Assessing the abortion political landscape
On Tuesday, voters in Ohio decisively rejected an amendment to the state constitution that would have raised the threshold from a simple majority to 60% for a ballot initiative to be approved. While abortion was not directly on the ballot, it was understood by virtually everyone that it was the motivating force behind it. In November, voters in Ohio will vote on an amendment that, if approved, will enshrine the right to abortion in the state constitution.
Many of those who pushed for raising the threshold to 60% were not exactly shy about their motives for doing it. Frank LaRose, the Ohio secretary of state, openly said he was pushing for it to make it harder for the abortion amendment to be approved. Currently, Ohio has a ban on abortion after 6 weeks, which is on hold while it is being litigated in state courts.
Ohio has had elections before in August. Because they were very low turnout affairs, the state legislature voted to abolish them during the last legislative session. When it looked like the amendment on abortion was going to get enough signatures to qualify for the November ballot, they did a 180. In May, they voted to put the amendment raising the threshold for passage on the ballot in August.
They clearly were not confident that they could defeat an amendment guaranteeing the right to abortion. Given that the threshold amendment lost by 14 points, I’m hard pressed to think the abortion amendment won’t be approved in November. While I think it will be approved, I don’t think it will be with 60% of the vote.
Those who argued for raising the threshold, but claimed it had nothing to do with abortion were being dishonest and many voters saw it that way. Similar bad faith efforts to raise the voting threshold from a simple majority to 60% have been defeated in other states. Last year, for example, the South Dakota legislature put an amendment on the ballot in June raising the threshold from a simple majority to 60%. The goal was to prevent a Medicaid expansion initiative from being approved in November that year. It was voted down 2-1 and Medicaid expansion was approved. I think most people, instinctively, know a bad faith initiative when they see it, regardless of what they think about a specific issue or how closely they follow politics.
If Ohio approves the right to abortion in November, it will be added to the list of states that have voted in favor of abortion or voted down amendments against it since Dobbs. That list includes red, blue and purple states. It is tempting to overinterpret what happened on Tuesday as having implications for 2024.
It may be the case that the abortion has altered the political map, particularly in the midwestern states. Virtually all the elections that have been held since Dobbs are evidence of that. Still, we don’t know what kind of effect it will have in a presidential election. Ohio used to be a swing state, but Trump won it handily both times. Maybe abortion has changed that, but we won’t have a good idea of that for a while. I would be wary of any claims that it is a swing state again, as much as I want it to be true.
The politics of abortion since Dobbs
Many things have become clear about abortion over the last year. First, it is a major, highly salient issue that people care about and will vote on. While it’s hard to quantify exactly how much of a role it played last year, it was undoubtedly a big factor in helping Democrats defy the midterm curse. It is not just an issue that Democrats care about. Swing voters and many Republicans care about it, too. Persuasion played a big role in getting people to vote for Democrats who otherwise would have voted Republican. Abortion was not all of that, but it certainly had something to do with it.
It's hard to disentangle abortion from some of the other issues that made Republican candidates toxic last year. For example, how much of that toxicity was because of abortion as opposed to election denial? Unfortunately, there is no way we can know for sure. That is because nearly every candidate who was an election denier also advocated for unpopular abortion bans.
Second, abortion turbocharges voter turnout, especially on the pro-choice side. Turnout on Tuesday in Ohio was 75% as high it was last November. Counties that voted against the amendment tended to have higher turnout than counties that voted in favor of it. In Kansas last year, turnout for the abortion amendment in August was higher than it was for the 2008 presidential primary. In the Wisconsin Supreme Court race in April of this year, turnout was as high as it has ever been for a race of that sort. In all of those cases, the pro-choice side won easily.
Third, outside of the reddest places, Democrats have a big advantage on abortion. When looking at who has the advantage on a given issue, there are two main ways to do it. One of those ways is quantifiable and the other is not. For the former, polling and election results are good metrics. For the latter, looking at who wants to talk about it is key. Democrats almost everywhere are eager to talk about abortion while most Republicans want to avoid it like the plague.
Democrats are largely unified when they discuss abortion. Even Democrats from red-leaning states and districts are solidly pro-choice and emphasize it. The pro-choice side is much more organized and motivated, as the results of every initiative held on the issue since Dobbs have shown.
