The Abortion Squeeze

How the Supreme Court could damage the Republican campaign.

By
279
A counter protester demonstrates as others rally in support of abortion rights at the Supreme Court in Washington, D.C., on April 15, 2023. (Photo by ANDREW CABALLERO-REYNOLDS/AFP via Getty Images)

One of the biggest problems for Democrats in this election cycle is what we might call “the game-changer gap.”

Simply put, there are many more things that could plausibly happen to tank Joe Biden’s reelection chances than could happen to tank Donald Trump’s. Which is ominous considering that, of the two, Biden is the one with no margin for error.

To some degree, that’s the nature of incumbency. If the economy slips into recession or a terrorist bomb goes off on U.S. soil, the president will be blamed. Every misfortune that befalls America is potential grounds for new leadership.

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  1. Bcpille

    Pro-lifers would do well to pay heed to David French's assertion that the battle will not be won in the courts or legislative chambers. The real battle is for hearts and minds. The only way to significantly reduce the number of abortions in this country is to make it socially unacceptable. Even granting legal personhood to prenatal people would only go so far. People need to truly believe that prenatal people are people.

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    1. Johnsondm03

      That may be true long term, but the law is a teacher, and shapes culture. Do you believe that the slavery question would have been settled through a strictly "hearts and minds" campaign after 200 years of institutionalized slavery which was upheld on multiple occasions by the Supreme Court? Bless David French for attempting to lower the temperature on this, but he ignores the good offices of law which ends the human rights violation.

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  2. Bcpille

    Based on this description, the Comstock Act also prohibits shipping contraceptives. Does anyone really want to kick that beehive?

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  3. Anna K. Gorisch

    Ugh, do we really have to fight about abortion for eternity? Will it never end?

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    Charley Warns

    It's not a constitutional right, full stop. Read Alito's argument:

    (e) Abortion presents a profound moral question. The Constitution
    does not prohibit the citizens of each State from regulating or prohib-
    iting abortion. Roe and Casey arrogated that authority. The Court
    overrules those decisions and returns that authority to the people and
    their elected representatives. Pp. 78–79.

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      Kmregan7

      In Alitos learned opinion it is not one. There are other Supreme Court justices, just as learned and informed, who disagree.

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    Chris

    It's unsurprising that abortions have risen. We can see the hollowing out of most public institutions and the criminal politicians we vote in. Is it surprising at all that such an immoral people would not be in favor of infanticide on demand?

    Trump has done more damage to the Pro-life movement than any left-wing politician ever did. He has managed to co-opt it. All I can say is that abolition took almost a century in this country and we had to wage a war to end it. Peaceful negotiation of such flagrant human rights violations will likely take longer as its most zealous defenders dig their heels in and offer up excuses as to why we should continue to brutalize our fellow brothers and sisters.

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      Driven away by the bigots

      The pro-life movement has had zealots in it's own ranks doing plenty of damage to the cause before Donald Trump ever got involved.

      I would also argue that your view of the pro-choice community is either some kind of elaborate satire of a pro-life position OR you're so insulated in your own little bubble that it's ignorance held in good-faith, which I won't begrudge you, other than to ask you to open your eyes.

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        Charley Warns

        At what moment in your life did the reproductive right of your mother end and your right to life begin? At what minute in the pregnancy does it become the taking of a human life? Explain why it was not that the second before your answer.

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          Kmregan7

          People have different opinions about this based on their own personal circumstances, religious beliefs and morals, and experiences. Yours does not take precedence over the woman’s involved- I’d argue it’s the least important opinion. You’re against abortion. Good for you. Stating what you believe is great- but it isn’t persuasive at all.

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          Driven away by the bigots

          What a silly question! I owe you neither an answer nor an explanation if you arent playing the role of a serious interlocutor.

