The end of Roe
The era of judicial protection for abortion rights appears to ending. The Supreme Court is poised to uphold a Mississippi statute that prohibits most abortions after 15 weeks, and it is likely to do this by overruling Roe entirely. When this happens, many states will enforce draconian laws limiting access to abortion. There is a real possibility that Republicans will seek a national ban on abortion the next time they gain unified control of the federal government.
Democrats are unlikely to win a quick victory in the coming abortion wars, but they may be able to win a war of attrition – if they play their cards right and get a few lucky breaks.
There is good reason to think that Democrats can win the battle for public opinion over abortion rights. Very few Americans are prepared to support a highly restrictive and punitive set of abortion laws. Republican lawmakers and prosecutors appear likely to overreach and enact policies that most Americans find abhorrent. The stories of women victimized by harsh, dehumanizing laws and overzealous prosecutors will outrage Democrats and repel many Republicans and Independents who are conflicted on abortion.
Unfortunately, winning the battle for public opinion on abortion is unlikely to make the Democrats into a dominant political party that can unilaterally restore Roe. The best we can reasonably hope for is that anger over abusive laws will make the abortion issue damaging enough to Republicans to get them to negotiate a set of minimum national standards for abortion access that most Americans can support. Bipartisan agreement is critical for success at the federal level: without significant bipartisan support, any federal legislation protecting abortion rights would either be struck down by the conservative judicial activists on the Supreme Court or overturned the next time Republicans gain power.
Achieving a bipartisan settlement on abortion rights will require Democrats to compromise, most likely by shortening the period during which abortion is the sole prerogative of a pregnant woman in exchange for much easier access to abortion care.
In this essay I discuss public opinion on abortion and what this suggests for the Democrats’ messaging strategy. Then I explain why bipartisan compromise will likely be needed to protect the reproductive autonomy of women, and what such a compromise might look like. A theme throughout is that Democrats need to avoid letting their anger over abortion cloud their judgments about political strategy.
Moral outrage can lead us astray
Moral outrage is the political equivalent of TNT – useful if handled with care, but very dangerous otherwise. In the case of abortion politics, there are two ways that anger over the loss of Roe can lead Democrats astray.
First, outrage can lead to the use of polarizing language that turns away voters who have reservations about abortion but are inclined to support abortion rights. Using moderate language that recognizes the moral qualms these persuadable voters have about abortion is critical to gaining their trust and support, and thus to preserving some degree of reproductive autonomy for women. Outrage can also lead abortion rights supporters to attack Republicans in harsh, general terms, and to accuse abortion opponents of sexism or racism. This is counterproductive.
Second, the outrage that Democrats rightly feel – about Roe, about Bush v. Gore, about McConnell and Merrick Garland, and on and on – can create a sense of moral entitlement that makes it difficult to negotiate and compromise with Republicans on federal legislation to give women control over their lives and bodies. In particular, the best possible outcome I can see would shorten the period in which abortion is the prerogative of women while ensuring that access is much easier than it is today. It will be hard for many Democrats to accept this tradeoff, and the more Democratic activists and elites fan the flames of moral outrage to motivate voters, the harder it will be.
The art of persuasion
The most effective way to persuade people who disagree with you is to appeal to their values, not yours. If you want to persuade a small-government conservative to support a less punitive approach to criminal justice, talk about the expense of keeping people in prison. If you want to persuade a national security hawk who is not much concerned about climate change to support renewable energy, emphasize the national security benefits of energy independence.
This may seem like an obvious point, but it does not come naturally to people. As Feinberg and Willer put it:
Both liberals and conservatives typically craft arguments based on their own moral convictions rather than the convictions of the people they target for persuasion. As a result, these moral arguments tend to be unpersuasive, even offensive, to their recipients.
A better approach is to use arguments that appeal to the values of those you need to persuade. This is sometimes called “moral reframing”:
The technique of moral reframing—whereby a position an individual would not normally support is framed in a way that is consistent with that individual’s moral values—can be an effective means for political communication and persuasion.
A recent study by Kalla, Levine, and Broockman suggests that moral reframing can be effective at increasing support for abortion rights.
A second point about opinion worth bearing in mind is that people tend to attribute extreme views to opposing partisans. For example, a recent study finds:
But supporters of police abolition are the exception, not the rule, on the American left, according to research that my colleagues Matthew Feinberg, Alexa Tullett, Anne E. Wilson, and I conducted. In late October 2020, we asked more than 1,000 people in the United States whether they agreed that “police departments are irreversibly broken and racist, so the government needs to get rid of them completely.” Only 28 percent of the self-described liberals even somewhat agreed, indicating that this was not a solid consensus on the left.
