Few political issues inflame passions so much as abortion. The issues of a woman’s right to bodily autonomy (for abortion-rights advocates) and the sanctity of life (for their opponents) are so elemental that scant room exists for compromise, conciliation, or cool analysis.
Yet something strange has happened since a new Texas law that practically bans abortion after six weeks went into effect this week, with the passive assent of the U.S. Supreme Court. Liberal groups have been predictably furious and upset, though they recognize that Democrats who control the White House, the House, and (tenuously) the Senate cannot do much. More left-leaning and centrist media outlets, having largely ignored the law before it went into effect, have now entered overdrive in their coverage.
But conservatives have been conspicuously silent. As Vox’s Aaron Rupar, who obsessively tracks Fox News, noted, the network paid little attention to the Texas law for much of the day Thursday. Later in the evening, Tucker Carlson did discuss it, sprinkling bad information in as he went. Some anti-abortion organizations have celebrated the news; my colleague Emma Green interviewed John Seago, the legislative director of Texas Right to Life, who was jubilant. But across much of the right, reaction to the law, and the Court’s refusal to block it, have been met with either silence or muted approval.
When liberals have triumphed in major cases at the Court, including the Affordable Care Act’s skin-of-the-teeth survival in 2012 and the success of marriage equality in 2015, they have exulted. Why is this moment playing out differently? One possibility is that many anti-abortion conservatives understand that their victory this week is tenuous. Texas’s law relies on a novel mechanism: Rather than imposing a state-enforced ban on abortions, it allows private citizens to bring suits against people who provide or even abet abortions after six weeks. “The statutory scheme before the court is not only unusual, but unprecedented,” wrote Chief Justice John Roberts, who would have blocked the law, in a dissent.
In a one-paragraph decision, however, the majority concluded that because the law hadn’t been enforced yet, and because there were no government officials to enjoin from enforcing it, the Court couldn’t rule on it. That may be a dubious cop-out, but at some point the case is likely to come before the justices again on the merits, and before other judges. Many constitutional scholars are skeptical that the law can withstand such a challenge, and so celebration now may be premature. In the meantime, antagonizing the judicial system with football spikes may be unwise—no matter how much judges are meant to insulate themselves from any such feelings.
A second theory is that conservatives understand the law will be unpopular. This is probably true, and to some extent explains the understated reaction on the right. Polls generally find that 60 to 65 percent of Americans oppose overturning Roe v. Wade. Although a majority of Texans may support the law, and indeed a majority of voters in other red states, the national political landscape is not so friendly.
For decades, my colleague David Frum writes, “opposition to abortion offered Republican politicians a lucrative, no-risk political option.” Many GOP candidates seemed to adopt the position hypocritically, never wanting such rules to apply to their own wives and daughters, but conscious of the power and money of the religious right. Railing against abortion is easy as long as you assume that no court will actually outlaw it and you won’t alienate swing voters (say, suburban women) who lean conservative but back the right to choose. Now Democrats are hopeful that backlash will aid them in an uphill 2022 midterm battle, my colleague Elaine Godfrey reports. Why would Republicans tout a victory most people will see as a defeat?
Not only is banning abortion outright unpopular, but overturning Roe might be a Pyrrhic victory for the national Republican Party, which would lose one of its strongest wedge issues. The abortion wars would not end (they never will), but the end of Roe would shift the battlefield and might take some momentum away from the right.
One reason a five-justice majority was in place to let the law go into effect was that conservatives have been highly effective in motivating voters around the need to appoint judges and justices who will overturn Roe v. Wade. During the 2016 presidential campaign, Donald Trump grasped the importance of abortion politics to capturing religious voters who were otherwise queasy about his moral character. In the end, those moral qualms were accurate, but religious conservatives mostly decided that they didn’t care and they got the judges they wanted out of it. But now, voters who have been eager to elect GOP candidates because they want Roe gone won’t feel the same urgency to vote—a special risk when there are signs that Republicans, rather than Democrats, are now the party of low-propensity voters.
These cynical interpretations may describe how some Republican politicians are thinking about the moment, but they do not explain the whole spectrum of conservative reaction, nor do they acknowledge the sincere opposition to abortion felt by many conservative voters and organizations.
For them, the unpopularity of Texas’s law and other drastic abortion legislation is, at most, a second-order concern. They want to ban abortion, full stop, and any political considerations matter only insofar as they serve or conflict with that mission. Anti-abortion activists can read the polls as well as anyone else, and they understand that at least some access to abortion remains more popular than not. Moreover, those numbers have not changed in decades. A Gallup poll in June found that 58 percent of Americans support Roe—slightly down from 2018, slightly up from 2008, and exactly where opinion was in 1989. Ask people whether they’re “pro-choice” or “pro-life” narrows the gap significantly, and suggests the consensus view of the American public is probably, as Bill Clinton put it in 1992, that abortion should be “safe, legal, and rare.” That view doesn’t comport with Texas’s bill, nor with that of anti-abortion groups. (It’s not clear that it comports with many pro-abortion-rights groups’ position, either.)
Anti-abortion victories in court are an unusual example of jurisprudence shifting materially in the absence of a shift in public opinion, which is why the comparison to Obergefell v. Hodges, the 2015 marriage-equality case, doesn’t hold up: The Court both followed public opinion on marriage equality, which had grown in popularity, and led it, as demonstrated by its nearly universal acceptance today. Even if the Court overturns Roe soon, either through the Texas law or a pending case about a Mississippi law, public opinion might not shift much.
Because opinions about abortion have been so stable for so long, there is little prospect for anti-abortion advocates to win the battle of public opinion, but they know that they are winning the legal battle. That gives them every incentive to be delighted about this week’s turn of events, but no incentive to make too much noise about it.
As the impact of Texas’s law sinks in, Republican elected officials in several states have begun to express interest in exploring their own version of the law. In part, that reflects the demands of conservative bases in their home states, and in part it reflects a recognition that as long as Democrats are eager to make a fuss about the issue, it will get attention. The quiet may end soon, but the underlying political obstacle course for conservatives seeking to eliminate Roe isn’t going away.