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        Chris

        I think pro-choice people come in 2 groups:

        1) unwitting defenders: these people haven't thought about the issue beyond being told they are going to be forced to be mothers in some dystopia. I think this group is wrong but not realized the actual evil they are defending. They see the negatives (I'm not pretending there isn't any upside to abortion) without considering/engaging in heavy self-deception about the cost of it (engaging in infanticide). This is the majority of people and they need to engaged in argument.

        2) actual psychos: people who know what they are defending and do so anyways. These are the population control crazies, the eugenicists, the racists, and others who turn their back on human rights. There are no excuses here, we live in a liberal society which recognizes human rights. This group is smaller but is comprised of zealots who are going to dig in their heels and fight with everything they have.

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          Driven away by the bigots

          Yeah, you think that because you’re an idiot.

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            Chris

            How will I ever recover from this retort?

            An advocate of murder thinks I'm an idiot!

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          Kmregan7

          Yeah they couldn’t possibly be thinking, intelligent people who have a different opinion than you.

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      3. Deleted Comment

        This comment has been deleted

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    Tmcke

    Funny about abortion. And I am sharing my experiences as a college student before Roe. It was routine that the women's dorm would have a student or 2 carried out on a stretcher because of the results of a back alley abortion. Since Roe - abortion is accepted by the majority. And the phrase "on demand" is misleading. Late term abortions are largely the result of a medical tragedy.

    And yes, you can warp the questions asked in a survey to "prove" that anti-abortion sentiment is more prevalent, but as we have seen since Dodd, abortion is the winner.

    Especially re medical abortions which come earlier - well most women and maybe most men, see no harm in allowing.

    The notion that the zygote or fetus has equal standing to the mother from day 1 is simply absurd.

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      Charley Warns

      I went to college and stayed at a dorm and never saw that happen. Let me ask you this: At one moment did your mother's reproductive rights end and your right to life begin? And whatever your answer is, what changed from the second before that when it was okay to end your existence? What I'm asking is this: How can you have a right to life at one second but not the second before that? What happened?

      In the NR piece, "The Disingenuous Debate over Ectopic Pregnancy and Miscarriage," DeSanctis writes: "Every pro-life law has an explicit exception allowing doctors to exercise their medical judgment and perform necessary procedures if a mother is at risk of death or substantial impairment. Many of the laws also contain a section noting explicitly that ectopic pregnancy and post-miscarriage treatment aren’t classified as abortion procedures."

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      Chris

      There was a time when slavery was politically popular. It has no bearing on its morality.

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      1. Scroop Moth

        The difference is, the citizens of our slave republic knew that slaves were persons while a large majority of the public today knows that the human fetus is not a person. There is lots of evidence for this. Abortion criminalizes are unable to show that the human fetus possesses any number of the traits of personhood, as we perceive them phenomenologically, so they rely on religious dogma, metaphysical inferences from the Aristotelian concept of potential, and, when all else fails, mortality aversion and pathos (a beating heart! little fingers! the weakest among us!).

        Until criminalizes themselves agree to punish abortion as murder, their abortion restrictions are no more cogent than blue laws, and everybody knows it.

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        1. GenZConservative

          It is really in fact the opposite - you can with very little effort find antebellum diatribes on the non-personhood of the enslaved. Even in the North abolition wasn't a majority opinion.

          Similarly, most people with medical degrees agree that the human fetus is a person. It is an independent living human organism. The "evidence" most people cite (needs external life support! no brain activity! etc.) construe "personhood" in a very "problematic" way that would exclude many disabled or even temporarily injured persons.

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          1. Scroop Moth

            Could you please send a link? You are correct that enslaved persons lacked *legal rights* as persons in court, just as wives were stripped of the right of self-governance. Slavery was a divinely established institution that gave masters rights to property *in* persons. Masters could “punish” them to death with impunity. But the enslaved, unlike animals, were counted for representation. Slavers could be, and at least one of them was, convicted by a jury of other slavers of murdering his slave, and hung. People knew that enslaved persons could read, be exhorted to do their “duty”, and go to heaven when they died.

            Comatose persons have personal histories, relationships in society, living wills, etc. Our comments here scratch the surface of the subject.