While those in favor of abortion rights have largely been unified, the same can’t be said for those opposed to abortion. There has been infighting among the various anti-abortion groups, but it has now boiled over after what happened in Ohio. Some believe that the problem is just messaging. Others think they need to be more pragmatic and should be willing to live with abortion available up to a certain point.
In politics, when someone says their side needs better messaging, it’s usually wishcasting. What it means most of the time is that someone is digging their head in the sand.[i] Saying the problem is messaging is a way to deny the reality that what you’re selling is not something people like. Messaging can be important, but only if the problem someone has is a messaging problem.
The anti-abortion side doesn’t have a messaging problem. They have a substantive problem. Most people don’t like the abortion bans they’re pushing for, period.[ii] It may be possible for the anti-abortion crowd to convince people to change their minds eventually, but that is not going to happen any time soon.
When the problem is substantive, that means you have to either change your product or throw in the towel. That problem is not unique to the anti-abortion cause, but it is a problem its advocates have and few of them are willing to face it. I understand why they don’t want to do that. Many of them have dedicated their lives to that cause and, after getting a win at the Supreme Court, don’t want to turn right around and compromise on it. That doesn't change the fact that what they want is toxic and if they keep pushing for it they will likely wind up with a legal regime every bit as permissive as Roe if not more so.
Fourth, efforts to promote anti-abortion amendments/candidates and to defeat pro-choice amendments/candidates by invoking gender issues have failed miserably. That tactic has been tried multiple times, including in Ohio, and it has never worked. Last year, Republican candidates in Kansas, Michigan, Nevada and Georgia all ran ads where they accused their opponents of promoting gender affirming care, transgender athletes and/or teaching weird gender stuff in schools. Similar ads were run by anti-abortion groups in Michigan and Kansas on the amendments being voted on.
In Ohio, one of the ads run by a group supporting the amendment featured footage of a drag queen reading to kids. Seriously, it really did that, check out the link. It takes a superhuman level of living in a bubble to think that would resonate with anyone who doesn't inhabit a right-wing fever swamp. I have emphasized before that abortion is a real, substantive issue that people care about while the latest culture war fight of the hour is not. Transgender athletes, drag queens and gender affirming care are not things that anyone cares about outside of a few small circles. No matter which side of those issues someone is on, if they’re talking about any of them they are out of touch.
Fifth, Republican efforts to paint Democrats as extreme on abortion have not been effective. It’s true that the Democratic position on abortion is more permissive than most people support. At least that is what pre-Dobbs polling showed. Republican candidates last year tried to counter Democratic attacks on their advocating for abortion bans by saying Democrats supported it on demand. Few, if any, of those efforts were successful.
Why aren’t those counterattacks working? I think there are two reasons for it. One is that there is an asymmetry between those two positions and most people know that. The “late term” abortions that Republicans frequently decry are very rare. For all the emotion it generates, the number of abortions that happen after 20 weeks is around 1%. In sharp contrast, close to 90% of abortions happen within the first 12 weeks, which Republicans want to ban. In other words, the consequences of allowing abortion after 20 weeks are much smaller than the consequences of banning it after 6 weeks, let alone sooner.
The second reason is that, when push comes to shove, most people are more worried about something they support being banned than something they oppose being allowed. I think what happened in Kansas last year illustrates that point. Abortion in Kansas is legal up to 22 weeks. That is probably more permissive than most people there support. However, virtually everyone there knew that if the anti-abortion amendment was approved, Republicans in the legislature were going to ban it after 6 weeks if not altogether. The amendment was defeated 59-41. If forced to choose between allowing abortion after the point where they think it’s right or banning it before the point where they think it’s right, most people will opt for the former.
Sixth, it’s not entirely clear what the most popular position on abortion is. I wrote last year that the pro-choice side should be willing to live with some abortion limits, particularly after the first trimester. I still believe that, but am less sure of it now. Pre-Dobbs polling consistently showed support for abortion in the first trimester, but vastly less support for it afterwards. That may still be true, but it may be out of date.
It could be that the pre-Dobbs abortion polling findings no longer apply. While bans after 15 weeks can be popular, almost all abortions that happen after that time that are very compelling. Virtually everyone who has an abortion that late does so because something has gone horribly wrong. Sometimes, that is because the fetus has a defect that will kill it in the womb or soon after it is born. Other times, it is because the woman’s life is at risk. Sometimes, it is both. Nobody has an abortion that late for fun.