Although far out of step with what most liberals actually thought, Carlson’s sampling of liberal views was emblematic of what conservatives believed about liberals. Conservatives in our sample estimated that 61 percent of liberals—more than twice the actual number—endorsed the abolition of law enforcement. This is a striking example of what plagues our politics: a false polarization in which one side excoriates the other for views that it largely does not hold.
This tendency to attribute extreme views to opposing partisans is important when we think about attracting support for reproductive freedom from Republicans and Independents who support some limits on abortion access. If persuadable voters suspect that Democrats are extremists on abortion rights, they may be reluctant to vote for a Democratic candidate, just as a swing voter who supports police reform but believes Democrats favor defunding the police may choose to vote Republican.
Public opinion on abortion
Abortion opponents are highly motivated and wield significant power within the Republican party. To limit their influence and force a reasonable compromise, Democrats need to persuade cross-pressured Republican voters that their party does not represent their views on abortion. To do this, Democrats need to understand how people think about abortion.
By a margin of about 2 to 1, Americans do not want Roe overturned. This tells us little about how people think about abortion, because few understand what Roe stands for. In addition, poll respondents often favor the status quo, whatever it happens to be, so questions of this sort likely overstate support for Roe.
About half of Americans identify as “pro-life”, but very few people are anti-abortion absolutists. Support for abortion in cases of rape, incest, serious fetal defect, and to protect the life and health of the mother is high, perhaps 80 to 90%. Support for making abortion freely available is highest in the first trimester, perhaps 60%, but drops to 25% or 30% in the second trimester, which indicates that many people have at least some moral concerns about abortion at later stages of fetal development. The proportion of people who support abortion at any time in pregnancy for any reason is low, perhaps 15%.
These figures are familiar, but they tend to understate support for abortion rights because many people who would not choose abortion for themselves do not feel comfortable imposing their views on others or oppose government restrictions on abortion for practical or philosophical reasons. Some of these people tell pollsters that they are “pro-life” or opposed to abortion, but when push comes to shove they will oppose many restrictions on abortion rights – provided we appeal to them and acknowledge their concerns.
Let me give some examples.
The Washington Post reports (page 6) that most people believe that the decision to terminate a pregnancy should be left to a woman and her doctor (75%), rather than regulated by law (20%), but 27% want Roe overturned.
Pew reports that 37% of respondents believe that abortion should illegal in “most” or “all” cases, but 41% of these respondents also say that the statement “The decision about whether to have an abortion should belong solely to the pregnant woman” describes their views very well or somewhat well. This suggests that only 22% of people are prepared to place hard legal limits on abortion rights.
Pew also reports that 56% of Americans say that “human life begins at conception and a fetus is a person with rights” describes their views at least somewhat well. However, 59% of people in this group say that “the decision whether to have an abortion should belong solely to the pregnant woman” describes their views at least somewhat well.
PerryUndem asks respondents if abortion should generally be legal or illegal in the second trimester; 43% say legal, and 57% say illegal. But when those who say abortion should be illegal are explicitly asked if lawmakers should pass a law making abortions illegal in the second trimester, the percent supporting legal prohibition drops from 57% to 38%. (Remember that support for abortion is much higher in the first trimester.)
The following table is from a Perry Undem poll (results starting here).
52% of respondents support unrestricted access to abortion for at least 3 months, while 45% believe that abortion should be available only in cases of rape, incest, or to save the life of the mother, or should never be allowed. However, when explicitly asked if they would support a legal restriction, only 25% would outlaw abortion or limit it to cases of rape, incest or to save the life of the mother.
A Vox/PerryUndem poll found that 37% of people agree that “women should have a legal right to safe and accessible abortion in almost all cases” but only 28% agree that “abortion should be legal in almost all cases”. This suggests that humanizing the issue by talking about women – rather than talking in abstract terms about rights – makes people less likely to support legal restrictions.
A Data for Progress poll asked voters to state which of three views came closest to their view on abortion. 31% chose “I support abortion, and I think abortion should be legal in most cases”. 32% chose “I don’t personally support abortion, but I think abortion should be legal in most cases”. And 32% chose “abortion should be illegal in most cases”. Of the polls that try to separate judgments about approval of abortion from views about legality, this poll finds the highest level of support for substantial legal restrictions. On the other hand, the same poll finds that 71% agree that women and their doctors should have control over medical decisions and that government should not interfere in personal matters, while only 22% thought the government should make decisions about abortion.