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          Charley Warns

          You know that "criminalizes" is a verb, right? But anyway, please answer this: At what moment did your mother's reproductive right end and your right to life begin? And then explain how that right could change from one second to the next.

          You're trying too hard: "metaphysical inferences from the Aristotelian concept of potential ..." That you made such a lame straw man argument at the end is only fitting.

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          Chris

          what proof do we need to offer beyond:
          1) The baby is not the mother (DNA proves this)
          2) It is alive (we can observe all kinds of biological processes and a fetus is nowhere near the distinction between virus and bacteria)

          Our society has 3 exceptions to an absolute prohibition on killing our fellow humans:
          1) War (Need I say any more?)
          2) Capital Punishment (I personally oppose this but at least we recognize that the person has done some kind of horrific crime before being killed)
          3) Legal affirmative defenses (Self-defense is a choice between being murdered or killing)

          Abortion is an argument that a human can be killed for being inconvenient. It's no where near these exceptions. A pregnancy involves 2 innocent people who have committed no crime and a war on babies sounds like a comedy skit. We are either for human rights or we are not. This is not to say that we should not be understanding of what this requires us to do elsewhere. I am for all kinds of other policies to avoid abortion and to assist the mothers that do not want their children but I will never be for killing a fellow human because they are inconvenient.

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          1. Scroop Moth

            Killing a person because they are inconvenient, or cause expense, or prevent a romantic interest, etc. can be special circumstances that make a murderer eligible for the death penalty. However, persons who with pre-meditation contract abortions aren’t charged with capital murder, aren’t prosecuted at all, and are even absolved of having a mens rea. What’s up with that? Most reasonable and admirable persons don’t consider abortion to be murder because they don’t believe the human fetus is a person.

            BTW, I too am against murder, but abortion isn’t murder

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        Driven away by the bigots

        Setting aside the tired comparison to slavery, how popular the pro-choice position is should tell you something about the wisdom in *how* one should approach the subject politically in order to make the most effective policy. Or is this so blatantly obvious it doesn't need to be stated? Let me know.

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          Chris

          I think the pro-life crowd needs leadership and messaging. Getting away from Trump is essential and engaging with the topic for what it actually is: the threshold question of whether this is killing a human being or not?

          We can't stop liars from pretending that pro-life people want the handmaid tale, or that theses babies are unwanted, or that they hate the mothers, or trying to change topics and discuss another issue they think they have a better position on. We have to simply stick to the threshold question and point out the obvious and offer alternatives. The fact that the more zealous pro-choicers hate pregnancy crisis centers and try and close them whenever possible (or just commit arson like its the 60s again) tells us that they fear them. These places are desperate for resources and the pro-life movement would do well to fix that.

          Slavery is actually apt as its another flagrant human rights violation that was legal and supported before abolitionists convinced people that black people are persons. It lines up quite well.

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  7. Emma

    This medication is also used by women who have experienced a miscarriage but the embryo/fetus hasn't left the body.

    So, the pro-life right wants women to either A. pay more (a LOT more!!!) for the surgical procedure; or B sit with their dead baby in their body (for days or even weeks) and hope it expels naturally without any complications that can harm the woman or a future pregnancy or C; allow her to use the pill only after spending more money to see a doctor again.

    And of course, they also do not have a healthcare policy that would address these issues at all.

    These people are sick.

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      Cheerio

      Additionally, this column reported the increase of abortions since Dobbs... yet did not also report the increase of maternal and infant mortality. I find this irresponsible.

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        Tmcke

        Do you think that they are related? I don't see it.

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          Kmregan7

          Maternal mortality for sure- women who need an abortion for health/life reasons but can’t get it or can’t get it soon enough because of laws that tie doctors hands (even if unintentional) leading to women dying.

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      DougAz

      It is sad that here in the 21st century, that some right wing, some largely Christian, some mostly white men, are so afraid of women's self-evident rights of Liberty and Freedom, when they falsely and improperly lay singular claim to our founding vision for themselves.