It's indefensible for someone to be forced to endure that. Before Dobbs, in those kinds of cases, abortion was largely allowed. Now, it is not in many states and there have been some awful outcomes because of it. When Roe was the law, it was easy to oppose allowing abortion later in a pregnancy because there were few cases of someone suffering the consequences of such bans. However nice such a ban sounds in theory, in practice it can have severe unintended consequences that few people had thought of before Dobbs.
I still think abortion bans after 15 weeks are popular. However, if they don’t have clear exceptions for the tragic situations where abortions that late actually happen they might not stay that way. It really doesn’t seem tenable to have in place laws that make doctors wait until a woman is near death before they can treat her.
The paradox of winning at the Supreme Court
When Roe was decided in 1973, it gave those pushing to legalize abortion close to a total victory. At the time, abortion had been legalized in a few states and there was momentum for it in others. Still, it was illegal in most states and there were many states where legalization efforts were minimal. The Supreme Court overrode all those laws and gave the pro-choice side almost all of what they wanted.
From an outcome standpoint, it was great. The problem was that the pro-choice side never had a chance to make their case to the public. The sweeping victory they got with Roe was far beyond what any consensus at the time would have produced. Because of that, the pro-choice side was on defense for nearly 50 years.
For decades, the anti-abortion side was much more motivated. Candidates opposed to abortion were much more likely to talk about it. Because of Roe, the most unpopular abortion bans were off the table, while later term abortion bans were not. Candidates could make opposition to abortion their main platform and get away with it because they were limited in what they could do.
Dobbs changed everything. For the longest time, many people believed Roe was never going away. That was always delusional, but is obviously impossible to believe now. Since Dobbs, the pro-choice side has been stronger and has been on offense. They now have a lot to lose and a lot to gain.
Having won their long sought victory at the Supreme Court, it is the anti-abortion side that is in disarray. They really are the proverbial dog that caught the car. Their unpopular ideas were kept from being enacted by Roe, but now are the law in many states. Ballot initiatives on abortion have all been won by the pro-choice side and Ohio is likely to follow suit in November.
Having control of the Supreme Court certainly matters. There are all kinds of wins you can get there that you probably can’t get anywhere else. The problem is that the Supreme Court has finite limits on what it can do. When it issues unpopular rulings, there are backlashes to it, which helps the side that lost. Dobbs is the latest example, but Roe was also an example of that as were many rulings made by the Warren Court in the 1950s and 1960s.
Starting in the 1950s and going through the 1970s, Democrats got win after win at the Supreme Court. Many of those rulings were very good, but a funny thing happened along the way. Democrats stopped winning elections. From 1952-1992, Republicans won seven of the ten presidential elections that were held. Left-wing causes also floundered from the late 1960s onward. In the 1970s, the coalition Democrats had since the 1930s came apart and they spent decades playing defense.
When you win at the Supreme Court, you lose everywhere else. Believing that five or more justices will do their bidding makes people complacent and makes them think they don’t have to convince anyone of the merits of their ideas. The Supreme Court has ruled on highly salient matters before and has made rulings that were unpopular. When either of those things happen, they tend to not go together, i.e., unpopular rulings on low salience issues.[iii] It is rare that for there to be a very unpopular ruling on a very salient issue, but Dobbs was one of them.
Just as the pro-choice side got a victory further than any consensus at the time would have produced with Roe, the anti-abortion side got that with Dobbs. The draconian bans that are now the law in many states are unpopular and will likely remain so. I’m not going to pretend that I know how the abortion debate will end or if it will ever end. What I’m confident of is that the pro-choice side has passion, organization and momentum on their side and I don’t expect that to change any time soon. There will be divisions soon enough, but they won’t be nearly as big as they are among the anti-abortion side.
[i] The left has had that problem with eliminating private health insurance, abolishing ICE and banning fracking, among other issues.
[ii] When your cause loses ballot initiatives by double digits, it had no chance. No messaging was going to save it. The same is true when candidates associated with your cause lose in landslides or lose easily winnable races.
[iii] Citizens United was an unpopular ruling on a low salience issue. Obergefell was a popular ruling on a high salience issue.