Where the abortion wars might be headed and the tasks ahead for the pro-choice movement

Since Roe v Wade was reversed on Friday, multiple states have already all but banned abortion and more states are soon to follow. Many state-level elections this year will possibly determine the legality of abortion in several additional states. There are also states that are moving to further protect abortion rights, including adding amendments to their constitutions. The battle for Roe is over, but the war over abortion is just beginning.

For now, that is the landscape we are in. I suspect at some point there will have to be federal intervention of some sort. Unlike when Roe was decided in 1973, abortion pills are widely available today. States will ban them, but enforcing that will be very difficult. It also brings up federal versus state jurisdiction issues and conflict of law issues. For example, the FDA has approved the use of abortion pills while states have moved to ban them. The FDA’s authority has often superseded state authority, but this may be treated differently because of judges’ own feelings about abortion (yes, they will completely disregard any precedents on this one if they need to). Some states are pushing to punish abortion providers in states where it remains legal, which is not likely to be tenable and will almost certainly require federal intervention at some point. Those are just a few of many problematic examples created by the new landscape.

For the longest time, the abortion debate was theoretical. Because it was taken out of the hands of elected officials, few voters paid attention to it. Those that did tended to be militantly opposed or in favor. While there used to be many Republicans in favor and many Democrats opposed to abortion, that is rarely the case anymore among elected officials. Voters though are a different story. Still, Republicans in office have adopted hardline positions against abortion in virtually every case while Democrats in office have done the opposite. Both positions are unpopular, but it did not matter until now.

Roe spoiled all of us. It allowed the vast majority of people who do not have black-and-white views about abortion to tune it out while allowing the hardliners on both sides to claim to speak for everyone. Now, hardliners will have to answer for their positions and those who tuned out the issue can no longer do so.

This is a very polarized time and tensions are running very high. Throwing the abortion issue onto that fire likely makes it rage further. Some have expressed optimism that by sending abortion to the states and making it subject to the democratic process, it will ease tensions. I hope that happens eventually, but things will almost certainly get worse before they get better.

Although Democrats will have to moderate their position on abortion outside of the bluest states, it is Republicans who will probably face the biggest backlash. Many states are now banning abortion with no exceptions for rape and incest, an insanely unpopular position. In their efforts to enforce laws against abortion pills, authorities in those states will have to do some massively intrusive things such as monitoring internet searches and going through mail. Even miscarriages may subject to criminal investigations. I can imagine doing that will anger many people. Those are just two of many examples of the landmines those pushing to ban abortion might be walking onto.

Although what Republicans are doing is broadly unpopular, Democrats are also pushing unpopular ideas. In Congress, House Democrats are voting again on a bill that goes even further than Roe did on abortion. A similar bill was voted down 51-49 in the Senate with the two pro-choice Republicans opposing it. Although it is unlikely any abortion bill will pass this Congress, Democrats could at least set up votes on issues where they are strong. For example, they could hold a vote guaranteeing a national right to first trimester abortions. They could hold a vote on a national law guaranteeing that women who seek abortions will not be prosecuted nor will non-providers who assist them. They could also hold a vote on a national law guaranteeing the right to an abortion in cases of rape, incest and to save the life of the woman. That is some very low hanging fruit just waiting to be picked. If nothing else, it would get Republicans on record voting for or against those things and would let everyone know where they stand. It would also force other Republicans such as Trump and DeSantis to take positions on those measures.

Republicans will be pushing very draconian bans on the state level. While they can get away with doing that in some solidly red states, everywhere else they will face resistance. It is up to Democrats to stop them, but that will not be automatic. If Democrats counter draconian bans with abortion on demand, they are telling people that their only options are bad and worse. Outside of the bluest states, Democrats will have to be much more accommodating than they have been and the pro-choice movement will have to not listen to their most militant members.

On the national level, every Republican candidate and elected official should be asked about whether they endorse a national ban on abortion. Many will endorse it and many Senate candidates already have. Some have even endorsed national bans with no exceptions at all. Democrats should be asking their Republican opponents about where they stand on exceptions for things like rape, incest and the life of the mother. Republican candidates have gotten into trouble before for saying things that were extreme or crazy and odds are it will happen again. At the same time, Democrats have to make sure they do not fall into traps either.

