-up was limited to a perspective op-ed by J.D. Flynn on calls for the Catholic Church to excommunicate Gov. Andrew Cuomo for signing the new law.
The establishment media’s blackout regarding the New York law was widespread, reflecting that abortion is—to paraphrase Ben Domenech—“the thing we don’t talk about.” Stories at CNN, CBS News, and The Hill were notable exceptions.
That blackout made it much easier for the Times, the Post, and other outlets to frame the public revulsion against Northam and Tran’s comments as “conservatives pouncing” over old bills for no reason, as opposed to being shocked by the grotesque lighting of the Freedom Tower in pink to celebrate extremists’ victory in the Empire State, let alone a previously undisclosed national campaign.
As significant as the media’s distortions are, the more important aspect of the story is what it says about the future of abortion politics for years and perhaps decades to come. Consider the conventional wisdom among conservatives regarding the issue. The Supreme Court effectively enshrined legal abortion in demand in Doe v. Bolton (the companion case to Roe) with its expansive loophole for the woman’s “health,” however (and by whomever) defined. The pro-life movement thus faces severe legal obstacles to winning victories in the democratic or legislative process. Accordingly, conservatives have focused on judicial nominations, particularly for the Supreme Court.
Some pro-lifers hope the court someday will recognize the unborn as persons, with the constitutional protections that implies. Most observers, however, would bet more on a decision that only overturns the regime established under Roe, Doe, and Planned Parenthood v. Casey.
It is often said such a decision would merely “return the subject to the states.” This claim is mostly true, but the pro-life movement has also tended to make it to broaden the political coalition for overturning these precedents. It is a claim that appeals to those who are more ambivalent about abortion, but would accept federalism as a compromise position.
But these past two weeks have revealed two important realities about abortion politics. First, while the Supreme Court seems unlikely to overturn Roe without another textualist justice or two, paranoid abortion rights activists are already quite busy advancing a federalist strategy of their own for a post-Roe era.
Second, the reaction of the pro-life movement to the events in New York and Virginia strongly suggests the federalist approach will not be a tolerable compromise. Upon reflection, it should be no surprise that the pro-life movement would find it unacceptable that the unborn would receive legal protection on one side of a state line but be subject to infanticide on the other side.
The stunned response to the previously secret campaign strongly suggests the pro-life movement is not currently organized around these two newly revealed realities. It also implies a post-Roe era would feature pro-life efforts seeking direct federal protection for the unborn. At a more indirect (and perhaps controversial) level, the pro-life movement might seek federal or state regulation of abortion provision within states to non-residents of those states. In particular, there may be controversies over issues like the interstate transportation of minors for abortions in states permitting them.
Suddenly, it seems as though the pro-life movement has much more work to do identifying, publicizing, and battling the newly revealed national campaign in whichever states it may emerge. The movement might also prioritize pinning down the field of Democratic presidential candidates regarding their support for largely unregulated late-term abortions. Both efforts would help promote a culture of life and move hearts and minds in anticipation of a post-Roe era.