The Jaws of Victory

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Out of Court

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How are changes in U.S. abortion l= aw reshaping American life? Mary Ziegler on the ambiguous = political fallout of a seismic legal event.

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Ivy Gould / The Signal

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Nearly a year after the United States Supreme Court overturned the Roe v. Wade lega= l precedent from 1973 that codified women’s right to abortion in Amer= ica, the decision seems to have instigated a transformation in the country&= rsquo;s political environment. Many Republican-controlled states have enact= ed stricter and stricter bans on the procedure, while many Democratic-contr= olled states have enacted more and more extensive safeguards for it. U.S. p= ublic opinion on the issue—highly consistent for decades—meanwh= ile appears to have shifted substantially toward greater support for access= to abortion.

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In last November’s U.S. midt= erm elections, Democratic candidates made it a central campaign issue&mdash= ;and their party performed better than historical and economic data predict= ed it would. This month, in a special election to the Wisconsin State Supre= me Court, the Democratic candidate focused her campaign on abortion and def= eated her Republican opponent for the decisive seat on the state bench. It = was one among a number of notable Democratic wins at the state level where = the issue of abortion was a major factor. Just how much is the Supreme Cour= t’s decision altering U.S. political life?
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Mary Ziegler is a= professor at the Florida State University College of Law and the author of= three books on the history of U.S. abortion law and politics. To Ziegler, = the repeal of Roe hasn’t really changed American voters&rsqu= o; views on abortion policy; it’s changed their views of its politica= l stakes. Increasingly, Americans see even limited Republican initiatives t= o regulate abortion as belonging to a more ambitious strategy to enact maxi= mal and broadly unpopular restrictions. In the near term, it’s unclea= r how Republicans will adapt their political strategies as they look ahead = to the U.S. elections in 2024. It’s also unclear how Democrats will s= ustain their political advantages of the moment, as other issues start to c= ompete more for voter attention. But with an emerging generation of America= n voters now understanding abortion access as a defining political issue, Z= iegler says, a new American political reality is just beginning to take for= m.
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Eve Valentine: Po= lling seems to show a remarkable change in U.S. public opinion on abortion = since the Supreme Court’s Dobbs v. Jackson Women’s Health O= rganization decision last June. How do you interpret that?

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Mary Ziegler: I&r= squo;d say we have to be a little skeptical about it, actually. If you look= at certain aspects of public opinion on abortion in the U.S., they’v= e been very sticky over time. Since the 1970s, Americans have tended to be = opposed to outright bans on the procedure; they’ve tended to be suppo= rtive of certain restrictions; and they’ve tended to be more supporti= ve of those restrictions the later in pregnancy you go. The pattern hasn&rs= quo;t really shifted. What’s shifted is what it means to American= s to be opposed to or supportive of restrictions on abortion. That&rsq= uo;s where something’s really happening.

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Today, if you ask an American vote= r, Do you support Republican policies on abortion?—you&rsquo= ;re now asking them whether they support, for example, bans from the point = of fertilization, often with fewer or no exceptions. But these kinds of pol= icies have been unpopular since the ’70s—even before the 70s, a= cross large segments of the American population. So part of what’s ha= ppening is that the terms of the debate on abortion are changing, and Ameri= cans are reacting to that.

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And to some extent, this is changi= ng in turn how Americans are interpreting specific new restrictions on it. = People are becoming more likely to look at, say, a ban on abortion after 15= weeks, or some more incremental law, as a political step—by anti-abo= rtion groups and Republican legislators aligned with them—toward an a= bsolute ban; they’re becoming less likely to see it as a regulation t= hey might approve of on its own terms.

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Valentine: The is= sue has plainly had a significant impact on how well a lot of Democratic ca= ndidates did in last November’s U.S. midterm elections—or more = recently, for example, on the voting for a key seat on the Wisconsin State = Supreme Court. How do you understand that impact?

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Ziegler: It&rsquo= ;s had a significant impact, certainly. I think the biggest question is: Ho= w important is it going to end up being in races that turn critically on mo= re issues than just abortion?

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In the Wisconsin State Supreme Cou= rt election, there was more than one issue in play, but it’s fair to = say that abortion was the central issue. And whenever we’ve seen ball= ot initiatives on abortion in the U.S., the abortion-rights side has done r= eally well pretty much all the time.

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Things tend to get more complicate= d, though, when there are candidates running on a number of issues at once = and abortion is just part of the picture. To your point, we’ve seen r= ather a big swing in favor of Democrats in 2022 even in those cases. But if= you look at where that swing has happened, you see Republicans were still = campaigning on quite sweeping policies against abortion—because they = evidently believe that, especially in Republican-dominated states, voters w= ill set aside their preferences about abortion on account of their partisan= commitments. Or they believe that voters just won’t care enough abou= t abortion for it to be a deciding issue.

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And that now turns out not to be d= ependably true. In 2022, there was compelling evidence that, especial= ly with Generation Z voters—voters born between the late ‘90s a= nd the early 2010s—abortion has become a mobilizing issue. It’s= become something that changes political outcomes.

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Here, I think the Republicans are = working out of an older political playbook. If you were to look back to the= pre-Dobbs days, you’d see poll after poll where a majority = of Americans said they supported what Democrats were doing on abortion&mdas= h;but that abortion was a very low priority for them among election issues = overall. I expect Republicans are hoping that the post-Dobbs shift= is temporary—and that the U.S. will go back to a situation where Ame= ricans don’t care that much. But that seems unlikely—not least = because so many conservative state lawmakers and federal judges are keeping= the issue in the news.

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Ivy Gould / The Signal

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More from Mary Ziegler at The = Signal:

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“You have some anti-= abortion groups saying that the way for Republicans to win on this= issue is not to run away from it. You have other anti-abortion groups sayi= ng—as Ryan Anderson argued also in The Wall Street Journal recently&m= dash;that Republicans shouldn’t ultimately moderate their stance on a= bortion, but they should embrace opportunities for incremental progress in = restricting it. Either way, anti-abortion groups are maintaining pressure o= n Republican politicians—saying, if you go too far from what we want,= you’re going to lose support from the Republican base and start seei= ng your position in the party threatened by challengers from the right.&rdq= uo;

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“It’s not clea= r that Republican leaders entirely know what they want to do at th= is point. It’s hard to say whether there’s an emerging trend am= ong them, in part because we still don’t know who the party’s s= tandard-bearer is going to be. DeSantis’s strategy is basically to pr= ioritize winning the primary by courting social conservatives and to worry = about the general election later. You can see other Republicans inclined ei= ther to try moderating their party’s position or just not talk to abo= ut abortion at all.”

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“While there may be = a lot of political opportunity for the Democrats right now, it&rsq= uo;s not as if it’s all going to be there for the taking indefinitely= . We’ll certainly see a lot of money poured into state legislative ra= ces and state–supreme-court races. And the state–supreme-court = races, I think, will be the more revealing of the two, in the sense that, h= istorically in the U.S., we haven’t seen much money or attention paid= to these races. They tend to have run more or less on autopilot. That era = has probably drawn to a close.”

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Co= ntinue reading ...

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