WASHINGTON — The new laws restricting abortions that were passed in several U.S. states last week are causing concern among civil rights groups, but also among senior Republican politicians in D.C.
Civil rights groups are concerned that the new laws could survive legal challenges thanks to the more conservative makeup of the current Supreme Court, thus leading to an even larger wave of anti-abortion legislation. Senior Republicans, meanwhile, are worried that no matter what happens on the legal front, the new laws could cause them political damage in the 2020 elections.
The new laws passed by Alabama, Georgia and Ohio would ban all abortions after six weeks of pregnancy – an early stage at which many women aren’t even aware they are pregnant. There are no exceptions in these laws for cases of rape or incest.
Over the weekend, Rep. Kevin McCarthy (Republican of California), the House minority leader, denounced the Alabama law, saying he believes it goes too far and that there should be exceptions for cases of rape, incest or when the life of the mother is at risk.
President Donald Trump did not directly denounce or criticize the legislation, but did tweet Sunday that he is “strongly Pro-Life, with the three exceptions — Rape, Incest and protecting the Life of the mother — the same position taken by Ronald Reagan.”
Arnon Mishkin, the director of Fox News' Decision Desk, which is in charge of the company's political polling, wasn’t surprised by these reactions. Hours before McCarthy came out against the new laws, Mishkin told Haaretz in a phone interview that he believes the anti-abortion laws could harm Republicans in next year’s elections.
Most Americans, he explained, don’t support such a harsh level of restrictions on abortion. In fact, he said, even some Republican voters oppose them.
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“In polling, the reality is that however you ask the question, you get a different result,” Mishkin said. “But particularly in the case of abortion, we do see some broad trends across different polls: There is a small minority that wants to make abortion illegal in all circumstances — maybe 20 to 25 percent of the public. There is another small minority that wants almost no limitations on abortions. And then there is a majority that thinks abortions should be legal and available under certain circumstances, not like the ones articulated in the Alabama law.
“In the American political debate,” Mishkin continued, “each party wants to portray the other as extreme on this issue. When Democrats in New York make it easier to get an abortion in late stages of pregnancy, Republicans highlight that — because they know most Americans are against it. When Republicans in Alabama and Ohio limit abortions in early stages of the pregnancy, Democrats highlight that — for the very same reason.”
In that regard, Mishkin said, the new restrictive laws have “shifted the debate to a place that is more comfortable for the Democrats.”
In general, he said, “Republicans want to focus the conversation on abortions in the third trimester, Democrats on abortions in the first trimester.”
The new anti-abortion laws will face legal challenges over the next few months and will very likely make their way, eventually, to the Supreme Court. That legal fight could have momentous implications. The Supreme Court affirmed that access to safe and legal abortion is a constitutional right in its landmark 1973 Roe v. Wade ruling, and reaffirmed that right in the 1992 Planned Parenthood v. Casey ruling.
Last year, Justice Anthony Kennedy — who was considered the court’s “swing vote” for the past two decades — retired. He was replaced by Trump’s nominee, Brett Kavanaugh, who is considered more conservative on social issues like abortion. This has given the U.S. Christian right hope that the court could now overturn Roe v. Wade, or at least significantly weaken it. That seems to have been one of the motivations behind the new wave of legislation in the United States.
‘Tense political debate’
“I wasn’t surprised that this bill passed the legislature here in Alabama, because Republicans have a huge majority in it,” says Regina L. Wagner, a political science professor at the University of Alabama. Wagner told Haaretz that “the real story isn’t that the law passed, but that the Republicans brought it up for a vote in the first place. I don’t think they would have promoted this law if they didn’t think there was a real chance it could survive a Supreme Court challenge,” she said.
Barbara A. Perry, an expert on the history of the Supreme Court, said that the fate of the new anti-abortion laws will probably depend on the court’s current chief justice, John Roberts. With the court being composed of five conservative justices and four liberals, Roberts is seen as the closest thing to a “swing vote” in the post-Kennedy era.
“On the one hand, Roberts is a conservative and a devout Catholic,” said Perry, who is the director of presidential studies at the University of Virginia’s Miller Center. “On the other hand, he cares about the court’s standing as an institution. He understands that overturning decades-old precedents on abortion will put the Supreme Court at the heart of a tense political debate, and could cause a lot of damage to how it is viewed by large parts of the public.” Mishkin and Perry both believe that if the court leaves the strict new anti-abortion laws in place, that would benefit the Democratic Party.
“It could motivate young people, many of whom perhaps think these rights are granted and not under threat,” said Perry. Mishkin’s view is that “for the Democrats, a debate in which the question is ‘Should abortion be outlawed completely?’ is a net positive.”
That kind of scenario would be especially problematic for the two Republican senators seeking reelection next year in states that voted for Hillary Clinton in 2016: Susan Collins of Maine and Cory Gardner of Colorado. Both of them also backed Kavanaugh in last year’s Senate confirmation vote. Collins said on Friday that she opposes the new laws and hopes the Supreme Court strikes them down; Gardner ducked a question on the subject.
At the same time, the abortion debate could complicate things for Doug Jones, the Democratic senator from Alabama who is also seeking reelection next year. Jones came out strongly against the new laws, tweeting last week: “For any woman out there tonight who is afraid, angry, in disbelief, or feeling disenfranchised, know this: I am with you, & I will fight for you. Period!”
Wagner told Haaretz that “this could help Jones by motivating some of his voters, but he’s still going to have a difficult fight for reelection. He probably hopes this will cause some moderate Republicans, who don’t support such extreme legislation, to consider voting for him.”
Jones won his 2017 Senate race partly because his opponent was Roy Moore, the far-right politician whose campaign was marred by accusations that he sexually assaulted or pursued teenage girls while in his 30s (Moore denied all of the allegations).
Perry said another possible result of the new laws could be placing greater focus on the importance of state legislatures, which don’t generally receive a lot of media coverage in the United States but are ultimately responsible for important legal and political issues.
“This could cause younger people to pay more attention to these elections and participate more,” she said. The next places to hold state legislature elections are Virginia, Mississippi and New Jersey, on November 5.
And yet, Perry added, a win for the Christian right on abortions could also motivate that part of the electorate to continue fighting for other priorities. “Today their focus is clearly on abortion, but some of the organizations leading this fight also oppose contraceptives,” she said. “If they feel like they’ve won the abortion battle, their next fight could be against birth control pills and condoms.”