is the no abortion zone here?
A few years back, I wrote about the strategy that the pro-life movement is using to effectively ban abortion: create a “no-abortion zone.” The strategy is to add burdensome requirements on abortion providers so that it would be impossible to legally operate a clinic that offers abortions. Today, it looks as if the strategy is finally about to get its first pay-off. From National Public Radio:
Given that the progressive wing of American politics has dropped the ball on the courts, this was going to happen sooner or later.
On the other hand, it doesn’t seem as if conservative courts will over turn Roe v. Wade, but will likely allow the severe restriction of abortion in conservative states. From the LA Times:
…the court sidestepped a much larger issue: They decided not to consider Indiana’s effort to revive a law that could have made it illegal for women to end a pregnancy because of the race or gender of the fetus or if they received a diagnosis of Down syndrome.
The outcome, after weeks of internal debate, suggests the justices are inclined to move slowly and cautiously on the abortion issue and that Chief Justice John G. Roberts Jr. and his fellow conservatives are not ready to directly confront abortion rights, at least during a presidential election year. Had the high court agreed to hear the Indiana case, it would have been argued in the fall and decided by June 2020.
The justices were unanimous in agreeing to uphold lower court rulings that blocked the major part of Indiana’s law from taking effect. That provides further evidence that they will not be eager to consider the even more sweeping abortion bans recently adopted by Alabama and other conservative states
The Supreme Court is in a very awkward situation. It will be anti-abortion for probably two decades – the time it will take for “younger” conservative justices to age out. And their base and personal beliefs are strongly anti-abortion. So there is massive pressure to ban abortion. At the same time, there is no evidence that public opinion favors a comprehensive ban or restriction on abortion. Let’s look at the Gallup poll data:
The “sometimes legal” crowd fluctuates between 50% and 60%, with a short dip in the early 1990s. The “ban it completely” crowd is stable at around 20%. The “all legal crowd” somewhat outnumbers the “ban it” crowd, flowing around 25% to 30%.This doesn’t suggest that the base for banning abortion completely is particularly strong.
If Roe v. Wade were overturned, you’d see a genuine political crisis as large liberal states like California and New York would probably openly defy any Federal ban on abortion directly and the Supreme Court indirectly. I don’t think that any Supreme Court wants to be in that position. Political scientists usually note that courts like to follow public opinion rather than fight it.
Twenty years ago, I believed that abortion would still be legal in all 50 states. I was right, but I am also close to being wrong. Why will I soon be wrong? I did not foresee two things. First, electoral college flukes put two Republican presidents in office, which allowed at least eight years of GOP presidents instead of Democrats. We could easily have a 5-4 or even 6-3 liberal court. A related point is that the Democratic party has often slightly under-performed in the Senate. Since the Senate is often split, or nearly so, stronger Democratic candidates could have added a few seats here and there to make certain confirmations harder.
Second, I did not appreciate the “no abortion zone” strategy. It’s a simple strategy and exploits a feature of the American legal system – the Federal government doesn’t like to intervene in how states regulate health care, which would include abortion. Thus, it is very legal for a state to add tons of regulations to any procedure, including abortion. And claims of safety are rarely rejected by appeals courts.
The conclusion, then, is pro-life activists have a historical opportunity – they have a Supreme Court that is more conservative than one would expect given public opinion and national voting patterns. They are probably to skittish to directly overturn Roe v. Wade, but they are comfortable allowing the de facto ban, or near ban, of abortion in Southern and Midwestern states. That will probably be the political equilibrium for the next few years.
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