These are bittersweet times for pro-life conservatives.
On the one hand, once President Trump's Supreme Court nominee Brett Kavanaugh is confirmed (and he will be), for the first time in 45 years
conservatives will have enough strength on the bench to overturn Roe v. Wade. On the other hand, since Trump was elected, the pro-life movement's gains over the last decade or so in turning public opinion against abortion have evaporated into thin air. Poof!
This startling change suggests that conservatives can't hang a simple morality tale on abortion (Abortion = Murder!) in their quest to severely restrict reproductive rights. They will need to take the full complexity of this issue into account if they want to truly convince a majority of Americans of their cause's righteousness.
Whatever they do, they should resist the temptation to demonize women in an ill-fated effort to turn Americans against abortion.
Kavanaugh doesn't have a lengthy track record on this issue (which is why he was an ideal Supreme Court nominee), but it is safe to assume that, like the four other conservatives on the court, he would be no friend of Roe (which is widely reviled in conservative circles as judicial activism at its worst) or reproductive rights. He is a practicing Catholic whose legal hero is former Chief Justice William Rehnquist, one of Roe's two lonely dissenters. The only abortion case Kavanaugh has ever ruled on went against the woman. It involved a pregnant unaccompanied minor in government custody who requested a termination. Kavanaugh opined that the government wasn't obligated to provide "abortion on demand" and she could wait to get one once she was released to a sponsor or deported. No matter how much he protests during his confirmation hearings that he considers Roe to be settled law, the only question is whether he would vote to overrule it in one fell swoop or kill it incrementally.
But either way, Kavanaugh and the pro-life movement will get their wish. And then they will run into a buzzsaw of public opposition.
A roundup of several recent polls by the American Enterprise Institute, hardly a hub of radical feminism, found that 64 percent of Americans are opposed to overturning Roe, an 11-point increase since 2012, possibly because President Trump's harsh campaign rhetoric threatening to punish women spooked them. Furthermore, 29 percent believe that abortion should be legal under any circumstances (a 7 percent increase since 1975) and 18 percent that it should always be illegal (a 3 percent drop). This means 11 percent more Americans believe that abortion should be legal in all cases rather than illegal in all cases. Even the popularity of merely regulating abortion is declining, with 43 percent of respondents in one poll believing that women should be able to get an abortion for "any" reason — up from 36 percent in 1976. And of course, a steady majority of Americans continue to believe that abortion should be legal when the mother's health is endangered (87 percent), in instances of rape (75 percent), or cases of serious birth defects (71 percent).
None of this is to imply that Americans are breezily cool with abortion. Indeed, 5 percent more believe that it is morally wrong (48 percent) than morally acceptable (43 percent). Despite this, a clear majority still wants to leave the decision to women. This suggests that even those who believe abortion is wrong resist the extreme equation of abortion with murder that religious conservatives use to try and drive policy.
Think of it this way: If these 48 percent of Americans who believe abortion is morally wrong also thought abortion really was murder, then Americans in overwhelming numbers wouldn't feel in their bones that there was something deeply wrong about forcing victims of rape and incest to have the babies. If a plurality of Americans really believed abortion was murder, they would make peace with charging mothers who opt for abortion under any circumstance with homicide — as the brilliant conservative polemicist Kevin Williamson lost his job at The Atlantic for suggesting.
Now obviously, the vast majority of Americans do not believe this. It would mean penalizing victims for something that is clearly no fault of their own. But if abortion were murder, surely many Americans would think that forcing even the victim of a crime to have a baby, unjust as it might be, would be less bad than condoning something as horrible as murder.
Instead, the pro-life lobby itself has gone out of its way to depict mothers as victims needing help, not criminals requiring capital punishment, Williamson notwithstanding. But they may no longer view this as a sustainable strategy if, once Roe is overturned, pro-lifers insist on accomplishing their long-stated goal of banning abortions after 20 weeks as a prelude to a complete ban.
If this happens, the GOP will need to turn public opinion much harder against abortion. And to do that, they may well try to demonize women.
There are signs that this is already happening. The New York Times' Ross Douthat, one of the most nuanced conservative columnists around, recently wrote a piece depicting women terminating pregnancies with Down Syndrome babies as callous "extremists" acting out of "eugenicist" concerns—not traumatized mothers making a tragic call because they are worried about, say, their child's wellbeing when they are no longer around to take care of him or her.
Douthat's critique is flawed, and not just because of the sleight of hand involved in depicting such mothers as "eugenicists"—as if they were on a quest for designer babies for the sake of their own vanity. The deeper problem is that he ignores that mothers are the only ones who have a direct and vital interest on both sides here. Therefore they are best placed to balancing and maximizing their own and their child's wellbeing.
There is no other situation in life where this is the case. The state can regulate murder because in every murder, even one in self-defense, the perpetrator has an interest only in himself, not the person killed. So someone needs to ensure that the victim's interests are adequately represented. That is not the case with abortion. Distant legislators enforcing blanket rules based on political considerations are far more likely to lead to excesses in one direction or another.
This is not to claim that women never make the wrong call or that the cultural context underlying their decisions doesn't matter. It does. Indeed, societies that stigmatize out-of-wedlock births or prefer one gender to another can bias women's choices. But it is far better in such situations to try and change the cultural milieu rather than rely on the state's awesome power to abolish reproductive rights. Indeed, conservatives of all people ought to place their faith in mothers because their interests are immutable and reliable — as opposed to the state whose interests are mutable and unreliable. The worst atrocities against the unborn, after all, haven't resulted from the free choices of women but rather misguided state campaigns such as China's one-child policy for population control purposes.
If pro-life conservatives want fewer abortions, they need to change the cultural incentives of women, not try to demonize them by shoehorning the issue into a simplistic and inapposite "abortion is murder" framework to justify a ban. This will only intensify the culture wars—and risk a worse backlash.
This column originally appeared in The Week