The Weekly Sift

Abortion bans are unpopular, unless their advocates can demonize the opposing position and distract voters from what they really want.

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Since the Dobbs decision last year, abortion has been a winning issue for Democrats. Whenever the issue of abortion has been put in front of the voters, the abortion-rights side has won, even in red states like Kansas, Kentucky, and (most recently) Ohio. Abortion was clearly a factor in liberals gaining the swing vote on the Wisconsin Supreme Court, and in Democrats seizing complete control of state government in Michigan.

Pre-election polling by the Epic-MRA pollster Bernie Porn also highlighted how this year’s abortion rights initiative benefited Dems. Asked what single issue was motivating them to vote, 43% of respondents said abortion, which topped inflation by about 14 points.

“Abortion, abortion, abortion,” Porn said. “This proposal drove women and younger voters to the polls … and if Democrats in other states have a mechanism to put an abortion ballot proposal on the ballot in 2024, then they should consider that.”

A pragmatic Republican politician, then, should want to play this issue down. The no-abortion-at-all, life-begins-at-conception position is the Republican equivalent of defund-the-police: A segment of the base is strongly committed to it, but it’s an almost certain loser if you put it in front of the general electorate.

Democratic candidates, for the most part, have handled defund-the-police like this: They express sympathy for the concerns of the activists (i.e., police violence against people of color), but change the subject whenever specific proposals come up, and run away completely if they are asked to say “defund the police” in public.

So far, though, Republicans have not been able to do anything similar with abortion. Their anti-abortion base is too large and feels too entitled to primacy. Taking over the Supreme Court was the work of decades, and now that the Court no longer stands in their way, they want action. At the state level, they’re getting it, at least in red states that leave legislating to their gerrymandered legislatures and keep abortion propositions off the ballot. But those new laws are producing horror stories that motivate women around the country to vote for Democrats.

What to do?

This week’s Republican presidential debate gave us a look at the current state of play. Everyone on the stage identified themselves, in one way or another, as “pro-life”. But no one volunteered their support for the kind of complete-ban proposals that used to be at the center of the anti-abortion movement.

The one who came closest was Mike Pence, who called out abortion as a “moral issue” and pledged to be a “champion of life” in the White House. But even he could only offer that “A 15-week ban is an idea whose time has come”. [1]

North Dakota Governor Doug Burgum (who signed a 6-week ban in his state) held out for leaving the issue to the states. And I can’t find a debate quote from Chris Christie, but elsewhere he also has also said abortion should be a state matter. But everyone else coalesced behind a federal 15-week-ban, with some hand-waving in the direction of exceptions for rape, incest, and (possibly) maternal health. [2]

N weeks. The basic framing is rarely stated explicitly, but it goes like this: There is some point in every pregnancy where the government’s judgment becomes better than that of the people who are actually involved. So while (up to some point) the government may allow women to consult with the people they trust and decide whether or not to go forward with a pregnancy, beyond that point the government’s decision prevails. Ditto for doctors: Up to some deadline, a doctor may decide whether or not the best thing to do for a patient is to perform the abortion she is asking for, but past that point the decision belongs to the government.

Once you accept that framing, the only decision to make is when the government takes control. There’s going to be an N-week ban, except for a few special situations the government recognizes. So the only issues left to discuss are what N should be and what exceptions should be allowed.

Under the Roe v Wade framework, women had a complete right to choose abortion during the first trimester of pregnancy. In the second trimester, states could impose restrictions narrowly tailored to protect the woman’s health. In the third trimester, the potential viability of the fetus outside the womb allowed states to impose more-or-less complete bans. The Casey decision of 1992 mostly reaffirmed Roe, but shifted the focus more to viability: When could a fetus survive outside the womb? The viability standard depends on a number of factors, including the progress of technology, but generally it set N at around 24 weeks.

So in proposing a 15-week federal ban, the Republican candidates are framing themselves as moderates willing to compromise (at least until they have more power): Their base would like N to be zero, but they’re willing to settle on 15. The real radicals, they claim, are those who reject the N-week model altogether: They support “abortion up to the moment of birth”, a phrase that seems to have been well tested in focus groups.

Ron DeSantis (who signed a 6-week ban shortly after he was reelected and didn’t have to defend it to Florida voters) laid it out like this:

What the Democrats are trying to do on this issue is wrong: to allow abortion all the way up to the moment of birth. … We’re better than what the Democrats are selling. We are not going to allow abortion all the way up till birth and we will hold them accountable for their extremism.

Martha McCallum, a debate moderator, teed up a similar question for Burgum:

What do you say about the states, there’s about five of them, including New Jersey, I think a few others, that allow abortion up until the time of birth. Now if you were president, would you be able to abide that?