A recent study found that of those morally opposed to abortion, 76% would offer emotional support to a friend or family member seeking an abortion, and 40% would help with arrangements (only 6% would help pay). This suggests that people are willing to defer to the views of others who are facing what is for many a momentous and often very painful decision. It also is a reminder that funding for abortions is a tricky political issue for Democrats, a point I return to below.
To summarize: somewhere between 20% and 30% of the public would support highly restrictive laws limiting abortion to cases of rape, serious fetal defect, and to protect the life or health of the mother.
25% support may not seem that impressive in a democracy, but issue bundling, open primaries, and our two-party system of government allow a highly motivated minority to capture a party and punch far above its numerical weight. If Roe is overturned, there is a good chance that Republican legislators will support unpopular, highly restrictive policies. To get Republicans to moderate on this issue, Democrats will need to work hard to educate and persuade cross-pressured voters.
How to win the abortion debate: telling stories
To win the political battle over abortion rights, Democrats need to find language that can mobilize supporters without alienating voters who support abortion rights but are reluctant to vote for Democratic candidates. The best way to do this is to 1) tell the personal stories of women who are victimized by harsh abortion laws, 2) acknowledge that many people have moral concerns about abortion, attribute good faith to them, avoid attacking them or the groups they identify with, and signal a willingness to address their concerns, and 3) remind people that there is a difference between disapproving of abortion and using the power of the state to prohibit abortion.
Personal stories are essential because they both motivate base voters and appeal to people who have some moral reservations about abortion. Some abortion restrictions are obviously extreme and Republicans will pay a price for enacting. The personal stories of women forced to carry nonviable fetuses to term and the tragic death of Savita Halappanavar who died from sepsis after being denied an abortion when miscarriage was inevitable played pivotal roles in the campaign to legalize abortion in Ireland.
In addition to their motivating function, stories can play an important educational role by illustrating how efforts to enforce moral beliefs that are appealing in the abstract can go badly awry in practice.
Limiting abortion to (say) 6 weeks may seem reasonable to some people on the surface. But for many, this seems reasonable because they think about a case in which the everything goes smoothly: the woman realizes she is pregnant and quickly gets an abortion. In reality, of course, some women will not realize they are pregnant in time to get an abortion. Others will realize they are pregnant but not have the money to pay for an abortion, or will lack access to a clinic, or will be unable to arrange for childcare or take time off work. Some rape or incest victims may be too traumatized to get to a clinic in 6 weeks.
Similarly, a law limiting abortions to cases of rape or incest or to save the life of the mother seem reasonable to some people. But under such a law women may be denied medical treatment for miscarriages or ectopic pregnancies if laws are vague or poorly worded, and women who are raped may be denied an abortion if they miss a reporting deadline or a prosecutor doesn’t believe them.
The best way to communicate these complexities is by telling stories – stories of women who are raped and prosecuted for getting an abortion because a prosecutor doubts their story, of women who cannot get to a clinic on time, or who are denied an abortion and die in childbirth or due to an unsafe, illegal abortion, or who miscarry and are denied treatment. Unfortunately, there are many, many such stories, and there will be many more once Roe is gone.
Stories about zealot politicians and bullying prosecutors should appeal to conservative voters who are inclined to be skeptical of government power.
How to win the abortion debate: acknowledge the doubts, seek compromise
It is important to acknowledge that many people have moral qualms about abortion. The fact is that almost everyone does. Remember that Republican voters will tend to attribute extreme views about abortion to Democrats (see above). This will make some Republican voters uncomfortable supporting Democratic candidates even if they object to the policies supported by Republicans. Acknowledging that people have reservations about completely unrestricted access to abortion and promising to seek a bipartisan agreement on national standards is the best way to win the support of cross-pressured voters.
How to win the abortion debate: avoid sweeping claims about rights
To win over voters who have reservations about completely unrestricted access to abortion, Democrats should avoid sweeping moral language – such as unqualified language about rights – that defends abortion in uncompromising terms.
Uncompromising language suggests that the speaker does not share widespread concerns about abortion, especially later in pregnancy. Remember that when we say “X is (or should be) a right”, that is the conclusion of an argument that begins by showing how important X is to real people. This is one reason why telling stories about women grappling with pregnancies under difficult circumstances is so important.