The pro-choice movement will have to have a years if not decades long strategy to be able to win. I believe they can win and have a lot on their side, but nothing is fixed. They will have to make their case to the public, which is something Roe denied them the chance to do. The good news is most Americans are closer to the pro-choice side, but closer is the key word. Closer does not mean identical.

There is a good case to make that the upcoming bans on abortion are similar to Prohibition. Both the push to ban alcohol and to ban abortion have some similar undertones and involved many decades of work before the side pushing for the bans got what they wanted. Like Prohibition, bans on abortion are likely to have very severe unintended consequences and efforts to enforce them are likely to prove very difficult and provoke a backlash. Not only are abortion pills readily available, but travel is much easier than it was in 1973. 

I hope the Prohibition analogy is right because that would mean we can find a resolution to the issue of abortion even if it takes a while (Prohibition lasted fourteen years). Alcohol is no longer illegal and it is widely available. At the same time, it is regulated in many different ways. If abortion winds up going that route that would be a good outcome. If we do wind up with a national resolution, it will most likely be that abortion is readily available in the first trimester and much more limited afterwards. I personally would be more permissive than that, but that is a compromise I would absolutely be willing to live with if it would defuse the issue.

A problem the pro-choice movement will have to overcome

One obstacle the pro-choice movement faces now is the main advocacy groups associated with their cause, like most left-wing advocacy groups, are living in a fantasy world. It was not long ago when those groups spoke like normal humans and focused on their core mission. Today, they do neither of those things. To give a recent example, here is a tweet by the National Abortion Rights Action League (NARAL), one of the biggest abortion rights advocacy groups in the country. It uses the word BIPOC, which is a label to describe black and Native American people that almost none of them identify as. That is what I mean when I say those groups do not speak like normal humans. In the case of NARAL, they not only speak in a foreign language, they have also endorsed defunding the police and have refused to support any candidate who did not support the voting rights bill pushed for in January. What do those issues have to do with abortion? Absolutely nothing, but NARAL is so high on their own intersectional supply they are taking positions on those things anyway and neglecting what they are supposed to be fighting for.

This article is a great summary of many different stories about the rotten state of left-wing advocacy groups, which includes NARAL and Planned Parenthood. It is bad enough that those groups speak in a foreign language, spend their time fighting internal battles and have decided to lose focus and become all-purpose advocacy groups. It is even worse that they are now so ensconced in their bubbles that they will not even use the word women. Those groups are not up to the task of defending abortion rights.

The pro-choice movement will have to start new groups to advocate for their cause if that keeps up. At best, the pro-choice advocacy apparatus today does nothing to advance the pro-choice cause. Otherwise, they are doing everything possible to alienate as many people as they can. From embracing ideas having nothing to do with their mission to speaking in a language nobody but them understands to pretending genders no longer exist, they are doing everything possible to help the anti-abortion side win. There is a small part of me that really believes those groups are moles planted by anti-abortion activists.

The good news is I really think those groups will snap out of it because they will have to if they want to remain relevant. Much of the foreign language that has emerged from left-wing circles over the last few years has either dealt with things where no substantive policy was at stake, i.e., arguing over pronouns, or very few people were affected by it, i.e., transgender athletes. Abortion is neither of those. It is very much a concrete, substantive issue that affects millions, directly and indirectly, and has many ripple effects. It is too important an issue to be sacrificed to language policing and purity. Something will have to give.

Abortion may be the issue that finally gets Democrats to pull their heads out of their asses and stop treating activists like they speak for everyone. If the pro-choice groups refuse to enter the real world, Democrats will have to abandon them because they will not want to lose. Hopefully, it will not take needless losses and suffering for that to happen, but it will happen if those groups do not change. If Democrats do abandon those groups, they will quickly discover that they represent no actual voters and are nothing but paper tigers. Just like the activists who pushed for defunding the police turned out to be all talk, so will the pro-choice activists ensconced in their woke bubbles. Breaking away from that crowd is not only good for abortion rights, but for virtually all causes Democrats are supposed to be in favor of.