Tim Scott also invoked the phrase:

We cannot let states like California, New York, and Illinois have abortions on demand up until the day of birth. That is immoral. It is unethical, it is wrong. We must have a President of the United States who will advocate and fight for at the minimum a 15-week limit.

And Nikki Haley went on offense: Democrats who don’t like 15 should be pushed to specify what number they do support.

What I would love is for someone to ask Biden and Kamala Harris: Are they for 38 weeks? Are they for 39 weeks? Are they for 40 weeks? Because that’s what the media needs to be asking.

Jen Psaki summed it up:

This wasn’t just some throw-away line for applause on the debate stage. This is a talking point.

The demonized image. It’s not hard to see why “abortions on demand up to the day of birth” polls so badly. It invokes the image of a healthy woman who carries a healthy fetus for nearly nine months, and then, on a whim, decides to kill her baby rather than let it be born and given to some deserving childless couple eager to provide a loving home. By refusing to stop her from performing such a heinous act, you and I and the nation as a whole are “allowing” it to happen.

But once you draw that scenario into the foreground of your awareness, it should be obvious that it literally never happens, not in New Jersey, California, New York, or anywhere else. Abortions after 21 weeks (still well before birth) were already rare, even under Roe. [3] They get rarer with each week of gestation.

Nearly every one is a special case of some sort. That stands to reason: Who is going to endure months and months of pregnancy if they plan not to have a baby? Women who get late abortions are almost all women who decided not to get early abortions. Overwhelmingly, they wanted to have a child, and then something unexpected happened. Maybe the woman has cancer, and doesn’t dare wait until after the birth to start chemotherapy. Maybe the fetus has failed to develop in some way that dooms it to a short and pain-filled life. Maybe the fetus is already dead.

A million things can go wrong in the final months of pregnancy. Good luck anticipating all of them and writing all the appropriate exceptions into a law, much less making sure that law is applied compassionately in emergency situations.

So while Mike Pence is right that abortion is “a moral issue”, it is the height of arrogance to imagine that we, while sitting on our sofas watching a debate, can decide those complex moral issues better than the people who are actually there and know all the special circumstances.

State governments that opt out of the N-week framework are not “allowing” heartless moms to kill healthy babies about to be born. Instead, they are yielding to the judgment of people who are in a better position to weigh the complicated moral questions a late-term abortion invariably involves.

Restoring the rights protected by Roe. So OK, I have just defended a position that a hostile adversary could smear as “allowing abortion up to the moment of birth”. But a second point is worth making: Despite what the debaters repeatedly claimed, I’m an outlier. The vast majority of elected Democrats aren’t willing to go that far.

The best evidence of what most Democrats want is the bill they tried to pass last year: the Women’s Health Protection Act of 2022. That bill passed the then-Democratic House before getting derailed by a Republican filibuster in the Senate. It had President Biden’s support. The WHPA eliminated prohibitions on abortion “at any point or points in time prior to fetal viability”, and also prohibitions “after fetal viability when, in the good-faith medical judgment of the treating health care provider, continuation of the pregnancy would pose a risk to the pregnant patient’s life or health”.

In other words, it put the law back more or less to where it had been before Roe was reversed last summer. Nothing in it allowed “abortions on demand up until the day of birth”.

Polls. In every poll or election where it has been tested, restoring the pre-Dobbs configuration of reproductive rights is an extremely popular position. So anti-abortion advocates are trying very hard to pretend that this option doesn’t exist. If you watched the debate, you would never have guessed that anyone, much less President Biden, wants to restore precisely the rights the Supreme Court took away.

Mike Pence claimed at one point that a 15-week ban is “supported by 70% of the American people”. When challenged on this, his staff pointed to a poll conducted on behalf of an anti-abortion group, Susan B. Anthony Pro-Life America.

In fact, Pence understated the poll’s result: 77% wanted either a 15-week ban or something even more restrictive. But here is the question the respondents were asked:

Which of the following best describes your position on the abortion issue?

• Abortion should be prohibited throughout pregnancy, with exception for the life of the mother, rape, and incest. (26%)
• Abortion should be prohibited after a baby’s heartbeat can be detected at 6 weeks of pregnancy, with exception for the life of the mother, rape, and incest. (20%)
• Abortion should be prohibited after a baby can feel pain at 15 weeks of pregnancy, with exception for the life of the mother, rape, and incest. (31%)
• Abortion should be allowed throughout all 9 months of pregnancy, without any restrictions. (15%)
• I’m totally unsure. (8%)

There’s so much wrong with this question I don’t know where to start. First off, respondents are asked to respond to “facts” that are not facts. Embryos (not babies) don’t have a heartbeat at 6 weeks. And the idea that fetuses (also not babies) can feel pain at 15 (or even 20 or 25) weeks is highly speculative and not the current medical consensus. [4]

But perhaps worse than the biased wording is that no option corresponds to the rights women had 15 months ago. If you aren’t for banning abortion at 15 weeks or earlier, the only other choice is essentially “abortions on demand up until the day of birth”.