      And even Ms. Matthew's politicized review of the wonderful story of Cabrini service to others is lost in the rights Demonizing of pro choice women.

      Cabrini would provide her services of aid and support without judgment.

      But. RoeVember is remembering.

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        Cheerio

        These RW people who claimed a "silent majority" have No Idea What They Are In For. RoeVEMBER. MFERS! the language in the "exception" clauses are so vague that Drs can't risk their liberty nor their licenses which is why women in Louisiana had to receive C-Sections vs a D&C with a nonviable fetus (much higher risk for complications). Privileged White Christian Men in State Houses are not at all acquainted with women's health and risks. They should not have the right to determine their healthcare choices. This should be between the women and their doctors (actual experts in OB/GYN and fetal anomalies).

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          DougAz

          Perhaps when women rule, we might have some male voting restrictions on women's issues.

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            Cheerio

            I don't think that is possible under our current Constitution and Federal Equal Opportunity Edicts.

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          2. Johnsondm03

            Can you give me an example of women ruling, in any society, in all of recorded human history?

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  8. Johnsondm03

    You're making this too complicated, Nick. The trend towards almost universal chemical abortions actually, paradoxically, makes abortion easier to eliminate, and it has nothing to do with the Comstock Act - its far easier than that. Once we get to the point of 90% chemical abortions, then mifepristone needs to be classified as a Schedule I drug under the Controlled Substance Act. And the beautiful thing about this is that the President can do this without Congress, since the Administration controls the Drug Enforcement Administration. Will women still be able to get mifepristone under such a drug regime? Yes, but when the legal penalties for shipping mifepristone become identical to the penalties for shipping heroin and cocaine, the supply quickly dries up. Ideally, we would like to make abortion unthinkable and unavailable; but if we can't make it unthinkable, then making it unavailable is good enough.

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    1. BPhillips

      Unless there is a potential for abuse & addiction, no.

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      DougAz

      Never ever happen. These are ultra safe drugs. Their safety and efficacy are significantly higher than probably half the drugs on the market.

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      1. Johnsondm03

        I think that you are misunderstanding the purpose of mifepristone. It is a drug which is intended to kill a human being in utero. How is that "ultra safe" for the person being killed?

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          DougAz

          So wrong. You completely misunderstand the core concept of a live and human.

          There is no "person". That is a falsehood.

          There is no killing. That is a an untruth as no law calls it killing.

          However, calling it "killing" is the calling a woman a murderer. Which is a lie in truth and fact.

          It is also hate speech against women who have had, and choose the right to have an abortion.

          Calling it killingnis the moral equivalent of the worst of racist and antisemitic speech. In my and many women's opinion.

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          1. Johnsondm03

            So, do you believe, then, that some human beings - in this case, prenatal human beings - cannot be included as "persons"? There is a long and shameful history of exactly this kind of thinking in this country, which you continue to perpetuate.

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    3. Slaffey

      I don't think you understand how the Controlled Substances Act works. Here is a clip from the text of the act with regards to classifying/reclassifying substances:

      "(c) Factors determinative of control or removal from schedules
      In making any finding under subsection (a) of this section or under subsection (b) of section 812 of this title, the Attorney General shall consider the following factors with respect to each drug or other substance proposed to be controlled or removed from the schedules:

      (1) Its actual or relative potential for abuse.

      (2) Scientific evidence of its pharmacological effect, if known.

      (3) The state of current scientific knowledge regarding the drug or other substance.

      (4) Its history and current pattern of abuse.

      (5) The scope, duration, and significance of abuse.

      (6) What, if any, risk there is to the public health.

      (7) Its psychic or physiological dependence liability.

      (8) Whether the substance is an immediate precursor of a substance already controlled under this subchapter.

      I don't see how mifepristone fits in any of these categories.

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      1. Johnsondm03

        Here is exactly how mifepristone fits into the categories:

        (1) Its actual or relative potential for abuse: mifepristone prescribed via telemedicine without a visit to a physician has the inherent trend towards abuse; however, let's assume that prescription via telemedicine is discontinued - we still have the next factors.