Things to remember and steps to take

There are some additional things the pro-choice movement will need to take to heart now and in the years ahead. First, and this should be obvious, courts are not going to save them. Some state courts may be of temporary help, but that is not likely a viable long-term strategy. Federal courts will likely be of no help. In general, it is not a good idea to rely on courts to do your bidding even if they could be friendly to your cause. The pro-choice movement made that mistake before, but since courts are not on their side now, they will have to find alternative ways to win. Luckily, those avenues exist, which I will get to shortly.

Second, corporate America is not going to save them. Those on the left have become increasingly reliant on corporate America to intervene on their behalf on social issues from voting rights to criminal justice to LGBT rights. Those efforts have largely not been successful as bad laws have been passed on many of those issues. Abortion will be no different. Some companies have announced that they will pay for employees to travel to other states to get abortions, but that will probably be the extent of what they do. The idea that corporations speaking out against abortion bans will deter states from passing them or convince them to repeal them is pure fantasy. The pro-choice movement should not waste any time tilting at windmills.

Third, the pro-choice movement will have to win elections. That will usually mean helping to elect Democrats. There are many states, such as Florida, that are quite pro-choice, but Democrats have been severely allergic to winning elections there lately. That will have to change. Democrats will have to start winning state-level races in places where they have been AWOL for a long time. In states like Texas, the only way bans on abortion will ever be repealed is by that happening. It is win elections or bust.

Fourth, the pro-choice movement should take advantage of state laws allowing for ballot initiatives where possible. But they will need to be careful in how they do it. For example, in a red state that has banned abortion, a ballot initiative to legalize abortion in the first trimester could pass. But an initiative that goes further probably will not and if it fails the ban will remain in place. Where it is possible to get initiatives to pass that codify Roe, the pro-choice movement should push for it. Where it is not possible or likely, they will have to be less ambitious.

Fifth, the pro-choice movement will need to have discipline. They will have to avoid falling into the trap that the pro-choice advocacy groups have fallen into. That means keeping their eye on the ball. The focus has to be on abortion and making the case for why it should be legal. They cannot get distracted by anything else. Any issue having no relevance to that should not be discussed.

Sixth, the pro-choice movement will need to form as broad of a coalition of support as possible. Saying that the only way someone can be pro-choice is that they have to support the entire left-wing agenda is a great way to alienate a whole swath of people. Some of the people the pro-choice movement will need to work with may be pro-choice for very different reasons than activists are. The pro-choice argument may need to be framed in different ways to appeal to different groups of people. For example, there may be libertarian-leaning people who are not interested in feminism, but think the government should not be telling anyone what to do with their bodies.

In forming a broad coalition, it will require many in the pro-choice movement to make common cause with people they would otherwise have nothing to do with. Someone may have pro-choice views, but may also have very conservative views on immigration, policing, criminal justice and guns, to name a few. That is okay. That person is an ally on the issue of abortion and the pro-choice movement has to be willing to reach out to them even though they are hardly left-wingers.

An example of someone the pro-choice movement will need to reach out to is Dave Portnoy. He is the head of Barstool Sports. He has amassed a large following over the years and has been a supporter of Trump, a critic of pandemic restrictions and a major critic of wokeness. When Roe was reversed, here is what he said. Warning, it is full of bad words. He railed against it and said we are going backwards. Despite his support for Trump and dislike of the left, he is solidly pro-choice and is now voting for Democrats because of it. There are probably millions of people like him out there who many pro-choice activists would find disgusting. But they will need to get past that and reach out to the Portnoys of the world. There are plenty of people out there who were attracted to Trump because of his hatred of the cultural left and establishment figures in general, but many of those same people are not right-wingers and in fact are pro-choice. The pro-choice movement will need to reach out to them if they want to maximize their coalition. The stakes are too high to leave any rocks unturned.