Rights language can motivate true believers, but when advocates start with the language of rights they are preaching to the choir, not winning converts.
How to win the abortion debate: avoid harsh, sweeping moral criticism
To broaden their electoral coalition, Democrats need to avoid harsh moral criticism of broad groups that many persuadable voters identify with. They should avoid broadly criticizing Republicans or accusing people who have doubts about abortion of being sexist or racist. They should speak in a way that attributes good faith to those who have doubts about the morality of abortion.
Many people support abortion rights but identify as Republicans. To persuade these cross-pressured voters to support Democrats, Democrats should accuse Republican politicians of betraying common-sense American values and pandering to a small group of anti-abortion extremists. Voters absolutely hate being betrayed by politicians. Condemning Republican voters in general – calling them “deplorable”, for example – is a dead end.
Charges of sexism and racism should also be avoided, for similar reasons. Suppose Sheila identifies as Republican, is inclined to support abortion rights, but also has moderately high levels of racial resentment. Telling Sheila that restricting abortion rights is racist may make her more likely to support limits on abortion or to vote Republican despite her concerns about abortion. Or suppose that Dan is in favor of abortion and has somewhat sexist views about the role of women. Telling him that sexist people oppose abortion may make him more likely to vote Republican. This could happen if the charge of sexism makes Dan worry that Democrats are out of sync with him on other women’s issues, or if accusations of sexism offend Dan because he regards himself as enlightened on women’s issues. Claiming that opposition to abortion is sexist could also backfire if Dan proudly identifies as having somewhat sexist (“old-fashioned”) views about the role of women by focusing his attention on the fact that people who share his identity tend to oppose abortion rights.
How to win the abortion debate: avoid demoralizing Democrats
Finally, it is important not to heap blame on Democratic politicians for failing to protect abortion rights, or to set expectations that simply cannot be met. This encourages people to believe that voting is a waste of time, or even to feel betrayed by Democrats. Disappointed progressives often fall into this trap and demoralize their own voters.
This blog post at Jacobin illustrates the problem:
Now that we know what the court is planning, the next question is what the Democrats will do with this information. So far, all that seems to be in the works is a symbolic vote intended to put everyone on the record and lay the groundwork for making abortion rights an issue in the midterms.
That’s pathetic. Democrats want to posture as the defenders of democracy and gender equality. But as long as they continue to coddle the anti-choice reactionaries within their party, this rhetoric is a bad joke. A party that actually cared about those things would be waging all-out war to end the filibuster and codify Roe into law. [. . .]
This is put-up-or-shut-up time. If you care about something exactly enough to fundraise about it and issue strongly worded statements about it and use it to get out the vote in the midterm elections, but you don’t care quite enough to take the kind of stand that would risk defeat, fair-minded observers can’t be blamed for wondering if you actually give a shit.
Exactly nothing is gained by encouraging Democratic voters to believe that Democratic politicians do not really care about abortion rights.
We need a bipartisan settlement on abortion rights
So far I have argued that Democrats should appeal to people who are centrists on abortion, both because they hold the balance of power, and because the “centrist” position on abortion is largely pro-choice. Here I will suggest that Democrats should explicitly try to forge a new bipartisan settlement on abortion rights by negotiating with Republicans over minimum national standards for access. They should do this even though it will likely require some concessions that most Democrats would prefer to avoid.
To fix ideas, Biden should say something like this:
I disagree with the Court’s decision to overturn Roe, but the issue is now one that Congress needs to address. Many of us have some reservations about abortion, especially later in pregnancy, but the abortion laws we are seeing in some states are cruel and punitive. They reflect the views of a small number of extremists, not the values of the American people.
To end these abusive laws and the bitter divisions that the Supreme Court has created, we need to reach agreement on minimum national standards for abortion rights. I cannot decide on these standards myself – in our system that is the job of Congress. But I do believe we can reach an agreement if we listen to the soft voice of common sense rather than the shouting of extremists. Democrats stand ready to work on a sensible compromise that will honor the difficult decisions of women and avoid injecting government into the most personal of decisions. I hope Republicans will work with us to put an end to the abuses we are now seeing in too many places around the country.