        (2) Scientific evidence of its pharmacological effect, if known: the pharmacological effect is the killing of a human being in utero; this is not even contested or debated - that by itself is justification enough for the Attorney General to add mifepristone to the schedule I list.

        (3) The state of current scientific knowledge regarding the drug or other substance: current scientific knowledge is that mifepristone is intended to kill a human being in utero.

        (6) What, if any, risk there is to the public health: the fact that this drug intentionally kills tens of thousands of prenatal human beings represents a clear and unambiguous threat to public health.

        (7) Its psychic or physiological dependence liability: somewhat of a minor issue, but the reliance interest could be interpreted as creating a "psychic dependence" among women. Again, not the strongest argument, but the previous factors absolutely justify mifepristone's inclusion as a controlled substance.

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          Driven away by the bigots

          I love how you think you've laid out a slam dunk case when all you've managed to do is reiterate the terms of the debate that's been happening for decades. I mean, good for you, though, being able to regurgitate the tired talking points of some of the pro-life zealots who walk around with blind spots large enough to be hazardous to the safe navigation of intellectual discourse. Quite an accomplishment!

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          1. Johnsondm03

            Your objections have been noted and given the consideration which they are due.

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          2. Dhafvens

            The original point of this post chain is that it would be easy for conservatives to use the text of existing laws to ban chemicals used in chemical abortions. Is it based on definitions? Sure... But that doesn't change the original point.

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          3. Jenaigoss

            But that the life of a genetically distinct, growing human organism begins at conception isn't "debated," is it? Except perhaps by those who didn't pay attention in high school biology when learning about the lifecycles of different organisms.

            It's the rights or standing those unborn humans should have, if any, which are debated, or the relative rights when there's an ethical dillemna bringing the rights of the mother and natural rights of the child in conflict.

            It makes perfect sense for a substance leading to the loss of human life in the majority of cases to be controlled and not allowed to go through the U.S. mail.

            But it would make sense for the Democrats to get on an amendment allowing controlled or labeled mailing to authorized facilities where it can be given by doctors.

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        2. Marc Whipple

          There are two separate issues: the Constitutional or legal and the political. If Dobbs is not overturned, there is a decent chance your proposed application of the Controlled Substances Act to medications inducing abortion would be ruled Constititional and legal by the current U.S. Supreme Court.

          But politically, what you propose would be a disaster for the GOP. There is no magic pill (pun intended) in a democracy. Persuasion is required. The pro-life movement has had some success in its advocacy against late term surgical abortions. But there is no possibility I can foresee of persuading a viable block of voters against abortion medications, other than in deep red Congressional Districts and maybe a few states. Use of either the Controlled Substance Act or Comstock Act to restrict abortion medications would be quickly reversed by the next administration.

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          1. Johnsondm03

            Marc, you may be correct about persuading a majority of voters, but that's not the point. The point is to stop the human rights violation, even if a majority are in favor of continuing it.
            You're correct, as well, that any subsequent administration could immediately reverse the policy using the Controlled Substance Act - which is why I've argued for years that the only way to end this with finality is through an amendment to the Constitution protecting life in the womb from the point of fertilization. Slavery was never going to be ended by legislation, too many Americans supported its continuation; the 13th Amendment was always going to be required.

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        3. BPhillips

          Just looking at #1 - that isn't what abuse means. The rest is really just hard core anti-abortion rhetoric. Except #7 - that's just loony

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          DougAz

          Your statement, "is that mifepristone is intended to kill a human being in utero."

          Is 100% false.

          There is no "killing" period.

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          1. Johnsondm03

            What do you call it when a human being who is alive and growing is then intentionally denied life-sustaining nourishment and asphyxiated?
            I call that killing - what do you call it?

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    Brian L.