A similar poll was conducted by Cygnal, with a headline result that “Majority support abortion ban”, fleshed out in the press release to “56% of voters support a federal abortion limit of 15 weeks (23% oppose; 21% unsure), including a plurality of Democrats.”

How did they come up with that? The same way Susan B. Anthony Pro-Life America did, but with even fewer options. The question they asked respondents was:

Do you support a federal 15-week ban on abortions with an exception for rape, incest, and life of the month or support allowing abortion up until the point of birth?

Can Republicans “go on offense”? That’s the advice from Kellyanne (“Alternative Facts“) Conway in a WaPo column the morning after the debate. “If they want to win, Republicans need to go on offense on abortion“.

If you probe into the column, “go on offense” means what it usually does with Conway: bury voters in bullshit. She repeats the 6-week-heartbeat and 15-week-pain canards, and claims

Democrats are making a radical push for abortion on demand throughout pregnancy and will try to put some version of that question on the ballot in the coming election.

An obvious way to back this point up would be to point to some abortion-until-birth ballot proposal Democrats are gathering signatures for in some state or another. But Conway doesn’t, because there is none.

She quotes the Cygnal poll (whose biased question I just quoted) claiming that a majority support a 15-week ban. She advocates pushing Democrats the way Nikki Haley did, with “Is there any abortion they find objectionable?”, as if refusing to usurp a woman’s decision is the same as agreeing with every decision a woman could conceivably make (even if no women are actually choosing whatever hideous option Republicans might imagine).

So that’s what’s coming: an avalanche of anti-abortion bullshit. Get your wading boots ready for it.

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[1] Pence rooted his position in his religion:

After I gave my life to Jesus Christ as my Lord and Savior, I opened up the book and I read, “Before I formed you in the womb, I knew you” and “See, I set before you life and death, blessings and curses. Now choose life.” And I knew from that moment on the cause of life had to be my cause.

Here Pence demonstrates the back-flips you have to do if you want to claim that the Bible denounces abortion: He takes two quotes out of context and smushes them together so that they seem to say something neither one says.

The two verses are Jeremiah 1:5 and Deuteronomy 30:19. In Jeremiah 1, God tells Jeremiah about his longstanding plan that Jeremiah be “a prophet to the nations”. The focus is on God’s foresight and Jeremiah’s special destiny. The text says nothing at all about any fetus in a womb today.

Deuteronomy 30 centers on those “blessings and curses”: God promises to make a great people of the Israelites if they obey the laws he has just given them, but threatens to wipe them out otherwise. (Moses had to talk God out of such a genocide in Exodus 32 after the golden calf incident. After some coaxing, God was satisfied with three thousand deaths rather than the whole nation.) Read in its proper context, “choose life” means “Don’t disobey and make me kill you.” Again, it’s got nothing to do with abortion.

Invariably, when I make a point like this, someone will object that we shouldn’t argue Biblical interpretation in a political arena, because the Bible plays no legal role in governing the United States. And that’s true: The US Constitution is an entirely secular document. The Founders were almost all Christians of one stripe or another, but they were well aware of the wars of religion that had plagued England and wanted to avoid anything similar happening here.

That said, though, I think that when a politician or a party makes an argument that is invalid in its own terms, it’s worth calling out — even if those terms have no legal standing. So when I see it, I call out bad religion in the same way that I call out bad science.

And politically, I don’t want to see the abortion issue framed as Christians vs. non-Christians or Bible-believers vs. everyone else. Anti-abortion is unrelated to the Bible, except through speculative interpretations that no one would put much stock in if they read the text without prior convictions.

[2] As we’ve seen in the states, these exceptions often are not all they’re cracked up to be. Even if your case seems to fit an exception, you still may not be allowed an abortion.

[3] In 2019, the CDC counted 4,882 abortions after 21 weeks in the whole country, or slightly less than 1% of all abortions. Normalizing for the handful of states that didn’t report, I’ve seen estimates that the number of post-21-week abortions could be as high as 6,000 a year.

[4] The short version of the argument against pain-at-15-weeks is that the nerve clusters that would report pain are not yet hooked up to the brain centers that would recognize it.