What is going on? The New York Times editorial board recently suggested that state legislatures had run out of other restrictions to pass. But antiabortion lawyers have never had a problem coming up with new incremental laws. Understood in historical context, the complete story behind the rise of heartbeat laws is more complex and tells us how much the politics of abortion have changed in the past few years.
In the mid-1970s, the movements supporting and opposing abortion hoped to keep the issue out of politics. Abortion rights advocates believed the Supreme Court had settled the issue. Antiabortion organizers pursued a constitutional amendment that would make any abortion illegal.
But party politics quickly came to play a defining role in the work of both movements. Abortion foes recognized that members of Congress were shying away from an amendment and vowed to replace them. Groups such as the National Right to Life Committee (NRLC) put out voter guides, endorsed candidates and pushed grass-roots activists to prioritize elections. By the end of the 1970s, abortion rights groups had no option but to match this effort. The National Abortion Rights Action League (now NARAL Pro-Choice America), for example, hoped to identify a majority of voters supportive of legal abortion, beginning a campaign built around the slogan: “I am pro-choice, and I vote.”
Each side aligned with a single party, thinking it would push politicians to take more absolute positions on abortion. In practice, however, things often went the other way. Because both movements invested so much in party politics, activists on both sides often moderated their positions to reassure uneasy allies or improve their odds on Election Day.
In the late 1980s, for example, after President Ronald Reagan had nominated three Supreme Court justices and elevated William H. Rehnquist to chief justice, many expected the court to overturn Roe v. Wade. But GOP leaders worried about this possibility, because many voters favored legal abortion. Lee Atwater, the operative famous for engineering attack ads against Democratic presidential nominee Michael S. Dukakis in 1988, adopted an official policy for the Republican National Committee of supporting abortion rights as well as Republicans who opposed abortion.
Atwater’s hesitancy caught the attention of the abortion opposition movement, which recognized the need to preserve its alliance with the GOP and reach voters beyond its base of activists. Abortion-opposing lawyers retooled even the broadest proposals, such as statutes banning abortion except in cases of rape, incest and fetal abnormality, to appeal to ambivalent voters.
Both before and after the court declined to overturn Roe in 1992, abortion rights groups worked equally hard to avoid appearing extreme. Organizations such as NARAL and Planned Parenthood invested in the Freedom of Choice Act, pitching it as a way to shore up the protections women already had. NRLC responded not by deriding existing rights but by accusing its opponents of covertly seeking something more radical. An accusation of extremism, it seemed, was political poison. This helped inform President Bill Clinton’s position on the issue: Like NARAL, he supported abortion rights, but wanted the procedure to be “safe, legal and rare.”
The desire to appear mainstream also shaped the restrictions pursued by antiabortion lawyers in the late 1990s and 2000s. NRLC championed a ban on dilation and extraction, the procedure that abortion opponents took to calling "partial-birth abortion," accusing politicians who supported abortion rights of endorsing a procedure that resembled infanticide.
The struggle over “partial-birth abortion” reflected a broader logic at work in abortion politics. Both sides sought to appear reasonable and in step with popular opinion, at times promoting legislation that did not reflect advocates’ most deeply held values. The fight for a ban on dilation and extraction, for example, angered absolutist abortion opponents, who recognized that a prohibition would not lower the abortion rate.
But while infuriating certain activists, appearing mainstream seemed to pay off. A majority of Americans supported bans on “partial-birth abortion,” and partly because the laws were in the spotlight, more Americans began identifying as abortion opponents rather than abortion rights supporters.
In recent years, the fight to appear mainstream seems to have come to an abrupt halt. Politicians no longer seem interested in what most polls say about abortion. The reasons for this change are multiple. The changing composition of the Supreme Court has made a difference. Lawmakers have at least some hope that extreme antiabortion laws will stand up in court. On the other side of the aisle, abortion rights organizations believe that equally far-reaching measures are necessary to protect women in the event that the court reverses Roe.
But President Trump, as he does with so many issues, has also helped to transform the debate. Some read his rise as proof that stoking passions among a narrow base is a smarter political play than trying to build a broader, but less inspired, coalition. And this logic has now crept into abortion politics. Politicians no longer think they will have to pay a penalty for passing extreme laws. Instead, they seem convinced that the voters most passionate about abortion will reward them for being purists rather than pragmatists.
So it was that New York legislators drew national attention by passing a measure to expand abortion rights, allowing abortion after 24 weeks if a physician concludes that a woman’s life or health would be at risk. Virginia lawmakers considered a similar proposal before controversy temporarily scuttled it. Critics argue that these bills are especially extreme because they do not define health, leaving room for lax ideas about when a woman needed an abortion late in pregnancy.
Based on experience, we would expect abortion opponents to label their foes extremists and seek out a more moderate position. To some extent, abortion opponents have done that. The Born Alive Victims Protection Act sponsored by Sen. Ben Sasse (R-Neb.) may have addressed a virtually nonexistent problem — the killing of children born alive during an abortion — but it allowed Republicans to paint Democrats as extremists. For the most part, however, Republicans have simply tried to beat Democrats at their own game by passing heartbeat laws and trigger bills.
In a post-Roe world, we should expect a wide range of approaches to abortion in the states. Increasingly, though, it seems as though politicians speak to those who care the most about an issue, even if their opinions diverge sharply from what many Americans believe. For decades after Roe, both sides fought to win the hearts of those in the proverbial “mushy middle.” In the age of Trump, it seems those voters will once again be left behind.