    > “He’ll be term-limited if he returns to the White House…”

    Don’t be so sure about that. :-)

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    1. John

      I agree. Trump cares not at all for our laws and institutions

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        Kmregan7

        From what I can see, his followers also don’t care too much for our laws and institutions either

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        1. John

          If America fails as a free and democratic republic it will not be defeated by China or Russia but by those right here in our country who refuse to abide by our laws and constitution. It’s the MAGAs who will destroy America

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  10. AJLiberty

    The conservative position used to be that the federal government has no generalized police power to regulate the parameters of a contentious medical procedure. I know, I know that ship has sailed and the Commerce Clause now just needs an economic activity with just a sliver of an interstate jurisdictional hook. But let's recognize and concede that this is not small government conservatism.

    The problem is that we're replacing persuasion with lawfare.

    The last I looked no one has decidely established when life begins and when fetal life should take precedence. These are contentious moral questions with real implications for individuals. Personally I'm uncomfortable making generalized rules for really individualized...and in some many cases truly awful.....circumstances. Few if any women choose to wait late into a pregnancy to indiscriminately terminate. It almost seems a slander to suggest otherwise.

    Conservatives should get back to trying to make it easier to choose life. Make adoptions easier; provide resources to women who need them, including contraception. Consolidate the victory that is Dobbs and build national consensus. Right now our politics is toxic and if there is anything that we see with results from Kansas and Ohio, over-reach is being shut down. It's difficult but we have to actually do the hard work of being less obnoxious and self righteous in our politics so there is some trust in the process.

    Nominating Trump is a step in the wrong direction. Not because he cares that much one way or the other about abortion, but because he is the essence of division...and will always choose it for personal benefit and to the detriment of the country. The reality is to move the pro-life position forwar.d, you need someone who can genuinely speak in compassionate and thoughtful terms. That ain't Trump. But the base continues to saddle us with him....so much of the current theater is just that...theater. We will throw stones but nothing will happen until someone takes firm hold of the middle-of-the-road position. We need a leader, not a con man. We will continue to founder until we accept that truism.

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    1. Seth.Depenning

      Well stated.

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    2. Mary Stine

      I agree with all of this and I'm heartened that someone else sees the pitfalls of generalized laws around women's bodies only. I also believe that conservatives should get back to making choosing life not only preferable, but easier than choosing death. Right now there is little to no compassion for women in life-threatening situations, many of which sadly occur in the 2nd trimester, where fetal and maternal stresses are worst for women of color. A baby is a baby, a mother is a mother, regardless of race or income, but the medical industry is not well motivated to listen to the concerns of women of color or poor women.

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      Patrick

      Agree with much of this, but not entirely the first sentence. My conservative position was that it should be decided by our elected legislators (either state or federal, wherever the chips fall), but not by judges.

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      1. BPhillips

        I don't think legislators are qualified to be making medical decisions.

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          Patrick

          They listen to experts. Same reason we have laws about nuclear energy, cybersecurity, assisted suicide, and infinite other issues.

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            Kmregan7

            They don’t seem to be listening to experts in this issue, which is why we keep getting statements like “women’s bodies will shut that down if it’s legitimate rape” when talking about pregnancy
            And why we keep having women who have problems in pregnancy get closer and closer to dying because legislators can’t foresee what can happen during pregnancy or how fast it happens and writes questionable laws leaving doctors in a bind, especially when you have zealous anti-abortion prosecutors eager to get rid of an “abortionist.”

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          2. BPhillips

            Sometimes they listen to experts. They always listen to their constituents. That can turn medical decisions into political footballs - that isn't ideal. Just look at the number of state legislators deeming puberty blockers harmful - I've seen many a legislator claiming they can cause permanent sterility - 100% hogwash. There are medical boards who weigh risks & benefits of every treatment, without taking politics into consideration. Let them do their jobs.

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      2. AJLiberty

        But is a broad interpretation of federal Commerce Clause power a conservative position? I agree that it might be a realistic view. I'm just not sure it's consistent with the conservative view that the federal government is one of few enumerated powers and that divisive matters ought to be decided at the lowest practical level of government.

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