The U.S. Supreme Court’s shift to the right has intensified the long-running battle over abortion, with activists on both sides racing to pass new laws and capitalize on the divisive issue ahead of the 2020 elections.
In several states, advocates of abortion rights have launched an aggressive campaign to shore up and expand guaranteed access to abortion in anticipation of adverse action by the court. At the same time, abortion opponents are pressing sharp restrictions on the procedure — potential test cases for the new conservative majority.
The issue is resonating on the national stage, as well. Last week, Democrats took aim at moderate Republicans in the Senate who voted to confirm Justice Brett M. Kavanaugh, who is seen as a potential threat to the landmark Roe v. Wade ruling that established a right to abortion in 1973.
And Republicans, led by President Trump, have pounced on efforts in New York and Virginia to expand access to late-term abortion, which remains hugely unpopular with most voters. In his State of the Union address, Trump contrasted his call for paid-family leave to let parents “bond with their newborn child” with the abortion legislation, which passed in New York, saying it “would allow a baby to be ripped from the mother’s womb moments before birth.”
Strategists in both parties are convinced the issue will work to their advantage in the coming campaigns for Congress and the White House.
“In a lot of ways, both sides are playing to their base here,” said Jim McLaughlin, a Republican pollster who worked on the president’s 2016 campaign.
Republicans seized on late-term abortion after controversial comments by Virginia Gov. Ralph Northam (D), characterized by Republicans as an endorsement of infanticide. Northam’s office rejected that interpretation, but a Jan. 30 interview drew attention to the failed Virginia bill, which would have made it easier for women to obtain abortions right up to the time of delivery.
“The Democratic Party runs a huge risk if they continue to go all in on abortion because they can alienate those male and female voters in states that President Obama won both times and President Trump won in 2016,” said senior White House adviser Kellyanne Conway, who has worked for years to restrict abortion.
“In those states,” she said, “someone who calls themselves pro-choice” may not be willing to accept a “definition of pro-choice that says it means abortion is for anyone, anytime and anywhere.”
Democrats see danger for Republicans in the shifting Supreme Court, arguing that Kavanaugh’s ascension will lead to new constraints on abortion rights even if the court does not fully overturn Roe v. Wade.
Last week, Kavanaugh voted to permit a restrictive Louisiana law to take effect, though the court majority blocked its implementation. Liberals quickly used the ruling to attack Republican Sen. Susan Collins of Maine, a supporter of abortion rights who voted to confirm Kavanaugh last fall.
“We believe that the Kavanaugh vote is not going to be soon forgotten. It wasn’t just a moment in time,” said Brian Fallon, director of Demand Justice, which will launch a small digital ad campaign against Collins this week. The group also plans to hire field organizers in Maine and Colorado, swing states where Collins and Sen. Cory Gardner (R) are set to face voters in 2020.
“There are two full Supreme Court terms before the next election,” Fallon said. “That is a lot of time for Kavanaugh to make them look foolish.”
Americans’ overall view of abortion has varied little since the late 1970s, according to Gallup: About 29 percent of those surveyed say it should be legal in all circumstances, up from 21 percent. About 18 percent say it should always be illegal, down slightly from 22 percent.
But the shifts among voters in each political party have been stark. In 2018, nearly half of Democrats — 46 percent — said abortion should be legal in all circumstances, up from 19 percent in 1975. Only 11 percent of Republicans agree.
That polarization has led each party to embrace more absolute positions, even as the majority of voters continue to land somewhere in the middle. In August, a Washington Post-ABC poll found that a 45 percent plurality of those surveyed said the Supreme Court should make no changes in Americans’ ability to get an abortion, while 30 percent said it should be harder.
Just 21 percent — 1 in 5 — said they wanted to see easier access to abortion. Late-term abortion is especially unpopular. In May 2018, Gallup found that 60 percent of Americans think abortion should be legal in the first trimester, but only 13 percent support terminations in the third trimester.
In New York, Gov. Andrew M. Cuomo (D) recently signed a law that allows abortions after 24 weeks if the “life or health” of a woman is in jeopardy; previously, the state allowed such abortions only to save a woman’s life. The measure also decriminalized abortion by regulating the procedure under the health code instead of the criminal code.
New Mexico, which just elected a Democratic governor, and Rhode Island are considering similar legislation. In Virginia, a measure that would have permitted late-term abortion to preserve a woman’s “mental health,” among other changes, was tabled in committee.
The bills are part of a recent uptick in legislation aimed at bolstering abortion rights, said Megan Donovan, a senior policy analyst at the Guttmacher Institute. “States are looking to protect access to abortion, particularly in the event that Roe v. Wade is overturned and undermined,” she said.
Asked about the Virginia measure, Northam said an infant born alive during an attempted abortion “would be resuscitated if that’s what the mother and the family desired,” sparking an uproar that quickly threatened to engulf Democrats on Capitol Hill.
“This just pours more fuel on the fire,” said Mallory Quigley, a spokeswoman for the Susan B. Anthony list, which deployed more than 1,000 antiabortion canvassers to elect Republicans in 2018 Senate races. “Absolutely, this is going to be something we are going to be taking back to voters.”
White House aides recently discussed the advantage of forcing Democratic candidates to make their views clear on abortions late in pregnancy. They noted that Democrats chose not make abortion a national issue in last year’s congressional elections, even as they fielded a record number of female candidates and aggressively courted female voters.
“What makes it qualitatively different is the Democrats overplaying their hand on late-term abortion,” said Ralph Reed, the chairman of the conservative Faith and Freedom Coalition. “The leftward lurch under Trump has brought into real relief the Democratic Party’s real extreme position — namely abortion through the ninth month of pregnancy, in some cases up to the moment of birth.”
Activity in the courts is adding to the sense of upheaval. The Supreme Court must yet consider the merits of the Louisiana law, which passed in 2014 but has never been fully implemented. It would effectively shutter most of the state’s abortion clinics by requiring physicians at those facilities to have admitting privileges at nearby hospitals.
In addition, the Supreme Court is currently considering whether to review a 2016 Indiana law, signed by then-governor Mike Pence (R) but never implemented, that bans women from choosing abortion when the fetus suffers from genetic abnormalities, such as Down syndrome, and requires burial or cremation of the remains from an abortion.
Separately, 21 states have asked the court to weigh in on a 2016 Alabama law that bans a procedure known as dilation and evacuation, the primary method of ending second-trimester pregnancies in the state.
“That is what the fight is really about: folks trying to make it harder and harder and harder for women to get an abortion,” said Jennifer Dalven, director of the American Civil Liberties Union’s Reproductive Freedom Project. “It will make abortion as good as illegal for thousands of women without the court having ever voted to explicitly overturn Roe v. Wade.”
Democrats plan to use the threat of court action to put Republicans in increasingly blue states on the defensive. Gardner, who voted for Kavanaugh and describes himself as “pro-life,” struggled with questions about abortion during his 2014 race, when Democrats attacked him for having supported efforts to declare the fetus a person entitled to legal rights — a position that could outlaw abortion completely.
Gardner countered that his support amounted to a “statement” signaling his opposition to abortion, and said he wanted to increase access to contraception.
During the debate over Kavanaugh’s confirmation, Collins said she was convinced that he would not overturn Roe v. Wade. Collins continues to believe that, and her spokeswoman Annie Clark said liberals are misinterpreting Kavanaugh’s vote last week on the Louisiana law, which did not rule on the underlying constitutionality of the measure.
What is clear, Clark said, is “that a lot of the critics of Justice Kavanaugh’s dissenting opinion haven’t even read it.”