An effort to reach an acceptable compromise with Republicans may well fail. It will almost certainly fail in the short term. But Democrats must try because a national settlement is the only way to offer meaningful and lasting protection to women. If the Democrats manage to pass national legislation without Republican support, it is very likely to be struck down by our highly partisan Supreme Court. The only way to get the Court to back off is by forging a broad bipartisan consensus on reproductive rights. And even if the Court does uphold a strong Democratic bill protecting reproductive freedom, without a strong bipartisan consensus Republicans will overturn it next time they gain control of the federal government. At the very least, Democrats should see if they can negotiate an agreement that is a substantial improvement over the post-Roe status quo.
Seeking a national consensus on abortion rights will also allay the fears of voters who object to the abusive laws in some Republican controlled states but who worry that Democrats are also extremists on abortion rights, just on the other side.
Compromise should be acceptable to Democrats
What would a bipartisan settlement on abortion look like? Under Roe, the right to an abortion is nominally guaranteed until the point of fetal viability, about 23 weeks. Most abortions happen much earlier, but many women have difficulty accessing abortion care due to onerous regulations and restrictions on public funding. To achieve a bipartisan settlement on abortion, Democrats will have to accept a shorter period during which abortion is permitted for any reason, in exchange for much easier access to abortion. Exceptions to permit abortions later in pregnancy would have to be carefully structured to avoid becoming a loophole that allows abortion at will, but also to avoid dangerous delays, intrusive legal oversight, and the threat of criminal punishment in ambiguous situations.
For many women in states that make abortion difficult to obtain, a settlement along these lines would likely result in greater reproductive autonomy than they enjoyed under Roe. At the same time, it would recognize the discomfort many feel about abortions in the second and third trimesters.
To make this work, Democrats will need to think carefully about what their priorities are and how they can come to terms with Republicans. They will need to be creative in thinking about tradeoffs. There is no single formula for success.
There are many ways to facilitate early access to abortion. Ensuring that everyone has health insurance and a relationship with a primary care doctor would certainly help and is desirable on basic fairness grounds. Easing access to medication abortion and educating women about how to obtain it is another obvious step to take. Doctors could be allowed to prescribe abortion-inducing drugs over the phone. Abortion medications could even be sold over the counter.
Laws restricting the availability of clinic-based abortion will need to be loosened, but some restrictions are more popular than others, which will necessitate creativity and compromise. For example, it turns out that waiting periods are fairly popular (42%/60%/81% support among Democrats/Independents/Republicans in this poll). Perhaps a workable compromise would be to allow a 24 hour waiting period but only for woman who have to travel less than 15 miles or 1 hour to reach a clinic. This would give states that want to impose a waiting period an incentive to ensure that care is easier to access.
Another important barrier to access is cost. It would be natural to ask for federal funding for abortions as part of a settlement that reduced the time period in which abortion is allowed for any reason in exchange for easier access. The challenge is that federal funding for abortion is unpopular with the public overall, and my guess is that it is even more unpopular with the abortion centrists and fiscally conservative Republicans who Democrats need to win over. As I noted above, many people who oppose abortion are willing to support a friend or family member who chooses to terminate a pregnancy, but they are unwilling to help pay for it.
So what might an acceptable compromise on funding look like? One possibility is to give women hassle-free, instant access to zero-interest financing. The charge for a $500 abortion could be paid back over 4 years at $10 per month. This is far from a perfect solution, and many details would have to be worked out, but it would allow women to show up at a clinic and get an abortion.
Progressives who accept the need for compromise will be inclined to push for a better settlement than I outlined above, including better financial support for poor families with children. Pushing for better legislation is fine, but Democrats should not let their vision of the just society or their anger about Roe block negotiations aimed at securing meaningful protection to vulnerable women.
Democrats will likely respond to the demise of Roe by stoking anger at Republicans and the Supreme Court to mobilize base voters. This is a mistake; mobilization alone is unlikely to help Democrats win concessions on abortion, let alone become a majority party. Democrats need to mobilize their base and attract cross-pressured Republicans and Independents. Fortunately they should be able to do this – the “centrist” position on abortion is reasonably pro-choice – but they need to remember that politics is a team sport. They need to use messages that appeal to cross-pressured voters who have reservations about abortion. They need to educate voters about the complexities of abortion and remind voters that having government enforce personal morality does not always work out as well as moralists expect.
Democrats also need to signal an openness to compromise on federal legislation protecting abortion rights. After Roe is overturned the rights of women will be largely decided in legislatures, not courts. Without a major shift in the political balance of power between the parties only bipartisan federal legislation will protect vulnerable women, and legislation requires compromise.